DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2003-150 
 
Xxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
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  the 
application  on  January  12,  2004,  upon  receipt  of  the  applicant’s  application  form  and 
military records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  September  23,  2004,  is  signed  by  the  three  duly 

RELIEF REQUESTED 

 
 
 The applicant asked the Board to upgrade one of his conduct marks from 3.8 to 
4.0  and  to  remove  evidence  of  “own  misconduct  [in]  July  1967.”    The  applicant 
submitted two application forms.  On the first, he alleged that at a captain’s mast in July 
1966, he was awarded ten hours of extra duty and a heavy work and watch load.  He 
stated that he discovered the error in 1966, but feels that it is in the interest of justice for 
the Board to waive the three-year statute of limitations because he paid for his mistake 
and would feel better if he had marks of 4.0 for conduct “across the board.” 
 
 
On the second application form, the applicant stated that he did not purposely 
wreck  his  1962  TR3  Triumph  one-half  mile  from  his  base.    He  alleged  that  he  felt 
coerced to sign a statement and that he was not given legal representation.  He alleged 
that the car accident was just an accident, but his enlistment was extended by 26 days 
and he paid a fine of $250. 
 

 
In response to queries from the Chair, the applicant provided some elaboration.  
He stated that the “situation was coerced” and that he was never offered legal represen-
tation or advised of his right to appeal the determination.  He alleged he was never told 
that  the  line  of  duty  determination  could  cause  him  “problems  down  the  line.”    He 
alleged  that,  although  his  conduct  was  described  as  “willful,”  he  did  not  intend  to 
wreck the car.  However, he signed something because he was an enlisted member in a 
room full of officers and did what he was told to do.  He admitted that he “should have 
pursued [the] issue years ago” but that it has become “a matter of principle now” and 
that he feels he is “serving a life sentence for [a] minor car accident.” 
 

SUMMARY OF THE RECORD 

On April 26, 1965, the applicant enlisted in the Coast Guard for four years. 

 
 
 
 
On May 6, 1966, the applicant went to a captain’s mast (non-judicial punishment, 
or  NJP)  for  violating  Article  128  of  the  Uniform  Code  of  Military  Justice  (UCMJ)  by 
committing “assault consummated by a battery in that [he] on board [the cutter] on or 
about 4 May 66 unlawfully  struck [another member]  with his fist.”  According to the 
mast form, the applicant was assigned five days of extra duty. 
 

On July 31, 1966, the applicant received a mark of 3.8 (out of 4.0) for conduct on 

his performance evaluation.  All other conduct marks in his record are 4.0. 
 
 
and did not return to duty until July 10, 1967. 
 

On June 15, 1967, the applicant was apparently injured in an automobile accident 

On July 6, 1967, the applicant’s commanding officer (CO) transferred him and his 
records to a shore unit for administrative purposes because he was on “no duty status.”  
The  CO  noted  that  if  the  applicant  became  qualified  to  resume  duties,  he  should  be 
returned to the cutter or assigned to a shore unit in “the Portsmouth/New Castle, N.H. 
area … because of pending criminal charges against him.” 
 
 
On  November  21,  1967,  the  CO  sent  the  Commandant  a  letter  forwarding  the 
police  report  of  the  applicant’s  arrest  for  reckless  driving  and  court  records  of  his 
conviction  and  sentence,  which  he  indicated  included  a  $100  fine  and  the  loss  of  his 
driver’s license for 60 days.1  The CO noted that the Coast Guard’s own investigation 
was still pending.  
 

                                                 
1  The attachments to this letter are not in the applicant’s military record. 

 
On January 19, 1968, the Final Approving Authority approved the finding of the 
investigative report that the injuries sustained by the applicant on June 15, 1967, “were 
not incurred in the line of duty and were due to his own misconduct.”2 
 
 
On  January  24,  1968,  the  CO  asked  the  Commandant  to  extend  the  applicant’s 
enlistment for 25 days because the applicant “sustained injuries which were due to his 
own misconduct.”  The end of the applicant’s four-year enlistment was reset as May 20, 
1969. 
 
 
On  May  20,  1969,  the  applicant  received  an  honorable  separation  upon  the 
expiration of his enlistment and was transferred to the Reserve.  His DD 214 indicates 
that the period from June 15 to July 10, 1967 was unpaid time lost.  A form CG 3309 in 
his record states that his enlistment “was extended for 25 days for misconduct from 15 
June to 10 July 67.” 
 
 
In  1975,  the  applicant  sought  benefits  from  the  Veterans’  Administration  (VA).  
The  VA  asked  the  Coast  Guard  for  a  line  of  duty  determination  regarding  the  car 
accident and was told that two letters in his file dated January 19 and 24, 1968, showed 
that the applicant’s injuries were sustained due to his own misconduct. 
 

VIEWS OF THE COAST GUARD 

 
 
On  May  3,  2004,  the  Judge  Advocate  General  (TJAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  relief  in  this  case 
because of its untimeliness and lack of merit. 
 
 
TJAG argued that the application should be denied for untimeliness because the 
applicant  “has  not  provided  any  cause,  no  less  the  good  cause  required  by  law,  to 
excuse his failure to timely file.”  Moreover, TJAG argued that the applicant “has failed 
to  offer  any  evidence  that  the  Coast  Guard  committed  either  an  injustice  or  error  in 
assigning him a mark of 3.8 in conduct on a 4.0 scale, or in finding that the injuries he 
suffered as a result of driving his vehicle recklessly were due to his own misconduct.”  
TJAG pointed out that “[a]bsent strong evidence to the contrary, government officials 
are  presumed  to  have  carried  out  their  duties  correctly,  lawfully,  and  in  good  faith.”  
Arens v. United States, 969 F.2d 1034, 1037 (1990); Sanders v. United States, 594 F.2d 804, 
813  (Ct.  Cl.  1979).    TJAG  concluded  that  the  Board  should  not  waive  the  statute  of 
limitations because the applicant “offers no substantive reason for the 31-year delay in 
taking action and lacks any reasonable chance of prevailing on the merits.” 
 

TJAG  also  argued  that  the  doctrine  of  laches  should  bar  the  applicant’s  claim 
because  “the  investigation  completed  as  a  result  of  Applicant’s  accident  is  no  longer 
                                                 
2  The investigative report is not in the applicant’s military record. 

available  for  review”  because  of  the  applicant’s  31-year  delay.    TJAG  also  stated  that 
because  of  the  long  delay,  the  Coast  Guard  can  no  longer  contact  key  witnesses,  and 
“key  unit  documents  …  have  been  destroyed  or  disposed  of  under  the  paperwork 
disposition regulations.”  TJAG argued that the applicant “should not be rewarded in 
any way for his failure to process his claims in a timely fashion.” 

 
Finally,  TJAG  argued  that  the  applicant  has  failed  to  submit  any  evidence  to 
show  that  the  Coast  Guard  committed  any  error  or  injustice  in  assigning  him  the 
conduct mark of 3.8 and in finding that his injuries were incurred as a result of his own 
misconduct.  He pointed out that “the evidence that is available in the record supports 
both actions by the Coast Guard.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On May 5, 2004, the BCMR sent the applicant a copy of the views of the Coast 
Guard  and  invited  him  to  respond  within  30  days.    On  May  21,  2004,  the  applicant 
responded.  Regarding the timeliness of his request, the applicant alleged that he has 
only recently had time to file his application.  He alleged that previously he “was about 
to reenlist when then wife left me with 3 small children [and his] priorities changed.” 
 

Regarding the captain’s mast in 1966, the applicant stated that it resulted from a 
confrontation  with  a  fireman’s  apprentice,  “who  also  spoke  on  my  behalf,”  and  that 
they were both equally at fault.  He further alleged that his punishment “wasn’t 5 days 
was 10 hours when out to sea, not rated, 10 extra hours more than excessive … .” 
 
 
Regarding the line of duty determination, the applicant stated that he was never 
advised of the legal ramification and “realize[d] [it would be] cheaper to plead[] guilty 
and pay fine than to try and afford legal representation on E-4 pay.”  
 

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: 
 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 

1. 
§ 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.  Under Detweiler v. 
Pena, 38 F.3d 591, 598 (D.C. Cir. 1994), the statute of limitations is tolled while a member 
serves on active duty.  Therefore, to be timely, the applicant should have applied to the 
BCMR within three years of his separation on May 20, 1969.  His application was not 

filed until more than 31 years after the statute of limitations expired.  Therefore, it was 
not timely. 

 
3. 

4. 

5. 

Pursuant to 10 U.S.C. § 1552, the Board may waive the three-year statute 
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 must consider the length 
and reasons for the delay and conduct a cursory review of the merits of the case.3   
 
 
The applicant alleged that he would have applied for relief earlier but his 
“then wife left me with 3 small children [and his] priorities changed.”  Assuming it is 
true that the applicant’s wife left him with three small children to raise, the Board finds 
that the applicant has not provided adequate justification for his 31-year delay in apply-
ing to this Board.  His children have long been grown.  Moreover, the Board notes that 
although the applicant alleges he was not aware of the legal ramification of the finding 
that his injury was not incurred in the line of duty, he knew or should have known of 
the  legal  ramification  at  least  by  1975,  when  the  Veterans’  Administration  asked  the 
Coast Guard about the accident, presumably after he applied for health care benefits. 
 
 
Regarding the conduct mark of 3.8, the applicant alleged that it is in the 
interest of justice for the Board to change it to 4.0 because he paid for his mistake and 
would feel better if he had marks of 4.0 for conduct “across the board.”  The applicant 
has submitted no evidence to prove that his commanding officer erred in finding him 
guilty of committing assault and battery at captain’s mast or in assigning him the 3.8 
conduct  mark.    The  record  indicates  that  the  applicant’s  conduct  mark  was  properly 
lowered  to  reflect  the  fact  that  he  got  into  a  fistfight  with  a  fellow  member.    The 
applicant has submitted no evidence to support his allegation that he was denied due 
process  with  respect  to  the  mast  or  that  the  conduct  mark  of  3.8  is  an  unfair 
consequence of his misbehavior. 
 
 
Regarding the determination that the injuries the applicant incurred in the 
car accident on June 15, 1967, were due to his own  misconduct, the applicant alleged 
that  he  did  not  intend  to  crash  the  car,  that  it  was  just  an  accident,  and  that  he  was 
denied due process because, he alleged, he was not informed of the legal ramifications 
of  the  finding  that  his  injury  was  not  incurred  in  the  line  of  duty  and  he  was  not 
afforded legal counsel.  As TJAG correctly noted, absent evidence to the contrary, the 
Board  presumes  that  members’  military  records  are  correct  and  that  Coast  Guard 
officers have acted lawfully, correctly, and in good faith.4  The applicant has not sub-
mitted any evidence to support his allegations.  The record indicates that the applicant 
was convicted of reckless driving in civil court and that the Coast Guard conducted its 

6. 

                                                 
3 Dickson v. Sec’y of Defense, 68 F.3d 1396 (D.D.C. 1995); Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992). 
4 33 C.F.R. § 52.24(b).  See Arens v. United States, 969 F.2d 1034, 1037 (1990); Sanders v. United States, 594 
F.2d 804, 813 (Ct. Cl. 1979). 

7. 

own investigation, which reasonably concluded—based on the police report and court 
records—in an official finding that his injuries were the result of his own misconduct 
(reckless driving) and therefore were not incurred in the line of duty.  
 
 
Because  the  applicant  has  failed  to  justify  his  long  delay  in  applying  to 
this Board and has failed to submit any evidence to support his allegations of error and 
injustice, the Board finds that it is not in the interest of justice to waive the statute of 
limitations in his case, and his application should be denied. 
 
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
 
 
 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxx  USCG,  for  correction  of  his 

ORDER 

 

military record is denied. 
 
 
 
 

 
 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Derek A. Capizzi 

 

 

 
 Jordan S. Fried 

 

 

 
 William R. Kraus