DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-107 
 
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FINAL DECISION 

 
 
This is a proceeding under the provisions of section 1552 of Title 10 and section 
425 of Title 14 of the United States Code.  The Chair docketed the case on April 28, 2006, 
upon receipt of the completed application for the correction of his military record. 
 
 
members who were designated to serve as the Board in this case.  
 

This final decision, dated January 31, 2007, is signed by the three duly appointed 

APPLICANT'S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  correct  his  military  records  by  removing  an 
April 19, 1982, non-judicial punishment (NJP)1 and the associated performance marks, 
by awarding him his second good conduct medal, and by advancing him to chief fire 
control technician (FTC; pay grade E-7).   
 
 
The applicant asserted that the NJP should be removed from his record because 
he was mentally incompetent at the time he committed the offenses and at the time he 
went  to  mast.      In  this  regard,  he  stated,  "It  was  determined  I  was  not  aware  I  was 
breaking the law or the UCMJ and that I was not medically responsible for my actions."  
He argued that he should be advanced to pay grade E-7, with back pay and allowances, 
because  at  the  time  he  committed  the  NJP  offenses  he  was  number  two  on  the 
advancement list from which the top four candidates advanced to FTC.  He stated that 
as a result of the mast he lost his security clearance and his name was removed from the 
E-7 advancement list.  He stated that his security clearance was subsequently reinstated, 
but the performance evaluation noting the NJP was never cleared from his record and 
he was never advanced.  
 

                                                 
1   NJP is also referred to as captain's mast. 

 
The applicant contended that he did not discover the alleged error until January 
15,  2006.    He  stated  that  his  current  requests  should  have  been  made  at  the  time  he 
petitioned to have his special court-martial overturned under Article 69 of the UCMJ.  
In  this  regard,  he  stated  that  because  of  his  mental  illness  he  did  not  realize  that  the 
petition did not include his current requests. He stated that although he is still suffering 
from the mental problems, his symptoms are better controlled, and that "It has come to 
my attention that I am still suffering from lack of the honor I should have received by 
being advanced to the rank of E-7."  He also stated that he is being penalized because he 
is  not  eligible  to  join  service-related  organizations,  such  as  the  chief  petty  officers 
association that would possibly entitle him to less expensive insurance premiums.  He 
further  stated  that  he  did  not  received  the  entire  amount  of  pay  and  allowances  to 
which  he  was  entitled  while  on  active  duty  and  the  temporary  disability  retired  list 
(TDRL).2   
 

BACKGROUND 

 

The applicant enlisted in the Coast Guard on March 21, 1975.  He was promoted 
 
regularly  and  eventually  reached  pay  grade  FT1  (fireman  technician  first  class/pay 
grade E-6).  
  
 
On  April  19,  1982,  the  applicant  was  taken  to  NJP  under  Article  15  of  the 
Uniform  Code  of  Military  Justice  (also  known  as  captain's  mast)  for  theft.    He  was 
reduced in rate to FT2 (pay grade E-5) that was suspended for a period of three months.   
At  the  time  of  the  captain's  mast,  the  applicant  was  on  the  advancement  list  for 
promotion  to  FTC.    However  on  April  21,  1982,  the  applicant's  commanding  officer 
(CO) requested that the applicant's name be removed from the advancement list, which 
was done. 
 
 
On August 26, 1982, the applicant was convicted at special court-martial of two 
specifications of larceny that occurred on or about October 23, 1981, and November 27, 
1981.   He was sentenced to confinement for thirty days and to a reduction in rate to 
FTSN  (pay  grade  E-3).    The  convening  and  supervisory  authorities  approved  the 
findings and sentence. 
 
 
On  December  11,  1982,  the  applicant  was  hospitalized  for  exhibiting  abnormal 
behavior.  He was discharged from the hospital on March 2, 1983, with a diagnosis of 
"atypical dissociative disorder."  A medical board (MB) agreed with the diagnosis and 
referred the matter to the Central Physical Evaluation Board (CPEB).3 

                                                 
2      The  TDRL  consist  of  those  members  whose  disabilities  are  not  yet  stable  and  therefore  cannot  be 
permanently retired.  See Article 2.A.48 of the PDES Manual. 
3   The CPEB is a permanently established administrative body convened to evaluate, on a record basis, 
whether active duty, reservists, or temporarily disabled retired members are fit for duty, and if they are 

 
 
On  March  31,  1983,  the  CPEB  met  and  found  the  applicant  to  be  unfit  for 
continued  duty  and  recommended  that  he  be  temporarily  retired  due  to  physical 
disability.   
 
 
On May 12, 1983, the Commandant issued a decision stating that a review of the 
applicant's record had determined that the highest rate in which he served satisfactorily 
was  FT1  (E-6).    The  Commandant  further  directed  that  the  applicant  be  temporarily 
retired in that grade. 
 
 
The applicant  was placed on the TDRL on  May 24, 1983, with a 30% disability 
rating  for  depersonalized  neurosis.      The  CPEB  also  noted  their  opinion  that  "the 
medical evidence suggests the [applicant's] condition may have influenced the actions 
which resulted in his punishment under the UCMJ." 
 
 
In July 1984, the applicant submitted alternative petitions for relief under Article 
69 and Article 73 of the UCMJ.  Article 69 provides that within two years of approval of 
the sentence, an accused may petition to have court-martial findings and/or sentence 
set aside on the ground of, among other things, newly discovered evidence.  Article 73 
provides for the petitioning of a new trial based on newly discovered evidence within 
two  years  of  sentence  approval.        Both  of  the  applicant's  requests  were  based  on  his 
contention that he was not mentally responsible for his actions at the time he committed 
the offenses.   
 
 
At  the  request  of  the  Chief  Counsel  of  the  Coast  Guard,  a  sanity  board  was 
convened  pursuant  to  R.C.M.  706,  MCM  (1984).    In  granting  the  applicant's  request 
under  Article  69  of  the  UCMJ,  the  Chief  Counsel  reported  the  findings  of  the  sanity 
board as follows: 
 

(1) At the time of the alleged criminal conduct [the applicant] did have a 
mental defect. 
 
(2)  Clinical  psychiatric  diagnoses  at  the  time  of  the  alleged  criminal 
conduct: 
 
3001 - (Axis I) - 300.15 - Atypical dissociative disorder, manifested by an 
episode  of  a  trance  like  state  involving  theft  of  U.S.  Coast  Guard 
equipment.   
 

                                                                                                                                                             
not, to determine and rate their disabilities.  Article  4.A.1. of the Physical Disability Evaluation System 
(PDES) Manual.   
 

3019 - (Axis II) - 300.183 - Borderline personality disorder. 
 
(3)  [The applicant] did at the time of the alleged criminal conduct and as a 
result  of  such  mental  defect,  lack  substantial  capacity  to  appreciate  the 
criminality of his conduct. 
 
(4)  [The applicant] did at the time of the alleged criminal conduct and as a 
result  of  such  mental  defect,  lack  substantial  capacity  to  conform  his 
conduct to the requirements of the law. 
 
(5)  [The applicant] did not have sufficient mental capacity to understand 
the nature of the proceedings and to conduct or cooperate intelligently in 
his defense.   

 
 
The Chief Counsel stated that the sanity board findings constituted a complete 
defense to the offenses and fully supported the relief requested by the applicant under 
Article  69  of  the  UCMJ.    Therefore,  the  findings  and  sentence  of  the  special  court-
martial were set aside and the charges dismissed.  "All rights, privileges and property of 
which the [applicant] has been deprived by virtue of the findings of guilty and sentence 
set aside by this action shall be restored."   
 
 
On December 11, 1985, the Convening Authority issued a supplemental special 
court-martial  order  dismissing  the  set  aside  court-martial  charges  and  restoring  the 
applicant's rights, privileges, and property lost as a result of the findings of guilty and 
sentence.   
 
 
On December 31, 1985, the Chief of the Enlisted Career Branch directed that the 
applicant's  record  be  corrected  by  removing  the  court  memoranda  pertaining  to  his 
special  court-martial,  by  removing  all  personnel  action  forms  pertaining  to  his 
confinement,  by  correcting  his  pay  and  active  duty  base  dates,  and  by  correcting  his 
expiration of enlistment date.  The Chief of the Enlisted Career Branch further directed 
the correction of the applicant's record by removing all references to a reduction in rate 
from FT1 to SNFT and by deleting his performance evaluation marks dated December 
31, 1982.   
 
 
The  applicant  had  been  on  the  TDRL  for  approximately  four  years  when  the 
CPEB met on December 9, 1987, and found that although he remained unfit for duty, 
his condition had stabilized and become permanent such that a disability rating could 
be determined. The CPEB recommended that the applicant be removed from the TDRL 
and  discharged  by  reason  of  physical  disability  with  a  10%  disability  rating  and 
severance pay.  (A 30% disability rating is required for retirement by reason of physical 
disability.) 
 

 
On  January  19,  1988,  the  Commandant  approved  the  CPEB's  findings  and 
directed  the  applicant  to  be  removed  from  the  TDRL  and  discharged  by  reason  of 
physical disability with severance pay. 
 

VIEWS OF THE COAST GUARD 

 
 
On September 12, 2006, the Board received the advisory opinion from the Judge 
Advocate General (JAG) of the Coast Guard, recommending that the Board grant partial 
relief  to  the  applicant  by  removing  the  April  19,  1982,  non-judicial  punishment,  by 
removing  the  associated  enlisted  evaluation,  and  by  authorizing  the  issuance  of  a 
second  good  conduct  award.    The  JAG  did  not  recommend  that  the  applicant  be 
advanced to E-7.  In recommending partial relief, the JAG adopted the comments of the 
Commander,  Coast  Guard  Personnel  Command  (CGPC)  as  part  of  the  advisory 
opinion.   
 
 
CGPC noted that the application was untimely.  On the merits of the application, 
CGPC stated that the NJP and associated enlisted evaluation should be expunged from 
the  applicant's  record  because  the  dates  of  the  NJP  (April  19,  1982)  and  dates  for  the 
commission of the offenses (February 1982) occurred within the span of time that the 
applicant was declared to be mentally incompetent.  CGPC stated that it is reasonable to 
presume that the applicant was not competent at the time of his February 1982 offense 
or  his  April  19,  1982,  NJP.        CGPC  stated  that  with  the  NJP  and  associated  enlisted 
evaluation marks removed there is nothing in the regulation that prohibits the applicant 
from receiving his good conduct award. 
 
 
following: 
 

With respect to the applicant's request for advancement to E-7, CGPC offered the 

The  applicant  contends  that  he  is  entitled  to  advancement  to  E-7  along 
with  back  pay  and  allowances  since  he  was  removed  from  the  E-7 
advancement list as a result of the [CO's] NJP on April 19, 1982 . . . The 
[CO's]  recommendation  for  advancement  is  based  upon  a  member's 
potential  to  perform  in  the  next  higher  grade.    While  the  decision  to 
withdraw  the  [CO's]  advancement  recommendation  was  made 
in 
conjunction  with  the  NJP,  removal  of  the  NJP  due  to  the  applicant's 
incompetence  does  not  necessarily  change  the  [CO's]  decision  that  the 
applicant  is  not  recommended  for  advancement.    Additionally,  based 
upon  the  applicant's  complete  mental  incapacity  and  his  inability  to 
distinguish right from wrong, a recommendation [for advancement] from 
the [CO] is not appropriate.  Furthermore, based upon mental incapacity 
the applicant was not eligible to be enlisted in the Coast Guard, pursuant 

to [10 U.S.C. § 504].  [Article 5.C.13.e.1. of the Personnel Manual]4 allows 
for  members  who  are awaiting  final  action of  the  PDES  to  be  advanced, 
however  the  provision  of  the  [CO's]  recommendation  is  not  met  in  this 
case, even with the removal of the NJP and associated marks.  Any action 
to restore the applicant to the original eligibility list and change the [CO's] 
advancement  recommendation  would  be  inconsistent  with  Coast  Guard 
policy and would clearly be unfair given the applicant's situation.    

 

APPLICANT'S REPLY TO THE VIEWS OF THE COAST GUARD 

On  September  13,  2006,  a  copy  of  the  Coast  Guard  views  was  sent  to  the 

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

FINDINGS AND CONCLUSIONS 

1.  The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.   

 
 
The  Board  makes  the  following  findings  of  fact  and  conclusions  of  law  on  the 
basis of the submissions of the applicant and the Coast Guard, the applicant's military 
record, and applicable law: 
 
 
 
 
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 or 
should  have  discovered  the  alleged  error  or  injustice.    See  33  CFR  52.22.      This 
application  was  submitted  approximately  eighteen  years  beyond  the  statute  of 
limitations.   
 

3.   However, the Board may still consider the application on the merits, if it finds 
it is in the interest of justice to do so. 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.   See also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995). 

 
 
4.  The applicant claimed that he did not discover the alleged error until January 
15, 2006, but admitted that he should have included a request for the current corrections 
in  his  1984  Article  69  petition  to  have  the  special  court-martial  findings  and  sentence 

                                                 
4 This provision provides authority for the CO to cancel an advancement prior to its being effected when 
it  is  determined  that  the  member  no  longer  meets  the  eligibility  requirements  and  it  appears  that 
eligibility will not be attained prior to expiration of the current advancement eligibility list. 

overturned.  Nevertheless, the applicant stated that at the time of the Article 69 petition, 
he  was  suffering  from  mental  problems  and  did  not  realize  that  the  petition  did  not 
include a request for removal of the NJP and associated performance evaluation marks 
and  or  a  request  for  advancement  to  E-7.    The  Board  is  persuaded  by  the  applicant's 
argument  and  notes  that  the  sanity  board  found  that  he  applicant  was  not  able  to 
understand the nature of the court-martial proceedings or to participate intelligently in 
his defense in July 1982.  Therefore, it is just as probable that the applicant was not able 
to assist counsel with the preparation of his Article 69 petition in 1984 which failed to 
include  the  current  request  for  removal  of  the  NJP  and  the  associated  enlisted 
performance evaluation and the request for advancement to E-7.   
 
 
5.    Additionally,  the  Board  is  persuaded  to  waive  the  statute  of  limitations 
because the applicant's claim has some merit.  The Board agrees with the Coast Guard 
that  the  applicant's  NJP  of  April  19,  1982,  should  be  removed  from  his  record  as  the 
applicant probably suffered from a mental defect at that time that caused him to lack 
the  substantial  capacity  to  appreciate  the  criminality  of  his  conduct,  to  conform  his 
conduct to the requirements of the law, and to cooperate intelligently in his defense.  As 
the then-Chief Counsel stated, the sanity board findings constituted a complete defense 
to the court-martial charges.  The Board finds that the sanity board findings also excuse 
the applicant's misconduct that led to his NJP.  As the JAG stated, the date in which the 
applicant  committed  the  February  NJP  offenses  and  the  date  of  NJP  were  within  the 
period  that  the  applicant  was  determined  to  be  incompetent.    Therefore,  the  NJP  of 
April 19, 1982, the associated performance evaluation, and the administrative remarks 
entry dated February 1, 1982, noting the NJP and the commencement of a new period 
towards  a  good  conduct  award5  should  be  removed  from  the  applicant's  record.  The 
Board  further  agrees  with  the  JAG  that  with  the  removal  of  the  aforementioned 
documents, there is no basis to refuse granting the applicant's request to be awarded his 
second good conduct award.   
 
 
6.    With  the  removal  of  the  NJP,  the  applicant's  record  will  contain  no 
disciplinary actions.  In this regard, the applicant asserted with the removal of the NJP 
and  the  fact  that  a  sanity  board  determined  that  he  was  mentally  incompetent  at  the 
time he committed the NJP offenses, he should have been advanced to pay grade E-7.   
The convening authority has already set aside the special court-martial conviction and 
sentence  that  included  the  reduction  in  rate  to  SNFT.    The  Commandant  placed  the 
applicant  on  the  TDRL  in  pay  grade  E-6,  the  highest  grade  in  which  the  applicant 
satisfactorily served.   
 

                                                 
5   It is clear from the military record that while this entry is dated February 1, 1982, the date the applicant 
committed the NJP offenses, it refers to the NJP to be imposed on April 19, 1982 and it is the entry that 
established the new commencement date for the applicant's good conduct award eligibility period.  

 
7.  However, the Board agrees with the Coast Guard that the applicant has failed 
to prove that he would have likely been advanced to pay grade E-7 in the absence of the 
NJP. To be eligible for advancement the applicant required the CO's recommendation.   
See  Article  5-C-16a.  of  the  Personnel  Manual  then  in  effect.      As  the  Coast  Guard 
argued, removal of the NJP does not mean that the CO's decision not to recommend the 
applicant for advancement was likely to change.   In this regard, the Board notes that 
the  applicant  exhibited  abnormal  behavior  in  December  1982  for  which  he  was 
hospitalized.  He  was  diagnosed  with  a  mental  disability  that  led  to  his  being  found 
unfit for continued duty and processed through the PDES.  In addition, a sanity board 
determined that the applicant suffered from a mental defect as early as 1981.  Under the 
circumstances,  the  applicant  could  not  meet  the  criteria  of  Article  5-C-12a.(1)  of  the 
Personnel  Manual  for  advancement  of  disabled  personnel.    This  provision  states  in 
pertinent part, that personnel who are recommended for advancement but awaiting a 
physical  evaluation  board  or  are  in  a  not  fit  for  duty  status  can  be  advanced  if  they 
satisfy  certain  criteria,  which  includes  retaining  the  CO's  recommendation  for 
advancement and "In the judgment of the [CO], there is a reasonable expectation that 
the  individual  will  be  able  to  return  to  a  fit  for  duty  status."  From  the  applicant's 
hospitalization  on  December  11,  1982,  until  his  discharge  from  the  Coast  Guard  on 
January 19, 1988, he was never fit for duty.   The Board finds that based on the evidence 
of  record  there  was  never  a  reasonable  expectation  prior  to,  during,  or  after  his 
disability processing that the applicant would have been able to return to a fit for duty 
status.  Nor did the applicant ever receive the CO's recommendation for advancement 
after  his  name  was  removed  from  the  advancement  list.    The  applicant  has  failed  to 
prove  that  the  CO  committed  an  error  or  injustice  by  not  recommending  him 
advancement to E-7.6  
 
 
8.    After  the  applicant  was  declared  unfit  by  CGPC  as  a  result  of  the  PDES 
processing,  he  was  not  eligible  for  advancement.  Article  5-C-12a.(2)  of  the  Personnel 
Manual in effect at the time stated that a member who had been declared unfit was not 
eligible  for  participation  in  and  advancement  under  the  servicewide  competition.7 
However, under Article 12-C-15f.(3) of the Personnel Manual, a member may be retired 

                                                 
6 Although the Board normally attempts to place an applicant in the position he would have been in had 
the  error  not  occurred  as  discussed  in  Denton  v.  United  States,  204  Ct.  Cl.  188,  the  fact  is  that  the 
applicant was not eligible for advancement without the CO's recommendation, a mandatory requirement.  
There  is  no  evidence  in  the  record  that  the  CO  reinstated  his  recommendation  for  the  applicant's 
advancement, even after the applicant's disabilities were uncovered. 
 
7 Article 5.C.25.b. of the current Personnel manual however permits a member who is declared unfit by 
CGPC to be advanced prior to retirement if they are above the cut on the current eligibility list. However, 
the  member  would  still  need  the  CO's  recommendation  for  advancement,  which  the  applicant  did  not 
have.  The  applicant  did  not  submit  evidence  showing  that  he  was  above  the  cut  on  the  advancement 
eligibility list and that information is not in the military record.  The cutoff consists of those on the list 
who are guaranteed advancement and who do not have to compete further for promotion.   

in the highest grade or rate to which he or she would have been promoted had it not 
been for the physical disability for which the member is retired, if that disability was 
found  to  exist  as  a  result  of  the  member's  physical  examination  for  promotion.      The 
applicant's mental disability was not discovered as a result of a medical examination to 
determine his fitness for promotion but rather as the result of the applicant's abnormal 
behavior  after  a  courts-martial  conviction.    Therefore,  under  the  regulation  the 
applicant  could  not  be  retired  as  a  FTC.      He  was  properly  retired  as  a  FT1  upon  a 
highest-grade  determination  by  the  Commandant.      The  Board  finds  no  error  or 
injustice in the treatment of the applicant by Coast Guard authorities.   
 
 
9.  The applicant suggested that he might not have received all the pay that he 
was entitled to as a result of the CA's action restoring all the property and benefits that 
were taken from him as a result of the court-martial.  However, the applicant presented 
no evidence on this point and the request should be denied. 
 
 
10.  Based upon the above, the Board finds that it is in the interest of justice to 
waive  the  statute  to  limitations  and  to  grant  the  applicant  the  partial  relief 
recommended by the Coast Guard.   
 
 
 
 
 
 
 
 
 
 
 
 

[ORDER AND SIGNATURES ON NEXT PAGE] 

 
 
 
 

 

ORDER 

All other requests are denied. 

The application former xxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG for the correction 

His  record  shall  be  further  corrected  by  awarding  him  a  second  good  conduct 

The April 19, 1982 NJP and the associated performance marks shall be removed 

 
 
of his military record is granted in part as follows: 
 
 
from the applicant's record. 
 
 
The February 1, 1982, administrative remarks entry documenting the imposition 
of CO's NJP and noting the beginning of a new good conduct award eligibility period 
shall be removed from the applicant's record.  (See footnote 5 of this decision.) 
 
 
award. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
                                                             
 

 

 
 Harold C. Davis, M.D. 

 

 

 

 
 George A. Weller 

 

 Bruce D. Burkley