DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-031 
 
Xxxxxxxxxxxxxxxx  
xxxxxxxxxxxxxxxxx 

 

 

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 Chair 
docketed the case on December 16, 2005, upon receipt of the completed applica-
tion and the applicant’s military records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  February  15,  2007,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
The applicant asked the Board to correct her military record to show that 
 
when she was retired from the Coast Guard by reason of physical disability on 
April 16, 1980, her pay grade was E-4, rather than E-3.  She alleged that at the 
time of her retirement, she had graduated from “A” School and passed the test 
for  advancement  to  E-4  but  did  not  yet  have  the time  in  grade  as  an  E-3  to  be 
advanced.  The applicant alleged that page 593 of the Personnel Manual author-
izes graduates of “A” School to be advanced to E-4 as soon as there is a vacancy 
in  the  rating  and  the  member  has  completed  at  least  one  year  of  continuous 
service.  In support of her allegations, the applicant submitted a document that 
congratulates  her  for  having  successfully  completed  a  course,  MRN4,  through 
the Coast Guard Institute. 
 
 
The  applicant  alleged  that  she  did  not  discover  the  error  in  her  record 
until  September  1,  2003.    She  did  not  offer  any  explanation of  the delay  in  her 
alleged discovery of the error. 
 

SUMMARY OF THE RECORD 

 
On October 23, 1978, the applicant enlisted in the Coast Guard.  On Janu-
 
ary 19, 1979, after completing boot camp, she was advanced to seaman appren-
tice  (SA/E-2)  and  transferred  to  Miami  Beach,  where  she  served  for  three 
months.    As  an  SA/E-2,  the  applicant  was  not  assigned  a  mark  for  leadership, 
but she received a mark of 3.4 for proficiency and a mark of 4.0 for conduct on a 
performance evaluation dated March 23, 1979. 
 

On April 7, 1979, the applicant began “A” School in Petaluma, California, 
to become a subsistence specialist (cook).  Upon graduating from “A” School on 
July 3, 1979, the applicant was advanced to SNSS/E-3.  Notes in her record indi-
cate that she had not yet passed a course, MRN-4, required for advancement to 
E-4 and that she did not yet have the required time in grade (six months) as an E-
3 for advancement to E-4. 
 
 
On July 7, 1979, the applicant reported for duty to the U.S. Coast Guard 
Academy, where she was assigned to work in the cadet mess.  On July 31, 1979, 
she  was  admitted  to  the  psychiatric  ward  of  a  hospital  because  she  was  com-
plaining that everyone was talking about her and she was afraid she was “losing 
her mind.”  On August 22, 1979, an Initial Medical Board (IMB) found that she 
was not fit for duty as a result of an “acute schizophrenic reaction” and recom-
mended  that  she  be  placed  on  sick  leave  until  she  could  be  retired  from  the 
Service because attempts to return her to work part-time had caused her thought 
processes to be more disorganized and caused disruption among the mess staff.  
The IMB attributed her “acute schizophrenic reaction” reaction to her feelings of 
guilt about a relationship with a man she met while at “A” School in California 
and noted that she reported having been molested by two uncles as a child. 
 
 
 
Notations  in  the  applicant’s  record  indicate that  following  her  discharge 
from the hospital, she was placed on sick leave from August 31 through October 
28, 1979.  On October 29, 1979, a doctor noted that the applicant had returned to 
duty for the week of her medical board.  On October 31, 1979, the doctor noted 
that the applicant “has had several altercations in the galley.  She pointed a knife 
at  one  of  her  peers  this  afternoon  in  a  fit  of  anger.    Will  hospitalize  pending 
[physical evaluation] board.” 
 
 
On November 8, 1979, the applicant had a hearing before a medical board.  
On  November  9,  1979,  she  was  placed  in  a  Home  Awaiting  Orders  Status 
(HAOS) pending the completion of her medical retirement processing. 
 
 
entry on a CG-3307 in her record: 

On  December  31,  1979,  the  applicant’s  supervisor  made  the  following 

 

Member reported for duty at the USCG Academy on 79JUL07.  She was hospital-
ized for most of the month of August 1979, was absent on sick leave during the 
months  of  September  and  October  1979,  and  has  been  at  home  in  an  awaiting 
orders status since detachment from the Academy on 79NOV08.  Thus, she has 
been observed for an insufficient period of time to assign any meaningful profi-
ciency or leadership marks.  A conduct mark of 4.0 has been assigned. 

 
 
On March 14, 1980, the applicant concurred with the recommendation of 
the  medical  board  that  she  be  placed  on  the  temporary  disability  retired  list 
(TDRL) with a 50% disability rating. 
 
 
On April 2, 1980, the Commandant sent the applicant a letter, addressing 
her as an SNSS, to inform her that she would be placed on the TDRL with a 50% 
disability rating as of April 16, 1980. 
 
 
On  April  15,  1980,  the  applicant  was  honorably  separated  by  reason  of 
physical  disability.    On  April  16,  1980,  she  was  placed  on  the  TDRL  as  an 
SNSS/E-3.  A notation indicates that she was not assigned any evaluation marks 
upon her separation because she had been in HAOS since November 9, 1979. 
 
 
On  March  24,  1983,  a  Central  Physical  Evaluation  Board  recommended 
that the applicant be permanently retired with a 30% disability rating.  On April 
14, 1983, after conferring with counsel by telephone, the applicant accepted the 
findings and recommendation of that board. 
 
 
On May 11, 1983, the Commandant sent a letter to the applicant, address-
ing her as an SNSS, to inform her that she would be permanently retired from the 
Coast Guard on May 24, 1983, with a 30% disability rating. 
 

From July 3, 1979, through her permanent retirement on May 24, 1983, all 
of the documents in the applicant’s record, including copies of letters addressed 
to her, refer to her as an SNSS/E-3. 
 

VIEWS OF THE COAST GUARD 

 

On May 16, 2006, the Judge Advocate General (JAG) of the Coast Guard 

submitted an advisory opinion recommending that the Board deny relief.  

 
The JAG alleged that the applicant’s request was untimely because it was 
submitted long after her separation from the Coast Guard as an SNSS/E-3.  He 
noted that the applicant “offered no explanation or justification for her twenty-
three year delay in seeking retroactive advancement to E-4.  Applicant’s claim to 
have discovered the alleged error in September 2003 does not seem plausible or 

reasonable.”  The JAG argued that the applicant “reasonably should have discov-
ered” the alleged error while she was still on active duty and so her application 
was untimely under the Board’s rules at 33 C.F.R. § 52.22.  He further pointed out 
that the rules state that an untimely application “shall be denied unless the Board 
finds  that  sufficient  evidence  has  been  presented  to  warrant  a  finding  that  it 
would be in the interest of justice to excuse the failure to file timely.”  The JAG 
argued that the applicant has not submitted sufficient evidence to overcome the 
presumption of regularity accorded the Coast Guard in such matters or to prove 
that the Coast Guard erred in retiring her as an E-3 rather than an E-4. 

 
The  JAG  stated  that,  under  Article  5-C-3(a)  of  the  Personnel  Manual  in 

effect in 1980, to be advanced to SS3/E-4, the applicant needed to 

 
(a) complete the required practical factors and military requirements; 
(b) complete the required correspondence courses;  
(c) be in the “proper path” of advancement;  
(d) have the necessary time in service and time in grade as an E-3;  
(e) have received a mark of 3.3 (out of 4.0) in Proficiency and Leadership 

on her last evaluation; and  

(f)  be recommended for advancement by her commanding officer.   
 
 The JAG stated that the applicant passed the MRN-4 course on August 19, 
1979, and passed the six-month mark as an E-3 on January 3, 1980.  Therefore, he 
admitted, she met all  of the eligibility requirements except for (e) and (f).  The 
JAG stated that the applicant never received a performance evaluation from her 
last command because she was in HAOS during her PDES processing.   

 
The JAG stated that the applicant’s “commanding officer did not advance 
her to SS3/E-4 on 3 January 1980 because [she] failed to meet all of the eligibility 
requirements for advancement.  Applicant did not have a mark of 3.3 or higher 
in  Proficiency  and  Leadership  in  her  last  evaluation.    In  an  Administrative 
Remarks (CG-3307) entry dated 31 December 1979, Applicant’s command noted 
that  it  did  not  assign  her  marks  for  proficiency  and  leadership  because  of 
insufficient  observation  of  performance.” 
  The  JAG  also  noted  that  the 
applicant’s military record lacks documentation of her request for advancement 
and of her commanding officer’s approval of such a request.  He pointed out that 
the  records  show  that  throughout  the  applicant’s  PDES  processing,  she  was 
referred to as an SNSS/E-3.   

 
The JAG concluded that “[w]ithout any substantive reason for the twenty-
two year delay in taking action, and without any reasonable chance of prevailing 
on the merits, it is not in the interest of justice to waive the statutory three-year 
filing deadline for this case.”  He further argued that, if the Board does waive the 

statute  of  limitations,  the  Board  should  deny  relief  because  the  applicant  has 
failed to prove by a preponderance of the evidence that her commanding officer 
erred in not advancing her to SS3/E-4. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On June 15, 2006, the Chair sent a copy of the views of the Coast Guard to 
the applicant and invited her to respond within 30 days.  The applicant requested 
three  extensions  of  the  time  to  respond  and  on  November  15,  2006,  asked  the 
BCMR staff to send her copies of certain documents from her record, which was 
done.    The  applicant’s  third  extension  expired  on  January  19,  2006,  but  no 
response to the JAG’s advisory opinion was received. 
 

APPLICABLE LAW 

 
Article 5-C-26(a)(2) of the Personnel Manual in effect in 1980 stated that a 
commanding officer may advance a graduate of an “A” School course if that per-
son  meets  the  applicable  requirements  of  Article  5-C-3.    Article  5-C-26(a)(3)b. 
stated that graduates of “A” School who do not immediately qualify for advance-
ment  to  E-4  shall  be  assigned  a  rating  designator,  such  as  SNSS,  and  “shall  be 
advanced  on  the  effective  date  of  satisfactory  completion  of  the  applicable 
requirements  of  Article  5-C-3.”    Article  5-C-3(a)  stated  that  to  be  eligible  for 
advancement, a member must 

 
(1)  Complete required practical factors and Military Requirements … 
(2)  Complete required correspondence courses … 
(3)  Successfully complete service course, if required, for particular pay grade or 

rating … 

(4)  Meet citizenship or security clearance requirements … 
(5)  Be in proper path of advancement … 
(6)  Fulfill special requirements for certain ratings … 
(7)  Not  be  involved  in  circumstances  which  render  him/her  ineligible  for 

advancement (Article 5-C-12). 

(8)  Fulfill  service  requirements;  time  in  service,  time  in  pay  grade  in  present 

rating, and sea duty (Articles 5-C-13 and 5-C-14). 

(9)  Fulfill additional eligibility requirements for personnel competing in E-8/E-

(11)  Be recommended by commanding officer (Article 5-C-16). 
 
Article 5-C-12(a) allowed members awaiting action by a medical board to 
compete for advancement unless their commanding officer determined that par-
ticipation in the advancement system would be deleterious to their health.  Arti-
cle 5-C-12(b) provided that once a member had been declared unfit for duty by 

(10)  Have been assigned a mark of at least 3.3 in Proficiency and Leadership on 

9 examination … 

last evaluation (Article 5-C-5). 

the Commandant’s final action on disability separation procedures, the member 
was ineligible for advancement. 

 
Article 5-C-13 provided that to be advanced to E-4, a member must have 

at least six months’ time in grade as an E-3. 

 
Article 5-C-16 stated the following about the importance of a commanding 

officer’s recommendation for advancement: 

 
A well considered and affirmative recommendation of the commanding officer is 
the  most  important  eligibility  requirement  in  the  Coast  Guard  advancement 
system.    Regardless  of  how  much  time  in  service  or  time  in  rate  an  individual 
may have, or, the existence of other personal considerations, the individual must 
earn  his/her  commanding  officer’s  recommendation.    Recommendations  for 
advancement to or in petty officer ratings shall first be based on the individual’s 
qualities of leadership, personal integrity and his/her potential to perform in the 
higher rate as a petty officer. 

 
 
Article  10-B-2(a)  provided  that  enlisted  personnel  would  receive  regular 
evaluations  on  June  30  and  December  31  each  year  unless  they  had  received  a 
special evaluation during the prior three months.  Article 10-B-2(e) provided that 
personnel in pay grades E-1 and E-2 would receive marks for conduct and profi-
ciency but not for leadership.  Article 10-B-2(d) provided that during a long-term 
hospitalization,  incarceration,  or  other  situation  in  which  a  member’s  perform-
ance  was  not  observed  by  the  command,  a  member  would  receive  a  mark  for 
conduct only and not for proficiency or leadership. 
 

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 over this matter under 10 U.S.C. § 1552.  

 

2. 

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.  The 
applicant alleged that she should have been retired as an E-4, rather than an E-3, 
and  that  she  discovered  the  alleged  error  in  September  2003.    However,  the 
applicant  received  her  DD  214,  which  shows  that  she  was  separated  as  an 
SNSS/E-3,  in  1980,  and  she  received  her  permanent  retirement  orders  in  1983.  
Therefore, the Board finds that she knew or should have known  of the alleged 
error in her record by 1983 at the latest.  Therefore, her application was untimely. 

 

3. 

Pursuant to 10 U.S.C. § 1552(b), the Board may excuse the untimeli-
ness of an application if it is in the interest of justice to do so.  In Allen v. Card, 799 
F.  Supp.  158,  164  (D.D.C.  1992),  the  court  stated that to  determine  whether the 
interest  of  justice  supports  a  waiver  of  the  statute  of  limitations,  the  Board 
“should  analyze  both  the  reasons  for  the  delay  and  the  potential  merits  of  the 
claim based on a cursory review.”  The court further instructed that “the longer 
the delay has been and the weaker the reasons are for the delay, the more com-
pelling the merits would need to be to justify a full review.”  Id. at 164, 165; see 
also Dickson v. Secretary of Defense, 68 F.3d 1396 (D.C. Cir. 1995).   
 

4. 

 Although the applicant did not explain her long delay in applying 
for correction of her pay grade, the Board notes that she was diagnosed with and 
retired  from  the  Service  due  to  an  “acute  schizophrenic  reaction.”    Her  long 
delay may well be explained and excused by her mental illness.  In addition, the 
Board  notes  that  the  JAG  has  admitted  that  the  applicant  met  many  of  the 
requirements  for  advancement  to  E-4  prior  to  her  retirement  from  active  duty.  
Therefore, the Board finds that it is in the interest of justice to waive the statute of 
limitations and to consider and decide this case on its merits. 

 
5. 

The JAG has stated that on January 3, 1980, the applicant met all of 
the  requirements  for  advancement  to  E-4  under  Article  5-C-3  of  the  Personnel 
Manual then in effect except (a) the requirement that she have marks of at least 
3.3  for  proficiency  and  leadership  on  her  most  recent  performance  evaluation 
and  (b)  the  requirement  that  she  have  her  CO’s  recommendation  for 
advancement.  In light of the JAG’s admission, the Board finds that on January 3, 
1980,  the  applicant  met  all  of  the  requirements  for  advancement  to  E-4  under 
Article  5-C-3(a),  subparagraphs  (1)  through  (9).    Therefore,  the  issue  to  be 
decided is whether she has proved by a preponderance of the evidence that she 
met  the  requirements  under  subparagraphs  (10)  and  (11)  of  Article  5-C-3(a), 
which require, respectively, that the member “[h]ave been assigned a mark of at 
least  3.3 
last  evaluation”  and  “[b]e 
recommended by commanding officer.” 
 

in  Proficiency  and  Leadership  on 

6. 

The record shows that the applicant did not meet the requirement 
for advancement under Article 5-C-3(a)(10) because she did not earn a mark of at 
least  3.3  for  leadership  on  her  last  evaluation.    In  fact,  she  never  received  an 
evaluation mark for leadership at all.  She did not receive marks for leadership or 
proficiency  as  an  E-3  because  she  was  either  hospitalized,  on  sick  leave,  or  in 
HAOS for five of the six months from her advancement to E-3 on July 3, 1979, 
until the end of the evaluation period on December 31, 1979, and on through her 
separation  from  active  duty  on  April  15,  1980.    Therefore,  in  accordance  with 
Article 10-B-2(d) of the Personnel Manual, her CO did not assign her marks for 
proficiency  or  leadership  on  December  31,  1979,  or  upon  her  separation  from 

active duty on April 15, 1980.  The applicant has not proved by a preponderance 
of  the  evidence  that  her  CO  committed  error  or  injustice  by  not  assigning  her 
marks for leadership or proficiency. 

 
7. 

The record shows that the applicant did not meet the requirement 
for  advancement  under  Article  5-C-3(a)(11)  because  she  did  not  earn  her  CO’s 
recommendation for advancement to E-4.  On December 31, 1979, the CO indi-
cated that he had not had sufficient time to observe the applicant’s performance 
as an E-3 to complete a full evaluation.  In light of the fact that the applicant was 
either hospitalized, on sick leave, or in HAOS for five of the six months from her 
advancement  to  E-3  on  July  3,  1979,  until  the  end  of  the  evaluation  period  on 
December  31,  1979,  the  Board  finds  that  the  CO  did  not  commit  any  error  or 
injustice in failing to provide a recommendation for advancement for the appli-
cant.  The record shows that the applicant served full-time in the cadet mess for 
fewer than four weeks in July 1979 and for a couple days in October 1979.  More-
over,  during  that  limited  opportunity  for  her  performance  to  be  observed,  she 
was  apparently  involved  in  some  altercations  with  coworkers.    In  light  of  the 
requirements for such a recommendation under Article 5-C-16 of the Personnel 
Manual, the Board cannot find that the CO’s failure to recommend the applicant 
for advancement was erroneous or unjust.  

 
8. 

The  applicant  performed  work  as  an  E-3  for  only  a  few  weeks 
before she was hospitalized.  Although she technically served on active duty as 
an  E-3  for  more  than  nine  months,  she  was  hospitalized  or  on  sick  leave  or  in 
HAOS for all but about four weeks of that time.  Under such circumstances and 
given  the  requirements  for  advancement  under  Article  5-C-3  of  the  Personnel 
Manual, the Board is not persuaded that the Coast Guard erred or committed an 
injustice1 by not advancing her to E-4. 

 
9. 
 

Accordingly, the applicant’s request should be denied. 

                                                 
1 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) (holding that for purposes of 10 U.S.C. § 1552, 
“injustice” means “treatment by military authorities that shocks the sense of justice”)). 

The  application  of  retired  xxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for 

ORDER 

 

 
 

 
 

        

 
 Patrick B. Kernan 

 

correction of her military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 J. Carter Robertson 

 

 

 
 Richard Walter