DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-143 
 
XXXXXXXXXXXXX 
XXXXXXXXXXXXX 
   

 

 
 

FINAL DECISION 

 
 
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 June 20, 2007, 
upon receipt of the completed application, and subsequently prepared the final 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  April  10,  2008,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
 The applicant asked the Board to correct his military record by advancing him to chief 
machinery technician (MKC; pay grade E-7) in the Reserve retroactive to the 2000 Reserve SWE 
cycle.  
 
 
The  applicant  stated  that  he  discovered  the  alleged  error  on  October  18,  2000,  but  the 
Board  should  waive  the  statute  of  limitations  in  the  interest  of  justice  because  it  has  taken 
approximately seven years for anyone to listen to his problem.   
 

APPLICANT’S ALLEGATIONS 

 

The applicant is a machinist mate first class (E-6) in the retired Reserve (Ret-2) with over 
twenty years of Coast Guard service.  He alleged that the education service officer (ESO) LTJG 
D1 for the unit to which  he was  assigned for the period involved discriminated and  retaliated 
against  him  by  refusing  to  allow  him  to  take  the  2000  and  2001  Reserve  service  wide 
examinations (RSWEs).   

 

                                                 
1   LTJG D was the ESO for the 2000 and 2001 RSWEs.  She also served as the proctor.  Therefore, LTJG D may be 
referred to in this decision as the ESO or the proctor.    

  With respect to the 2000 RSWE, the applicant stated that it was held in the galley from 
0830 to 1100, with the ESO serving as proctor.  The applicant stated that he arrived for the exam 
at 0815 and the proctor was instructing participants on how to complete the pre-exam forms.  He  
stated that he told LTJG D that he had not received an exam, to which she allegedly replied that 
the applicant’s exam was still in her office and that she would get it once the pre-exam phase was 
completed.  The applicant claimed that when the pre-exam phase was completed, the proctor left 
the exam area to retrieve his exam and did not return until 1010.  According to the applicant, the 
ESO then told him he had to complete the exam by 1100.  The applicant stated that he objected 
to the shortened time and the ESO stated that he could take it or leave it.  He then complained to 
his  supervisor,  MKCS B.    According  to  a  statement  from  MKCS  B  dated  April  27,  2007,  he 
spoke with LTJG D on behalf of the applicant and explained that the applicant would not have 
sufficient time to complete the exam.  MKCS B stated that he offered to proctor the exam for the 
applicant, but LTJG D refused the offer.  MKCS B also noted a problem with the applicant not 
taking the examination the following  year, which he stated he brought to the attention of  the 
engineering officer and the executive officer (XO).   

 
The  applicant  explained  his  belief  that  LTJG  D  discriminated  against  him  because  in 
2000 he reported her to the commanding officer (CO) for leaving the unit without checking out 
during an active duty training (ADT) event.  The applicant claimed that the CO directed him to 
find  LTJG  D  and  to  inform  her  to  report  to  the  CO.    The  applicant  speculated  that  the  CO 
reprimanded the LTJG, and he stated from that moment he felt that she did not have an interest 
in his career. 

 
On January 20, 2006, the applicant wrote to his senator requesting an investigation into 
the actions of his command.  On March 7, 2006, LCDR C of the Coast Guard Congressional and 
Governmental Affairs Staff responded to the senator.   LCDR C stated that the Office of Reserve 
Affairs had conducted an informal inquiry and that, due to the lapse of time, recollections of the 
events were unclear.  LCDR C told the senator that it was against Coast Guard policy to impede 

 
Regarding the 2001 RSWE, the applicant stated that he  received  a letter in September 
2001 stating that he was eligible to participate in the 2001 RSWE.  He claimed that when he 
arrived to take that exam, LTJG D told him that because she had sent the incorrect social security 
number for him when ordering the examinations, the unit did not receive a test for the applicant. 
He stated that he complained about his lack of participation to MKCS B.   

 
The applicant stated that he took the RSWE in 2002 but was not advanced from that list 
because  he  was  below  the  cut-off  for  guaranteed  advancement.    According  to  the  advisory 
opinion, he placed 80 out of 86, and the cut-off was 43.   

 
In October 2003, the  applicant stated that he was not allowed to take the RSWE by  a 
different  ESO  because  he  did  not  have  24  months  of  service  remaining  prior  to  reaching  his 
sixtieth birthday as of January 1 following the October 2003 RSWE.  Reserve regulations require 
the removal of a reservist from the active reserve at age 60.  Regulations also require a member 
to  have  24  months  of  service  eligibility  remaining  from  January  1  of  the  year  following  the 
examination to compete for advancement to E-7 (chief petty officer).   

the  advancement  of  any  member  and  that  any  such  action  would  not  be  tolerated.    LCDR  C 
stated that since the applicant had retired, his only option was to petition the BCMR. 
 

VIEWS OF THE COAST GUARD 

 

 
On November 6, 2007, the Board received the views of the Coast Guard from the Judge 
Advocate  General  (JAG),  stating  that  the  Coast  Guard  adopted  the  analysis  provided  by  the 
Commander,  Coast  Guard  Personnel  Command  (CGPC)  as  the  advisory  opinion.      CGPC 
recommended that the Board deny relief to the applicant.   
 
 
 CGPC obtained and submitted an email string from YNCM B of the Personnel Service 
Center.    YNCM  stated  that  the  Coast  Guard  has  no  record  that  the  applicant  completed  the 
October 2000 RSWE or 2001 RSWE.  This individual stated that the applicant took the 2002 
RSWE and placed 80 out of 86 candidates.  The cut-off for the 2002 RSWE was 43.  In addition, 
YNCM  B  stated  that  examinations  are  shipped  automatically  for  eligible  members  and  not 
“ordered.”  In this regard, YNCM B stated with respect to 2001 RSWE that “If [the applicant] 
was qualified [for the exam] it was shipped, and if it was shipped, he did not take it, as he’s not 
on our list of members who completed the exam in 2001.”   
 
 
CGPC  also  obtained  a  statement  from  the  ESO,  LTJG  D.    She  denied  the  applicant’s 
allegations.  In this regard, she denied that she was ever reprimanded by the CO and submitted 
her OER for the period to show that she performed her duties in an excellent manner.  She stated 
that  she  proctored  the  October  2000  RSWE  and  could  not  remember  whether  she  had  the 
applicant’s examination in hand when she started proctoring the exam.   She stated that she could 
not imagine not bringing all of the RSWEs examinations that were locked in the safe because she 
knew  that  as  the  proctor  she  could  not  leave  the  area  while  members  were  taking  the 
examination.   The ESO denied that she left to get the applicant’s exam and did not return until 
1010 and that she told the applicant that he had until 1100 to finish the exam.  She also denied 
that she discussed the issue of the applicant not having sufficient time to complete the exam with 
MKCS B.  LTJG D also stated the following: 

 

 

 

 

 

[The applicant] states “LTJG  [D] informed me that she had sent the wrong SSN 
and that a test wasn’t received.”  ESO’s do not ORDER RSWE.  They are sent by 
HRSIC  only  if  the  member  has  completed  the  necessary  EOCTs  and  earned 
enough points to qualify.  ESOs do not order EOCTs by SSN.  However I believe 
[the applicant] had already taken all of the necessary rating exams if he sat for the 
Chief’s RSWE the year before.   
 

CGPC concluded the advisory opinion with the following:    
 

The Coast Guard is presumed to have followed applicable policies with regards to 
this  case  and  based  upon  the  information  presented  by  the  applicant  and  the 
statement of the ESO the applicant has not substantiated that he was erroneously 
deprived  of  the  opportunity  to  participate  in  the  RSWE  during  2000  and  2001.  
Additionally, had there been an error with the administration of the examinations, 
procedures allow for requesting a substitute examination which records revealed 

was  not  requested  by  the  applicant.    Given  the  seven  year  delay  in  filing  [the 
BCMR application] and the lack of any official records supporting the applicant’s 
assertions, there is insufficient evidence to support any error or injustice on behalf 
of the applicant.   
 
The applicant’s basis that he should be promoted off of the October 2000 RSWE 
which he did not take is not supported.  Given the applicant did not take either the 
October  2000  or  the  2001  RSWE  there  is  no  factor  that  could  be  utilized  to 
determine appropriate placement, and the applicant’s subsequent RSWE multiple 
does not support that he would have had a sufficient score for advancement off of 
the previous RSWE. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

  

On  January  20,  2008,  the  Board  received  the  applicant’s  response  to  the  views  of  the 

 
 
Coast Guard.  He disagreed with them.   
 
 
The applicant restated many of the allegations made in his application.  With respect to 
the Coast Guard’s comment that it had no record of the applicant having taken the 2000 RSWE, 
the applicant stated that he did not take the exam because he was not allotted the full 3.5 hours to 
complete  the  exam.    He  stated  that  Coast  Guard  regulation  states  that  “There  is  currently  no 
official  policy  which  prevents  a  member  from  being  allowed  to  start  a  SWE  after  the  locally 
scheduled exam time.  The policy only states that the test be administered in the ‘a.m.’ or ‘p.m.’ 
as announced in the SWE message for each cycle.” (Emphasis in original.)  He stated that he did 
not request a substitute exam because he was not aware he could do so.  He argued that it was 
LTJG D’s responsibility as the ESO to make sure that all steps were taken for each member to 
participate in the exam.   
 
 
In response to LTJG D’s statement that she could not remember whether she did or did 
not have the applicant’s exam in her hand for the 2000 RSWE, the applicant stated that under the 
regulation LTJD D, as the ESO, was supposed to compare the list of candidates recommended 
for the exam against the list of examinations received, and that if a test for an eligible candidate 
was not received, she was supposed to notify PSC immediately.   
 
 
The applicant further stated that under the regulation, upon receipt of the SWEs, the ESO 
must notify all candidates, in writing of the exam received, date, time and location of their test.  
The  applicant  asserted  that  he  received  notification  of  the  exam  date  and  time  and  reported 
accordingly.   
 
 
 

Regarding, the 2001 RSWE, the applicant offered the following: 

In September 2001, I received the letter from the service exam office in the mail 
at  my  home,  informing  me  I  was  on  track  for  the  October  2001  service  wide 
exam.  When our duty weekend came around in October, I arrived at the Coast 
Guard  station  in  San  Pedro  anticipating  taking  the  service  wide  exam.    After 
quarters,  [and]  after  not  hearing  my  name  called  by  [the  ESO]  as  one  of  the 

eligible members who would be taking the service wide exam, I spoke with [the 
EO]  about  why  my  name  had  not  been  called.    [The  ESO]  stated  that  she  had 
accidentally  sent  the  wrong  social  security  number  in  for  me  and  therefore  no 
exam had been sent for me this year.  I admit, I lost my bearing and called [the 
ESO] a liar.  I told her that the test was sent, and that I had received notice from 
the service exam office.  [The ESO] claimed this was not true, and that no exam 
had been sent for me this year.   

 
 
The applicant alleged that an exam had been sent for him and that it was received by the 
ESO.  He further alleged that the exam was returned to Kansas as not taken.  He alleged that if 
the ESO did not receive an exam for him, she had sufficient time to notify Kansas and obtain 
one.   
 
 
The applicant stated that after he retired in 2006, he spoke with a Department of Veterans 
Affairs representative about the situation and was advised to contact his Senator’s office, which 
he did.  He stated that the Senator’s staff told him that exams were sent out automatically for 
each  eligible  member  and  that  the  exam  sent  to  the  command  for  him  in  2001  was  returned 
unused.  The applicant indicated that an investigation was done as a result of his contact with the 
Senator’s office, but he was not provided with a copy of it.   
 
 
The  applicant  alleged  that  the  ESO’s  treatment  of  him  with  respect  to  the  RSWEs 
amounted to discrimination, retaliation, and a misuse of authority.  He stated that he complained 
to his command by speaking with his supervisor, MKCS B.  He stated that at no time did the 
command perform a formal investigation.  The applicant stated that he sought help from other 
officers and senior enlisted members within the command but no one could do anything to help 
him.   
 

FINDINGS AND CONCLUSIONS 

 

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

1.   The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

 
military record and submissions, the Coast Guard's submissions, and applicable law:  
 
 
of the United States Code.   
 
 
2.   The first issue to be resolved is whether the applicant’s application regarding the 2000 
and 2001 RSWEs was 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.    Between 2000 and 2006, the applicant performed 
approximately one year of active duty, which under Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 
1994) tolled the statute of limitations for that period of active duty.    With Detweiler in mind, 
the Board finds that the applicant’s issue  with respect to the 2000 RSWE is untimely by two 
years and the issue with respect to the 2001 RSWE is untimely by approximately one year.    
 
 
3.    The  applicant  stated  that  although  he  discovered  the  alleged  error  in  2000  (and 
presumably  the  other  in  2001)  he  could  not  get  anyone  to  take  his  claim  seriously  until  he 

contacted  his  Senator’s  office  in  2006.    There  is  evidence  in  the  record  that  the  applicant 
complained to MKCS B in 2000 and 2001 about what he perceived to be unfair treatment with 
regard to the RSWE.  There is also some evidence that he complained  to others in the Coast 
Guard about alleged unfair treatment, although the dates on which these contacts were made are 
unclear.  The Board is persuaded that the applicant made some effort to correct the alleged errors 
prior to filing his application with the Board.  However, making good faith attempts to correct an 
alleged error is an insufficient basis per se on which to waive the three year statute of limitations.  
The Board may waive the statute of limitations in the interest of justice, which 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 based upon at least a cursory review. See Allen v. Card, 799 F. Supp. 
158, 164 (D.D.C. 1992). 
 
 
4.        With  respect  to  the  merits,  the  Board  finds  that  the  applicant  has  submitted 
insufficient  evidence  to  prevail  upon  any  of  his  allegations.    The  applicant  has  submitted  no 
evidence,  except for his own allegation, to prove that the ESO was motivated to retaliate and 
discriminate  against  him  by  denying  him  the  opportunity  to  participate  in  the  2000  and  2001 
RSWE because she was reprimanded by the CO based upon a report that the applicant made to 
the CO.   The ESO denied that she was reprimanded and MKCS B stated that he had no proof of 
wrong  doing  and  would  not  ascribe  negative  motives  to  the  command.    In  addition,  the  ESO 
submitted a copy of her OER for the period April 1, 2000 to July 31, 2001, which showed that 
the rating chain’s evaluation of her performance was commendable.  The applicant has failed to 
submit  sufficient  evidence  to  prove  that  his  non-participation  in  the  2000  and  2001  RSWEs 
resulted from discrimination or retaliation against him by the ESO.   
 
 
5.      Nor  has  the  applicant  proved  that  the  Coast  Guard  committed  any  other  error  or 
injustice with respect to his non-participation in the 2000 and 2001 RSWEs.  The applicant has 
provided insufficient evidence for the Board to determine whether his non-participation in the 
2000 RSWE was due to Coast Guard error.  There is evidence in the record to show that the 
applicant  reported  for  the  2000  examination,  but  the  record  is  silent,  except  for  applicant’s 
contentions, as to why he did not take the exam.  The applicant did not submit proof that he was 
eligible to take the 2000 examination.  The fact that the applicant showed up for the examination 
does not mean he was eligible to participate or that HRSIC had  sent an examination  for him.  
The applicant could have submitted his Personnel Data Extract, which is the document he would 
have received from HRSIC informing him whether he had met all eligibility requirements for the 
RSWE.  Without this document or some other proof, the Board has no way of knowing whether 
the applicant was even eligible for the 2000 RSWE.   
 
 
6.    Additionally,  the  applicant  provides  no  corroboration  for  his  allegation  that  the 
examination, including the muster and pre-test matters, was scheduled to begin at 0830 and to 
end at 1100.   In this regard,  Article 5.D.7.d. of the Coast Guard Personnel Manual states that the 
exact time schedule is left to the discretion of the CO, but stated that the following schedule shall 
apply unless deviation is considered necessary: 
 

0800  Candidates with ID cards and proctors muster. 
 

0810  Distribution  of  sealed  examination  envelopes  and  all  other  material 
required for administration.   

0820  Reading  of  “Verbatim  Instructions 
examinations, and filling in of required information, if needed. 

to  Candidates”  provided  with 

 

 
 

 

0830  Commence  examination.    TIME  LIMIT:  THREE-AND-ONE-HALF  (3 
1/2) hours: 

 
 
7.  Moreover, Article 5.D.8.a. of the Personnel Manual states that on the date scheduled 
for the examination, the examining board will muster the candidates and seat them in the room 
according to the planned arrangement.  After distributing the required examination material, a 
member of the examining board will read the “verbatim instructions to the candidates” furnished 
by  the  Coast  Guard  Institute.      The  applicant  stated  that  he  arrived  at  0815  for  the  test.  The 
applicant’s arrival time is critical because if he was late, the ESO, as the single proctor for the 
RSWE, could not have obtained the applicant’s examination from her office, if there was indeed 
one for the applicant, until she had collected the tests already distributed.  Article 5.D.8.b. states 
that  at  least  one  member  of  the  examining  board  will  be  present  at  all  times  during  the 
administration of the examinations.    The applicant has presented no evidence that there was 
more than one proctor for the RSWE.  The Board further finds that even if MKCS B offered to 
proctor the examination for the applicant, the ESO’s refusal would have been in accordance with 
the Personnel Manual.  First, the MKCS was not a member of the examining board and therefore 
could  not  serve  as  a  proctor.    See  Article  5.D.6.  of  the  Personnel  Manual.    Second,  Article 
5.D.7.d.  of  the  Personnel  Manual  states  that  the  time  scheduled  for  administering  the 
examinations shall not be exceeded.   
 
 
8.   The  applicant  indicated  that  fifteen  other  individuals  took  the  2000  RSWE,  but  he 
submitted no statements from any of them to corroborate his allegations.  The applicant has the 
burden  of  proof  before  the  Board.    He  has  failed  to  prove  that  he  was  eligible  for  the  2000 
RSWE, that HRSIC sent an examination for him, or that assuming he was eligible and had a 
designated  test  from  HRSIC,  he  was  on  time  for  the  scheduled  muster  and  start  of  the 
examination process.  
 
 
9.  Again, with respect to the 2001 RSWE, the applicant has failed to submit sufficient 
evidence to prove that his lack of participation in that exam was due to error or injustice on the 
part of the Coast Guard.  The applicant alleged that he received notification that he was on track 
to take the exam but did not submit proof of that to the Board.  He alleged that the ESO told him 
at the time of examination that she did not have an examination for him because she submitted 
an incorrect social security number for him when ordering the tests.  However, the ESO stated 
that exams are not ordered but are sent directly from Human Resources Service and Information 
Center (HRSIC) for each individual eligible to take the examination.  The ESO’s statement is 
corroborated  by  YNCM  B  that  exams  are  shipped  automatically  for  eligible  members.    This 
individual  stated  that  “If  the  [applicant]  was  qualified  [an  exam]  was  shipped,  and  if  it  was 
shipped, [the applicant] did not take it, as he’s not on our list of members who completed the 
exam in 2001.”  Moreover, Article 5.C.4.f. of the Personnel Manual states that the CO, HRSIC is 
responsible  for  preparing,  printing,  distributing,  accounting,  and  scoring  SWEs. The  applicant 

claimed,  but  failed  to  prove,  that  an  examination  was  sent  for  him  and  returned  unused  to 
HRSIC.  In light of the above, the applicant has failed to prove that his non-participation in the 
2001 RSWE was due to any error or injustice by the ESO.     
 
 
10.    It is not clear from the record whether the applicant is claiming that he was unfairly 
denied an opportunity to participate in the 2003  RSWE.  Article 8.C.1. of the Reserve Policy 
Manual sets 60 as the mandatory retirement age for reservists.   Article 7.C.5.a. of the Reserve 
Policy Manual states that  E-7, E-8, and E-9 candidates must have at least two years of Selected 
Reserve (SELRES) eligibility remaining as computed from the 1 January terminal eligibility date 
to be eligible for advancement.  The applicant would have reached his maximum retirement age 
of 60 on October 14, 2005, and therefore did not have two years of eligibility remaining as of 
January 1, 2004.  Therefore, the Coast Guard complied with the regulation in not permitting the 
applicant to participate in the 2003 RSWE.   
 
11.  The applicant stated that he wanted the matter of his non-participation in the RSWEs 
 
investigated.   LCDR C in a 2006 letter to the  applicant’s Senator stated that the Coast Guard 
performed an informal investigation, but nothing could be determined because memories as to 
what happened had faded.  The Board notes that the applicant has the burden of proving his case 
by  a  preponderance  of  the  evidence.  In  addition  under  the  Board  rules  the  applicant  is 
responsible  for  procuring  and  submitting  such  evidence,  including  official  records,  as  the 
applicant desires to present in support of his application.  See 33 CFR § 52.24.  In this case, the 
applicant has failed to produce the necessary evidence to prove that the Coast Guard committed 
an error or injustice with respect to the 2000, 2001, or 2003 RSWE. 
 
 
12.  The Coast Guard raised the issue that no substitute examinations were requested for 
the applicant for the 2000 and 2001 RSWEs.  Article 5.D.3.b. of the Personnel Manual states that 
the CO must justify requests for substitute examinations by showing that a member was fully 
qualified for the SWE and that the member’s absence from the regularly scheduled examination 
must have been through no fault of his or her own and that it was due to emergency leave, illness 
or hospitalization, or operational commitments.  The applicant has not established that he met the 
requirements for a substitute examination for any of the RSWEs in which he did not participate.   
 
 
13.  The Board also notes that that without proof of an error or injustice in the RSWE 
process, there is no basis on which to consider advancing the applicant retroactively to pay grade 
E-7.  In addition, the Board is not aware of any manner in which the applicant could be advanced 
retroactively  even  if  error  had  been  proven  since  he  did  not  participate  in  the  advancement 
process in 2000, 2001, or 2003.    
 
 
apparent lack of merit.   
 

14.  Accordingly, the applicant’s request should be denied because of its untimeliness and 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 

The  application  of  retired  XXXXXXXXXXX,  USCGR,  for  correction  of  his  military 

ORDER 

 

 
 

record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Dorothy J. Ulmer 

 

 

 

 
 
 Thomas H. Van Horn 

 

 

 
 
 Darren S. Wall