DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2004-058 
 
Xxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
ANDREWS, Deputy Chair: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on January 20, 2004, upon the 
BCMR’s receipt of the applicant’s completed application and military records. 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  September  23,  2004,  is  signed  by  the  three  duly  

APPLICANT’S REQUEST AND ALLEGATIONS 

 

 

The applicant, who retired from the Coast Guard on December 1, 1972, asked the 
Board to correct his record to show that he was advanced to and retired as a chief quar-
termaster (QMC) in pay grade E-7, rather than as a first class quartermaster (QM1) in 
pay grade E-6. 

 
The applicant alleged that prior to his retirement, he took and passed the service-
wide examination (SWE) for advancement and was on the list for promotion to QMC.  
However, the Coast Guard “changed the policy for advancement and did away with the 
chief’s list.”  The applicant argued that he should have been advanced to chief under 
“the policy in effect at the time that I took, passed, and qualified for chief.  Changing the 
rules after the fact [was] unjust.”  The applicant argued that his military records show 
that he was “honorable, patriotic, and unusually qualified for advancement to E-7.” 

 
The  applicant  argued  that  the  Board  should  waive  the  statute  of  limitations 
because  “[i]njustice—like  murder—has  no  statute  of  limitations.”    He  noted  that  he 
recently  received  a  medal  from  the  South  Korean  government  50  years  late  and  so 
decided to see if the Government would “right this wrong.” 
 

SUMMARY OF THE APPLICANT’S RECORD 

 
 
On November 26, 1956, the applicant enlisted in the Coast Guard as a quarter-
master third class (QM3).  He had previously served almost four years on active duty in 
the Navy.  As a quartermaster, the applicant spent almost his entire career assigned to 
cutters.  On August 16, 1957, he advanced to QM2.  In 1961, he took and passed a “C 
School” course for advancement.  In 1965, while serving on the Diligence, the applicant 
advanced to QM1.  From June 23, 1966, to June 20, 1967, the applicant served aboard the 
Balsam.   
 

From  August  12,  1967,  to  September  30,  1968,  he  served  aboard  the  Hornbeam.  
On both August 22, 1967, and July 29, 1968, his commanding officer recommended him 
for advancement to QMC and nominated him to take the SWE for advancement.  How-
ever, he was not advanced. 
 

From October 6, 1969, to January 22, 1970, the applicant served temporary duty 

aboard the Yakutat.  
 
On  January  25,  1970,  the  applicant  was  reported  to  the  Escanaba.  On March 3, 
 
1970,  the  applicant’s commanding officer (CO) on the Escanaba sent the Commandant 
the following message: 
 

[The applicant] participated in service wide exams this date upon my authorization 
only. [Emphasis added.] 
Form 1430/2 and diary entry not submitted due to confusion upon subject trans-
fer to this command.  We will submit these upon transfer of mail when relieving 
… 6 March. 
[The applicant’s] performance and service record indicate to me that he is fully 
qualified. 
Completed exam will be forwarded upon return to port on 4 April with remain-
der of our examinations. 
Completed exam can be destroyed without submission if foregoing is not accept-
able. 

 
On March 6, 1970, the Commandant sent the CO of the Escanaba a message dis-
approving  his  action.    A  handwritten  note  accompanying  this  message  in  the  appli-
cant’s  record  states  that  in  October  1966,  the  applicant  had  been  “found  incompetent 
and given 10 day warning” by his CO on the Balsam; that in August 1967 and July 1968, 
he had been recommended to take the SWE by his CO on the Hornbeam; and that he had 
reported to the Escanaba on January 25, 1970.  The note also states that the applicant “is 
42 yrs old with 17 yrs of service.  Has been QM1 since 5-16-65.  Finished last enlistment 
in  1966  with  3.49  [for  proficiency  on  a  scale  of  4.0];  3.48  [for  leadership]  and  4.0  [for] 
conduct.  I don’t feel CO Escanaba has had enough time to evaluate this man.  Rec[om-
mend] disapprove his [message of March 3, 1970].  The note is initialed.  On the back of 
the note, another officer wrote, “I agree.  Disapproved,” and signed his initials. 

1. 

2. 

3. 

4. 

5. 

 

On July 10, 1970, the CO of the Escanaba recommended him for advancement to 
QMC and nominated him to take the SWE.  A similar notation was made in his record 
on August 21, 1970.  The applicant took the SWE on September 9, 1970. 
 
 
In  November  1970,  the  applicant’s  wife  became  mentally  ill.    Her  father  trans-
ported her to a hospital near her parents’ home, and she was diagnosed with paranoid 
schizophrenia.    The  applicant  requested  a  humanitarian  transfer  to  Port  Canaveral, 
Florida, so that he and their four children could live near her hospital.  He was initially 
issued  temporary  humanitarian  orders  to  a  station  near  her  hospital,  where  he  per-
formed  non-quartermaster  duties.    When  he  requested  permanent  transfer  orders,  he 
was  advised  that  they  would  be  issued  if  he  submitted  a  letter  requesting  a  20-year 
retirement,  apparently  because  he  was  not  serving  as  a  quartermaster  at  that  station.  
On May 17, 1971, the applicant requested permission to retire as of December 1, 1972.  
His request was approved and he was issued permanent transfer orders. 
 
 
 
On August 24, 1972, the applicant asked that his retirement date be postponed 
 
from December 1, 1972, to July 1, 1973, for personal reasons.  On September 19, 1972, his 
request  was  disapproved,  although  Headquarters  noted  that  if  he  agreed  to  be  reas-
signed to another unit where he could serve as a quartermaster, his retirement orders 
would be cancelled.  The applicant was retired as of December 1, 1972, upon completion 
of 20 years of active duty. 
 

On March 2, 1972, the applicant again took the SWE for advancement to QMC. 

VIEWS OF THE COAST GUARD 

 
 
On  May  11,  2004,  the  Judge  Advocate  General  (TJAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  in  which  he  recommended  that  the  Board  deny  the 
application “for failure to timely file, laches, and/or lack of merit and proof.” 
 

TJAG argued that the application should be denied for untimeliness because the 
applicant submitted his application “more than thirty-one (31) years [sic] after the Stat-
ute of Limitations expired.”  TJAG pointed out that the applicant “offered no justifica-
tion for his failure to timely file except to declare he was unaware that such a process 
existed and to disagree with Congress’s wisdom in establishing a three-year statute of 
limitations.”  Furthermore, TJAG argued, the applicant “has failed to offer any evidence 
that  the  Coast  Guard  committed  either  an  injustice  or  error  in  not  promoting  him  to 
[QMC] aside from his own assertion that he had passed the [SWE] and was on the list 
for promotion.”  TJAG pointed out that “[a]bsent strong evidence to the contrary, gov-
ernment officials are presumed to have carried out their duties correctly, lawfully, and 
in good faith.”  Arens v. United States, 969 F.2d 1034, 1037 (1990); Sanders v. United States, 
594 F.2d 804, 813 (Ct. Cl. 1979).  TJAG concluded that the Board should not waive the 
statute of limitations because the applicant “offers no substantive reason for the 31-year 
delay in taking action and lacks any reasonable chance of prevailing on the merits.” 

TJAG  also  argued  that  the  doctrine  of  laches  should  bar  the  applicant’s  claim 
because  the  applicant’s  “rating  chain  is  no  longer  on  active  duty and documents that 
might have been relevant to an investigation of [his] claim are no longer available for 
review”  because  of  the  applicant’s  delay.    TJAG  also  stated  that  because  of  the  long 
delay, the Coast Guard can no longer contact key witnesses or review “key unit docu-
ments that may have been destroyed or disposed of under the paperwork disposition 
regulations.”  TJAG argued that the applicant “should not be rewarded in any way for 
his failure to process his claims in a timely fashion.” 

 
TJAG argued that the Coast Guard committed no error or injustice in granting 
the applicant’s request for retirement and in not promoting him to QMC.  TJAG stated 
that “[p]romotions are based on the needs of the service and are carried out in accor-
dance  with  policies  in  effect  at  the  time.    Those  policies  are  always  subject  to  change 
based on the needs of the service.  Applicant has presented no evidence to support his 
allegation that he was treated unjustly; this case does not constitute ‘treatment by mili-
tary authorities that shocks the sense of justice.’”  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)). 

 
TJAG included with his advisory opinion a memorandum on the case prepared 
by the Coast Guard Personnel Command (CGPC).  CGPC pointed out that the applicant 
“fails to provide sufficient information to determine with certainty what sudden change 
in ‘policy’ led to his removal from an advancement eligibility list,” much less evidence 
that he was actually on such a list or removed from it.  CGPC noted that the applicant 
might  be  referring  to  the  Commandant’s  decision  not  to  grade  the  SWE  that  his  CO 
allowed  him  to  take  in  March  1970  or  to  his  own  decision  to  retire,  because  “[l]ong-
standing  Coast  Guard  policy  states  that  members  with  approved  retirement  requests 
shall no longer be eligible for advancement and shall have their names removed from 
any advancement list.”  CGPC stated that it does not know when this latter policy was 
enacted and that it could be the policy change of which the applicant complains.  How-
ever,  CGPC  stated,  even  assuming  this  is  the  policy  change  that  allegedly  caused  the 
applicant’s  name  to  be  removed  from  an  advancement  eligibility  list,  there  is  no  evi-
dence that the applicant was singled out or treated unfairly in any way. 
 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On May 11, 2004, the Chair forwarded a copy of the views of the Coast Guard to 
the applicant and invited him to respond within 30 days.  The applicant's response was 
received on June 8, 2004.  
 
The applicant stated that this matter has been on his mind for years and that it 
 
was better to apply late than never.  He alleged that he had passed the SWE and that his 
advancement  should  have  been  “grandfathered”  in  despite  the  policy  change.    He 

stated  that  he  is  not  asking  to  receive  retirement  pay  retroactively  and  that  he  never 
knew  his  SWE  had  been  destroyed.    He  alleged  that  he  was  told  he  would  not  be 
advanced because the entire eligibility list had been destroyed.  He alleged that he was 
told he had passed the SWE and that the chiefs on his cutter knew before he did and 
gave him several items of uniform clothing to begin his new chief’s seabag. 
 
 
The applicant alleged that the handwritten note regarding his SWE should not be 
in his record and asked the Board to remove it from his military record.  He pointed out 
that the note indicates that he may have been a victim of age discrimination. 
 
The  applicant  also  wrote  about  his  experience  in  the  Navy  during  the  Korean 
 
War and his experience in being used as a “guinea pig” observer for four nuclear explo-
sions, during which he was exposed to ionizing radiation.  He pointed out that he quali-
fied as both in port and underway officer of the deck and was a qualified ship handler. 
 

APPLICABLE REGULATIONS 

 
Under Article 5-C-31 of the Personnel Manual in effect in 1972, after the annual 
 
SWE for pay grade E-7, the Commandant would establish an eligibility list of “all per-
sonnel who met the eligibility requirements for advancement … and who successfully 
passed the appropriate examination. … Personnel placed on the eligibility lists will be 
advanced or have their rating changed in order, as vacancies occur. …  An individual’s 
name may be removed … for good and sufficient reasons.”  In addition, each list has a 
cutoff point set at “the number of advancements anticipated during the remaining effec-
tive period of the respective lists.”  Only the members whose names are above the cutoff 
point are guaranteed advancement.  The list expires when a new list is created follow-
ing the next annual SWE. 
 

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 submission, and appli-
cable law: 
 

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

1. 
§ 1552.   
 
2. 

An  application  to  the  Board  must  be  filed  within  three  years  after  the 
applicant discovers the alleged error in his record.1  The applicant clearly knew that he 
had  not  been  advanced  to  QMC  at  the  time  of  his  retirement  on  December  1,  1972.  
Therefore, he should have applied to the BCMR by November 30, 1975.  His application 

                                                 
1 10 U.S.C. § 1552(b); 33 C.F.R. § 52.22. 

was not filed until more than 28 years after the statute of limitations expired.  Therefore, 
it was not timely. 

 
3. 

4. 

5. 

Pursuant to 10 U.S.C. § 1552(b), the Board may waive the three-year stat-
ute of limitations if it is in the interest of justice to do so.  To determine whether it is in 
the  interest  of  justice  to  waive  the  statute  of  limitations,  the  Board  must  consider  the 
length and reasons for the delay and conduct a cursory review of the merits of the case.2   
 

The applicant failed to justify his delay and opined only that there should 

be no statute of limitations.  The Board is not persuaded by this argument. 
 
 
The applicant asked the Board to advance him to QMC.  He alleged that at 
some unstated time prior to his retirement, he passed the SWE and his name was on the 
QMC  advancement  eligibility  list.    He  alleged  that,  because  of  an  unidentified  policy 
change, the list was abolished and he was not advanced.3  The applicant has not submit-
ted any evidence that supports these allegations.  Although there is evidence in his mili-
tary  record  that  he  was  allowed  to  take  the  SWE  for  advancement  to  QMC  several 
times, there is no evidence that his name was ever on a QMC advancement eligibility 
list or that it was removed from such a list.  Nor is there any evidence in the record of a 
policy change that abolished a list.  Because the applicant waited so long to press his 
claim,  the  people  and  documents  that  might  have  shed  light  on  this  matter  are  no 
longer available.  Without evidence supporting the applicant’s allegations, the Board is 
required to presume that his military records and current rating of QM1 are correct and 
that  Coast  Guard  officials  acted  correctly  and  in  good  faith  with  respect  to  his  rating 
and pay grade.4  
 
 
The  applicant  asked  the  Board  to  remove  the  handwritten  note  in  his 
record that concerns his CO’s decision to allow him to take the SWE.  In his March 3, 
1970,  message  to  the  Commandant,  the  CO  admitted  that  he  had  acted  on  his  own 
authority and had not followed proper procedures in allowing the applicant to take the 
SWE.  The handwritten note is initialed by two officials and provides the explanation 
for  the  Commandant’s  decision  on  March  6,  1970,  to  disapprove  the  CO’s  action  and 
invalidate  the  applicant’s  SWE.    Although  the  applicant  complained  that  the  note  is 
handwritten, unsigned, and undated, being handwritten, unsigned, and undated does 
not render a document erroneous and it does not invalidate it for inclusion in a military 
record.  The note is apparently initialed by whoever had authority to approve or dis-
approve the CO’s action, and the Board does not consider it erroneous or invalid simply 

6. 

                                                 
2 Dickson v. Sec’y of Defense, 68 F.3d 1396 (D.D.C. 1995); Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992). 
3    The  Board  notes  that  under  Article  5-C-31  of  the  Personnel  Manual  then  in  effect,  all  eligibility  lists 
expired  when  new  ones  were  established  and  that  only  members  whose  names  were  above the special 
cutoff  point  were  normally  guaranteed  advancement.    The  Personnel  Manual  then  in  effect  does  not 
mention whether members with approved retirement requests could be advanced. 
4  33 C.F.R. § 52.24(b); Arens v. United States, 969 F.2d 1034, 1037 (1990); Sanders v. United States, 594 F.2d 
804, 813 (Ct. Cl. 1979). 

 
7. 

because that official did not type, date, or sign it with his full name.  Nor is the Board 
persuaded—based  on  the  mere  mention  of  the  applicant’s  age—that  his  SWE  was 
invalidated because of age discrimination.  In any event, since the SWE was invalidated, 
this  incident  is  clearly  unrelated  to  the  applicant’s  allegation  that  (presumably  a  year 
later  when  he  allegedly  passed  the  SWE)  his  name  was  on  but  then  removed  from  a 
QMC advancement eligibility list. 
 
 
Because the applicant has failed to justify his long delay in applying to this 
Board  and  has  failed  to  submit  any  evidence  to  support  his  allegations  of  error  and 
injustice, the Board finds that it is not in the interest of justice to waive the statute of 
limitations in his case and that his application should be denied. 
 
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 

 

 

 

ORDER 

 

The  application  of  retired  QM1  xxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correc-

tion of his military record is denied. 
 
 
 
 
 

 
 

 
 

 

 

 

 

 

 

 
 
 
 

 
 
 
 

  

 
 

 

 

 
 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 

 
 Derek A. Capizzi 

 

 

 
 Jordan S. Fried  

 

 

 
 William R. Kraus