DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2003-070 
 
  
   

 

 
 

FINAL DECISION 

 
ULMER, Chair: 
 
 
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  June  17,  2002,  and  docketed  on  April  21,  2003,  upon  receipt  of  the 
applicant’s completed application for correction of his military record.1 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  December  18,  2003,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  by  removing  all 
references to lost time for the period April 16, 1996 to April 29, 1996 from his DD Form 
214 and by removing all references from his military record that indicate he was absent 

                                                 
1      Although  requested  several  times,  the  Board  never  received  the  applicant's  records  from  the  Coast 
Guard.  The Board was informed by the Personnel Records Center that the record had been checked out 
by the Coast Guard.  The Coast Guard subsequently informed the Board that it was unable to locate the 
applicant's military record.  The Board informed the applicant of this situation and asked to be provided 
with any copies of his military record that may be in his possession. On April 15, 2003, the Board received 
copies of what appears to be the applicant's official military record from the applicant. He stated that he 
had obtained it from his private counsel and expected it to be returned to him.  On the FRONT outside 
COVER  of  the  military  record  is  the  statement  "U.S.  Coast  Guard  .  .  .  Personal  Data"  and  on  the  back 
cover  is  the  Commandant's  address  and  the  statement  -  "IF  FOUND,  PLACE  IN  NEAREST  MAILBOX 
AND  RETURN  FOR  RETURN  BY  OFFICIAL  MAIL."    The  applicant  also  provided  the  Board  with  a 
certified copy of his military record that he obtained from his defense attorney.  
 

without  leave  (AWOL)2  for  this  period.    He  further  requested  that,  if  his  record  is 
corrected, he receive pay and allowances for this period. 
 
 
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that that he was not AWOL for the period April 16, 1996 to 
April 29, 1996, but was on authorized leave.3  He alleged that Commander, Coast Guard 
Personnel Command (CGPC) had authorized his retirement effective July 1, 1996.4  He 
further  claimed  that  Commander,  Thirteenth  Coast  Guard  District,  had  approved  his 
request to travel outside the continental United States during the period April 10, 1996 
to June 30, 1996.  The applicant stated that while on authorized leave in xxxxxx he heard 
that he was AWOL, after which he returned immediately to the Thirteenth Coast Guard 
District.   
 

SUMMARY OF THE RECORD AND SUBMISSIONS 

 
 
On  November  9,  1994,  the  applicant  requested  voluntary  retirement,  effective 
July 1, 199x.  In his letter requesting retirement, he indicated that his place of residence 
would be xxxxxxxxxxxxx. 

                                                 
2   Unauthorized absence and AWOL are used interchangeably throughout his decision.   
 
3   Article 7.a.2.a. of the Personnel Manual defines leave as "the authorized absence of an individual from  
a place of duty, chargeable against such individual in accordance with applicable law." 
 
 Article 7.A.5.b. of the Personnel Manual states that district commanders,  commanders of maintenance 
and  logistics  commands,  commanding  officers  of  Headquarters  units,  commanding  officers  of  district 
units or such officers as they may designate may grant any amount of regular leave to which officers and 
enlisted personnel may be entitled.   
 
4  Article  12.C.1.b.  of  the  Personnel  Manual  states  that  [CGPC]  issues  orders  containing  the  effective 
retirement date, the laws governing the retirement, and travel authorization.   The provision also states 
that  all  non-disability  retirements  occur  on  the  first  day  of  a  calendar  month  with  the  member  usually 
detaching on the last day of the preceding month.  It further states that if the member detaches earlier, the 
time between detachment and the effective retirement date is charged as annual leave.   
 
Article  12.C.1.c.1.  (Leave  in  Connection  with  Retirement)  of  the  Personnel  Manual  states  "At  their 
discretion leave-granting authorities may grant earned or advance leave accompanying retirement orders 
. . ."  Subsection 2. states, "If authorities grant leave in connection with retirement, complete the member's 
records before he or she departs on leave, except for the final date entries, and endorse retirement orders 
to  show  the  amount  of  leave  granted.    The  retirement  processing  station  subsequently  completes  all 
documents  in  the  Service  member's  official  record  on  the  effective  retirement  date  and  transmits  the 
member's copies of these documents to him or her. 

 
 
On November 9, 1994, the applicant's commanding officer (CO), Facilities Design 
and Construction Center Pacific, recommended approval of the applicant's retirement 
request. 
 

On January 6, 1995, the Commander, Coast Guard Personnel Command (CGPC), 
informed the applicant that his request for retirement had been approved and had been 
placed in the file for July 1, 199x.  CGPC further informed the applicant that "you will be 
considered for retirement on that date in accordance with the regulations and policies 
contained in the [Chapter 12 of the Personnel Manual]."   

 
On March 12, 1996, the Commander, Thirteenth Coast Guard District granted the 
applicant  permission  to  travel  to  xxxxxxxxx  for  the  period  April  10,1996  to  June  30, 
1996.    The  letter,  with  the  subject  -  Authorization  to  Travel  Outside  the  Continental 
Limits of the United States - stated the following:  "In response to your request you are 
granted  permission  to  travel  to  xxxxxxxxxx  for  the  period  April  10,  1996  to  June  30, 
1996." 

 
The applicant's leave and earnings statement (LES) for the period 1 through 30 
April 1996 contains the following notation:  "Pay/leave suspended from 0800, 16Apr96 
to present due to unauthorized absence."  His LES for the month of May 1996 contained 
the  following:    "Pay/leave  suspended  from  0800,  16Apr96  to  1114,  29  Apr  96  due  to 
unauthorized absence." 

 
In the military records submitted by the applicant is an unapproved "Standard 
Travel  Order  for  Military  Personnel."    It  indicates  that  if  leave  had  been  approved  it 
would have begun on April 9, 1996 for 82 days INCONUS (0 days OUTCONUS), after 
which  the  applicant  would  have  reported  to  Commander,  Thirteenth  Coast  Guard 
District for separation.   

 
On September 6, 199x in accordance with pleas pursuant to a pre-trial agreement, 
the  applicant  was  convicted  at  a  General  Court-Martial  (GCM)  of  numerous 
specifications  of  making  false  official  statements,  a  violation  of  Article  107  of  the 
Uniform  Code  of  Military  Justice  (UCMJ)  and  one  specification  of  stealing  a 
government  check,  a  violation  of  Article  121  of  the  UCMJ.    He  was  sentenced  to 
confinement for one year, to be reduced in rate from pay grade E-7 to pay grade E-4, 
and  to  pay  a  $5,000  fine.    As  agreed  to  in  the  pre-trial  agreement,  the  convening 
authority  withdrew  an  unauthorized  absence  (AWOL)  charge  for  the  period  April  9, 
1996 to April 29, 1996, as well as other charges. 
 

On  October  31,  199x,  after  completing  his  confinement,  the  applicant  was 
permitted to retire at pay grade E-7.  The DD Form 214 noted two periods of lost time:  

April 16, 1996 to April 29, 1996 and September 6, 1996 until June 25, 1997 (his period of 
confinement).   

 
The  Court  of  Military  Appeals  completed  its  review  of  the  applicant  GCM  on 

April 21, 2000. 

 
The military records before the Board contain no retirement or leave orders for 

the applicant.   
 

VIEWS OF THE COAST GUARD 

On August 22, 2003, the Chief Counsel of the Coast Guard submitted an advisory 

 
 
opinion recommending that the Board deny the applicant’s request. 
 
 
The Chief Counsel argued that the applicant's application was untimely and that 
the  applicant  failed  to  show  that  it  was  in  the  interest  of  justice  to  waive  the 
untimeliness.  The Chief Counsel stated that an application for correction of a military 
record must be filed within 3 years after the alleged error or injustice was discovered or 
should have been discovered, unless the delay is excused in the interest of justice.  He 
stated that the applicant should have discovered the alleged error on his DD Form 214 
when  it  was  issued  to  him  in  199x.    He  noted  that  the  applicant's  BCMR  application 
does  not  explain  why  the  applicant  did  not  file  his  application  earlier.    The  Chief 
Counsel argued that the statute of limitations should not be waived in this case because 
there is very little likelihood that the applicant will prevail on the merits of his claim.  
 
 
The Chief Counsel pointed out that on or about September 6, 199x, the applicant 
was convicted at a General Court-Martial (GCM) of numerous specifications of making 
false  official  statements,  a  violation  of  Article  107  of  the  Uniform  Code  of  Military 
Justice  (UCMJ)  and  one  specification  of  stealing  a  government  check,  a  violation  of 
Article 121 of the UCMJ.  The Chief Counsel stated that as part of a pre-trial agreement, 
the  convening  authority  withdrew  an  unauthorized  absence  (AWOL)  charge  for  the 
period April 9, 1996 to April 29, 1996.  
 
The Chief Counsel stated that the applicant is attempting to use the fact that the 
 
unauthorized absence charge was withdrawn to show that he was not absent without 
leave for the period April 9, 1996 to April 29, 1996.  He stated that members who are 
absent without leave have their pay stopped and are charged with lost time regardless 
of whether they are prosecuted.   With respect to the evidence offered by the applicant 
to prove he was on authorized leave the Chief Counsel argued as follows: 
 

(1) In light of Applicant's criminal record illustrating his willingness to lie 
whenever it is convenient to do so, the Board should view all self-serving 
assertions of the Applicant with the greatest skepticism.   

 
(2)  Applicant  offers  into  evidence  [a]  Request  for  Voluntary  Retirement 
that lists his proposed place of residence after retirement as XXXXXXXX 
and  a  letter  approving  that  request.    This  evidence  is  irrelevant  to  the 
pertinent issue of whether Applicant was on authorized leave during the 
period 16 April to 29 April 1996.   
 
(3) Applicant offers into evidence a letter authorizing his travel to xxxxxxx 
during  the  period  10  April  1996  through  30  June  1996.    While  on  the 
surface, this would appear to support applicant's assertion that he was not 
absent  without 
  The  requirement  to  receive 
authorization for overseas travel is a separate and distinct requirement in 
addition to the normal requirement to have leave approved in advance by 
an official authorized to do so.  Coast Guard Personnel Manual, Chapter 
16-J.  In essence, Applicant's evidence merely shows that he was eligible to 
go  to  XXXXXXXX  on  leave  during  the  period  in  question,  not  that  he 
requested and received such authorization.   

it  does  not. 

leave, 

 
 
The  Chief  Counsel  attached  a  memorandum  from  Commander,  Coast  Guard 
Personnel  Command  (CGPC)  as  Enclosure  (1)  to  the  advisory  opinion.    CGPC  stated 
that the letter from District 13 granted the applicant permission to travel overseas, but 
not leave to be away from his unit.  CGPC  stated that such authority rested with the 
applicant's  CO  of  the  Facilities  Design  and  Construction  Center  Pacific,  the  applicant 
having reported to that unit in 1990.  He noted that the applicant offered no proof that 
his CO had granted him leave for the period under review. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On September 16, 2003, the BCMR received the applicant's response to the views 
of  the  Coast  Guard.    The  applicant  stated  that  he  was  told  by  his  trial  and  appellate 
defense lawyers not to file a BCMR application until his court-martial and review were 
completed.   
 
The applicant points to the fact that the BCMR was unable to obtain his original 
 
military record. He questions why the BCMR cannot use "its power" to simply request 
his  personnel  records.    He  alleged  that  the  following  documents  would  be  in  his 
military record: 
 
"Permanent change of station orders (PCS) authorizing [his] retirement, were issued by 
the  D13  (apru)  having  the  authority  to  do  so  via  Commandant  (Mpc-sep-2)  dated  6 
January 1995. 
 

"Personnel Management Information Form (PMIS) 14D, the computer form authorizing 
pay  matters  that  I  was:    (a)    authorized  "terminal  leave"  i.e.    using  leave  accrued 
commencing 10 April 1996 through 30 June 1996 where I would then be placed on the 
retired rolls.  (b)  Authorized "AO" leave (leave outconus) based on the letter from D13.  
(c)  Effective retirement date of 1 Jul 9x. (app)." 
 
 
The applicant stated that his past court-martial conviction is not relevant to the 
issue at hand, which is "was [he] on authorized leave or not[.]"   He stated that the Coast 
Guard makes assumptions but it does not provide the Board with factual evidence.   He 
stated that if the Coast Guard would produce his military record, it would contain the 
documents showing that he was on authorized leave during the period in question. 
 
 
The  applicant  also  denied  that  CO,  Facilities  Design  and  Construction  Center 
Pacific, was his commanding officer.  He alleged that he had been transferred to District 
13 and was a member of that command at the time of the unauthorized absence. 
 

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 
applicable law: 
 

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

title 10 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 or 
should  have  discovered  the  alleged  error  or  injustice.    See  33  CFR  52.22.      This 
application was submitted approximately five years after his retirement from the Coast 
Guard.  The lost time is listed on his DD Form 214 and should have been discovered on 
October 31, 1997, the date he received it.   
 
 
3.  The Board may still consider the application on the merits, however, if it finds 
it is in the interest of justice to do so.  The interest of justice is determined by taking into 
consideration the reasons for and the length of the delay and the likelihood of success 
on the merits of the claim. See, Dickson v. Secretary of Defense, 68 F. 3rd 1396 (D.D.C. 
1995). 
 
 
4.    The  applicant's  DD  Form  149  does  not  contain  a  date  of  discovery  of  the 
alleged error or an explanation why it is in the interest of justice to waive the statute of 
limitations in this case.  However, in his reply to the advisory opinion he stated that he 
did not file his application sooner because he was told by his various defense counsels 
to  delay  doing  so  until  his  GCM  review  process  was  complete.    In  this  regard,  the 

applicant did not state the date on which the GCM review was completed nor did he 
provide supporting statements from his defense counsel that they advised him not to 
file a BCMR application until his GCM review had been completed. The Board does not 
find the applicant's reasons for not filing his application sooner persuasive.   
 
 
5.    The  Board  finds  that  it  is  unlikely  that  the  applicant  would  prevail  on  the 
merits of his claim even if the Board were to waive the statute of limitations in this case.  
The  applicant  has  not  produced  sufficient  evidence  showing  that  he  was  authorized 
leave by his CO for the period under review.  While the Commander, Thirteenth Coast 
Guard District granted permission for the applicant to travel outside the United States 
to  XXXXXXXX  between  April  10,  1996  and  April  29,  1996,  he  still  needed  specific 
permission from his CO or the CO's delegate to be away from the unit for the period 
April  16  to  29  April  1996.  There  is  no  evidence  in  the  record  that  the  applicant  was 
granted leave to be away from his unit during this period.  The Personnel Manual lists 
granting permission to travel overseas and the granting of authorized leave from one's 
place of duty as two separate actions.  See, Chapter 7 and Chapter 16 of the Personnel 
Manual.  The applicant has produced evidence showing that he was granted permission 
to  travel  overseas  but  nothing  showing  that  he  had  permission  to  be  away  from  his 
unit/duties.   
 
 
6.    The  Board  is  persuaded  in  this  finding  by  the  fact  that  in  the  records 
submitted by the applicant, which appear to include his official  military record, is an 
incomplete  and  unsigned  "Standard  Travel  Order  for  Military  Personnel,"  which  if  it 
had been approved by his CO would have authorized leave for the applicant beginning 
on April 9, 1996. Since this document was incomplete and unsigned, it had no force or 
effect.  
 
 
7.  The approval of the applicant's 199x request for retirement has no bearing on 
whether  the  period  from  April  16  to  April  29,  1996  was  "lost  time"  unless  he  had 
received retirement orders that contained an endorsement stating the amount of leave 
the applicant had been granted. Article 12.C.1.c.2 of the Personnel Manual states that if 
leave is granted in conjunction with retirement orders, such orders are to be endorsed to 
show the amount of leave granted.  The applicant's record contains no retirement orders 
and therefore no endorsement showing a number of leave days granted.  
 
 
8.  The fact that the unauthorized absence charge was withdrawn as part of a pre-
trial agreement does not prove that the applicant was on authorized leave during the 
period in question.  According to Article 2.J.2.b of the Pay Manual, the administrative 
accounting for time in the military is not dependent on whether a member is charged 
and  punished  for  unauthorized  absence.    It  is  simply  a  matter  of  whether  the 
appropriate  individual  had  granted  permission  for the  applicant  to  be  away  from  his 
duty  station  and,  if  not,  whether  the  absence  was  excused  or  unavoidable.      This 
provision further states that if the absence was not excused or unavoidable, the member 

forfeits pay and allowances  for the period of absence.   There is  nothing in the record 
showing that the period of absence was excused or unavoidable.    
 
9.    The  applicant  asserted  that  his  military  record  would  contain  all  of  the 
 
evidence to prove that he was on authorized leave during the period in question.  That 
possibility exists, but the Board is persuaded based on the military records submitted 
by this applicant that if such documents existed they would be in the record.  After all, 
his  retirement  request,  CGPC's  letter  conditionally  approving  that  request,  District 
Thirteen's letter granting him permission to travel overseas, and his LESs were all in the 
record.  The Board is persuaded that if there were other documents establishing that the 
applicant was on authorized leave they, too, would be in the military records that he 
submitted.    If  the  applicant  later  discovers  credible  evidence  that  proves  that  he  was 
authorized leave for the period in question, he should submit that evidence to the Board 
and request reconsideration of his case.  The fact that the Coast Guard did not produce 
the  applicant's  official  record  does  not  entitle  the  applicant  to  a  grant  of  relief, 
particularly in a case such as this, where it appears that the applicant and his defense 
counsel had possession of his official military record.   
 
 
10.  The applicant disagreed with the Coast Guard that his unit at the time of his 
unauthorized absence  was CO, Facilities Design and Construction  Center Pacific.  He 
claimed  that  he  had  been  transferred  to  District  13  but  does  not  state  the  date  this 
transfer occurred.  Nor did he submit permanent change of station orders or any other 
evidence  that  supports  his  allegation  in  this  regard.    Even  if  the  applicant  had  been 
transferred to District 13, there are no approved and/or endorsed leave orders in the 
record.   
 

11.  Therefore, based on the length of the delay, the lack of a persuasive reason 
for not filing his application sooner, and the probable lack of success on the merits of his 
claim,  the  Board  finds  that  it  is  not  in  the  interest  of  justice  to  waive  the  statute  of 
limitations in this case.    

 
12.  Accordingly, the application should be denied. 

 
 
 
 
 
 
 
 
 
 
 

 

ORDER 

 

The  application  of  xxxxxxxxxxxxxxxxxxxx,  USCG  (Ret.),  for  correction  of  his 

 
 

 
 

military record is hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Julia Andrews 

 

 

 
 George J. Jordan 

 

 

 
 Kathryn Sinniger