DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2008-158 
 
xxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxx 

FINAL DECISION 

This is a proceeding under 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 July 14, 2008, upon receipt of 
the applicant’s completed application, and assigned it to staff member J. Andrews to prepare the 
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  16,  2009,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

 

 
 

 

 

The applicant, who was honorably retired from the Coast Guard on March 1, 1973, asked 
the Board to correct his record by removing a Letter of Reprimand from his file; removing his 
two  failures  of  selection  for  promotion  to  lieutenant  commander  from  his  record;  having  his 
record reviewed by a “stand-by selection board”; and, if selected for promotion, awarding him 
back pay and allowances. 

 
The Letter of Reprimand contested by the applicant is dated April 17, 1963.  It is from the 
First District Commander to the applicant and bears the subject line “Dereliction in the perform-
ance of duty, Article 92 UCMJ; Imposition of disciplinary punishment, letter of reprimand.”  The 
letter, which concerns the results of a Board of Investigation (BOI) into the sinking of a boat in 
October 1962, states the following: 
 

1.  The findings of fact in [the report of the BOI], to which you were a party and were accorded 
your rights as such, reveal that you were derelict in the performance of your duties as industrial 
manager  of  the  Coast  Guard  Base,  South  Portland,  Maine.    As  industrial  manager  you  were 
responsible for the operation and maintenance of the CG-24526, a ramp work boat assigned to the 
Base for use in industrial work.  On October 11, 1962, you ordered this work boat placed into the 
water and subsequently ordered it to be used for the transfer of equipment at Matinicus Rock[1] 
despite the incompletion of scheduled repairs by the operational engineer.  Your knowledge of the 
notoriously poor condition of this boat should have alerted you to the hazard involved in towing it 

                                                 
1 Matinicus Rock is an island with a lighthouse off the coast of Maine. 

a considerable distance in the open sea and using it for the transfer of heavy equipment.  Despite a 
directive from this office requiring the boat to be inspected and a report made of its deficiencies, 
you were instrumental in postponing this inspection and report thereby depriving your superiors of 
knowledge upon which appropriate action might have been taken to preserve the useful life of the 
boat.  The necessity of accomplishing work assigned to the Base with the means at hand has been 
considered as a mitigating circumstance, however it does not justify the jeopardy to which gov-
ernment  equipment  was  exposed  nor  the  subsequent  loss  of  the  boat  through  foundering  while 
being towed. 
 
2.    You  are  hereby  reprimanded  for  your  derelictions  in  this  matter  which  were  contrary  to  the 
standards of care required of an industrial manager entrusted with the operation and maintenance 
of this piece of public property. 
 
3.  By copy of this letter, your Commanding Officer is directed to make reference to this letter and 
the facts contained herein in your next fitness report. 
 
4.    You  are  advised  of  your  right  to  appeal  to  the  Commandant,  U.S.  Coast  Guard, via official 
channels,  in  accordance  with  the  provisions  of  paragraph  135  MCM,  as  amended,  and  Section 
0101f, CG Supp. MCM.  You are directed to reply to this letter, through official channels, within 
15 days after your receipt hereof.  You will indicate in your reply the date of receipt of this com-
munication and whether or not you propose to appeal.  If you elect to appeal, your written appeal 
will be included in your reply. 
 
The applicant alleged that this Letter of Reprimand is the second he received during his 
career and that it should be removed from his record because he was not named a party to the 
BOI;  was  not  advised  of  his  rights;  was  not  provided  an  opportunity  to  review  the  evidence 
against him; was not advised he could consult counsel; and was not allowed to present evidence 
in his own behalf.  The applicant alleged he had previously received another Letter of Reprimand 
as the result of a prior BOI for which he was also not named a party to the BOI; not advised of 
his rights; not provided an opportunity to review the evidence against him; not advised he could 
consult counsel; and not allowed to present evidence in his own behalf.  The applicant further 
stated that he was never advised that he could request an Admiral’s Mast to dispute the two Let-
ters of Reprimand.  The applicant argued that his record should not contain any Letters of Repri-
mand because he was denied procedural due process. 

 
The applicant stated that although he was told of his right to appeal the second Letter of 
Reprimand, he did not exercise that right because, at the time, he believed that his record con-
tained  the  first  Letter  of  Reprimand,  which  would  have  “doomed  any  chance  for  promotion.”  
However, when he requested a copy of his military record in 2007, he discovered that the first 
Letter of Reprimand he had received was not in the file.  The applicant alleged that if he had 
known the first Letter of Reprimand was not in his military record, he would have appealed the 
second Letter of Reprimand, and if his appeal had succeeded, he might have been selected for 
promotion in 1967 or 1968.  Therefore, he asked the Board, after removing any and all Letters of 
Reprimand, to place his record before a “stand-by promotion board to determine if [he] warrant-
ed promotion.”2  In addition, he claimed “back pay and allowances from the date [his] promotion 
should have occurred to the present should the board determine [his] record warranted promo-
tion.” 

 

                                                 
2  The  Board  notes  that,  unlike  the  Army,  Navy,  and  Air  Force, the Coast Guard does not convene “stand-by” or 
special selection boards. 

The applicant attributed his many years of inaction in this case to his lack of knowledge 
of the BCMR.  In support of this contention, the applicant submitted two 1971 letters from the 
Chief of the Office of Personnel, in which it is explained that because the applicant had failed 
twice of selection for promotion to lieutenant commander, his separation was mandatory under 
the law.  The first letter is addressed to the applicant’s commanding officer, who had written a 
letter asking the Commandant to put the applicant “back in the line for promotion.”  This letter 
notes that “[t]here are no other provisions, under law, that allow for his reinstatement for further 
consideration  for  promotion.”    The  second letter, which is addressed to the applicant’s father, 
states that “[h]aving twice failed of selection for promotion, under the applicable laws, he is no 
longer eligible for further consideration for promotion.  There is no provision in the law for such 
a reinstatement.” 
 

VIEWS OF THE COAST GUARD 

Reference  has  been made pertaining to responsibility for operation and maintenance of the CG-
24526.  Prior to the sinking of subject boat, responsibility for it was never clearly and concisely 
fixed upon any one person, and it was only an assumption on my part that it was my responsibility.  
Since I had made this assumption, I never at any time felt there was any degree of hazard, com-
mensurate with its condition, in sending this boat out in the company of the CG-65028-D for the 
completion of work orders.  On the completion of nearly every trip, I discussed with the Officer-in-
Charge  of  the  CG-65028-D  the  trip  in  general,  including  problems  encountered  with  the  CG-

On November 24, 2008, the Judge Advocate General (JAG) of the Coast Guard submitted 

 
 
an advisory opinion recommending that the Board deny relief in this case.   
 
 
The JAG stated that the application should be denied for untimeliness because the appli-
cant “provided no justification for the over 35 year delay in this application” and because more 
than 45 years have passed since the second Letter of Reprimand was issued.  In addition, the JAG 
argued that the applicant’s claim should be barred under the equitable doctrine of laches because 
during the applicant’s long delay, evidence has become “lost, stale, or inaccessible” and the cost 
of investigating his claims has accumulated.  
 
 
Regarding the merits of the applicant’s claim, the JAG argued that the applicant’s records 
are  presumptively  correct  and  that  he  has  failed  to  overcome  the  presumption  of  regularity 
afforded  his  military  records  and  Coast  Guard  officials.    In  addition,  the  JAG  argued  that the 
applicant has failed to submit evidence that the Letter of Reprimand is erroneous or unjust, and 
so there is no basis for removing his failures of selection for promotion. 
 
 
The JAG submitted with his advisory opinion a memorandum on the case prepared by the 
Coast  Guard  Personnel  Command  (CGPC),  and  he  adopted  the  findings  and  analysis  therein.  
CGPC stated that only one Letter of Reprimand appears in the applicant’s military record and 
that on April 30, 1963, he did in fact appeal it, but his appeal was denied.  Moreover, CGPC 
stated, documents in the applicant’s record show that “he was afforded due process throughout 
the investigation.”   
 

CGPC pointed out particular documents in the applicant’s military record for considera-
tion, including a letter from the applicant to the Commandant, dated April 30, 1963, in which the 
applicant acknowledged and appealed the Letter of Reprimand dated April 17, 1963, as follows: 
 

24526, if any.  This, coupled with my personal knowledge of the CG-24526 and the operation and 
care of small boats in general, led me to feel that no problems would be encountered in our opera-
tions.  I can only maintain that in my opinion, the CG-24526 was in as good a shape as it had been 
since my arrival at CG Base, South Portland.  Consequently, I feel that my judgment was sound in 
allowing the continued use of this boat. 

 
 
CGPC also submitted copies of the notes of the chain of command forwarding the appli-
cant’s appeal—one of which states that the applicant “was a party to [the BOI] and was accorded 
his rights as such”—and a copy of the Commandant’s letter, dated June 12, 1963, stating that the 
Letter of Reprimand was not unjust and denying the appeal. 
 

CGPC stated that the applicant twice failed of selection for promotion and would nor-
mally have been discharged except that he was allowed to remain on active duty until he could 
retire with 20 years of service in 1973.  Regarding the failures of selection, CGPC stated that 
while  a  review  of  his  record  reveals  overall  satisfactory  performance,  “his  early  record  as  an 
Ensign and Lieutenant Junior Grade reveals numerous leadership and performance deficiencies 
and a noted lack of self-direction and issues relative to his transition into the commissioned offi-
cer corps.  The applicant has not demonstrated that his non-selection for Lieutenant Commander 
was in error or unjust.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On December 16, 2008, the applicant responded to the views of the Coast Guard.  He 

repeated his request for relief and claims that he was denied due process during the BOI. 

 
With regard to the timeliness of his application, the applicant alleged that he did not learn 
that he even had procedural rights with regard to the BOI and the Letter of Reprimand until 2007.  
Therefore, he argued, because “the gravamen of the injustice is the issuance of adverse action 
based  on  an  investigation  that  denied  his  right[s],”  his  application  was  timely  filed.    He  also 
argued that the doctrine of laches is irrelevant because his application was timely filed.  More-
over, the applicant argued that it was the duty of the Coast Guard to retain the report of the BOI, 
and the Coast Guard’s “inability to preserve records as required by law and regulation cannot be 
used as a basis for denying applicant’s requested relief.” 

 
With regard to his failures of selection, the applicant argued that his record was erroneous 
and unjust when it was reviewed by the selection boards because it contained a Letter of Repri-
mand based on an investigation during which he was denied due process, as proven by his sworn 
testimony.  The applicant argued that the Letter of Reprimand should be removed, and his record 
should be reviewed by a “stand-by promotion board” to determine if his promotion is warranted. 

 

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 applicable law: 
 

The Board has jurisdiction over this matter under 10 U.S.C. § 1552(a) because the 
applicant  is  requesting  correction  of  an  alleged  error  or  injustice  in  his  Coast  Guard  military 
record.  The Board finds that the applicant has exhausted his administrative remedies, as required 

1. 

by 33 C.F.R. § 52.13(b), because there is no other currently available procedure provided by the 
Coast Guard for correcting the alleged error or injustice.  

The  applicant  requested  an  oral  hearing  before  the  Board.    The  Chair,  acting 
pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case with-
out a hearing.  The Board concurs in that recommendation.3  

 
2. 

 
3. 

 
5. 

 
6. 

Under 10 U.S.C. § 1552(b) and 33 C.F.R. § 52.22, an application to the Board 
must be filed within three years after the applicant discovers, or reasonably should have discov-
ered, the alleged error or injustice.  The applicant argued that his application is timely because he 
discovered the error in 2007 since he did not know prior to 2007 that he had certain rights before 
the 1963 BOI, which he alleged he was denied.  However, the applicant is asking the Board to 
remove  a  Letter  of  Reprimand  and  two  failures  of  selection  for  promotion  from  his  military 
record.  As these are the allegedly erroneous or unjust records that he wants the Board to correct, 
his date of discovery of them determines whether his application is timely, not the alleged date of 
discovery of certain rights.  The record shows that the applicant knew or should have known of 
these alleged errors in his record upon his retirement in 1973,4 and so his application is untimely.  
 
Pursuant  to  10  U.S.C.  §  1552(b),  the Board may excuse the untimeliness 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 compelling the 
merits would need to be to justify a full review.”5   

4. 

Regarding  the  delay  of  his  application,  the  applicant  explained  that  he  did  not 
learn of his rights before the 1963 BOI or of the existence of the BCMR until 2007.  The Board 
finds that the applicant’s explanation for his delay is not compelling because he failed to show 
that anything prevented him from seeking correction of the alleged errors and injustices in his 
military record more promptly. 

A cursory review of the merits of this case shows that it lacks potential merit.  The 
record before the Board contains no evidence that supports the applicant’s allegations of error or 
injustice in his military record, which is presumptively correct.6  Although the applicant com-
                                                 
3 See Steen v. United States, No. 436-74, 1977 U.S. Ct. Cl. LEXIS 585, at *21 (Dec. 7, 1977) (holding that “whether 
to grant such a hearing is a decision entirely within the discretion of the Board”); Flute v. United States, 210 Ct. Cl. 
34,  40  (1976)  (“The  denial  of  a  hearing  before  the  BCMR  does  not  per  se  deprive  plaintiff  of  due  process.”); 
Armstrong  v.  United  States,  205  Ct.  Cl.  754,  764  (1974)  (stating  that  a  hearing  is  not  required  because  BCMR 
proceedings are non-adversarial and 10 U.S.C. § 1552 does not require them). 
4 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that, under § 205 of the Soldiers’ and Sailors’ Civil 
Relief Act of 1940, the BCMR’s three-year limitations period under 10 U.S.C. § 1552(b) is tolled during a member’s 
active duty service). 
5 Allen v. Card, 799 F. Supp. 158, 164-65 (D.D.C. 1992); see also Dickson v. Secretary of Defense, 68 F.3d 1396 
(D.C. Cir. 1995).   
6 33 C.F.R. § 52.24(b); see Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992) (citing Sanders v. United 
States,  594  F.2d  804,  813  (Ct.  Cl.  1979),  for  the  required  presumption,  absent  evidence  to  the  contrary,  that 
Government officials have carried out their duties “correctly, lawfully, and in good faith.”). 

plained that the Coast Guard should have retained and submitted the report of the BOI, he pre-
sented  no  evidence  that  the  Coast  Guard  is  required  to  retain  such  a  record  for  more  than  45 
years.  Moreover, under 33 C.F.R. § 52.24(a), it “is the responsibility of the applicant to procure 
and submit with his or her application, such evidence, including official records, as the applicant 
desires to present in support of his or her case.”  At least two documents in the applicant’s official 
military record state that he was accorded his rights with respect to the BOI.  Nevertheless, the 
applicant asks the Board to accept his sworn testimony that he was denied due process as proof to 
the contrary.  However, the applicant’s memory of what happened in 1963 is clearly faulty since 
he also claimed that he did not appeal his Letter of Reprimand dated April 17, 1963, when his 
military record shows that he did appeal it.  The Board finds that the applicant’s claim cannot 
prevail on the merits. 

Accordingly,  the  Board  will  not  excuse  the  untimeliness  of  the  application  or 

waive the statute of limitations.  The applicant’s request should be denied. 

 
7. 

 
 

 

 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

The application of LT xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG (Retired), 

ORDER 

 
 
for correction of his military record is denied. 
 
 
 
 
 
 

 
   

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

        

 
 
 Diane Donley 

 

 

 
 
 Robert S. Johnson, Jr. 

 

 

 
 Kathryn Sinniger