DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2003-131 
 
Xxxxxxxxxxxxxxxxxxxxx 
  Xxxxxxxxxxxxxxxxxxxx 
 

 

 
 

FINAL DECISION 

 

ANDREWS, Deputy Chair: 
 
 
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 case was docketed on 
August 18, 2003, upon the BCMR’s receipt of the applicant’s completed application and 
military records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated April 29, 2004, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS  

 

 
The  applicant  asked  the  Board  to  correct  his  records  to  make  him  eligible  for 
educational benefits under the Veterans’ Educational Assistance Program (VEAP).1  He 
alleged  that  he  was  “never  notified  about  reinstatement  period  for  VEAP  education 
benefits.”  The applicant alleged that he discovered the error on May 15, 2003.   
 

SUMMARY OF THE RECORD 

 

 
On April 27, 1978, the applicant enlisted in the Coast Guard Reserve under the 
Delayed Entry Program for a term of six years.  On May 15, 1978, he enlisted for four 
years duty as a member of the regular Coast Guard.  He was released into the Reserve 
on May 14, 1982.  His DD 214 indicates that he did not contribute to VEAP during the 
                                                 
1    38 U.S.C. § 3201.  Money deposited by a servicemember in a VEAP account is matched 2 to 1 by the government.  
On July 1, 1985, VEAP was replaced by the Montgomery G.I. Bill, under which funds deposited in an MGIB account 
are matched approximately 12 to 1. 38 U.S.C. § 3001. 

enlistment.   
  
 
The applicant has remained a member of the Reserve.  From September 14, 2001, 
to June 16, 2002, he served on extended active duty, providing food service to people 
working at the World Trade Center disaster site.  The DD 214 issued to document this 9-
month  and  3-day  period  of  active  duty  indicates  that  he  had  previously  completed  a 
total of 4 years, 11 months, and 3 days2 of active duty and 18 years, 5 months, and 16 
days of inactive duty.  
 

VIEWS OF THE COAST GUARD 

 

On December 31, 2003, the Judge Advocate General (TJAG) of the Coast Guard 

 
recommended that the applicant’s request for relief be denied. 
 
 
TJAG stated that the applicant failed to contribute to VEAP during his period of 
active duty.  He further stated that there was no requirement at the time for members’ 
notification of VEAP to be documented in their records.3  
 
 
TJAG argued that the Board should deny relief in this case because the applicant 
failed to submit a timely application.  He stated that although the applicant alleged that 
he did not discover the error in his record until 2003, he provided ”no explanation for 
this implausible assertion.”  TJAG pointed out that 33 C.F.R. § 52.22 states that an appli-
cation  “must  be  filed  within  three  years  after  the  applicant  discovered  or  reasonably 
should have discovered the alleged error or injustice.”  He argued that in this case, the 
applicant  reasonably  should  have  discovered  the  alleged  error  in  his  records  no  later 
than his release from active duty on May 14, 1982, when he received his DD 214.  There-
fore, he argued, the application was untimely. 
 
 
TJAG also argued that the applicant has “failed to show why it is in the interest 
of  justice  to  excuse  the  delay”  because  he  failed  to  explain  his  delay  in  seeking  the 
record correction and failed to submit any evidence “that he ever chose to participate in 
the VEAP program or that the Coast Guard violated any sort of duty to inform him of 
changes to a program he did not participate in while on active duty subsequent to his 
discharge in 1982.”  TJAG argued that the Coast Guard is entitled to the presumption of 
regularity and that the applicant has not met his burden of production or persuasion to 
overcome that presumption. 
 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

                                                 
2  In addition to his original 4-year enlistment, this total includes 11 months and 3 days of accumulated short-term 
active duty periods (ADSW) that the applicant has performed while in the Reserve. 
3    Today,  members  are  automatically  enrolled  in  the  MGIB  upon  their  enlistment  unless  they  opt  out  in  writing.  
MGIB counseling must be documented at the time of enlistment. 

 

 
 
On January 20, 2004, the Chairman sent the applicant a copy of the Judge Advo-
cate General’s advisory opinion and invited him to respond within 30 days.  The appli-
cant did not respond. 
 

APPLICABLE LAW 

 

 
Under  38  U.S.C.  §  3201,  one  of  the  purposes  of  VEAP  was  “to  provide  educa-
tional assistance to those men and women who enter the Armed Forces after December 
31, 1976, and before July 1, 1985.”  The statute also states that “[e]ach person entering 
military service on or after January 1, 1977, and before July 1, 1985, shall have the right 
to enroll in the educational benefits program provided by this chapter … at any time 
during such person’s service on active duty before July 1, 1985.”  38 U.S.C. § 3221. 
 
 
On November 14, 1986, the Commandant issued ALCOAST 056/86, concerning 
VEAP.    The  ALCOAST  announced  a  new  enrollment  period  for  members  who  first 
enlisted between January 1, 1977, and June 30, 1985, but who failed to enroll in VEAP 
during  that  time.    The  new  enrollment  period  lasted  until  March  31,  1987.    The 
ALCOAST included the following instructions: 
 

3. 
Personnel Reporting Units will be provided with a list of eligible personnel.  This 
listing will be forwarded to the units.  Eligible members shall sign the roster indicating 
their  intention  to  participate  or  not.    Personnel  absent  from  the  unit  shall  be  so  noted 
with  their  current  status.    New  personnel  and  personnel  present  on  [temporary  active 
duty] shall be added to the list by the unit.  The completed list shall be forwarded by the 
unit to Commandant {G-PE-3}. 
 
4. 
brought to the attention of all personnel. 
 
The  Paperwork  Management  Manual,  COMDTINST  M5212.12,  dictates  that 

Commanding officers and officers in charge shall assure that this information is 

 
such unit records may be destroyed after three years. 
 
 
The  Coast  Guard  does  not  administer  VEAP  accounts.    VEAP  accounts  are 
administered by the DVA.  See 38 U.S.C. § 501(a) and 38 C.F.R. § 21.5001.  Since the 
enactment of the Montgomery G.I. Bill in 1985, Congress has allowed members who 
participated in VEAP to convert their accounts to MGIB accounts.4 
 

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 appli-

                                                 
4  See Veterans’ Benefits Improvements Act of 1996, Pub. L. 104-275 (October 9, 1996). 

 

cable law: 
 

1. 

 The Board has jurisdiction over this matter pursuant to the provisions of 

10 U.S.C. § 1552. 

 
2. 

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.  Although the appli-
cant alleged that he did not discover the alleged error until 2003, the record indicates 
that he knew or should have known of his non-enrollment in VEAP at the latest upon 
receipt of his DD 214 in 1982.  Even if the applicant is alleging that he was never noti-
fied of the enrollment period under ALCOAST 056/86, the Board finds that he reasona-
bly  should  have  discovered  the  alleged  error  much  earlier.    The  applicant’s  failure  to 
investigate  the  rules  of  VEAP  eligibility  for  more  than  fifteen  years  does  not  toll  the 
Board’s statute of limitations.  Therefore, his application was untimely. 

 
3. 

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.  Allen v. 
Card, 799 F. Supp. 158, 164 (D.D.C. 1992).   

 
4. 

The  applicant  failed  to  explain  his  unnecessary  delay  in  seeking  enroll-

ment in VEAP.  

 
5. 

The  applicant  has  failed  to  submit  any  evidence  to  prove  that  his  non-
enrollment in VEAP is an error or injustice in his record.  The record indicates that he 
did not participate in VEAP by contributing a portion of his basic pay during his enlist-
ment  on  active  duty  from  May  15,  1978,  to  May  14,  1982.    Regarding  the  enrollment 
period from November 14, 1986, to March 31, 1987, under ALCOAST 056/86, any notifi-
cation the applicant received would have been destroyed long ago along with other unit 
records  in  accordance  with  the  rules  in  the  Paperwork  Management  Manual, 
COMDTINST  M5212.12.    Absent  evidence  to  the  contrary,  the  Board  presumes  that 
Coast Guard officials performed their duties with respect to VEAP “correctly, lawfully, 
and  in  good  faith.”5    The  applicant  has  submitted  no  evidence  to  overcome  this  pre-
sumption  of  regularity.    Therefore,  the  Board  finds  that  the  applicant’s  allegation  of 
error lacks merit and that it is not in the interest of justice to waive the statute of limi-
tations in this case. 

 
6. 

 

Accordingly, the applicant’s request should be denied.  

                                                 
5 33 C.F.R. § 52.24(b); Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992), and Sanders v. United States, 594 F.2d 
804, 813 (Ct. Cl. 1979). 

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 
 
 
 
 

 

 
The  application  of  xxxxxxxxxxxxxxxxxxxxxxxx,  USCGR,  for  correction  of  his 

ORDER 

                                                             
 

 

 

 

 

 

 

 Jordan S. Fried 

 
 

 

 

 

 

 

 

 

 

 
 

 
 

 

 
 

 
 

 

 

 
 J. Carter Robertson 

 

 

 
 Kathryn Sinniger 

 

  

 
 

 
 

 
 

military record is denied.