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CG | BCMR | Advancement and Promotion | 2003-058
Original file (2003-058.pdf) Auto-classification: Denied


Application for the Correction of 
the Coast Guard Record of: 
                                                                                BCMR Docket No. 2003-058 




ANDREWS, Deputy Chair: 
This proceeding was conducted under the provisions of section 1552 of title 10 
and section 425 of title 14 of the United States Code.  The BCMR docketed this case on 
March 24, 2003, upon receipt of the applicant’s completed application. 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  November  20,  2003,  is  signed  by  the  three  duly 


The applicant asked the Board to correct his discharge form, DD 214, to show his 
correct date of rank as an RM3/E-4 (radioman third class/pay grade E-4).  He alleged 
that instead of April 19, 1976, his DD 214 should reflect his date of rank as an RM3 in 
the Navy, which was in 1968, or his date of entry in the Coast Guard in 1974.   
The applicant also asked the Board to correct an Achievement Sheet, CG-3303, in 
his record.  The form shows (a) his original date of rank in the Coast Guard as his date 
of  enlistment,  October  7,  1974;  (b)  a  demotion  to  seaman-radioman  (SNRM/E-3)  on 
November 29, 1974, which is struck out; (c) a re-advancement to RM3 on December 16, 
1974, which is also struck out; and (d) a new date of rank as an RM3, April 19, 1976, 
recorded thereafter.  The applicant first alleged that the CG-3303 is erroneous because 
he served continuously as an RM3 in the Coast Guard until his discharge and was never 
“busted a rank” for being AWOL for 19 days in November 1974.  He stated, “I was only 
given confinement to the base—not busted!”  However, he also alleged that his sentence 
was “mitigated” by his commanding officer (CO).  In a separate letter to the Board, he 

stated  that  his  “reduction  in  pay  was  only  for  30  days,”  and  later  that  “I  was  not 
demoted to SNRM until 10 Apr 1976 as my DD 214 states.”   
The applicant alleged that he was unaware of the errors in his record until Feb-
ruary 2002, when someone at a Reserve recruiting office told him  that he might have 
lost pay because of the alleged errors.  Therefore,  he asked the Board to award him any 
back pay and allowances he might be due as a result of the corrections. 


From June 14, 1965, to June 11, 1969, the applicant served on active duty in the 
Navy, attaining the rank of RM3 on April 16, 1968.  After his release, he served in the 
Naval Reserve from June 12, 1969, through July 17, 1974.  

On October 7, 1974, the applicant enlisted in the Coast Guard as an RM3.  He was 
assigned to the Marine Safety Office (MSO) in xxxxxxxxxxxxxxx.  From November 2 to 
21, 1974, the applicant was absent without leave (AWOL) from his unit.  According to a 
letter  from  the  applicant’s  CO  to  the  District  Commander  dated  December  10,  1974,* 
while the applicant was AWOL, an attorney sent the CO a letter, seeking to have the 
applicant’s  enlistment  voided.    The  attorney  stated  that  the  applicant’s  recruiter  had 
promised him that he would be stationed at the MSO, that he would not have to live in 
barracks because there was insufficient housing, and that he would receive a housing 
allowance in addition to his basic pay.   However, upon arriving at the MSO, the appli-
cant discovered that all unmarried enlisted personnel were required to live in barracks.  
Upon the applicant’s return to the MSO on November 21, 1974, he was taken to mast, 
which  resulted  in  a  sentence  of  reduction  in  rate  from  RM3/E-4  to  SNRM/E-3  and 
restriction to the MSO for 30 days. 

In the December 10, 1974, letter to the District Commander, the CO requested a 
psychiatric evaluation for “SNRM [applicant’s name]” because he had “been in a com-
plete state of confusion since he first approached the recruiter concerning enlistment in 
the Coast Guard.  However, it is difficult to comprehend his actions and behavior since 
he originally reported to this unit.”  Subsequent correspondence* in December 1974 and 
in  January,  February,  March,  and  August  1975—concerning  the  applicant’s  mental 
health and his attempt to void his enlistment contract because of false promises alleged-
ly made by his recruiter—refers to him as an RM3.   

The disputed CG-3303* appears as follows. 

*  The applicant submitted copies of these documents.  They do not appear in the military records for the 
applicant received by the Board from the National Personnel Record Center, which contain only his DD 
214 dated March 31, 1977, and records from his two years in the Reserves from 1983 to 1985. 


Nov 29, 74  SNRM    CO’s NJP 
Dec 18, 74  RM3 
76 Apr 19  RM3 

Date of Orig. Enlistment 

CO Mitigated NJP 

/s/ Acting Officer in Charge 
/s/ CWO3, by direction 
/s/ Executive Officer 


A record of the applicant’s performance marks while stationed at the MSO shows 
that his rate was RM3 when he received performance evaluations on December 31, 1974; 
June 30, 1975; December 31, 1975; June 30, 1976; and December 31, 1976.  On the Decem-
ber 31, 1974, evaluation, he received a mark of 3.5 (out of 4) for conduct, but thereafter, 
he  received  all  marks  of  4.    On  February  24,  1976,  the  applicant  received  a  security 
clearance, and the certificate shows that he was an RM3 at the time.* 

On March 31, 1977, while still stationed at the MSO, the applicant was honorably 
discharged.  No reason for the discharge is shown on the DD 214.  His date of rank as 
an RM3 is given as April 19, 1976. 

On  April  20,  1983,  the  applicant  enlisted  in  the  Coast  Guard  Reserve  for  two 

years as an RM3.  He was discharged at the end of his enlistment on April 19, 1985. 



On August 7, 2003, the Chief Counsel of the Coast Guard submitted an advisory 
opinion in which recommended that the Board deny the applicant’s request because of 
the untimeliness of his request in light of the Board’s three-year statute of limitations.  
He also argued that the doctrine of laches should bar the applicant’s request. 
The Chief Counsel submitted with his advisory opinion a memorandum on the 
case  prepared  by  the  Coast  Guard  Personnel  Command  (CGPC).    CGPC  stated  that, 
although the applicant’s official military record does not contain the disputed CG-3303 
and  other  documentation  submitted  by  the  applicant,  a  thorough  examination  of  the 
documents  indicated  that  they  are  authentic.    CGPC  stated  that  evidence  of  the  NJP 
would have been removed from his record when he enlisted in the Reserves in 1983. 

CGPC stated that the record indicates that, following the applicant’s 19-day per-
iod of being AWOL, he was taken to mast on November 29, 1974, and his punishment, 
in part, was reduction in rate to SNRM/E-3.  However, his CO mitigated the reduction 
in rate on December 18, 1974, in accordance with Chapter 1.E.6.b. of the Military Justice 
Manual, which stated that a “[r]eduction in pay grade regardless of whether the reduc-
tion has been executed, may be mitigated to forfeiture.”  CGPC stated that it “is possible 

1  This  is  the  number  of  the  Coast  Guard’s  Enlisted  Qualifications  Manual  in  effect  in  the  1970s.    The 
manual contained all of the qualifications that petty officers must meet to advance within their ratings. 
*  The applicant submitted this document.   

that  the  mitigation  was  not  fully  carried  out  administratively,  i.e.,  the  mitigation  was 
approved locally, but never fully administratively processed at the time it took place, 
and that the final entry on his achievement sheet was an inappropriate attempt to rec-
tify these administrative lapses.”   

CGPC stated that under the Pay and Personnel Procedures Manual, the date of 
rank  entered  on  the  applicant’s  March  31,  1977,  discharge  form  DD  214,  should  have 
been “the date of latest advancement,” or December 18, 1974, since his reduction in rate 
to SNRM was reversed on that date.  CGPC stated that if the BCMR approved the appli-
cant’s  request  to  change  his  date  of  rank  on  his  DD  214,  the  Coast  Guard  “should 
determine,  if  the  pay  records  still  exist,  whether  the  Applicant’s  pay  for  [the  period 
from December 18, 1974, through April 18, 1976] was at pay grade E-4.  If not, the Coast 
Guard should pay the Applicant the difference between pay grade E-3 and E-4.”  CGPC 
stated that the applicant’s current date of rank is the day he enlisted in the Coast Guard 
Reserve, April 20, 1983, since more than three months had elapsed since his discharge. 

The  Chief  Counsel,  however,  argued  that  the  applicant’s  request  should  be 
denied.  He stated that the applicant’s allegations are inconsistent and “present a puz-
zling  picture,”  which  is  aggravated  by  the  lack  of  documentation  concerning  his  NJP 
and the mitigation.  The Chief Counsel pointed out that there would not have been any 
confusion if the applicant had timely applied for the correction he is requesting within 
three years of his discharge.  

The  Chief  Counsel  alleged  that  the  applicant’s  claim  is  moot  because  no  harm 
was  caused  by  the  alleged  error  in  his  date  of  rank  on  the  March  31,  1977,  discharge 
form since his date of rank was reestablished as April 20, 1983, when he enlisted in the 
Reserve.  The Chief Counsel also alleged that no harm was caused by the alleged error 
because the Pay and Personnel Center has investigated the matter and reported that the 
applicant  was  paid  as  an  E-4  throughout  the  entire  enlistment  from  October  7,  1974, 
until March 31, 1977.  The Chief Counsel submitted an email from the Coast Guard Per-
sonnel Service Center and printouts of microfiche pay records supporting his statement 
about the applicant’s pay grade.  The microfiche records show that the applicant was 
paid as an RM3 throughout the enlistment and that the only adjustment made was for 
the 19 days he was AWOL. 

The Chief Counsel also argued that the applicant has “failed to provide any sub-
stantive reason for his delay in filing the present claim.”  He argued that a perplexing 
and moot entry on a form issued 26 years ago is not an injustice for which the Board can 
or should grant relief.  The Chief Counsel stated that the applicant’s claim that he did 
not discover the claim until recently “does not overcome the fact that he should have 
found it sooner.  Assuming arguendo that Applicant was correspondingly underpaid, he 
would have had even more reason to investigate the event giving rise to this case at that 

Regarding  the  date  of  rank  on  the  March  31,  1977,  DD  214,  the  Chief  Counsel 

stated that his review of the merits  

creates more questions than answers.  Admittedly, Applicant’s military pay records sup-
port his original assertion that he was never reduced in rank.  However, [his CO’s letter 
dated December 10, 1974] which refers to Applicant as [an SNRM] contradicts this con-
clusion.    Additionally,  subsequent  correspondence  provided  by  Applicant,  addressing 
him as an RM3 clearly conflicts with the 19 April 76 date of rank at issue.  The fact that all 
of these documents were dated after 18 Dec 74 supports CGPC’s conclusion that Appli-
cant’s punishment was mitigated on that date. … However, this position does not explain 
why entries regarding the mitigation of Applicant’s punishment were lined out and ini-
tialed  on  the    CG-3303.    It  is  simply  impossible  to  determine  the  precise  disposition  of 
Applicant’s NJP sentence, and resulting date of rank from the limited record available. 

The Chief Counsel concluded, therefore, that even if the Board waives the statute 
of  limitations  for  this  case,  it  should  find  that  the  doctrine  of  laches  bars  the  claim 
because  many  of  the  documents  that  would  have  clarified  the  matter  were  properly 
purged  from  the  applicant’s  record  when  he  enlisted  in  the  Reserve.    He  also  argued 
that the microfiche pay records counter the applicant’s concern that he was not properly 
paid  as  an  RM3  but  “do  not  shed  any  light  on  the  circumstances  surrounding 
applicant’s NJP proceedings.  Thus the government is prejudiced by the delay in this 
case and should not be forced to solve the mystery surrounding Applicant’s NJP when 
Applicant himself cannot present a clear and cogent explanation.”  The Chief Counsel 
argued that “any attempt by the Board to insert a substitute date of rank [on the appli-
cant’s March 31, 1977, DD 214] would border on the capricious rather than serve to cor-
rect any ‘injustice.’”  


On August 11, 2003, the BCMR sent the applicant a copy of the Chief Counsel’s 
advisory opinion and invited him to respond within 30 days.  On November 3, 2003, the 
Board received a response from the applicant, who submitted additional copies of cor-
respondence showing that his rank after December 18, 1974, was RM3. 


The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submissions, and appli-
cable law: 


The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10 of the United States Code.   



An  application  to  the  Board  must  be  filed  within  three  years  after  the 
applicant discovers the alleged error in his record. 10 U.S.C. § 1552.  The applicant knew 
or should have known of the date of rank on his DD 214 when he received it in 1977.  
Likewise, he knew or should have known of the alleged pay grade reduction from E-4 
to E-3 when he received his pay during the enlistment.  Therefore, his application was 


Pursuant to 10 U.S.C. § 1552(b), the Board may waive the three-year stat-
ute of limitations if it is in the interest of justice to do so.  To determine whether it is in 
the interest of justice to waive the statute of limitations, the Board should conduct a cur-
sory review of the merits of the case and consider the reasons for the delay.  Dickson v. 
Secretary of Defense, 68 F.3d 1396 (D.D.C. 1995).  The applicant provided no explanation 
for the delay.  He stated only that he was applying because a recruiter had suggested 
that he might not have been paid properly.  This is not an explanation for the 25-year 
delay, but it explains why the applicant might have decided to apply to the Board to 
have the alleged error corrected. 


A cursory review of the merits indicates that the applicant’s date of rank 
on his DD 214 might be erroneous.  The date of rank, April 19, 1976, is apparently taken 
from a CG-3303, which was submitted by the applicant and appears to be authentic but 
which does not appear in the files of the applicant’s official military record, which the 
Board  received  from  the  National  Personnel  Records  Center  (NPRC).    The  CG-3303 
anomolously  shows  a  reduction  in  rank  and  subsequent  mitigation  of  that  reduction 
both struck out, and it includes April 19, 1976, as his second RM3 date of rank without 
an intervening reduction to SNRM that has not been struck out.  In addition, the appli-
cant submitted copies of official correspondence, which appear to be authentic, showing 
that  he  was  referred  to  as  an  RM3  between  December  18,  1974,  and  April  19,  1976.  
Therefore, the Board finds that it is in the interest of justice to waive the statute of limi-
tations and consider the case. 


Copies  of  official  Coast  Guard  correspondence  between  the  applicant’s 
command and Coast Guard headquarters following the mitigation of his NJP on Dec-
ember 18, 1974, indicate that the applicant was considered to be an RM3 by his CO.  A 
certificate for a security clearance dated February 24, 1976, also refers to him as an RM3.  
In  addition,  Coast  Guard  records  show  that  he  was  paid  as  an  RM3  throughout  the 
enlistment.  There is no explanation in the record for the applicant’s April 19, 1976, date 
of rank on the CG-3303 or on his DD 214.  The authority for the entry cited on the CG-
3303, which is CG-311—a reference to the Enlisted Qualifications Manual in effect at the 
time—does not elucidate the reason for the entry.  


Unfortunately,  however,  most  of  the  applicant’s  military  records  for  his 
enlistment from 1974 to 1977 are not in the files sent to the Board by the NPRC.  Some of 
the records may have been properly purged when he enlisted in the Reserve in 1983, 

but other records that would not have been purged, including his enlistment contract, 
his performance marks, and the CG-3303, are clearly missing from the official records 
provided by the NPRC. 


The Chief Counsel has argued that the Board should deny the applicant’s 
request under the doctrine of laches, which bars a claim if an applicant’s undue delay in 
seeking relief has prejudiced the Coast Guard’s ability to defend the record.  In light of 
the fact that after the applicant’s 25-year delay, most of the documentation of his 1974 to 
1977 enlistment, including the mitigated NJP and the reason for the April 19, 1976, date 
of rank entry on the CG-3303, is missing, and the people at the MSO who were respon-
sible for making the allegedly erroneous entries are no longer available to explain their 
actions,  the  Board  finds  that  the  applicant’s  request  should  be  denied  under  the 
doctrine of laches.  His DD 214 was prepared at the same MSO where he had served for 
the entire enlistment.  Therefore, if the applicant had timely applied to the Board, the 
allegedly  erroneous  entries  could  have  been  investigated,  elucidated,  and  corrected  if 
they proved to be erroneous.  However, 25 years after the fact and with  many of the 
official records purged or missing, it is impossible for the Board to know exactly what 
did or did not occur in April 1976 that might have caused his date of rank to change. 


Accordingly, the applicant’s request should be denied.  




The application of former xxxxxxxxxxxxxxxxxxxxxx, for correction of his military 

record is denied. 



































 Patricia V. Kingcade 



 James G. Parks 



 Dorothy J. Ulmer 






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