DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2012-137 
 
XXXXXXXXXXXXXX 
XXXXXXXXXXXXXX 
  

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 April 30, 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  February  1,  2013,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATION 

 
 
 The applicant  asked the Board to correct his record by upgrading his  general discharge 
under  honorable  conditions  to  an  honorable  discharge.    The  applicant  did  not  list  the  date  on 
which he discovered the alleged error, but stated that it is in in the interest of justice to consider 
his application if it is untimely because “Prior service with allotted benefits should be allowed as 
I  have  served  my  commitment.”    The  applicant  submitted  no  other  evidence  in  support  of  his 
application.   
 
 
The  applicant’s  military  record  shows  that  he  enlisted  in  the  Coast  Guard  Reserve 
(inactive  duty)  for  6  years  on  June  24,  1974.    He  agreed  to  become  a  member  of  the  Ready 
Reserve  immediately  upon  enlistment  and  to  satisfactorily  participate  in  each  unit  assignment.  
Before  beginning  inactive  duty,  the  applicant  was  required  to  complete  recruit  training  and  a 
period  of  post-recruit  training.    After  completing  his  required  active  duty,  the  applicant  was 
assigned to a Reserve unit to begin his inactive duty.   
.    
 
The  military  record  indicates  that  the  applicant  was  transferred  from  his  then-assigned 
unit  to  an  Administrative  Reserve  Unit,  effective  6  July  1976,  because  his  whereabouts  were 
unknown.   
 
 
On  December  15,  1976,  the  applicant’s  commanding  officer  (CO)  sent  the  applicant  a 
letter  at  his  last  known  address  about  his  unsatisfactory  participation  in  the  Reserve.    He  was 

 

 

directed to report to his division officer within 30 days of that letter to explain why he failed to 
report for his unit’s annual inspection and for required counseling.   
 
 
On  January  20,  1977,  the  applicant’s  CO  informed  the  applicant  by  letterthat  he  had  a 
total  of  18  absences  and  that  he  had  not  communicated  with  his  unit  about  his  failure  to 
satisfactorily participate in unit drills.  The CO told the applicant that malingering would not be 
tolerated and that his failure to communicate was inexcusable.  The CO ordered the applicant to 
report  to  his  unit’s  administrative  office  on  February  28,  1977  to  explain  his  reason  for  not 
complying with orders.   
 
 
On  February  27,  1977,  the  CO  advised  the  applicant  that  30  days  from  the  date  of  the 
letter, the command would recommend that the applicant be discharged with a general discharge 
because of his chronic absenteeism and failure to obey orders.  The applicant was advised that he 
had 30 days from the date of the letter to submit a statement on his behalf.  The letter was sent to 
the applicant’s last known address, with copies to his known relatives.   
 

On February 27, 1977, an administrative remarks entry (Page 7) states that the applicant’s 
mark for conduct was reduced due to chronic excessive absenteeism and failure to communicate 
or to obey orders.  
 
 
On March 27, 1977, the applicant’s CO recommended to the Commander of the Eleventh 
Coast  Guard  District  that  the  applicant  be  discharged  from  the  Coast  Guard  due  to  chronic 
absenteeism. 
 
 
In  an  October  4,  1977  certified  letter  return  receipt  requested,  the  Commander  of  the 
Eleventh Coast Guard District advised the applicant that he was being considered for discharge 
from the Coast Guard Reserve by reason of misconduct.  The letter informed the applicant that 
he could  submit a statement on his  behalf within 30 days from the date  of the letter and that  a 
general  discharge  could  be  issued  if  a  reply  was  not  received  within  the  time  allowed.    The 
applicant was also told that he could consult with legal counsel about the proposed discharge by 
contacting the Eleventh Coast Guard District legal officer.    
  
 
On November 8, 1977, the Commander, Eleventh Coast Guard District recommended to 
the  Commandant  that  the  applicant  be  discharged  due  to  his  chronic  absenteeism    He  also 
informed the Commandant that all of their attempts to locate the applicant were unsuccessful. 
 
On November 18, 1977, the Commandant directed the Commander of the Eleventh Coast 
 
Guard District to discharge the applicant by reason of misconduct (shirking) under Article 12-B-
18(b)(7) of the Personnel Manual.  The Commandant directed that the applicant receive a general 
discharge.   
 
 
 

On December 1, 1977, the applicant was discharged from the Coast Guard Reserve.   
.   
 
 
 

 

 

VIEWS OF THE COAST GUARD 

 
 
On October 16, 2012, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion in  which the JAG noted that the application was not  timely  and should  be 
denied  for  that  reason.    The  JAG  also  stated  that  the  applicant  failed  to  provide  any  evidence 
supporting  his  request  to  change  his  general  discharge  to  an  honorable  discharge.    The  JAG 
attached a memorandum from the Commander, Personnel Service Center (PSC) as a part of the 
advisory opinion.  
 

PSC argued that the application should be denied because it is untimely and because the 
applicant provided no explanation for why he failed to file a timely application.   PSC stated that 
the applicant did not provide any evidence (other than his own statement) that the Coast Guard 
committed  an  error  or  injustice  in  awarding  him  a  general  discharge  from  the  Coast  Guard 
Reserve. 
 

 

 

 

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  October  23,  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.   Although the applicant did not list the date on which he 
discovered the alleged error, the Board finds that he should have discovered the alleged error at 
the time of his discharge from the Coast Guard Reserve December 1, 1977.   The applicant was 
warned  in  letters  sent  to  his  last  known  address  through  certified  mail  that  he  would  be 
discharged  for  misconduct  and  could  receive  a  general  discharge,  particularly  if  he  did  not 
submit  a  statement  within  30  days  of  the  letter  notifying  him  of  the  proposed  discharge.    The 
Board presumes that he received the letters because he did not state that he was unaware that he 
was being discharged from the Reserve in 1977.  Therefore, the application is untimely.   
 
 
3.  The applicant argued that the three-year statute of limitations should be waived so that 
he can obtain the benefits he earned as a result of serving his time.  The applicant enlisted in the 
Reserve on June 24, 1974 for six years and agreed to serve satisfactorily for a period of 6 years.  
From  the  record,  his  chronic  absenteeism  began  on  or  about  July  1976,  approximately  2  years 
into  a  six-year  enlistment.  He  was  discharged  due  to  misconduct  on  December  1,  1977,  well 
short of completing his  six-year  enlistment.    The  reason for not filing his  application sooner is 
not persuasive to the Board.   

 

 

 
 
4.  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  waive  the  statute  of 
limitations.    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. 

 
 
5.  A cursory examination of the merits indicates that the applicant is not likely to prevail 
because  he  has  offered  no  evidence  that  the  Coast  Guard  committed  an  error  or  injustice  by 
discharging him from the Reserve with a general discharge.  He has not rebutted the evidence of 
record that he was chronically absent from his unit from about July 1976 until his discharge on 
December 1, 1977. 
 
 
justice to excuse the untimeliness.     

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

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

 

 
 
  

 
 
 

 

 

 

 

ORDER 

 

The  application  of  former  XXXXXXXXXXXXXXX,  USCGR,  for  correction  of  his 

 

 

 
 

 

 

 
 

 

 
 
 Troy D. Byers 

 

 
 
 Lillian Cheng 

 

 
 Frank E. Howard 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

military record is denied.