DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2011-019 
 
XXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXX 
   

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 case upon receipt of 
the  applicant’s  completed  application  and  military  records  on  November  11,  2010,  and 
subsequently prepared the final decision for the Board as required by 33 CFR § 52.61(c).    
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  July  28,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 The applicant asked the Board to correct his military record by paying him for 22 days of 
unused leave that allegedly was owed to him at the time of his discharge.  He also requested a 
change in his unsuitability separation code (separation code 264).1   

 
On  May  5,  1967,  the  Commandant  directed  the  applicant’s  discharge  from  the  Coast 
Guard  with  a  general  discharge  due  to  unsuitability  under  Article  12-B-10  of  the  Personnel 
Manual.  The applicant was discharged on May 19, 1967.  His DD 214 showed that he received a 
general discharge and separation code 264.  The remarks section of the DD 214 contained the 
statement:  “No.  days’  leave  paid-.”    On  May  26,  1967,  the  Coast  Guard  issued  a  DD  215 
correcting the DD 214 to show that the applicant was paid for 22 days of leave.  The DD 215 
stated, “No. days leave paid – 22.”  (Emphasis added.)   

 
 
The applicant alleged that although the DD 215 shows that he was paid for 22 days of 
leave,  he  never  received  any  money  for  the  leave.  With  respect  to  the  separation  code,  he 
complained that he was not given a hearing. 
                                                 
1 In earlier application, BCMR No. 2006-188, the Board denied the applicant’s request for a correction of 
his military record by upgrading of his general discharge to an honorable discharge and by removing a 
special  court-martial  conviction  for  assault.    The  issue  of  the  character  and  type  of  the  applicant’s 
discharge will not be reconsidered in this decision.   

Basis for Unsuitability Separation Code 
 
 
The  applicant  enlisted  in  the  Coast  Guard  on  June  7,  1965.    On  April  25,  1967,  the 
commanding  officer  informed  the  applicant  that  the  command  intended  to  recommend  to  the 
Commandant  that  the  applicant  be  administratively  discharged  from  the  Coast  Guard  under 
Article 12-B-10 of the Personnel Manual due to inaptitude, apathy, defective attitude, inability to 
expend effort constructively, and financial irresponsibility.   
 
 
On April 25, 1967, the applicant signed a statement in which he acknowledged that he 
had been informed of the proposed discharge, that he had been counseled regarding the matter, 
that he did not wish to submit a statement on his behalf, and that he was in complete accord with 
the proposed action.   
 
 
On April 25, 1967, the CO recommended that the Commandant discharge the applicant 
for  unsuitability,  due  to  inaptitude,  apathy,  defective  attitude,  inability  to  expend  effort 
constructively,  and  financial  irresponsibility.    The  CO  provided  the  following  narrative  with 
respect to the applicant: 
 

[The applicant] was assigned to this station after boot camp, reporting 24 August 
1965.    He  performed  well,  though  slow,  until August  1966.    His  slowness  was 
attributed to a slight degree of immaturity, his superiors believing this would pass 
with time.  Since then he has been a continual liability to the command due to his 
inaptitude,  in  combination  with  apathy.    He  can  be  trusted  to  perform  only  the 
most  menial  and  simple  tasks  and  then  must  be  afforded  constant  supervision.  
Minor incidents involving infractions of regulations were overlooked in an effort 
to straighten him out and no official records were kept.   
 
He has been a constant problem because of his relationships with other people, 
both  civilian  and  military.    He  is  always  involved  with  women,  married  and 
single, to the extent that his life has been threatened on occasion.  He is presently 
serving  a  sentence  of  confinement  arising  from  an  altercation  over  an  enlisted 
man’s wife.  He has large financial obligations which he is unable to discharge 
and it is apparent that these obligations will continue to increase.  His chances for 
advancement  are  nil          .  .  .    Counseling  has  proved  to  be  of  no  value  as  [the 
applicant] seems to be incapable of managing his life in an orderly manner and 
seems little interested in his assigned duties or his relationship with the service. 

 
 
On May 5, 1967, the Commandant directed the applicant to be discharged from the Coast 
Guard  with  a  general  discharge  due  to  unsuitability  under  Article  12-B-10  of  the  Personnel 
Manual.  The applicant was discharged from the Coast Guard on May 19, 1967. 
 

On January 5, 2011, the Board received an advisory opinion from the Office of the Judge 
 
Advocate General (JAG).  He recommended that the applicant's request for relief be denied for 
untimeliness and for lack proof of error or injustice.  Based on the information of record, there is 

VIEWS OF THE COAST GUARD 

 

no error or injustice in this case.  Therefore, due to the length of the delay, the lack of compelling 
reason for not filing his application sooner, and the probable lack of success on the merits of his 
claim,  it  is  not  in  the  interest  of  justice  to  excuse  the  untimeliness  and  it  should  be  denied 
because it is untimely. 
 
  
The  JAG  attached  a  memorandum  from  the  Commander,  Personnel  Service  Center 
(PSC),  and  asked  that  the  Board  consider  PSC’s  comments  as  a  part  of  the  advisory  opinion.  
PSC stated that the DD 214 was incomplete when issued on May 19, 1967 because it did not 
state the number of leave days for which the applicant was paid.  A DD 215 issued on May 26, 
1967 correcting this oversight by showing that the applicant was paid for 22 days of leave.   
 
 
PSC submitted a copy of the applicant’s leave record with a stamped notation signed by 
the authorized certifying officer showing that the applicant was paid for 22 days of leave.  At the 
bottom of the leave record under the heading “Record Closing Data”, it shows “cash settlement 
requested 22 days.”   
 
 
PSC  also  submitted  a  copy  of  the  Record  of  Discharge,  Release  from  Active  Duty,  or 
Death CG-3309, which shows the applicant’s unsuitability separation code and the following in 
the Disbursing Data section of the document:  “Total allowance credited $16.80  Cash settlement 
for unused accrued leave (22 days) $86.46 due at discharge $103.26.” The document is signed by 
a CWO-1.    
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On January 11, 2011, the Board received the applicant’s response to the advisory opinion, 

 
 
he disagreed with it.  He denied that he received payment for 22 days of leave.    
  

FINDINGS AND CONCLUSIONS 

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

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: 
 
 
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 33 CFR 52.22.   The applicant stated that he discovered the alleged error 
on  September  29,  2010.    However,  the  applicant  should  have  discovered  the  error  when  he 
received his DD 214 and DD 215.  The DD 215 stated that the applicant was paid for 22 days of 
leave.  If this was incorrect the applicant should have raised the issue within three years of the 
issuance of the DD 215.  The applicant’s statement that it is in the interest of justice to excuse his 
untimeliness if more than three years have passed since discovery of the error because “ [it has 
been] mandated by congress” is not persuasive.  Although 10 U.S.C. 1552 permits the Board to 
excuse  untimeliness  in  the  interest  of  justice,  it  does  not  require  an  automatic  waiver  of 
untimeliness in every case.  

3.    Although  the  applicant’s  explanation  for  not  filing  his  applicant  sooner  is  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. 
 

4.  Based on a review of the merits, the applicant is not likely to prevail on his claim, and 
therefore,  the  Board  is  not  obligated  to  waive  the  statute  of  limitations  in  this  case.    The 
discharge  documents  related  to  the  applicant’s  discharge  (DD  215,  his  leave  record,  and  the 
Record of Discharge, Release from Active Duty, or Death) show that the applicant was paid for 
22  days  of  accrued  unused  leave  upon  his  discharge  from  the  Coast  Guard.    The  applicant’s 
argument that he did not receive such payment is insufficient to rebut the official records on this 
issue.  Additionally, the applicant received all due process to which he was entitled under the 
Coast  Guard  Personnel  Manual  regarding  his  unsuitability  discharge.    He  was  notified  of  the 
discharge and given an opportunity to submit a statement in his own behalf, which he declined.    
He has produced no evidence that he was entitled to a hearing for his unsuitability separation 
code and the Board is aware of none.   
 

5.   Accordingly, it is not in the interest of justice to waive the untimeliness in this case 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 

 

 
 

and it should be denied because it is untimely.  

 
 
    

The  application  of  former  XXXXXXXXXXXXXXXXX,  for  correction  of  his  military 

ORDER 

 

 

 

 
 

 
 

 
 

 

 

 
 

 
 

 
 

 

 

 
 

 
 

 
 

 

 

 
 

 
 

 
 

 

 
 
 Katia Cervoni 

 

 
 
 Lillian Cheng 

 

 
 Ashley A. Darbo 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 

 
 

record is denied.