DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2011-003 
 
Xxxxxxxxxxxxxx 
xxxxxxxxxxxxxxx 

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 upon receipt of the applicant’s 
completed application on October 8, 2010, and assigned it to staff member J. Andrews to pre-
pare the decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated September 8, 2011, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  remove  from  his  record  his  non-judicial  punishment 
(NJP) dated October 15, 2009, when he was punished for failing to obey an order and for fraudu-
lent enlistment.  The applicant argued that the NJP should be removed from his record because 
“NJP  was  not  the  proper  forum  to  rule  on  those  offenses.”    The  applicant  stated  that  he  was 
transferred to the cutter where the NJP was awarded as a pretext to deny him the right to refuse 
NJP and demand trial by court-martial.  He alleged that the pretextual nature of the transfer is 
proven by the fact that two days after the mast at which he was awarded NJP, he was transferred 
off the cutter.  The applicant also alleged that his commanding officer violated the Health Insur-
ance  Portability  and  Accountability  Act  of  1996  (HIPAA)  by  viewing  his  medical  records  to 
determine that he had fraudulently enlisted.  In support of his allegations, the applicant submitted 
several documents from his military record. 
 

SUMMARY OF THE APPLICANT’S MILITARY AND MEDICAL RECORDS 

 
On January 31, 2006, the applicant completed a pre-screening Medical  History Report 
pursuant to his pending enlistment.  On his report, he marked “No” in response to the question, 
“Have  you ever … seen a psychiatrist, psychologist, social worker, counselor or other profes-
sional  for  any  reason  (inpatient  or  outpatient)  including  counseling  or  treatment  for  school, 
adjustment, family, marriage or any other problem, to include depression, or treatment for alco-
hol,  drug  or  substance  abuse.”    He  also  completed  a  Report  of  Medical  History  on  which  he 

denied  ever  having  suffered  depression  or  anxiety,  received  counseling,  or  been  evaluated  or 
treated for a mental condition.  He admitted that he suffered from acne, which the doctor noted 
was “mild.” 

 
The applicant enlisted in the Coast Guard on May 23, 2006, and completed a Report of 
Medical  History  the  next  day  on  which  he  again  denied  ever  having  suffered  depression  or 
anxiety,  received  counseling,  or  been  evaluated  or  treated  for  a  mental  condition.    While  in 
recruit basic training on June 3, 2006, he was referred for a psychiatric evaluation.  The com-
mand noted that the applicant was “distant,” made “little to no eye contact,” and was reluctant to 
answer any questions.   

main problem is his poor interpersonal skill.  He is probably able to do specific assigned tasks, but 
I doubt that he will be able to perform duties requiring increased responsibility, initiative, or coor-
dination with others.  Since these issues are key to a successful CG career, I feel he is administra-
tively unsuited to continued military service.  Medically speaking, I don’t find any disqualifying 
conditions since the reason for his dysfunction cannot be explained merely by a diagnosis of dys-
thymia – it is first and foremost a difficulty in life skills, for which the member has no interest in 
participating in treatment.  Despite my pointing out that his CG career would definitely be helped 
by his enhancing his interpersonal skills, he remains steadfastly uninterested in pursuing any sort 

 
After graduating from recruit training, the applicant was assigned to a cutter in July 2006.  
On October 11, 2006, a health specialist on the cutter referred him to a psychologist because of 
his  isolation  and  quietness.    The  applicant  told  the  psychologist  that  he  had  been  physically 
abused by his mother for seven years and that he had been “medicated with antidepressant medi-
cation because she believed he was a problem child and, therefore, had to be beaten.”  The psy-
chologist reported that the applicant was unable to cope with stressful situations and interper-
sonal communications and was unwilling to undergo therapy or take a psychotropic medication.  
The  psychologist  diagnosed  the  applicant  with  post  traumatic  stress  disorder,  based  on  his 
mother’s physical abuse, and an adjustment disorder with prolonged depressed mood.  The psy-
chologist recommended  that the applicant be medically discharged.   A senior medical officer, 
however, reported that it “is too early to tell whether the patient will need [a] medical board.” 

 
While  assigned  to  the  cutter,  the  applicant  continually  sought  medication  and  surgical 
treatment for acne on his face and eczema on his hands.  A doctor reported on September 13, 
2007, that the applicant “looks detached. Eye contact very poor. [He] is confrontational when 
asked  questions  about  his  well  being.    States  that  he  wishes  that  everyone  would  stop  asking 
about it.  [He] evades further questioning.  [He is] continuously pulling and picking at his hands, 
unable to sit still.”   

 
On May 9, 2008, the applicant’s commanding officer (CO) referred him for a psychiatric 
evaluation because of “observed cyclical performance, mood shifts, anxiety, depression, and a 
withdrawn personality.”  At his first evaluation, the applicant told the psychiatrist that his mother 
had physically and verbally abused him for years; that he “feels sad most of the time, dating back 
into his childhood”; and that at age 16 he was treated with medication for four months, “only 
because his mother made him do so.”  The doctor noted that “[n]one of this was reflected on his 
entry physical dated 31 Jan 06.”  The psychiatrist diagnosed the applicant with Dysthymia, Early 
Onset, and Avoidant Personality Disorder.  Regarding the personality disorder, the psychiatrist 
reported that the applicant’s 
 

of counseling (or medication for that matter).  Although the member feels that some of his psy-
chological problems will resolve if his acne improves, this shows a degree of denial as to the depth 
of his psychological impairment.  For the record, it is important to note that he  failed to report 
prior mental health treatment on his entry physical. 
 
Thereafter,  the  applicant  underwent  several  months  of  counseling  and  treatment  with 
Celexa, an antidepressant.  He repeatedly told his psychiatrist that despite his personal isolation, 
he wanted to remain in the Coast Guard. 

 
On January 30, 2009, the applicant asked his doctor to restrict his duty status so that he 
would not have to deploy with the cutter because “[h]e wants to undergo dermabrasion cosmetic 
therapy for his arms, and won’t be seeing his dermatologist until 6  Feb.  He states that more 
treatments are planned that will conflict with the deployment.”  The doctor noted that the appli-
cant had “moderate acne.  Arms show no significant lesions – only mild scaling in a couple of 
places, no inflammatory lesions or ulcerations.  Hand eczema is much improved – essentially 
resolved. … Basically, this member wishes to opt out of operational duties for elective cosmetic 
procedures, and I cannot approve of this from a medical standpoint.” 

 
On April 2, 2009, the applicant’s psychiatrist reported that he had diagnosed the applicant 
with Somatoform Disorder Not Otherwise Specified, Dysthymic Disorder Early Onset, Avoidant 
Personality Disorder, and acne.  He noted that the applicant had stopped taking Celexa because 
he did not believe it was helping him. 

 
On April 15, 2009, the command of the cutter convened a medical board to evaluate the 
applicant because of his diagnoses of Body Dysmorphic Disorder, which did not exist prior to his 
enlistment;  Dysthymic  Disorder,  which  existed  prior  to  his  enlistment;  Avoidant  Personality 
Disorder; and Acne, Xerosis, and Eczema.  The applicant reported that he had been physically 
and  emotionally  abused  by  his  mother  and  thus had  suffered  depression  and  anxiety  in  social 
settings since his childhood.  He had “learned to avoid potentially conflictual settings” and “is 
socially isolated.”  The doctors reported that the applicant was “excessively preoccupied by his 
acne condition,” sought treatment frequently, and had undergone  
 

numerous trials of oral and topical medications and laser skin therapies.  The patient experiences 
severe psychological distress that impairs his occupational and social functioning to the point of 
complete  social  isolation  and  impediment  to  his  command’s  deployment  missions.    The  patient 
obsesses over his acne and avoids social interactions and feels that others think ill of him due to 
his condition and social isolation.  The patient unrealistically desires to remain on active duty and 
redeploy on his ship.  The patient has taken psychotropic medications on a somewhat non-com-
pliant basis and has since discontinued taking medications. … Psychiatric history is remarkable in 
that the patient was “forced” to see a psychiatrist at age 16 and was placed on a psychiatric medi-
cation for 4 months, although [he] does not recall the name of the medication. … [T]he patient has 
a history consistent with Body Dysmorphic Disorder [BDD], Dysthymic Disorder and Avoidant 
[Personality Disorder] that are interfering with both a normal quality of life and ability to carry out 
his duties. … BDD is considered a major risk factor for suicide.  BDD is a chronic illness and 
symptoms are likely to persist, or worsen, if left untreated.  The patient however is not demon-
strating improvement by his continuing perception of having a severely debilitating skin condition 
that  has prevented him  from  deploying  with  his ship and functioning adequately  with  his crew.  
The patient apparently benefited from Celexa in the past, although he denies its effectiveness and 
declines further treatment.  The patient has maximized his dermatological treatments and still can-
not adequately function within the military environment. 

 
On August 20, 2009, a health specialist sent an email to another health specialist noting 
that although the applicant had admitted to a doctor that he had received “mental treatment with 
medication” for several months at age 16, he had failed to report this treatment during his pre-
screening and enlistment physical examinations. 

 
On  September  10,  2009,  the  CO  of  the  cutter  advised  the  applicant  that  his  pending 
administrative discharge for unsuitability due to a diagnosed Avoidant Personality Disorder, pur-
suant to Article 12.B.16. of the Personnel Manual, which had been initiated on July 26, 2009, 
was being held in abeyance.  The CO explained that the abeyance resulted from the executive 
officer’s discovery, while assembling the discharge package, of a medical board report revealing 
that the applicant had been diagnosed with Body Dysmorphic Disorder.  The CO noted that the 
proceedings for an unsuitability discharge would resume if an evaluation of the case indicated 
that the applicant should not be discharged pursuant to the Medical Manual because of his Body 
Dysmorphic Disorder.  The applicant acknowledged this notification. 

 
According to the applicant, he was taken to mast on October 15, 2009, and punished for 
disobeying  an  order  and  fraudulent  enlistment.    However,  there  is  no  Court  Memorandum  or 
other documentation of this NJP in the Personal Data Record received from the Coast Guard. 

 
On November 10, 2009, the Acting CO of the cutter advised the applicant in writing that 
he  was  initiating  the  applicant’s  honorable  discharge  for  misconduct  based  on  the  applicant’s 
failure to disclose upon his enlistment medical care that he had received before he enlisted.  The 
Acting CO advised him that he had a right to submit a statement and to object to the discharge.  
The applicant acknowledged this notification, objected to the proposed discharge, and requested 
a  “second  chance  discharge  waiver.”    He  submitted  a  statement  objecting  to  his  discharge  on 
November 16, 2009, in which he wrote that he did not believe that he would have been refused 
enlistment if he had disclosed that he had been counseled by a psychiatrist before he enlisted.  
The applicant noted his work aboard two cutters, his receipt of a “non-rate of the month” award 
in June 2007, and his desire to continue serving his country.  He complained that his CO refused 
to listen to his objections and mitigating circumstances at the mast on October 15, 2009.   

 
On January 1, 2010, the Personnel Service Center issued separation orders authorizing 
the applicant’s honorable discharge for fraudulent enlistment pursuant to Article 12.B.18. of the 
Personnel Manual.  The applicant was discharged on February 9, 2010. 
 

VIEWS OF THE COAST GUARD 

 
 
On May 13, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion in which he recommended that the Board deny relief in this case.  In so doing, 
he adopted the findings and analysis provided in a memorandum on the case prepared by the Per-
sonnel Service Center (PSC). 
 
 
The  PSC  stated  that  the  command  of  the  applicant’s  cutter  discovered  that  he  had  not 
 
revealed  a  prior  medical  condition  upon  his  enlistment  and  had  therefore  discharged  him  for 
fraudulent enlistment.  The PSC stated that it appears that the medical condition was Body Dys-

morphic Disorder.  The  PSC stated that the applicant’s NJP should not be expunged because, 
contrary to his claim and pursuant to Article 1.A.5.a. of the Military Justice Manual, NJP is the 
proper forum for addressing minor offenses under the Uniform Code of Military Justice (UCMJ).  
 
 
The PSC also stated that there was nothing pretextual about the applicant’s assignment to 
the cutter since it was his permanently assigned unit, and NJP was imposed in accordance with 
Article 1.A.4.a. of the Military Justice Manual.  The PSC stated that the applicant was transferred 
off the cutter a couple of days after the NJP because he was being processed for an administra-
tive discharge. 
 
 
Regarding the applicant’s claim that his privacy rights under HIPAA were violated by his 
command  when  they  reviewed  his  medical  record  before  imposing  NJP,  the  PSC  stated  that 
under Chapter 1.B.1. of the Medical Manual, the Executive Officer of a cutter without a perma-
nently attached doctor is the medical officer of the cutter and thus has ready access to examine a 
subordinate’s medical record for official purposes.  Therefore, the PSC argued, HIPAA was not 
violated. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On June 13, 2011, the Board received the applicant’s response to the views of the Coast 

Guard.   
 
The applicant stated that, contrary to the PSC’s memorandum, he was never diagnosed 
with Body Dysmorphic Disorder before he enlisted.  The applicant stated that although he was 
treated for anxiety as a child, he suffered no anxiety after he moved out of his abusive mother’s 
house in 2004, two years before he enlisted. 

 
The  applicant  alleged  that  although  he  was  permanently  assigned  to  the  cutter,  he  had 
been assigned to temporary assigned duty (TAD) ashore “for well over a year and was still TAD 
when my final discharge was given to me.”  In this regard, he noted that he was “left behind 
while the ship  went on  patrol so  I  could seek outside treatment  for my  acne.”   The  applicant 
alleged that despite his acne he “was able to keep my personal feelings separated from work, and 
I proved to be one of the most valuable non-rates at that station.” 

 
The applicant alleged that he was under investigation by Coast Guard Investigative Ser-
vices at one point but, even though the investigation found him to be not guilty, the CO of the 
cutter waged a vendetta against him to ensure that he was discharged even though he had not 
been working on the cutter for more than a year. 

 
In  support  of  his  allegations,  the  applicant  submitted  many  of  his  pediatric  medical 

 

 

records, including the following: 
 

•  A doctor’s notes dated March 10, 2004, state that the applicant’s inflammatory acne had 
improved  only  slightly  and  that  he  reported  some  improvement  in  his  depression  and 
anxiety with the use of fluoxetine. 

•  A doctor’s notes dated April 21, 2004, state that the applicant, who had “quite mild facial 
acne,” was taking tetracycline and was satisfied with the gradual improvement of his acne 
but that his mother disagreed. 

•  A doctor’s notes, dated May 26, 2004, state that the applicant had stopped taking Prozac 
as prescribed and would be prescribed Zoloft instead and that he suffered from “anxiety 
syndrome” and “family problems.” 
 
The applicant also submitted copies of the following documents: 

•  An Administrative Remarks entry dated July 1, 2007, congratulates the applicant for hav-
ing been selected by the cutter’s first class petty officers as the cutter’s Non-Rate of the 
Month for June 2007. 

•  A  citation  for  a  Meritorious  Unit  Commendation  shows  that  on  October  19,  2007,  the 
crew of the cutter was awarded this commendation for their service in counter-narcotic 
drug operations in the Eastern Pacific. 

•  An  Administrative  Remarks  entry  dated  September  17,  2008,  shows  that  the  applicant 
had been assigned to temporary duty at a shore unit and was praised for his exemplary 
performance. 

•  A “Search Authorization” dated March 24, 2009, shows that the applicant’s CO found 
that  there  was  probable  cause  to  search  the  applicant’s  room  for  possession  of  child 
pornography and obscene representations of the sexual abuse of children and that the CO 
authorized the CGIS to search the applicant’s barracks room. 

•  A citation shows that the applicant received a Good Conduct Award on May 22, 2009. 

•  Correspondence from the National Personnel Records Center shows that the center was 

 

 

 

 

 

 

 

unable to find the applicant’s military and medical records. 
 

FINDINGS AND CONCLUSIONS 

1. 

2. 

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

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

 
 
military record and submissions, the Coast Guard’s submission, and applicable law: 
 
 
The application was timely filed.  
 
 
The applicant asked the Board to remove from his record his NJP for fraudulent 
enlistment and failing to obey an order.  No evidence or documentation of this NJP appears in 
the copy of his official military records received from the Coast Guard.  However, because it is 
possible that the Coast Guard retains some record of the NJP somewhere, the Board will consider 
the applicant’s request.  The Board begins its analysis in every case by presuming that an appli-
cant’s military record is correct and fair, and the applicant bears the burden of proving by a pre-

3. 

ponderance of the evidence that the OER is erroneous or unjust.1  Absent specific evidence to the 
contrary, the Board presumes that Coast Guard and other Government officials chain have acted 
“correctly, lawfully, and in good faith” in preparing their evaluations.2   
 
 
The  applicant  alleged  that  his  NJP  for  fraudulent  enlistment  and  disobeying  an 
order was unfair because (a) NJP was not the proper forum for disposing of these charges; (b) he 
should have had the right to deny  NJP and demand trial by court-martial because he was not 
serving aboard the cutter when NJP was imposed; and (c) under HIPAA, his CO should not have 
had access to the medical records he reviewed to determine that the applicant had fraudulently 
enlisted.  However, the Board finds the applicant’s allegations to be erroneous and/or unproven 
as explained below: 
 

(a) Under Article 15 of the UCMJ, COs are expressly authorized to dispose of minor 
offenses  under  the  UCMJ through  NJP.3    Nothing  in  the  record  shows  that  the 
charges against the applicant were so serious in nature that they clearly required 
trial by court-martial. 
 

(b) The Coast Guard’s database shows that the applicant was assigned to the cutter 
from  July  2006  until  his  discharge.    The  applicant  was  apparently  temporarily 
assigned to shore units for certain deployment periods because of his acne treat-
ments, but such temporary assignments did not sever his permanent assignment to 
the cutter.  The fact that the applicant was ultimately transferred from the cutter 
just two days after his NJP does not prove that his assignment to the cutter was a 
pretext.  Even if the applicant was temporarily assigned to a shore unit when he 
was  awarded  NJP,  this  fact  would  not  necessarily  prevent  the  CO  of  the  cutter 
from  awarding  him  NJP  since  the  cutter  was  still  his  permanent  duty  station.4  
The applicant has failed to submit sufficient evidence and information to support 

                                                 
1 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002, approved by the Deputy 
General Counsel, May 29, 2002) (rejecting the “clear and convincing” evidence standard recommended by the Coast 
Guard and adopting the “preponderance of the evidence” standard for all cases, including disputes over OERs, first 
to the promulgation of the latter standard in 2003 in 33 C.F.R. § 52.24(b)).   
2 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
3  10  U.S.C.  §  815.    Article  1.A.5.a.  of  the  Military  Justice  Manual  states  that  “NJP  may  be  imposed  for  minor 
offenses made punishable by the UCMJ as defined in Part IV, MCM. Factors to be considered to determine whether 
an offense is minor: the nature of the offense and the circumstances surrounding its commission; the offender's age, 
rank,  duty  assignment,  record  and  experience;  and  the  maximum  sentence  permitted  for  the  offense  if  tried  by 
general court-martial [see, paragraph l.e., Part V, MCM]. Ordinarily, an offense should be considered minor if the 
maximum sentence that could be awarded at a general court-martial does not include a dishonorable discharge or 
confinement for more than 1 year. This general rule, however, does not prohibit imposing nonjudicial punishment 
for offenses that do not meet the definition of ‘minor’ in this subparagraph.” 
4  Article  1.A.4.b.  of  the  Military  Justice  Manual  states  that  “NJP  may  be  imposed  upon  TAD  personnel  by 
thecommanding  officer  of  the  member's  permanent  unit,  or  by  the  commanding  officer  of  the  unit  to  which  the 
member is temporarily assigned.” 

his contention that he was unjustly denied the right to refuse NJP and demand trial 
by court-martial.5 
 

(c) A military CO is responsible for the health, fitness, and discipline of the members 
of his command and hence generally entitled to pertinent information in a subor-
dinate’s  medical  records.6    Under  Chapter  4.A.3.  of  the  Medical  Manual,  the 
executive officer of the cutter was the custodian of the crew’s medical records and 
thus expressly  authorized to examine  the applicant’s  medical record for official 
purposes,  such  as  determining  whether  the  applicant  had  falsely  reported  his 
medical history when he enlisted.  Under Article 1.D.1.g. of the Military Justice 
Manual, the CO was entitled to review the evidence against the applicant at mast, 
and that evidence would have included the applicant’s medical records because 
one  of  the  issues  was  whether  the  applicant  had  gained  his  enlistment  through 
fraud by falsely reporting his medical history.  Therefore, the applicant has failed 
to prove by a preponderance of the evidence that his command violated HIPAA. 

4. 

 
 
The applicant has not proved by a preponderance of the evidence that his NJP was 
erroneous  or  unjust.    The  evidence  in  the  record  shows,  in  fact,  that  upon  his  enlistment  the 
applicant falsely claimed that he had never received counseling or treatment for depression or 
anxiety.  This evidence thus supports his CO’s decision to award him NJP for fraudulent enlist-
ment and the Coast Guard’s decision to discharge him for fraudulent enlistment. 
 

 
 
 
 

 
 

5. 

Therefore, the application should be denied. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

                                                 
5 Article 1.B.5.e. of the Military Justice Manual states that “a member who is not attached to or embarked in a vessel 
[see, paragraph 3, Part V, MCM] must be informed that he or she has a right to demand trial by court-martial in lieu 
of non-judicial punishment.” 
6 Chapter 9.A.2.b. of the Medical Manual states that “[t]he Commanding Officer (CO) is responsible for the health 
and physical readiness of the crew of the unit. In the absence of a permanently attached Medical Officer (MO) the 
vessel's Executive Officer (XO) is designated by Coast Guard Regulations as the unit's Medical Officer.” 

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

ORDER 

 

 
 

 
 
military record is denied.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Julia Andrews 

 

 

 
 
 Robert S. Johnson, Jr. 

 

 

 
 James H. Martin