DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2012-104 
 
XXXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXXX 
  

FINAL DECISION 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section  425  of  title  14  of  the  United  States  Code.    The  Chair  docketed  the  application  upon 
receipt of the applicant’s completed application on March 20, 2012, and subsequently prepared 
the final decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  December  7,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATION 

 
 
 The applicant asked the Board to correct his record by changing his RE-4 (not eligible to 
reenlist) reenlistment  code and his  JKB (involuntary discharge  by reason of misconduct due to 
conviction by civilian authorities) to codes that would allow him to enlist in the Navy Reserve as 
a registered nurse (RN).   
 
 
The applicant stated that his discharge was due to an event (criminal vehicular homicide) 
that  occurred  while  he  was  in  a  liberty  status.    He  stated  that  since  that  day  he  has  earned  a 
master’s degree and a RN degree.  He stated that he has proved that what happened was a fluke 
or an accident.   
 
 
The applicant stated that he discovered the alleged error on February 28, 2012.  He stated 
that  if  his  application  is  untimely,  it  is  in  the  interest  of  justice  to  excuse  any  untimeliness 
because  he  has  led  an  exemplary  life  since  he  left  the  Coast  Guard  and  he  has  proved  to  the 
nursing licensure board of his state that he has good moral character.   

 

The applicant enlisted in the Coast Guard on October 9, 1990.  On January 28, 1995, the 
applicant, while on liberty, was driving under the influence of alcohol when he collided head-on 
with  another  vehicle.    The  person  in  the  other  vehicle  died  from  injuries  sustained  in  the 

BACKGROUND 

 

 

 

accident.    On  June  9,  1995,  the  applicant  pleaded  guilty  in  civilian  court  to  criminal  vehicular 
homicide.1    He  was  sentenced  on  July  7,  1995  to  serve  48  months  in  the  state  correctional 
facility, of which the applicant was required to serve 32 months with the remainder being served 
on  supervised  release  status.      He  was  committed  to  the  custody  of  the  commissioner  of 
corrections at that time.    

 
On July 10, 1995, the  applicant’s commanding  officer (CO) informed the applicant  that 
he had initiated action to discharge the applicant from the Coast Guard by reason of misconduct 
due to his civilian conviction for criminal vehicular homicide.   

 
On  July  15,  1995,  the  applicant  acknowledged  the  proposed  discharge  and  his  right  to 
consult with a lawyer.  He did not object to the discharge, but wrote in his statement that he did 
not  want  a discharge due to  misconduct  because it would adversely  affect  him when he sought 
employment upon his release from incarceration.  He also noted his excellent performance record 
and stated that serving in the Coast Guard had been a very positive experience.   

 
On  July  22,  1995,  the  applicant’s  CO  recommended  to  the  Commander,  Military 
Personnel  Command  that  the  applicant  be  discharged  from  the  Coast  Guard  under  Article 
12.B.18(b)(1)  of  the  Personnel  Manual  by  reason  of  misconduct  due  to  a  civilian  conviction.  
The CO recommended that the applicant received an honorable discharge based upon his quality 
of service over the period of his enlistment.  

 
On  July  27,  1995,  the  Commandant  approved  the  applicant’s  honorable  discharge  from 
the Coast Guard by reason of misconduct due to a civil court conviction under Article 12.B.18 of 
the  Personnel  Manual.    The  Commandant  directed  that  the  applicant  be  assigned  a  JKB 
separation code. 

 
On  August  17,  1995,  the  applicant  was  discharged  from  the  Coast  Guard  with  an 
honorable discharge, by reason of misconduct due to a civilian conviction, with a JKB separation 
code and an RE-4 reenlistment code.    

 

VIEWS OF THE COAST GUARD 

 
 
On August 22, 2012, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion recommending that the Board deny relief.  The JAG noted that the application 
was untimely because the applicant  should have  discovered the  alleged error  at  the time of his 
discharge  on  August  17,  1995.    The  JAG  stated  that  the  applicant’s  argument  that  his 
untimeliness should be excused because he has led an exemplary life since his discharge is not 
persuasive because it has no bearing on the reasons for the discharge.  The JAG also argued that 
it  is  not  in  the  interest  of  justice  to  excuse  the  untimeliness  because  a  cursory  review  of  the 
merits reveals that it is unlikely that the applicant will prevail on his claim for an upgrade of his 
reenlistment and separation codes.   
 
                                                 
1   The charge to which the applicant pled guilty was as follows:  “The Defendant [applicant’s name], did cause the 
death of a human being, to-wit:  [deceased person’s name], while operating a motor vehicle while having an alcohol 
concentration of .10 or more as measured within two hours of the time of driving.”   

 

 

The  JAG  stated  that  Article  12.B.18.b.1  of  the  Personnel  Manual  authorized  the 
 
Commander,  Coast  Guard  Military  Personnel  Command  to  discharge  a  member  by  reason  of 
misconduct  for  conviction  by  foreign  or  domestic  civil  authorities  of  an  offense  for  which  the 
maximum  penalty  under  the  UCMJ  is  death  or  confinement  longer  than  one  year.      The  JAG 
stated that at the time of the applicant’s civil conviction, the maximum penalty under Article 119 
(involuntary  manslaughter)  was  confinement  for  three  years,  which  satisfied  the  confinement 
requirement  for  a  discharge  by  reason  of  misconduct  due  to  a  civil  conviction.   The  JAG  also 
stated the following: 
 

As to the applicant’s post-discharge good conduct argument, past Board decisions 
in BCMR Nos. 2007-095 and 2012-020, “dictate that in considering the character 
of a discharge, the Board should not upgrade a decision based on post-discharge 
conduct  alone,  but  may  take  into  account  changes  in  the  community  mores, 
civilian  as  well  as  military,  since  the  time  the  discharge  was  rendered,  and 
upgrade  a  discharge  if  it  is  judged  to  be  unduly  severe  in  light  of  contemporary 
standards.”    Current  Coast  Guard  policy,  however,  has  not  changed  regarding 
criminal  conduct  as  demonstrated  by  the  applicant.    In  fact,  the  applicant  could 
very  well  have  received  a  lower  discharge  than  the  Honorable  discharge  that  he 
currently  has.    [The  JAG]  and  .  .  .  PSC  are  in  agreement  that  the  applicant’s 
separation and reenlistment codes are correct and should not be changed. 
 
In  order  for  there  to  be  an  injustice  rising  to  the  level  that  merits  action  by  the 
BCMR, there must be treatment by the military authorities that “shocks the sense 
of justice.”   Sawyer v. United States, 18 Cl.  Ct.  860, 868 (1989) (citing  Reale v. 
United States, 208 Ct. Cl. 1010, 1011 (1976), cert. denied, 429 U.S. 854 (1976).  
The  applicant’s  application  fails  this  test  since  his  conduct  at  the  time  of 
separation  would  entail  the  exact  same  treatment,  or  worse,  if  it  were  to  happen 
today.  It is not [Coast Guard] policy to change separation and reenlistment codes 
simply due to the passage of time and a lack of misconduct during the applicant’s 
subsequent time as a civilian.     

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
applicant for a response.  The Board did not receive a reply from the applicant.   

On  August  24,  2012,  the  Board  sent  a  copy  of  the  views  of  the  Coast  Guard  to  the 

FINDINGS AND CONCLUSIONS 

 

 

The Board makes the following findings and conclusions on the basis of the applicant's 

1.  The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

military record and submissions, the Coast Guard's submission and applicable law: 
 
 
of the United States Code.  
 
 
2  The  application  was  not  timely.    To  be  timely,  an  application  for  correction  of  a 
military  record  must  be  submitted  within  three  years  after  the  applicant  discovered  the  alleged 

 

 

error  or  injustice.    See  33  CFR  52.22.      The  applicant  alleged  that  he  discovered  the  error  on 
February 28, 2012, but he should have discovered the alleged error at the time of his separation 
on August 17, 1995 or at least within three years of that date.  He was advised on July 10, 1995, 
that  his  CO  was  recommending  his  discharge  by  reason  of  misconduct  due  to  his  civilian 
conviction.    The  Board  is  not  persuaded  to  excuse  the  untimeliness  because  of  the  applicant’s 
exemplary  post-discharge  conduct  or  because  he  has  earned  several  college  degrees  since  his 
discharge.       
 
 
3.  Although the application is untimely, the Board must still perform  at least a cursory 
review of the merits to determine whether it is the interest of justice to  excuse the untimeliness.  
In Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992), the court stated that in assessing whether 
the interest of justice supports a waiver of the statute of limitations, the Board "should analyze 
both the reasons for the delay and the potential merits of the claim based on a cursory review."  
The court further stated that "the longer the delay has been and the weaker the reasons are for the 
delay, the more compelling the merits would need to be to justify a full review."  Id. at 164, 165. 

 
 
4.  A cursory examination of the merits indicates that the applicant is not likely to prevail 
because the Coast Guard properly discharged him in accordance with Article 12.B.18.b.1. of the 
Personnel Manual.  This provision authorizes the Coast Guard to discharge a member by reason 
of misconduct due to a civil conviction if the maximum penalty under the UCMJ for the same or 
a similar offense would be confinement for longer than a year.  The applicant was convicted of 
criminal vehicular homicide in civilian court and sentenced to 48 months in prison.  According to 
the JAG, a civil conviction for criminal vehicular homicide is the equivalent of a conviction for 
involuntary  manslaughter  under  Article  119  the  UCMJ,  which  calls  for  a  maximum  sentence 
three  years  confinement.    Therefore,  the  Coast  Guard  properly  discharged  the  applicant  by 
reason of misconduct due to a civil conviction.  The applicant’s JKB separation code and RE-4 
reenlistment  codes  were  properly  assigned  according  to  the  Separation  Program  Designator 
(SPD) Handbook.   
 
5.  The applicant has not persuaded the Board that his separation and reenlistment codes 
 
are unjust.  In this regard, the Board notes that the applicant operated an automobile while under 
the  influence  of  alcohol  that  collided  head-on  with  another  car  resulting  in  the  death  of  the 
passenger  in  the  other  vehicle.    The  applicant  pled  guilty  to  criminal  vehicular  homicide  and 
served at least 32 months of confinement.  The misconduct exhibited by the applicant during this 
incident does not warrant a higher reenlistment code or a different separation code.   In addition, 
as  the  Coast  Guard  argued,  Coast  Guard  policy  is  the  same  today  as  it  was  at  the  time  of  the 
applicant’s discharge.  Therefore, the applicant has not proved that his treatment with regard to 
his discharge was unjust.   
 
 
justice to waive the untimeliness.   

6.  The application should be denied because it is untimely and it is not in the interest of 

 

 

 
 
 

 

 

The  application  of  XXXXXXXXXXXXXXXXXXXXXXX,  for  correction  of  his 

ORDER 

 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Donna M. Bivona  

 

 

 
 Andrew D. Cannady 

 

 

 
 Francis H. Esposito