DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 2004-013
Xxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxx
FINAL DECISION
AUTHOR: Andrews, J.
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 BCMR docketed the
case on November 3, 2003, upon receipt of the applicant’s completed application and
military records.
members who were designated to serve as the Board in this case.
This final decision, dated October 13, 2004, is signed by the three duly appointed
APPLICANT’S REQUEST AND ALLEGATIONS
The applicant—who received a general discharge under honorable conditions
from the Coast Guard on February 9, 1989—asked the Board to correct his record by
upgrading his discharge to honorable; by removing “Misconduct” as the narrative rea-
son for separation shown on his discharge form, DD 214; and by granting him a retire-
ment with pay and benefits as a chief machinery technician (MKC; pay grade E-7).
The applicant stated that in December 1986, five other members of his division —
some of whom were his subordinates—were caught stealing government property. The
applicant alleged that he had previously told his supervisor, Mr. P, that he suspected
some theft was occurring and that Mr. P advised him to try to determine “who, what,
where and when” before contacting the Coast Guard Investigative Service. The
applicant stated that one of the five members was caught stealing and turned the other
four in “to get a better chance at a lighter sentence.”
The applicant alleged that at some point, the prosecutor, Mr. B, decided that the
applicant was “the ramrod of what he called ‘an enormous amount of crime’ and
charged [the applicant] with the items that were stolen. He gave all five of these sailors
testimonial immunity and they remained in the Coast Guard to testify against me …
saying I had given these men a direct order to steal the property.” The applicant
pointed out that the property had been stolen over a two-year period and asked, if he
had actually given such orders, why did the five sailors wait until they were caught to
report the abuse.
The applicant alleged that in 1987 he was erroneously charged with and con-
victed of theft of government property. He alleged that no government property was
found in his possession and that at first he did not take the charges seriously and did
not hire a lawyer. He alleged that he was a ”scapegoat” for someone else’s crime. He
alleged that he offered to let the Coast Guard search all of his personal property, but
they did not. He alleged that all of the stolen property was found in the other five
men’s possession and that none of the paperwork used to acquire the stolen tools had
his signature on it.
The applicant argued that the punishment he received “was too harsh for the
crime. I paid the Coast Guard for the property someone else stole, spent one year in
federal prison, and lost all my retirement.” He alleged that he was required to pay
$2,400 for the cost of the stolen property, as well as court costs. He alleged that people
convicted of similar crimes had received much less punishment. He also alleged that it
was unjust for the Coast Guard to punish him with the general discharge and no
retirement because he was never court-martialed but was convicted in federal court. He
stated that because he was honorably discharged and reenlisted on December 4, 1987,
ten days before his court-martial, the Coast Guard lost the authority to court-martial
him, and his case was “handed over to the federal court system.”
The applicant also stated that upon reporting to the training center where he had
worked on September 28, 1988—the day after his release from prison—he was advised
to return home until discharged. He alleged that he should have been allowed to work
until his discharge on February 9, 1989.
The applicant alleged that in 1999, the Coast Guard’s Discharge Review Board
(DRB) “was going to change my discharge to ‘honorable’ until they found the letter I
signed saying I ‘could’ be deprived of my rights as a veteran.” The applicant alleged
that he signed this letter only because the prosecuting attorney was harassing his family
and he “was fearful they might find some other way to lock me up again.”
In support of his allegations, the applicant submitted copies of some of his mili-
tary records and letters from retired military members. A retired Coast Guard com-
mander who met the applicant in 1993 described him as a hard-working businessman
and great asset to the community. A retired rear admiral of the Navy described the
applicant as a very conscientious worker whose “conduct has always been above
reproach” and “by far the most active person in community affairs” in their county. A
retired major in the county police department stated that the applicant and his wife “are
very much involved in civic and service projects” and “are to be commended for their
good volunteer work.” In 1988, a car dealership owner wrote on the applicant’s behalf
that the applicant was “of good moral character,” reliable, trustworthy, and committed
to the improvement of the community.
SUMMARY OF THE RECORD
In October 1983, the applicant was assigned to work as chief of the motor pool at
On February 28, 1972, the applicant enlisted in the Coast Guard, having previ-
ously served about eighteen months in the Army. He attended engineering “A” School
to become a third class engineering petty officer and in 1974 was transferred into the
MK rating and advanced to MK2. He advanced to MK1 in 1976 and to MKC in 1979.
Over the course of his career, he accumulated more than five years of sea duty.
a Reserve Training Center.
received an honorable discharge. On December 4, 1987, he reenlisted for three years.
criminal charges alleging that:
On December 14, 1987, a federal grand jury indicted the applicant on seven
On December 3, 1987, the applicant’s then current enlistment ended. He
on January 29, 1987, he stole and converted to his use “power
1.
between February 1985 and August 1985, he stole and converted to
his use “assorted hand tools which had been received from [a U.S. Naval
Weapons Station] of a total value of approximately five hundred dollars
($500.00), the military property of the United States”;
2.
at the motor pool on or about June 24, 1986, he stole and converted
to his use “a variable speed orbital action jig saw and a professional high
torque three-eighths inch (3/8”) power drill” valued at about $365.00;
3.
shears and blade heads” valued at about $417.00;
4.
uum cleaner” valued at more than $100.00;
5.
“one battery charger” valued at about $235.00;
6.
on or about March 1, 1986, he “knowingly and unlawfully con-
veyed or disposed of without authority by giving [to someone else] a tool
kit containing assorted hand tools” valued at about $220.00; and
7.
on or about March 1986, he stole and converted to his use “a Vano
Blower, a tripod mount, and two hose attachments” valued at about
$1,388.00.”
on or about December 24, 1986, he stole and converted to his use
on or about March 1986, he stole and converted to his use “a vac-
On February 12, 1988, the applicant was convicted in federal court on five of the
counts (2, 3, 5, 6, and 7). Count 1 was dismissed. The jury acquitted the applicant on
count 4. He was sentenced to one year’s incarceration for each of the other five counts,
to be served simultaneously, and restitution of $2,405 and court fees. The court also
ordered the Coast Guard to delay separating the applicant until the appeal was com-
plete.
On March 21, 1988, the applicant was incarcerated. On March 23, 1988, his
Executive Officer (XO) made an administrative entry in his record stating that on Feb-
ruary 12, 1988, he had been convicted in federal court for theft of government property
worth $2,405, and sentenced to one year in jail, restitution of $2,405, and a $250 court
assessment. The XO prepared a special evaluation assigning the applicant the lowest
possible mark (one) for conduct, using resources, setting an example, professionalism,
judgment, responsibility, and integrity and terminated his eligibility for a good conduct
award.
On April 8, 1988, after being advised that the Coast Guard intended to discharge
him administratively, the applicant requested a hearing before an Administrative Dis-
charge Board (ADB). The hearing was delayed due to the applicant’s incarceration and
to the court order to stay any separation action against the applicant.
duty the next day but was apparently told to stay at home.
On September 27, 1988, the applicant was released from prison. He reported for
On November 14, 1988, the applicant’s appeal of his conviction was denied. The
United States Court of Appeals for the Fourth Circuit stated that the applicant
was in charge of the motor pool, and in connection therewith, he was authorized to pur-
chase parts, tools and supplies from various commercial sources. Appellant in his free
time, operated a business, known as “xxxxxx”, through which he engaged in selling,
installing and repairing heating and air-conditioning equipment. The testimony of the
various government witnesses, many of whom served with the appellant in the Coast
Guard, was sufficient to prove beyond a reasonable doubt the various charges upon
which he was convicted. … The appellant’s real complaint is that the government never
executed a search warrant of his home or business in an effort to find the articles of prop-
erty allegedly stolen from the United States. He argues that the failure of the government
to search his premises weakens the government’s case. This may be true, but this is a
matter for jury argument … We find no abuse of discretion in the trial judge’s handling
of the case … .
On December 29, 1988, the applicant and his counsel signed the following letter:
1.
I have been advised by my Commanding Officer that he is recommending me for
a discharge from the Coast Guard be reason of misconduct and the reasons therefor. He
has also advised me that as an enlisted person who has completed more than eight years
of service, I have the following rights, unless waived in writing:
a.
than three officers.
b.
c.
My case will be heard by an administrative discharge board of not less
I may appear in person before such administrative discharge board.
I may be represented by counsel.
2.
I hereby waive my right to a hearing before an administrative discharge board
provided Commandant determines that I should be awarded a discharge under honor-
able conditions. I know that I have been convicted of theft from the government, and
that is not taken lightly by the Coast Guard. I also know that I have more than 17 years
of Coast Guard service with no other blemishes of any kind in my record. Therefore, I
feel that an honorable or general discharge would better characterize my overall service
to the Coast Guard than a discharge Under Other Than Honorable Conditions. I feel that
it would be in the Coast Guard’s as well as my own best interests to discharge me expe-
ditiously. …
I further understand that if a general discharge is issued to me that I could be
3.
deprived of many of the rights as a veteran under state and federal legislation; and that I
may expect to encounter substantial prejudice in civilian life in situations where the type
of service rendered and the characterization of discharge may have a bearing. …
On January 9, 1989, the applicant’s CO forwarded this letter and other corre-
spondence to the Commandant and recommended that the applicant receive a general
discharge under honorable conditions. On January 19, 1989, the CO sent copies of the
indictment and judgment of conviction to the Commandant.
On January 28, 1989, the Commandant ordered that the applicant receive a gen-
eral discharge by reason of misconduct within thirty days due to his trial and conviction
by civil authorities, pursuant to Article 12-B-18 of the Personnel Manual.
On February 9, 1989, the applicant was discharged. His DD 214 shows that he
received a general discharge for misconduct with an RE-4 reenlistment code (ineligible),
pursuant to Article 12-B-18 of the Personnel Manual. He had completed a total of 18
years, 5 months, and 19 days of active service.
On June 15, 2000, the DRB reviewed the applicant’s discharge. The DRB recom-
mended that relief be denied, noting that it “initially recommended that [the applicant]
receive an Honorable Discharge based on the fact that the member did not receive an
Admin Discharge Board. However, further examination of the member’s record found
that he had waived his right to an ADB. Therefore, the Board felt, [his] DD-214 should
stand as issued.” The DRB stated that under Article 12-B-18 of the Personnel Manual,
the Commandant could direct the discharge of a member for misconduct due to
“[c]onviction by foreign or domestic civil authorities or action taken tantamount to a
finding of guilty for an offense for which the maximum penalty under the Uniform
Code of Military Justice is death or confinement longer than one year involving moral
turpitude.” In addition, the DRB found that the applicant’s history of community serv-
ice did not justify upgrading his discharge. On April 9, 2001, the DRB’s recommenda-
tion was approved.
VIEWS OF THE COAST GUARD
On March 30, 2004, the Judge Advocate General (TJAG) of the Coast Guard sub-
mitted an advisory opinion recommending that the Board deny relief in this case.
TJAG alleged that the applicant’s request was untimely and that he had not sub-
mitted any evidence to show that it is in the interest of justice for the Board to waive the
three-year statute of limitations.
Regarding the merits of the case, TJAG argued that the applicant has “failed to
present any evidence that he was improperly convicted or that the Coast Guard
improperly discharged him from the service.” TJAG argued that “[a]bsent strong evi-
dence to the contrary, government officials are presumed to have carried out their
duties correctly, lawfully, and in good faith.” Arens v. United States, 969 F.2d 1034, 1037
(1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979). TJAG alleged that the
record indicates that the applicant “was properly convicted in federal court and subse-
quently knowingly and voluntarily waived his right to an [ADB] in exchange for a dis-
charge ‘under honorable conditions.’”
TJAG attached to his advisory opinion a memorandum on the case prepared by
the Coast Guard Personnel Command (CGPC). CGPC alleged that there is no merit to
the applicant’s allegation that his administrative discharge was disproportionately
harsh. CGPC alleged that the Coast Guard “routinely discharges members convicted by
civil authorities for this and other types of serious offenses.” CGPC also argued that the
applicant “was afforded all his due process rights” and that he waived his right to an
ADB.
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On March 31, 2004, the Chair sent the applicant a copy of the views of the Coast
Guard and invited him to respond within 30 days. The applicant requested a 90-day
extension, and his response was received on July 27, 2004.
The applicant again asserted his innocence and alleged that throughout the pro-
ceedings against him, he acted out of fear that the Coast Guard “would try to pursue
some other trumped up charge.” He also indicated that he had only waived his right to
an ADB because he wanted to do as he was told so that his life could begin again. His
Senior Chief had told him that if he did not sign the letter waiving his right to an ADB
he would “have to go through a lot more trouble to get this over with.”
The applicant asked—if he was guilty of theft—then why did he receive an hon-
orable discharge on December 4, 1987; why did no one search his property for the
missing property; why was his signature not on the invoices presented in court; why
were the witnesses against him granted immunity; why did the witnesses not come
forward with their accusations earlier; and why was the stolen property found in the
hands of the witnesses. The applicant argued that he should not have been convicted
based on the slim evidence, most of which strongly implicated the witnesses rather than
himself. He alleged that it was unfair that the jury heard the evidence for count 1
because the count was dismissed. He alleged that this confused and biased the jury.
APPLICABLE LAW
Rule 201(d) of the Rules for Courts-Martial in effect in 1988 provided that, unless
an alleged offense is purely military in nature, such as failure to obey an order, a mem-
ber can be tried by a “proper civilian tribunal,” rather than by court-martial.
Under Article 12-B-18.b.(1) of the Personnel Manual, the Commandant could
separate a member for misconduct with a discharge under other than honorable condi-
tions (OTH); a general discharge under honorable conditions; or an honorable discharge
due to “[c]onviction by civil authorities … of an offense for which the maximum pen-
alty under the Uniform Code of Military Justice [UCMJ] is death or confinement in
excess of one year.” Under Article 121 of the UCMJ, the maximum penalty for larceny
of property valued in excess of $100.00 was “[d]ishonorable discharge, forfeiture of all
pay and allowances, and confinement for 5 years,” and the maximum penalty for
wrongful appropriation of such property was “[d]ishonorable discharge, forfeiture of
all pay and allowances, and confinement for 2 years.”
Article 12-B-18.d. of the Personnel Manual provided that the provisions of Article
12-B-32 applied to all members with eight or more years of active service who were
being recommended for discharge due to misconduct. Article 12-B-32 provided the
procedures for ADBs. Article 12-B-32.a.(1) provided that a member could be discharged
without an ADB if the member waived his right to an ADB in writing.
On July 7, 1976, the delegate of the Secretary informed the BCMR of the follow-
ing determination, which has never been countermanded:
[T]he Board should not upgrade discharges solely on the basis of post-service conduct.
The situation in which a man is granted a less than honorable discharge under circum-
stances all agree were just, and then goes on to become Albert Schweitzer, is one that—if
it ever occurs—is properly handled by an exemplary rehabilitation certificate or a Presi-
dential pardon.
This emphatically does not mean that the justness of a discharge must be judged by the
criteria prevalent at the time it was rendered. The Board is entirely free to take into
account changes in community mores, civilian as well as military, since the time of dis-
charge was rendered, and upgrade a discharge if it is judged to be unduly severe in light
of contemporary standards. …. [T]he Board should not upgrade [a] discharge unless it is
convinced, after having considered all the evidence [in the record], that in light of today’s
standards the discharge was disproportionately severe vis-à-vis the conduct in response
to which it was imposed.
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.
The Coast Guard argued that the application was untimely.1 However,
the applicant filed his application within three years of the date the Coast Guard Dis-
charge Review Board declined to upgrade his discharge.2 Therefore, the Board finds
that his application was timely.3
3.
The applicant alleged that because he received an honorable discharge
and was reenlisted on December 4, 1987—after the Coast Guard had completed its
investigation of the alleged offenses—he should not have received a general discharge
from the Coast Guard on February 9, 1989. However, an honorable discharge from
military service does not mean that a member has been found innocent of an alleged
offense.4 In the applicant’s case, the new contract was necessary only because the appli-
cant’s prior contract was terminating, and an honorable discharge was proper at the
time because he had not yet been convicted of any offense.
4.
The applicant complained that he was supposed to have been tried by
court-martial on December 14, 1987, but was not. There is no evidence in the record to
support the applicant’s allegation. However, under Rule 201(d) of the Rules for Courts-
Martial in effect at the time, a member charged with theft could be tried by a “proper
civilian tribunal,” rather than by court-martial. The applicant has not proved that the
1 An application to the Board must be filed within three years after the applicant discovers the alleged
error in his record. 10 U.S.C. § 1552.
2 Under 10 U.S.C. § 1551, the statute of limitations of the Discharge Review Board is fifteen years.
3 Ortiz v. Sec’y of Defense, 41 F.3d 738, 743 (D.C. Cir. 1994) (holding that “because the Army's regulation
requires exhaustion of [Discharge] Review Board remedies before the Correction Board will consider an
application, the Correction Board's three-year statute of limitations does not begin to run at the time of
discharge where, as here, servicemembers timely pursue remedies before the Review Board”).
4 See United States ex rel. Hirshberg v Malanaphy, 168 F.2d 503, 507 (N.Y. 1948), rev’d on other grounds, 336
U.S. 210 (1949).
Coast Guard committed any error in handing his case over to federal civilian authorities
for prosecution.
5.
The applicant alleged that his conviction in a civilian court should not
have affected the character of his military discharge. However, Article 12-B-18.b.(1) of
the Personnel Manual expressly authorized the separation of a member for misconduct
due to “[c]onviction by civil authorities … of an offense for which the maximum pen-
alty under the Uniform Code of Military Justice is death or confinement in excess of one
year.” Moreover, the Article allowed the Commandant to award such a member an
OTH, general, or honorable discharge. The five offenses of which the applicant was
convicted each carried a maximum penalty of confinement in excess of one year under
the UCMJ, and the Board is not persuaded that the Commandant committed any error
or injustice in awarding the applicant a general discharge under honorable conditions
in light of his misconduct. The Board does not find that the applicant’s general dis-
charge “was disproportionately severe vis-à-vis the conduct in response to which it was
imposed.”5
6.
The applicant alleged that he waived his right to an ADB because the
prosecuting attorney was harassing his family; because he was afraid he might get
locked up again on a “trumped up charge”; and because he did not want to “have to go
through a lot more trouble to get this over with.” The record indicates that on Decem-
ber 29, 1988, and with the advice of counsel, the applicant signed a statement in which
he voluntarily waived his right to an ADB because he had decided that it would be in
his own best interest to do so. The record indicates that the applicant received all due
process with respect to his discharge. He has not submitted any proof that he was
coerced to sign the waiver. The Board finds that he has not proved by a preponderance
of the evidence that the Coast Guard erred in accepting his waiver and discharging him
without convening an ADB. Nor has he proved that the DRB erred in denying his
request for an upgraded discharge because of his waiver.
7.
The applicant alleged that he was innocent and should have been acquit-
ted on all counts. In essence, he asks the Board to find that the judge, jury, and the
Court of Appeals all erred in performing their assigned duties. The applicant did not
submit any evidence concerning the charges against him that was not considered by the
judge, jury, and Court of Appeals. The letters he has submitted regarding his character
and community activism do not disprove the charges of which he was convicted. The
jury found that he was guilty of those charges “beyond a reasonable doubt,” and the
Board finds that he has not proved by a preponderance of the evidence that his general
5 Memorandum from John Hart Ely, the General Counsel of the Department of Transportation, to the
Board for Correction of Military Records dated July 7, 1976. On March 1, 2003, the Coast Guard and the
Board for Correction of Military Records transferred from the Department of Transportation to the
Department of Homeland Security pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135 (Nov. 25, 2002).
discharge as a result of the conviction constituted treatment by military authorities that
“shocks the sense of justice.”6
8.
The applicant submitted several letters of reference attesting to his good
character and good work for his community. However, the delegate of the Secretary
has held that “the Board should not upgrade discharges solely on the basis of post-
service conduct.”7 Therefore, although the letters indicate that the applicant and his
wife are very active in their community and have worked hard to improve it, they do
not justify upgrading his discharge.
9.
The Board concludes that the applicant has not proved by a preponder-
ance of the evidence that his general discharge and lack of retirement pay are erroneous
or unjust. Accordingly, his request should be denied.
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
6 See Sawyer v. United States, 18 Cl. Ct. 860, 868 (1989), rev’d on other grounds, 930 F.2d 1577 (citing Reale v.
United States, 208 Ct. Cl. 1010, 1011 (1976)).
7 Memorandum from John Hart Ely, note 5 above.
ORDER
The application of former xxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his
military record is denied.
Julia Andrews
Nancy L. Friedman
Kathryn Sinniger
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