DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2011-124 
 
Xxxxxxxxxxxxx 
xxxxxxxxxxxxxx   

FINAL DECISION 

This proceeding was conducted under the provisions of section 1552 of title 10 and sec-
tion 425 of title 14 of the United States Code.  The Chair docketed the case upon receiving the 
completed  application  on  March  16,  2011,  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  January  12,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 
 
The applicant, who was retired from the Coast Guard Reserve as a first class petty officer 
on March 1, 2007, asked the Board to void his retirement and correct his record to show that he 
was discharged from the Reserve with an RE-1 reentry code (eligible to reenlist).  The applicant 
stated that he does not want to receive any retired pay or benefits from the Coast Guard.  
 

BACKGROUND 

 
 
In a prior case, BCMR Docket No. 2009-169, the applicant alleged that he was unjustly 
forced to retire in 2007 after he failed two physical fitness tests (PTs) in 2006.  He alleged that he 
was forced to retire because his command did not follow proper procedures in administering the 
tests, failed to take into account that he had  stopped in the middle of his second test to help an 
injured  petty  officer,  and  threatened  him  with  an  other  than  honorable  discharge  if  he  did  not 
submit a retirement request.   
 
 
The Coast Guard recommended that the Board deny the applicant request in Docket No. 
2009-169, and the Board denied relief because it found that the applicant had “failed to prove by 
a  preponderance  of  the  evidence  that  his  retirement  from  the  Reserve  was  coerced,  unjust,  or 
erroneous.” 
 

 

 

SUMMARY OF THE APPLICANT’S RECORD 

 

 
 
On May 20, 1988, the applicant enlisted in the Coast Guard Reserve.  He had previously 
served four years on active duty in the U.S. Navy.  He gained a satisfactory year of service for 
retirement  purposes  every  year  thereafter,  and  on  May  31,  2004,  the  Personnel  Command  sent 
him  notification  that  he  was  eligible  for  Reserve  retired  pay  when  he  turned  60  years  old  on 
December  27,  2012,  because  he  had  completed  20  years  of  satisfactory  service  for  retirement 
purposes.  For most of his Reserve service, the applicant drilled at xxxxxxxxxxxxx.  On May 9, 
2006, the applicant reported for SELRES duty at a Port Security Unit (PSU) in xxxxxxxx.  After 
failing to pass PTs in the spring and fall of 2006, the applicant submitted a request to retire, and 
he was retired from the Reserve on March 1, 2007. 

 

VIEWS OF THE COAST GUARD 

 
 
On June 29, 2011, the Judge Advocate General  (JAG) submitted an advisory opinion in 
which he recommended that the Board deny relief in this case.  In so doing, he adopted the find-
ings and analysis provided by the Personnel Service Center (PSC) in an attached memorandum.  
 
 
The PSC stated that the applicant’s “current status is retired reservist awaiting pay (RET-
2)” because he has qualified for Reserve retired pay but is not yet 60 years old.  The PSC stated 
that  relief  should  be  denied  because  the  applicant’s  records  are  correct  and  “[i]f  the  applicant 
does not request to receive retired pay at age 60, it is likely that he will not receive retired pay 
per 10 U.S.C. 12731(a).”1  The PSC further stated that “[n]o law or policy supports discharging 
the applicant retroactive to his entering retired status.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
The  applicant  was  granted  an  extension  of  the  time  to  reply  to  the  views  of  the  Coast 
Guard and submitted his response on August 15, 2011.  The applicant submitted statements that, 
he argued, prove that he was forced to retire.  He stated that when he needed a top secret security 
clearance  in  1991,  it  took  just  one  month  for  the  investigation  to  be  completed.    However,  he 
needed a top secret clearance to work at the PSU and even though he completed the paperwork 
in early August 2006, the people he named as personal references were never interviewed by an 
investigator.  In support of this allegation, two people submitted letters on behalf of the applicant 
stating that they had known him for a long time and had expected to  receive inquiries from  an 
investigator pursuant to the applicant’s application for a security clearance in 2006 but never did. 
 
 
The applicant  also  alleged that, although he was required to  have a military passport so 
that he could be deployed from the PSU and applied for the passport in June 2006, his command 
did  not  follow up when the applicant  notified them that he had not  received the passport.  The 
applicant argued that the fact that his top secret security clearance application and military pass-
port application were never processed is evidence that his command was biased against him and 
                                                 
1 Under 10 U.S.C. § 12731(a), a reservist who has completed 20 years of satisfactory service pursuant to § 12732 is 
entitled  to  retired  pay  upon  attaining  age  60,  but  under  §  12731(b)  the  eligible  reservist  must  actually  apply  for 
retired pay. 

 

 

coerced him to retire.  The applicant also submitted a copy of the Wikipedia article “USS Iowa 
turret explosion” as evidence of malfeasance and cover-up in the military. 
 
 
The applicant stated that he is requesting an honorable discharge and RE-1 reentry code, 
in  lieu  of  RET-2  status,  because  he  believes  he  “will  never  be  dealt  a  fair  hand  regarding  this 
issue. … It was personal and I will never be able to prove it.” 

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. 

2. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.   
 
Under  10  U.S.C.  §  1552(b)  and  33  C.F.R.  §  52.22,  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 in this case knew of his retirement in March 2007, applied to be reinstated 
in  the  Reserve  in  May  2009,  and  after  that  request  was  denied  in  May  2010,  submitted  this 
request for different relief—an honorable discharge and RE-1 in lieu of RET-2 status—in March 
2011, more than four years after his retirement.  Therefore, the application is untimely because it 
was submitted more than three years after the applicant knew that he had been retired and would 
be eligible for retired pay upon attaining age 60 (RET-2). 
 

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. 

The  applicant  did  not  explain  his  delay  in  requesting  discharge,  but  the  Board 
believes  that  he  did  not  consider  requesting  discharge  in  lieu  of  RET-2  status  until  the  Board 
denied his request for reinstatement.   

 
5. 

The Board’s review of the merits of this case indicates that the applicant submit-
ted a retirement request and was duly retired in RET-2 status in March 2007.  He is eligible for 
retired  pay  when  he  is  60  years  old  in  December  2012  and  will  presumably  receive  it  if  he 
applies for it at that time in accordance with 10 U.S.C. § 12731(b).  Under 33 C.F.R. § 52.24(b), 
these  military  records  are  presumptively  correct,  and  the  applicant  bears  the  burden  of  proving 
that  his  RET-2  status  is  erroneous  or  unjust  and  that  he  should  be  discharged  with  an  RE-1 
reentry  code,  instead.   The  record  shows  that  the  applicant  wishes  to  reject  the  retired  pay  and 
benefits he earned long  before he ever transferred to the PSU because he  is very unhappy with 
how  he  was  treated  by  the  PSU  command  in  2006  and  2007.    It  is  very  unfortunate  that  after 
numerous satisfactory years of service, the applicant’s last experience in the Coast Guard was so 

 

 

bad  that  he  plans  not  to  accept  the  retired  pay  and  benefits  he  earned.    However,  he  has  not 
persuaded the Board that his mere eligibility for retired pay and benefits constitutes an error or 
injustice in his record because he may reject his retired pay and benefits simply by not applying 
for  them.    Nor  is  the  Board  persuaded  that  his  reentry  code  should  be  changed  from  RE-2 
(retired)  to  RE-1  (eligible  to  reenlist)  since  his  correct  status  is  RET-2.    Based  on  the  record 
before it, the Board finds that the applicant’s claim cannot prevail on the merits. 

 
6. 

The  applicant  alleged  that  the  fact  that  his  military  passport  application  and  top 
secret security clearance application were not processed quickly in 2006 supports his claim in his 
prior  case,  Docket  No.  2009-169,  that  his  retirement  was  coerced.   The  Board  finds,  however, 
that  the  fact  that  the  applicant’s  military  passport  application  and  top  secret  security  clearance 
application were apparently not processed quickly in 2006 is not evidence that he was coerced to 
retire because there are many other factors that could have delayed the processing of his applica-
tions. 

 
7. 

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]

 

 
 
 
 

 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxx,  USCGR,  Retired,  for  correction  of  his 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 Philip B. Busch 

 

 

 
 Reagan N. Clyne 

 

 

 
 Dorothy J. Ulmer 

 

 

 

 

 

 

 

 

 

 

 

 

 

military record is denied.