DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2008-129 
 
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 application on May 20, 
2008, upon receipt of the applicant’s completed application, and subsequently prepared the final 
decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated February 12, 2009, is approved and signed by the three duly 

APPLICANT’S REQUEST 

 
 
 The applicant asked the Board to correct his retirement certificate from the Coast Guard 
Reserve to show that he retired as a lieutenant (LT; pay grade O-3), which is the highest grade 
that he held in the Navy, rather than as a Chief Port Security Specialist (PSC; pay grade E-7), 
which is the highest grade he held in the Coast Guard.   
 
 
Prior to enlisting in the Coast Guard, the applicant was an officer in the Navy Reserve 
and  was  promoted  to  LT  on  July  1,  1969,  while  in  that  Service.    On  October  28,  1977,  the 
applicant enlisted in the Coast Guard as a PS2.  He advanced to PSC during his enlisted Coast 
Guard Service.   

 
 On May 1, 2002, the applicant was transferred to the Coast Guard Reserve Retired list 
without pay (RET-2).  At that time he had over 36 years of service.   On May 14, 2002, the Coast 
Guard Personnel Command’s (CGPC’s) Enlisted Status Manager, a CWO4, certified that LT was 
highest grade held by the applicant in the Armed Forces and directed that the applicant be placed 
on the Coast Guard retired list in that grade.  On November 12, 2003, the applicant was notified 
of his transfer to the retired list with pay (RET-1) at the rank of LT with over 38 years of service. 
At some point later, the applicant received a retirement certificate from  the Commandant that 
referred to him as Chief Port Security Specialist.    

 

United States Code 
 
 
who first became members before September 8, 1980: final basic pay) states the following:   
 

Section 1406(b)(2) of title 10 of the United States Codes (Retired pay base for members 

Non-regular service retirement.  In the case of a person who is entitled to retired 
pay under section 12731 of this title . . . the retired pay base is the monthly basic 
pay, determined at the rates applicable on the date when retired pay is granted, of 
the highest grade held satisfactorily by the person at any time in the armed forces. 

 
Coast Guard Reserve Policy Manual 
 
 
Article  8.C.8.b  of  the  Reserve  Policy  Manual  states  that  retired  pay  for  members  with 
dates of initial entry into military service (DIEMS) prior to 8 September 1980 is computed based 
on the highest grade satisfactorily held at any time in the Armed Forces and the Commandant’s 
determination that the member’s performance in that grade was satisfactory.    
 

VIEWS OF THE COAST GUARD 

 
On October 14, 2008, the Judge Advocate General (JAG) of the Coast Guard submitted 
 
an  advisory  opinion  recommending  that  the  Board  deny  relief,  as  recommended  by  the 
Commander, Coast Guard Personnel Command (CGPC) in a memorandum attached to the views 
of the Coast Guard.   
 

CGPC  noted  that  the  application  was  not  timely  and  the  applicant  had  submitted  no 

justification for the delay.   CGPC further stated the following:  

 
The provision of the highest grade held pursuant to [10 USC § 1406(b)(2)] relates 
to retirement compensation and not documentation of the grade held in the Coast 
Guard Reserve at time of retirement.   

 

The applicant stated that he discovered the  alleged error in April 2004,  but he did not 
provide a reason why it is the interest of justice to consider his application even though it was 
filed more than three years after he discovered the error.   

 

APPLICABLE LAW 

 

While  the  applicant’s  retirement  computation  is  based  upon  the  highest  grade 
satisfactorily held in any branch of the military, his record clearly supports that at 
the time of his retirement he was a PSC in the Coast Guard Reserve which is the 
authorized rank for his uniform and for address in official correspondence.  The 
rate/grade applied to the computation of the applicant’s retired pay does not have 
to conform to the applicant’s rate/grade at the time of retirement.  Additionally, it 
would be improper to indicate a grade as the applicant’s official grade within the 
Coast  Guard  Reserve  that  he  applicant  never  held  while  in  the  Coast  Guard 

Reserve,  i.e.,  Lieutenant,  O-3.    The  applicant  was  properly  issued  a  retirement 
certificate that reflects his rank/rating held in the Coast Guard Reserve. 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
for a reply.  The Board did not receive a reply to the views of the Coast Guard.     

On October 16, 2008, the Board sent the applicant a copy of the views of the Coast Guard 

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 submission and applicable law: 
 
 
of the United States Code.  The application was not timely.    
 
 
2. To be timely, an application for correction must be filed within three years of the date 
the  alleged  error  or  injustice  was,  or  should  have  been,  discovered.    See  10  U.S.C.  §  1552, 
33 CFR § 52.22.   The applicant stated that he discovered the alleged error or injustice in April 
2004.    Therefore,  his  application  was  submitted  approximately  one  year  past  the  statute  of 
limitations.   
 

3.    The  Board  may  still  consider  the  application  on  the  merits,  if  it  finds  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  in  assessing  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 compelling 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.  The applicant acknowledged that he discovered the alleged error in April 2004 but he 
did not provide a reason why it is the interest of justice for the Board to waive the statute of 
limitation in his case and consider it on the merits.  
 
  
5.  With respect to the merits, the Board finds that the applicant is not likely to prevail.  In 
2003,  the  Coast  Guard  determined  that  the  applicant’s  service  as  a  LT  in  the  Navy  was 
satisfactory and directed that he be placed on the retired list at that rank.  The Coast Guard’s 
decision  in  this  regard  complies  with  Article  8.C.8.  of  the  Reserve  Policy  Manual.    This 
provision states that “retired pay for members with date of initial entry to military service . . . 
prior to 8 September 1980 is computed based on the highest grade satisfactorily held at any time 
in the Armed Forces and the Commandant’s determination that the member’s performance in that 
grade  was  satisfactory.”    This  provision,  however,  does  not  mandate  that  a  member  like  the 
applicant who holds a rank upon retirement from the Coast Guard different than a higher rank 
held previously in the another branch of the armed forces should have the earlier higher rank/rate 
reflected on such retirement documents that have nothing to do with calculating his retired pay.   

 

 

it lacks merit.   
 
 
 

6. 

Accordingly, the application should be denied because it is untimely and because 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

The application of XXXXXXXXXXXX, USCGR (Retired), for correction of his military 

ORDER 

 

 
 

 
 

 
 

record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Lillian Cheng 

 

 
 
 Paul B. Oman 

 

 
 Darren S. Wall