DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2011-231 
 
XXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXX 

 

 

 
 

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  upon 
receipt of the applicant’s completed application on August 25, 2011, and subsequently prepared 
the final decision 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  May  17,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATION 

 
 
 The applicant asked the Board to correct his record to show that he was advanced in rank 
to  Machinery Technician  Second  Class  (MK2;  pay  grade  E-5).     The  applicant  was  discharged 
from the Coast Guard on July 28, 1989, in pay grade E-4 (MK3). 
 
 
The  applicant  stated  that  he  suffered  an  injustice  because  his  senior  chief  refused  to 
approve his  advancement  to  the next  grade because he declined to  extend his  enlistment  in  the 
Coast Guard.   He stated that he declined to extend his enlistment because Reserve personnel told 
him that he “had to re-qualify.” 
 
 
The applicant did not provide a date on which he discovered the injustice, but stated that 
it is in the interest of justice to excuse his untimeliness because “I am proud of my achievements, 
but I was shorted.  This advancement could have placed me in a more competitive market in the 
civilian sector.”  He stated that it was also  important  that his  sons  “will have the paperwork to 
tell all, an injustice can be righted.”   
 
 
The  applicant  submitted  a  May  19,  1989  letter  from  the  Commanding  Officer  of  the 
Coast  Guard  Institute  informing  the  applicant  that  he  had  passed  the  MK2  examination.    The 

 

 

letter also informed the applicant that he was number 82 on the advancement list and the cutoff1 
was at number 42.    

 

VIEWS OF THE COAST GUARD 

 
 
On October 17, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion recommending that the Board deny relief in accordance with a memorandum 
from the Commander, Personnel Service Center (PSC).   
 

The JAG stated that the  application was untimely  and argued that  “due to the length  of 
the delay, the lack of compelling reasons for not filing his application sooner, and the probable 
lack of success on the merits of his claim, the Board should find that it is not in the interest of 
justice to waive the statute of limitations.”   
 
The PSC Memorandum 
 
 
PSC  also  noted  that  the application  was  untimely  and  should  be  denied  for  that  reason.  
With  regard  to  the  merits  of  the  applicant’s  claim,  PSC  stated  that  “after  careful  review  of  the 
applicant’s entire service record, there is no documentation that he was ever approved by CGPC2 
to be advanced to pay grade E-5 anytime in his career.”  PSC also noted that the applicant did not 
provide  any  proof  or  documentation  to  substantiate  his  claim  that  “he  was  erroneously  not 
advanced to the next higher pay grade.”   
 
 
substantiate any error or injustice with regards to his record.   
 
 

PSC stated that the Coast Guard is presumptively correct, and the applicant has failed to 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On November 10, 2011, the Board received the applicant’s response to the views of the 
 
Coast Guard.   The applicant stated that he did not realize that there was a time limit in which to 
request a correction of his record.  He stated that it is important to him to correct his record.  The 
applicant suggested that he was treated unfairly because he was denied advancement and because 
he  was  told  that  to  stay  in  the  Reserve  he  was  required  to  redo  his  qualifications  (he  does  not 
state which qualifications).      

 

                                                 
1 The Coast Guard anticipates the number of vacancies for each rating and makes that the cutoff point for each rate.  
Only  the  members  whose  names  appear  above  the  cutoff  are  guaranteed  advancements.    Those  below  the  cutoff 
must  compete  for  advancement  the  following  year.    The  effective  period  of  the  advancement  eligibility  list  is 
published with the advancement list.  Normally, each list remains in effect until superseded by a new eligibility list 
resulting  from  a  later  SWE  competition.    When  the  new  list  is  published,  the  candidates  above  the  cutoff  on  the 
superseded list are carried over to the top of each new list.   
2 In a recent reorganization, CGPC was renamed PSC. 

 

 

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.  
 
 
2.    The  application  was  not  timely.    To  be  timely,  an  application  for  correction  of  a 
military  record  must  be  submitted  within  three  years  after  the  applicant  discovered  the  alleged 
error or injustice.  See 10 U.S.C. § 1552(b).  The applicant did not provide a date on which he 
discovered the alleged error or injustice, but the Board finds that he must have been aware at the 
time of his discharge from active duty in 1989 that he had not been advanced to pay grade E-5 
because his rate (MK3; E-4) is written on the DD 214 that he signed.  Therefore, he should have 
filed his application within 3 years of that date.  His application is untimely by approximately 19 
years.   
 
 
3.  The applicant stated that the Board should excuse the untimeliness of his application 
because he was not aware of the three-year statute of limitations.  However, the applicant’s lack 
of knowledge about the statute is an insufficient basis on which to excuse his delay.  Nor is the 
Board  persuaded  to  excuse  the  untimeliness  of  his  application  because  he  believed  that  his 
command treated him unfairly by denying his advancement to the higher grade.  His belief in this 
regard does not explain why he could not have submitted his application earlier.  Therefore, the 
applicant’s reasons for not filing his application sooner are not persuasive. 
  
4.  Although the application is untimely and the applicant’s reasons for not filing a timely 
 
application  are  not  persuasive,  the  Board  must  still  perform  at  least  a  cursory  review  of  the 
merits  to  determine  whether  it  is  the  interest  of  justice  to  waive  the  statute  of  limitations.    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 stated 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. 
 
 
5.    A  cursory  examination  of  the  merits  indicates  that  the  applicant  cannot  prevail 
because there is no evidence in his military record that CGPC ever authorized his advancement 
to  E-5.    Although  the  applicant  submitted  evidence  that  he  passed  the  examination  for 
advancement  to  MK2,  he  could  not  be  advanced  until  his  number  (82)  was  reached  on  the 
advancement list and CGPC published a monthly advancement list authorizing his advancement.  
Article  3.A.20  of  the  Personnel  Manual  states  that  Commander,  PSC  will  publish  monthly 
advancement  lists  from  which  a  CO  may  advance  eligible  personnel.    Article  3.A.22.b.  of  the 
Personnel  Manual  states  that  “[w]hen  notification  for  advancement  has  officially  been 
announced by Commander (CG PSC) specifying the earliest date on which these advancements 
may  be  effected  such  advancements  may  be  effected,  as  of  the  date  specified  regardless  of  the 
date of receipt of the notification on board.”   There is no evidence in the record that CGPC ever 
authorized the applicant’s advancement to MK2 and the applicant has provided none.    

 

 

 
 
justice to excuse the untimeliness.       

6.  The application should be denied because it is untimely and it is not in the interest of 

 

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

 

 

ORDER 

 

The  application  of  former  XXXXXXXXXXXX,  USCG,  for  correction  of  his  military 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 

 
Lillian Cheng 

 

 

 
Thomas H. Van Horn 

 

 

 

 
Barbara Walthers 
 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

record is denied.