DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2002-119 
 
Xxxxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxxxxx 

 

 
 

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  application  was 
received on May 29, 2002, and docketed on June 24, 2002, upon the BCMR’s receipt of 
the applicant’s military records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated March 13, 2003, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS  

 
 
The applicant asked the Board to correct his record to make him eligible for edu-
cational benefits under the Montgomery GI Bill (MGIB)1 by “waiver of [his] remaining 2 
weeks [of] active duty.”  He completed just 2 years, 11 months, and 14 days of active 
duty, instead of the 3 full years required under 38 U.S.C. § 3011(a).  
 
 
The  applicant  alleged  that  his  failure  to  qualify  for  MGIB  benefits  was  unjust 
because his separation date was set by the Coast Guard without regard for his MGIB 
eligibility.    He  stated  that  he  had  no  control  over  when  he  was  separated  and  was 
allowed no input into the decision.  He alleged that he was separated early because he 
was sent to a station and “left to fend for [him]self with no leadership.” 
 

SUMMARY OF THE RECORD 

 
 
 On June 27, 199x, the applicant enlisted in the Coast Guard for four years.  On 
the  same  day,  he  signed  a  Statement  of  Understanding  regarding  MGIB  benefits.    It 

                                                 
1   38 U.S.C. § 3001 et seq. 

informed him that he could disenroll from the MGIB program within two weeks of his 
enlistment; that if he did not disenroll, he would be enrolled in the program and $100 
would be deducted from his pay per month for his first twelve months of active service; 
and that to be eligible to receive MGIB benefits, he must complete at least 48 months of 
active duty2 and receive an honorable discharge.  The applicant also signed a statement 
acknowledging that he had been counseled about the MGIB program. 
 
 
The applicant completed basic training, entered the food service specialist rating, 
and was assigned to a station.  On February 19, 199x, the officer in charge (OIC) of his 
station  made  an  entry  in  his  record  indicating  that  he  had  arrived  two  hours  late  for 
work and stated that he had overslept.  He noted that it was the second time in a month 
that he had arrived late and that any future incidents might result in disciplinary action. 
 
On May 31, 199x, the OIC made an entry in the applicant’s record advising him 
 
that he was “progressing” and not recommended for advancement.  He stated that to 
gain his recommendation for advancement, the applicant must learn to meet sanitation 
standards, to plan and serve meals in a timely fashion, and to account for the inventory. 
 
 
On August 15, 199x, the OIC noted that the applicant had been counseled about 
his performance on July 22, 199x, because he had failed to remove food from the freezer 
in  time  for  the  station’s  noon  meal  and  he  had  failed  to  pack  a  cooler  properly  for 
another station’s meal. 
 
On September 10, 199x, the OIC made an entry in the applicant’s record report-
 
ing that he had lied to his superior on September 5, 199x, about whether he had com-
pleted preparing the salad bar. 
 
 
On November 9, 199x, the OIC noted that while the applicant was in charge of 
galley  cleanup,  barbecue  sauce  had  spread  from  a  broken  container  across  the  galley 
floor and out the door “well before” the evening meal.  However, he had ignored the 
problem and ignored a request from the Officer of the Day to clean it up.  Instead, he 
played foosball.  After his first attempt to clean it up, residue and puddles of barbecue 
sauce remained on the floor.  The OIC stated that after the residue was brought to the 
applicant’s  attention,  he  “failed  to  properly  clean  the  deck  after  two  more  attempts.”  
The OIC warned him that further incidents might result in disciplinary action. 
 
 
On December 1, 199x, the OIC gave the applicant a low mark of 2 (out of 7) for 
“integrity”  on  a  semi-annual  evaluation  because  he  had  bounced  many  checks  in  the 
community  and  failed  to  tell  the  truth  about  a  speeding  ticket.    The  applicant  also 
received  a  mark  of  2  for  “setting  an  example”  because  of  his  poor  food  preparation, 

                                                 
2  It is unclear why the form stated that the applicant needed to complete 48 months of active duty to be 
eligible for MGIB benefits when the statute requires only 36 months of active duty.  38 U.S.C. § 3011(a). 

lateness for appointments, and “excessive cigarette and game playing breaks.”  The OIC 
noted  that  the  applicant  had  received  similar  evaluation  marks  while  working  at  the 
Group office.  The applicant was not recommended for advancement and was advised 
of  improvements  he  needed  to  make  to  receive  a  recommendation  for  advancement, 
including  arriving  at  work  on  time;  avoiding  excessive  cigarette  breaks,  games,  and 
other distractions from work; completing a basic math correspondence course; and pro-
ducing better meals. 
 
 
On December 15, 199x, the applicant was charged with violating Articles 92 (fail-
ure to obey order or regulation), 107 (making a false official statement), and 109 (wast-
ing or destroying property) of the Uniform Code of Military Justice (UCMJ) by failing to 
store  food  in  a  freezer,  which  resulted  in  spoilage,  and  by  making  a  false  statement 
about the date the food had been returned by another station.  On January 14, 199x, in 
lieu of taking the applicant to mast, the OIC placed him on performance probation.  The 
OIC informed the applicant that during the previous twelve months, his performance 
had been unsatisfactory and that he had to improve his performance during the follow-
ing six months or face discharge.  
 
 
On  February  5,  199x,  the  applicant  was  taken  to  mast  on  charges  of  violating 
Articles 92 and 107 of the UCMJ by serving breakfast one-half hour late on January 26, 
199x,  and  by  lying to a  superior officer  about  whether  he  had  bathed  the  day  before.  
The record indicates that he was informed of his right to reject NJP but accepted it and 
rejected  the  opportunity  to  be  represented  at  the  mast.    The  OIC  awarded  him  extra 
duties for 14 days and fined him 3 days’ pay. 
 
 
The OIC prepared a special evaluation to document the applicant’s NJP and per-
formance and to notify him that he was not recommended for advancement because of 
unsatisfactory conduct. The applicant received marks of 2 in four performance factors 
for poor performance since December 1, 199x.  His period of eligibility for a Good Con-
duct Medal was terminated.  The OIC indicated that the applicant had been placed on 
report on December 15, 199x, for making a false official statement; had been placed on 
probation on January 14, 199x, in lieu of non-judicial punishment (NJP); and had been 
placed on report again on January 24, 199x, for making a second false official statement.  
The OIC indicated that the applicant had been awarded NJP.   
 
 
On February 11, 199x, the OIC made an entry in the applicant’s record indicating 
that his room in the barracks had failed inspection by a Group Housing Officer on Feb-
ruary 5, 199x.  The applicant had been advised that a follow-up inspection would take 
place the next day, but his room still failed to meet the minimum standards of cleanli-
ness and sanitation. 
 
 
On March 5, 199x, the OIC noted that, during the month of February, the appli-
cant had neglected to log quantities of food used for two days; burned the evening meal 

one night (and bought pizza for everyone instead); failed to complete a weekend clean-
up  list;  conducted  personal  business  on  a  telephone  while  his  work  space  was  unse-
cured; and overcooked a noon meal. 
 
 
On April 23, 199x, the OIC informed the applicant that he had initiated action to 
discharge him  because he had been  placed  on report four times since December 199x 
and three times since he was placed on probation on January 14, 199x.  (Apparently, the 
applicant had been placed on report on March 31st and April 20th but the investigations 
into those offenses were still pending).  He advised the applicant of his right to submit a 
statement on his own behalf.  The applicant waived his right to submit such a statement 
and indicated that he did not object to being discharged. 
 
 
On April 27, 199x, the Group Commander recommended to the Coast Guard Per-
sonnel Command (CGPC) that the applicant be honorably discharged for unsatisfactory 
performance.  The Group Commander stated that, since being placed on probation, the 
applicant had “not demonstrated any initiative to improve his performance.”  He stated 
that the applicant had reported for work late several times and been placed on report 
while on probation.  He stated that most of the station’s crewmembers would not eat at 
the dining facility when the applicant was on duty because he prepared meals that were 
“undercooked, overcooked, prepared late, or even not at all.”  He stated that the appli-
cant had become a burden to other food service specialists at the station and had nega-
tively  affected  station  morale.    The  Group  Commander  stated  that  the  applicant  had 
been  assigned  to  the  Group  for  three  weeks  so  that  he  could  receive  an  unbiased 
evaluation.  At the Group, however, the applicant required “direct supervision to pre-
pare edible meals” and did not pay attention to directions well.  The Group Comman-
der  stated  that  the  applicant’s  aptitude  scores  had  been  too  low  to  attend  school  to 
become a food service specialist but that he had received a waiver.  He further stated, “I 
do not recommend that [the applicant] be evaluated for change of rate because of the 
limited rating selections due to his being color blind.” 
 
 
he had bounced a check. 
 
On May 12, 199x, CGPC ordered the Group Commander to discharge the appli-
 
cant  no  later  than  June  10,  199x,  with  an  honorable  discharge  for  unsatisfactory  per-
formance in accordance with Article 12.B.9. of the Personnel Manual. 
 
 
On June 10, 199x, the applicant was honorably discharged for unsatisfactory per-
formance in accordance with Article 12.B.9. of the Personnel Manual.  He received an 
RE-4 reenlistment code, making him ineligible to reenlist.  He had completed 2 years, 11 
months, and 14 days of active duty. 
 

On May 1, 199x, the OIC made an entry in the applicant’s record indicating that 

VIEWS OF THE COAST GUARD 

On October 31, 2002, the Chief Counsel of the Coast Guard recommended that 

 
 
the applicant’s request be denied for untimeliness and lack of merit. 
 
 
The Chief Counsel stated that the applicant’s request was untimely since it was 
received more than three years after his discharge. 10 U.S.C. § 1552(b).  He stated that 
the applicant had failed to provide any explanation for his delay.  He further stated that 
the applicant has failed to prove, or even allege, that the Coast Guard committed any 
error in discharging him for unsatisfactory performance on June 10, 199x. 
 
 
The Chief Counsel stated that any member of the service may be appropriately 
and administratively discharged prior to the end of an enlistment.  Rowe v. United States, 
167 Ct. Cl. 468, 472 (1964), cert. denied, 380 U.S. 961.  Moreover, he argued, absent strong 
evidence to the contrary, the Board should presume that Coast Guard officials have per-
formed their duties “correctly, lawfully, and in good faith.”  Arens v. United States, 969 
F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979).  
He  stated  that  Article  12.B.9.  permits  the  Coast  Guard  to  administratively  separate 
unsatisfactory performers who have been given a chance to improve their performance 
and whose unsatisfactory performance has been well documented.  He stated that the 
applicant’s supervisors had thoroughly documented his substandard performance with 
multiple  record  entries  and  performance  evaluations.    He  argued  that  the  “Board 
should conclude that Applicant had ample notice and opportunity to turn his perform-
ance around” so that he could have completed at least three years of active duty.  He 
alleged that the record indicates that the applicant was “his own worst enemy” in that 
he failed to try to improve his performance. 
 
 
The Chief Counsel alleged that the applicant had been accorded all due process 
under the regulations when he was discharged.  Under Article 12.B.18.e. of the Person-
nel Manual, he stated, members with less than eight years of active service are entitled 
only to notification, an opportunity to submit a written statement, and an opportunity 
to consult with counsel if a less than honorable discharge is contemplated.  The appli-
cant was honorably discharged after being properly notified and after having waived 
his opportunity to object and to submit a statement on his own behalf.  He alleged that 
there  is  no  evidence  that  the  applicant’s  separation  date  was  selected  intentionally  to 
deprive him of MGIB benefits. 

 
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
advisory opinion and invited him to respond.  No response was received. 

On November 4, 2002, the Chair sent the applicant a copy of the Chief Counsel’s 

 

 

APPLICABLE LAW 

 
Article 12.B.18.c. of the Personnel Manual provides that, if a member is found to 
be shirking, the commanding officer “must afford the member a reasonable probation-
ary period to overcome deficiencies, before initiating administrative discharge.”  It fur-
ther provides that the period of probation should be at least six months.  However, it 
also  provides  that,  “commanding  officers  are  authorized  to  recommend  discharge  at 
any time during the probation if the member is not making an effort to overcome the 
deficiency.”  
 
 
Article 12.B.9.a. provides that members “whose performance demonstrates they 
cannot  or  will  not  contribute  to  supporting  the  Coast  Guard’s  missions  will  be  dis-
charged under this Article’s procedures … .” 
 
 
Under Article 12.B.9.c. of the Personnel Manual, “[t]o discharge a member as an 
unsatisfactory performer, commanding officers must clearly show the member has been 
given  the  proper  direction  to  improve  his  or  her  performance  and  adequate  time  to 
demonstrate he or she could become a productive Service member.  In all cases, use the 
enlisted performance appraisal system in effect to identify the unsatisfactory performer 
for  this  Article’s  purposes.    However,  the  unsatisfactory  performance  pattern,  the 
appraisal  marks  described  must  be  supported  by  thorough  documentation,  including 
copies of Administrative Remarks, disciplinary action, and any other attempted correc-
tive or training action.” 
 
 
Article  12.B.9.d.  provides  that  commanding  officers  must  notify  members  in 
writing when their performance is such that it may result in a discharge for unsatisfac-
tory performance if the trend continues for the next six months. 
 
 
Article 12.B.9.e. provides that, after a commanding officer notifies a member of 
unsatisfactory  performance  in  accordance  with  Article  12.B.9.d.,  he  or  she  “closely 
observes the member (in most cases for six months), if [the member] has not substantial-
ly improved his or her performance, the commanding officer will notify him or her in 
writing of the proposed discharge action.”  The notification must indicate what kind of 
discharge is being contemplated.  The member must acknowledge the notification and 
indicate  whether  he  objects  to  the  proposed  discharge  and  whether  he  will  submit  a 
statement on his own behalf.  Only when a general discharge is contemplated does the 
member have a right to consult a military attorney. 
 
 
Under 38 U.S.C. § 3011, Congress provided that to be eligible for MGIB benefits, 
a  member  must  normally  complete  at  least  three  years  of  active  duty,  have  a  high 
school diploma or the equivalent, and receive an honorable discharge.  Members who 
enlist  for  four  years  but  are  discharged  early  “for  the  convenience  of  the  Govern-
ment”—such  as  a  reduction  in  force  (RIF)—may  receive  MGIB  benefits  if  they  have 
completed at least 30 months of active duty. 38 U.S.C. § 3011(a)(1)(A)(ii)(II) 
 

 
The  DVA’s  regulations  for  MGIB  eligibility  appear  in  38  C.F.R.  §§  21.7042  and 
21.7045.  Section 21.7042, entitled “Basic eligibility requirements,” provides that a vet-
eran  may  receive  the  benefits  if  he  has  completed  at  least  three  years  of  continuous 
active  duty,  received  a  high  school  diploma,  and  received  an  honorable  discharge.  
Section 21.7042(a)(5)(iv)(B) provides that if a veteran does not have three years of con-
tinuous active duty, he can still receive the benefits if he was discharged for the “con-
venience of the government … [a]fter completing 30 continuous months of active duty 
if his or her initial obligated period of active duty is at least three years.” 
 
 
Title  38  C.F.R.  §§ 21.7045,  entitled  “Eligibility  based  on  involuntary  separation 
…,”  provides  that  a  member  of  the  Coast  Guard  on  active  duty  after  September  30, 
1994,  is  eligible  for  MGIB  benefits  if  he  is  involuntarily  separated  (as  defined  at  10 
U.S.C.  § 1141)  with  an  honorable  discharge;  if,  while  on  active  duty,  he  elected  to 
receive  MGIB  benefits  and  had  $1,200  deducted  from  his  pay;  and  if  he  has  a  high 
school  diploma.    Under  10  U.S.C.  § 1141,  “involuntary  separation”  is  defined  for  a 
regular  enlisted  member  as  being  “denied  reenlistment”  or  being  “involuntarily  dis-
charged  under  other  than  adverse  conditions,  as  characterized  by  the  Secretary  con-
cerned.”  Under Enclosure (3) to COMDTINST 1900.2, discharges for unsatisfactory per-
formance are not included on the list of reasons for involuntary discharge that qualify a 
member for transitional benefits and MGIB benefits. 
 
 
MGIB benefits may be appealed to the Board of Veterans’ Appeals. 
 
 
Title  38  U.S.C.  §  503(a)  states,  “If  the  Secretary  [of  the  DVA]  determines  that 
benefits administered by the Department have not been provided by reason of adminis-
trative error on the part of the Federal Government or any of its employees, the Secre-
tary may provide such relief on account of such error as the Secretary determines equi-
table, including the payment of moneys to any person whom the Secretary determines 
is equitably entitled to such moneys.” 
 

Title  38  C.F.R.  § 20.101(a)(5)  provides  that  any  decision  by  the  DVA  to  deny 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submissions, and appli-
cable law: 
 

1. 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 

§ 1552. 
 
2. 

An  application  to  the  Board  should  be  filed  within  three  years  after  the 
applicant discovers the alleged error in his record. 10 U.S.C. § 1552(b).  The applicant 
was  discharged  on  June  10,  199x,  and  his  application  was  received  on  May  29,  2002.  
Therefore, his application was untimely by less than one year. 

 
3. 

Pursuant to 10 U.S.C. § 1552, the Board may waive the three-year statute 
of limitations if it is in the interest of justice to do so.  To determine whether it is in the 
interest of justice to waive the statute of limitations, the Board should conduct a cursory 
review of the merits of the case and consider the reasons for the delay.  Allen v. Card, 799 
F. Supp. 158, 164 (D.D.C. 1992).  The applicant did not explain why he delayed applying 
to the Board.  However, the Board presumes that he applied when he decided that he 
wanted to return to school and needed MGIB benefits.  Moreover, a cursory review of 
the  merits  of  the  case  has  revealed  some  evidence  that,  but  for  the  applicant’s  color 
blindness,  he  might  not  have  been  discharged  (see  Finding  8  below).    Therefore,  the 
Board finds that it is in the interest of justice to waive the statute of limitations in this 
case. 
 

4. 

The applicant requested an oral hearing before the Board.  The Chair, act-
ing pursuant to 33 C.F.R. § 52.31, denied the request and recommended disposition of 
the case without a hearing.  The Board concurs in that recommendation. 
 

5. 

The applicant asked the Board to make him eligible for MGIB benefits by 
waiving the statutory requirement under which he needed another two weeks of active 
service to be eligible.  However, this Board does not administer MGIB benefits or deter-
mine which veterans are eligible for the benefits.  The DVA, under its regulations at 38 
C.F.R. part 20, administers the MGIB program and determines veterans’ eligibility.  The 
applicant did not indicate whether he has actually applied for MGIB benefits from the 
DVA and been denied them.  The Board assumes, however, that he has been told either 
by the DVA or by the Coast Guard that he is ineligible for MGIB benefits. 

 
6. 

Although  the  DVA  determines  veterans’  eligibility  for  educational  bene-
fits, under 10 U.S.C. § 1552, this Board is able to correct a veterans’ military record in 
ways that would qualify them for MGIB benefits under 38 U.S.C. § 3011 and the DVA’s 
regulations.    In  the  applicant’s  case,  this  Board  would  apparently  have  to  add  two 

weeks of active duty that he did not actually perform to his military record; or—since 
he performed at least 30 months of active duty—change the cause of his discharge to 
one that would be interpreted by the DVA as a discharge for the “convenience of the 
Government”; or change his discharge to one that would be considered “involuntary” 
under 10 U.S.C. § 1141 by the DVA. 

 
7. 

The applicant has neither alleged nor proved that the Coast Guard com-
mitted any error or injustice in discharging him for unsatisfactory performance under 
Article  12.B.9.  of  the  Personnel  Manual.    The  record  indicates  that  after  documenting 
and counseling him about his poor performance for several months, his OIC placed him 
on six months’ performance probation on January 14, 199x, in accordance with Articles 
12.B.18.c.  and  12.B.9.d.    However,  the  record  indicates,  when  the  applicant  made  no 
attempt  to  improve  during  the  first  three  months  of  his  probation  and  continued  to 
violate regulations, the OIC acted in accordance with Article 12.B.9.e. to notify him of 
his  proposed  honorable  discharge  for  unsatisfactory  performance.    The  applicant  did 
not  object  to  being  discharged  and  did  not  submit  any  statement  on  his  own  behalf.  
The record indicates that he received all due process.  Moreover, there is absolutely no 
evidence  that  the  applicant  was  intentionally  discharged  early  just  to  deprive  him  of 
MGIB benefits.  He has submitted no evidence to show that he was entitled to remain 
on active duty after June 10, 199x. 

 
8. 

Although the Coast Guard committed no errors in discharging the appli-
cant  for  unsatisfactory  performance  on  June  10,  199x,  the  Board  notes  that  in  recom-
mending the applicant’s discharge to CGPC on April 27, 199x, the Group Commander 
stated, “I do not recommend that [the applicant] be evaluated for change of rate because 
of the limited rating selections due to his being color blind.”  In stating this, he implied 
that,  but  for  the  applicant’s  color  blindness,  he  would  have  recommended  that  the 
applicant be evaluated to determine whether he was better suited for a rating other than 
food service specialist.  The statement, however, does not prove that the applicant was 
discharged because of his color blindness: the record contains ample evidence indicat-
ing that he was discharged because he consistently refused to pay attention to his work 
and took too many cigarette and foosball breaks to perform his duties adequately.   

 
9. 

The  applicant  has  not  proved  that  his  Coast  Guard  record  contains  any 
error or injustice for this Board to correct.  The record indicates that he alone bears the 
blame for his early discharge.  However, if the applicant has not already applied to the 
DVA for MGIB benefits, he has nothing to lose by trying; and if he has applied but been 
denied  the  benefits  by  the  DVA,  he  may  appeal  the  denial  to  the  Board  of  Veterans’ 
Appeals.  Furthermore, under 38 U.S.C. § 503(a), the Secretary of the DVA is authorized 
to provide equitable relief to veterans who have been denied MGIB benefits under cer-
tain circumstances.  
 

10.  Accordingly, the applicant’s request should be denied.  

 

 
 
 

[ORDER AND SIGNATURES ON NEXT PAGE]

The  application  of  former  xxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

ORDER 

 

 
 

 
 

 
 

 
 

military record is denied.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Julia Andrews 

 

 

 
 Stephen H. Barber 

 

 

 

 

 
 
 Christopher A. Cook