DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2012-115 
 
Xxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxx 

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 upon receipt of the applicant’s 
completed  application  on  April  9,  2012,  and  assigned  it  to  staff  member  J.  Andrews  to  pre-
pare 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  February  1,  2013,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, who retired from the Coast Guard on March 2, 1995, asked the Board to 
correct  his  record  to  show  that  he  advanced  to  chief  petty  officer  (AEC/E-7)  before  his 
retirement.  The applicant stated that he was eligible for advancement under Article 1.C.12.f.(3) 
of  COMDTINST  M1000.4.    The  applicant  alleged  that  at  the  time  of  his  retirement,  his  name 
was  second  on  the  AEC  advancement  list,1  and  he  would  have  advanced  but  for  his  disability 
separation.  He alleged that  he was medically retired because during  a physical  examination in 
October 1994, he was diagnosed with xxxxxxxxxxx. 
 
 
The applicant alleged that he discovered this error on March 17, 2011, and that the Board 
should consider his claim because he was never counseled by a lawyer about his options and the 
Coast  Guard  overlooked  his  right  to  advancement.    In  support  of  his  allegations,  the  applicant 
submitted  a  copy  of  Article  1.C.12.f.  of  the  Coast  Guard’s  Military  Separations  Manual, 
COMDTINST M1000.4, which was issued in September 2011.  Article 1.C.12.f., titled “Grade 
on Retiring for Physical Disability,” states the following: 

                                                 
1 Under Articles 5.C.3.b. and 5.C.31.a. of the Personnel Manual in effect in 1995, following the SWE in May each 
year, the candidates for advancement to a particular rate, such as AEC, are ranked on an advancement list according 
to  a  calculation  that  assigns  points  for  each  candidate’s  SWE  score,  performance  marks,  time  in  service,  time  in 
present  pay  grade,  medals  and  awards,  and  sea  duty.    Article  5.C.31.c.  states  that  the  “effective  period  of  the 
advancement eligibility list will be published with the list.  Normally, each list will remain in effect until superseded 
by a new eligibility list resulting from a later SWE competition.  When the new list is published all candidates above 
the cutoff on the superseded list will be carried over to the top of each new list.” 

 

 

 

 

Unless  entitled  to  a  higher  grade  under  some  other  provision  of  law,  any  Coast  Guard  member 
who  retires  for  physical  disability  or  is  placed  on  the  temporary  disability  retired  list  (TDRL) 
under 10 U.S.C. §61 is entitled to the grade or rate equal to the highest of:  
 
(1) The grade or rate in which the member served on the date his or her name was placed on the 
TDRL or, if his or her name was not carried on that list, on the date when the member retires.  
 
(2)  The  highest  grade  or  rate  in  which  the  member  served  satisfactorily,  as  the  Commandant 
determines.  
 
(3)  The  permanent  regular  or  Reserve  grade  or  rate  to  which  the  member  would  have  been 
promoted  had  it  not  been  for  the  physical  disability  for  which  he  or  she  retired  and  which  was 
found to exist as a result of the member’s physical examination.  
 
(4) The temporary grade to which the member would have been promoted had it not been for the 
physical  disability  for  which  he  or  she  retired,  if  eligibility  for  that  promotion  was  based  on 
cumulative  years  of  service  or  years  of  service  in  grade  and  the  disability  was  discovered  as  a 
result of his or her physical examination for promotion (10 U.S.C. §1372).  

SUMMARY OF THE RECORD 

 
The  applicant  first  enlisted  on  April  26,  1971.    He  advanced  to  first  class  petty  officer, 
AE1/E-6,  and  in  May  2004,  he  took  the  servicewide  examination  (SWE)  for  advancement  to 
chief petty officer, AEC/E-7. 

 
On January 27, 1995, the Commandant reissued the AEC advancement list resulting from 
the May 1994 SWE.  The applicant was #16 on the list, and the cutoff for advancement was #9.2  
The  Commandant’s  notice  states  that  only  those  personnel  whose  names  appeared  above  the 
cutoff (##1-9) were guaranteed advancement. 

 
On  February  21,  1995,  the  Military  Personnel  Command  issued  the  applicant  physical 
disability  retirement  orders,  which  state  that  the  applicant  would  be  retired  with  a  100% 
disability  rating  as  of  March  21,  1995.    At  the  applicant’s  request,  his  separation  date  was 
changed  to  March  3,  1995,  and  he  was  medically  retired  with  a  100%  disability  rating  on  that 
date. 
 

VIEWS OF THE COAST GUARD 

 

On September 6, 2012, the Judge Advocate General (JAG) of the Coast Guard submitted 
an  advisory  opinion  in  which  he  recommended  that  the  Board  deny  relief  in  this  case.    In  so 
doing, he adopted the findings and analysis provided in a memorandum on the case prepared by 

                                                 
2 Article 5.C.3.a.2. of the Personnel Manual states that a “cutoff point is established for each rating and rate based 
upon  vacancies  anticipated  at  the  time  the  eligibility  list  is  compiled.  Personnel  who  are  below  the  cutoff  point 
should  plan  on  participating  in  subsequent  SWEs  in  order  to  maintain  eligibility.”    Article  5.C.31.b.  states  that 
“[c]utoff  points  on  eligibility  lists  will  be  established  by  Commander,  CGPC,  according  to  the  number  of 
advancements anticipated during the effective period of the respective lists.  The cutoff point on each list is shown 
by  a  mark  adjacent  to  the  rank-order  number  of  the  last  name  above  the  cutoff,  e.g.,  21.  Only  those  personnel 
[whose] names appear above the cutoff are assured of advancement.” 
 

 

 

the Personnel Service Center (PSC).   
 

PSC  stated  that  the  application  is  untimely  and  should  be  denied  for  that  reason.    PSC 
noted that the AEC advancement list resulting from the May 1994 SWE was first published on 
June  6,  1994,  and  republished  on  January  27,  1995.    PSC  stated  that  its  investigation  revealed 
that of all the AE1s who took the May 1994 SWE, the applicant placed 16th.  However, the cutoff 
for  guaranteed  advancement  was  above  his  name  at  #9  and  in  fact  only  those  members  at  #2 
through #10 were advanced off the list.  Therefore, even if the applicant had not been retired, he 
would  not  have  advanced  to  AEC  off  that  advancement  list,  and  he  would  have  had  to  re-
compete for advancement by taking the SWE again to try to advance. 

 
The JAG agreed with PSC and stated that the applicant has failed to show why it is in the 
interest of justice for the Board to excuse his 16-year delay in seeking advancement to AEC.  He 
noted that the applicant failed to submit any evidence to support his claims that he was #2 on the 
advancement  list  when  he  retired  and  that  he  would  have  advanced  from  the  list  had  he  not 
retired. The JAG argued that “[w]ithout any substantive reason for the sixteen plus year delay in 
taking  action,  and  without  any  reasonable  chance  of  prevailing  on  the  merits,  it  is  not  in  the 
interest of justice to waive the statutory three-year filing deadline for this case.   

 
Moreover, the JAG argued, even if the Board finds that it is  in the interest  of justice to 
waive the statute of limitations in this case, the Board should deny  relief because the applicant 
has failed to submit substantial evidence to overcome the presumption of regularity accorded his 
military records or to prove by a preponderance of the evidence that he would have advanced to 
AEC  off  the  advancement  list  resulting  from  the  May  1994  SWE  had  he  not  retired  due  to  a 
physical disability on March 3, 1995.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On  September  7,  2012,  the  Chair  sent  the  applicant  a  copy  of  the  views  of  the  Coast 

Guard and invited him to submit a response within 30 days.  No response was received.  
 

APPLICABLE REGULATIONS 

Article 12-C-15 of the Personnel  Manual  in  effect  in  1995, titled “Grade  on Retirement 

 
 
for Physical Disability,” states the following: 
 

Unless entitled to a higher grade under some other provision of law, a member retired for physical 
disability … is entitled to the highest of the following: 
 
a.    The  grade  or  rank  in  which  he  or  she  was  serving  when  placed  on  the  Temporary  Disability 
Retired List, or … on the date when the member is retired. 
b.    The  highest  grade  or  rate  in  which  the  individual  served  satisfactorily,  as  determined  by  the 
Commandant. 
c.    The  permanent  regular  or  Reserve  grade  or  rate  to  which  the  member  would  have  been 
promoted  had  it  not  been  for  the  physical  disability  for  which  he/she  is  retired  and  which  was 
found to exist as a result of the individual’s physical examination for promotion. 
d.  The temporary grade to which the member would have been promoted had it not been for the 
physical disability for which he/she is retired, if eligibility for that promotion was required to be 

 

 

 

based on cumulative years of service or years of service in grade and disability was discovered as 
a result of his/her physical examination for promotion. 

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: 
 
 
 

1. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.   

2. 

Under 10 U.S.C. § 1552(b), an application to the Board must be filed within three 
years after the applicant discovers the alleged error or injustice in his record.  The applicant was 
retired as an AE1/E-6, rather than an AEC/E-7, in March 1995 and surely knew his paygrade at 
that time and knew that he had taken the SWE in May 1994 and so was on the advancement list.  
Although he alleged that he discovered the error in his record in 2011, the preponderance of the 
evidence shows that he knew of the alleged error in his record—the fact that he was being retired 
as an AE1/E-6 even though his name was on the AEC advancement list—upon his retirement in 
March 1995.  Therefore, his application is quite untimely. 
 

3. 

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.”  Id. at 164, 165; see also Dickson v. Secretary 
of Defense, 68 F.3d 1396 (D.C. Cir. 1995).   

 
4. 

Regarding  the  delay  of  his  application,  the  applicant  stated  that  he  was  never 
advised by an attorney about the rules determining what pay grade members being separated due 
to  a  physical  disability  should  receive  upon  retirement.  However,  the  applicant  knew  his  pay 
grade and knew that he was on the AEC advancement list in 1995, and the rules that determined 
his  pay  grade upon retirement have not  materially  changed since 1995.3  The applicant  has not 
shown that anything prevented him from investigating the rules in a timely manner.  Therefore, 
the Board finds the applicant’s delay in seeking relief to be unjustified in the record. 

 
5. 

In  addition,  the Board’s  review of the merits of this  case indicates that  it  cannot 
prevail on the merits.  The record shows that as of January 27, 1995—about five weeks before 
the  applicant  retired—he  was  in  16th  place  on  the  AEC  advancement  list  and  the  cutoff  for 
guaranteed advancement shown on the list is #9.  Advancements in the Coast Guard result from 
vacancies, and cutoffs are established based on expected vacancies.4  The Coast Guard has stated 

                                                 
3  Compare  Article  12-C-15.f.  of  the  1995  Personnel  Manual,  COMDTINST  M1000.6A,  with  Article  1.C.12.f.  of 
COMDTINST M1000.4. 
4 Article 5.C.1. of the Personnel Manual in effect in 1995 states that  the objective of the advancement system is to 
ensure  that  the  most  proficient  members  are  advanced  to  fill  vacancies  that  occur  at  the  next  higher  rate.    Article 
5.C.31.b.  states  that  cutoffs  will  be  established  by  CGPC  “according  to  the  number  of  advancements  anticipated 
during the effective period of the respective lists.” 

 

 

that  its  records  show  that  only  the  members  at  #2  through  #10  actually  advanced,  and  the 
applicant has submitted nothing to show that the person below him on the list at #17 advanced to 
AEC  off  the  list.  Therefore,  the  Board  finds  that  the  applicant’s  claim  cannot  prevail  on  the 
merits. 

 
8. 

Accordingly, the Board will not excuse the application’s untimeliness or waive the 

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

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
 

 

 

ORDER 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG  (Retired),  for  correction  of 

 

 

 

 

 
 

 

 

 
 

 

 
 
 Troy D. Byers 

 

 
 
 Lillian Cheng 

 

 
 Frank E. Howard 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 
his military record is denied.