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
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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
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