DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-106 
 
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 completed application on February 18, 2010, and subsequently prepared the final 
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  December  3,  2010,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
 The  applicant  was  discharged  from  the  Coast  Guard  with  severance  pay  on  September 
27, 1974, for a 10% disability rating due to congenital  scoliosis.   At the time of discharge, he 
had served on active duty for three years and one day.   The applicant asked the Board to correct 
his military record to show that he was discharged in pay grade E-4 (MK3) instead of pay grade 
E-3 (FNMK).  The applicant stated that as a result of a non-judicial punishment (also known as 
captain’s mast) he was reduced from MK3 to FNMK for a six-month period.   
 

The  applicant  injured  his  back  on April  2,  1974,  and  underwent  a  medical  board  and  a 
physical  evaluation  board.    He  stated  that  “[w]hen  I  was  injured  and  it  was  determined  that  I 
would  be  discharged,  nobody  bothered  to  reinstate  my  rank.”    He  stated  that  at  the  time  of 
discharge,  his  rank  seemed  unimportant  because  there  was  not  much  difference  between  the 
severance disability pay for a MK3 and that for a FNMK.  He now asserts that after surgery on 
his back at the Department of Veterans Affairs (DVA), he is expecting a higher disability rating 
and  having  the  higher  rank  would  make  a  difference  in  his  compensation.    He  stated  that  he 
served with honor and pride and worked hard for his “bird” and deserved to have it restored.   

 
The applicant stated that he discovered the alleged error on September 27, 1974, and that 
it is in the interest of justice to consider the application because when he was discharged he was 
told that he would not  get any monthly benefits until the DVA had recouped the amount of his 
severance pay, which he calculated to be about five years.  He stated that his DD 214 states that 

 

 

he  “has  executed  a  claim  for  compensation,  pension,  or  hospitalization  to  be  filed  with  the 
Veterans Administration,” but the yeoman did not file the claim with the DVA and he lost several 
years of  compensation. The  applicant alleged  the  failure to reinstate his  rank  and the failure to 
file  his  claim  with  the  DVA  demonstrate  a  pattern  of  negligence  by  Coast  Guard  personnel 
assigned to attend to such duties.     
 
Relevant Excerpts from the Applicant’s Military Record 
 
 
The  applicant’s  military  record  shows  that  he  was  punished  at  captain’s  mast  on  six 
different  occasions.    The  first  punishment  occurred  on  December  20,  1972  for  concealing  a 
loaded  weapon  on  board  a  Coast  Guard  base.    He  was  reduced  in  rate  to  FNMK.    On April  5, 
1973, the CO set aside the punishment and the applicant’s rank (MK3) was restored.  However, 
at his fifth  captain’s mast on September 18, 1973, for failure to make morning muster on three 
different  dates,  the  applicant’s  punishment  was  a  reduction  in  rate  to  pay  grade  E-3  (FNMK).  
There is nothing in the record indicating a suspension of the reduction in rate for the September 
18, 1973 punishment.   
 
 
On  August  9,  1974,  the  Commandant’s  designee  approved  the  findings  of  the  Central 
Physical  Evaluation  Board  (CPEB)  that  the  applicant  be  separated  from  the  Coast  Guard  with 
severance pay.  The applicant  was discharged on September 27, 1974 with  severance pay for a 
disability rated as 10% disabling.   
 

VIEWS OF THE COAST GUARD 

 

On  June  18,  2010,  the  Board  received  the  views  of  the  Coast  Guard  from  the  Judge 

 
Advocate General (JAG), recommending denial of the applicant’s request.   
 

The JAG stated that the Coast Guard adopted the analysis provided by the Commander, 
Personnel  Service  Center  (PSC)  as  the  advisory  opinion.      PSC  recommended  that  the  Board 
deny relief to the applicant.    In this regard, PSC stated that the application was not timely and 
should  be  denied  for  that  reason.    PSC  also  stated  that  there  is  no  evidence  in  the  applicant’s 
record that he was ever restored to MK3 after being reduced in rank at the September 18, 1973 
captain’s  mast.    Therefore,  he  was  properly  discharged  in  pay  grade  E-3  (FNMK).      PSC 
concluded  by  stating  that  the  Coast  Guard  was  presumptively  correct,  and  that  the  applicant 
failed to prove any error or injustice with regard to his military record.   
 

  

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
 On June 22, 2010, the Board sent the applicant a copy of the views of the Coast Guard 
and provided him an opportunity to respond to them.  The Board did not receive a reply from the 
applicant to the Coast Guard’s views.   
 

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 submissions, and applicable law:  

 

 

1.   The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

 
 
of the United States Code.  
 
 
2. To be timely, an application for correction must be filed within three years of the date 
the  alleged  error  or  injustice  was,  or  should  have  been,  discovered.    See  10  U.S.C.  §  1552, 
33 CFR § 52.22.   The applicant stated that he discovered the alleged error or injustice at the time 
of  his  discharge  from  the  Coast  Guard  in  1974.    Therefore,  his  application  was  submitted 
approximately 33 years past the statute of limitations.   
 

3.    The  Board  may  still  consider  the  application  on  the  merits,  if  it  finds  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  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 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.  The applicant did not offer a reason for not submitting a timely application, except to 
say that Coast Guard personnel were negligent in failing to file his claim for compensation with 
the  DVA  and  were  also  negligent  in  failing  to  reinstate  his  rank.    However,  the  applicant’s 
explanation does not explain to the Board why he could not have filed a timely application, and 
therefore, does not persuade the Board to excuse the untimeliness.   
 

5.  With respect to the merits, the Board finds that the applicant is not likely to prevail.   

He presented no evidence that his CO or any other person in the Coast Guard determined that his 
MK3 rank should be restored after his September 18, 1973 captain’s mast reducing him in rank 
to  pay  grade  E-3.    Nor  did  he  present  any  evidence  that  he  was  entitled  to  such  reinstatement 
under any Coast Guard regulation.   

 
6.    Accordingly,  the  applicant’s  request  should  be  denied  because  it  is  untimely  and 

because of its lack of merit.   
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 

 

 

The  application  of  former  XXXXXXXXXXXXXXXX,  USCG,  for  correction  of  his 

ORDER 

 

military record is denied. 
 
 
 
 
 
 

 

 
 
 Lillian Cheng 

                     

 

    

 

 
 Randall J. Kaplan 

 

 

   
 James E. McLeod