DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

  

_____________________________________________________________________________                                                               
 
Application for Correction           
of Coast Guard Record of:                     
                                                                                                                      BCMR Docket       
                                                                                                                      No. 2003-106 
XXXXXXXXXXXXXXXXXXXX 
 
______________________________________________________________________________ 
 

  

FINAL DECISION                                                                                     

 
Ulmer, Chair: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on June 30, 2003, upon the 
BCMR’s receipt of the applicant's complete application for the correction of his military 
record.  
 
 
members who were designated to serve as the Board in this case.  
 

This final decision, dated March 25, 2004, is signed by the three duly appointed 

RELIEF REQUESTED  

 
The applicant asked the Board to correct his discharge document to show that he 
 
earned  the  American  Defense  Medal,  Good  Conduct  Medal,  World  War  II  Victory 
Medal, American Area Campaign Ribbon, and Asiatic-Pacific Area Campaign Ribbon.   
He  stated  that  they  are  omitted  from  the  "Notice  of  Separation  from  the  U.S.  Navy 
Service -- Coast Guard" (NAVCO 553) that he received on March 1, 1946, the date of his 
separation.   
 
The  applicant  claimed  that  he  discovered  the  alleged  errors  on  September  11, 
 
2002.  He did not offer an explanation why he could not have discovered the alleged 
errors  sooner  or  why  it  is  in  the  interest  of  justice  to  waive  the  three-year  statute  of 
limitations in this case. 
 

EXCERPTS FROM RECORD 

 
 
The applicant's military record contains a letter addressed to the applicant from 
his commanding officer (CO) dated March 1, 1946, advising the applicant that he was 
authorized  the  following  awards:    American  Area  Campaign  Ribbon,  Asiatic-Pacific 

Area  Campaign  Ribbon,  and  the  World  War  II  Victory  Ribbon.    The  letter  further 
contained the following advice: 
 

This letter of authorization is of vital importance, inasmuch as it will serve 
as  the  basis  upon  which  medals  will  be  issued  to  you.    Upon  public 
announcement of the availability of the medals, one of the two copies of 
this  letter  furnished  you  will  be  used  for  the  issuance  of  appropriate 
medals.   
 
A copy of this letter will be filed in your service record.   

 

VIEWS OF THE COAST GUARD 

 
 
On November 7, 2003, the Board received an advisory opinion from the office of 
the  Judge  Advocate  General  (TJAG)  of  the  Coast  Guard.    He  recommended  that  the 
Board deny relief to the applicant.  
 
 
In  recommending  denial  of  relief,  TJAG  argued  that  the  application  was 
untimely.    He  stated  that  applications  for  correction  of  military  records must be filed 
within three years of the date the alleged error or injustice was, or should have been, 
discovered.    33  CFR  §  52.22.      He  said  that  the  Board  could  waive  the  statute  of 
limitations and consider the case if the applicant presents sufficient evidence that it is in 
the interest of justice to do so.  As the TJAG argued, the length of the delay, the reasons 
for the delay, and the likelihood of the applicant's success on the merits of his claim are 
factors to be considered in deciding whether to waive the statute of limitations.  
 

In this case, TJAG noted that the alleged error occurred more than 50 years ago 
and  applicant's  claim  that  he  did  not  discover  the  alleged  error  until  September  11, 
2002,  does  not  overcome  the  fact  that  he  should  have  discovered  it  sooner.  He  also 
argued that the Board should not waive the statute of limitations in this case because 
there is very little likelihood that the applicant will prevail on the merits of his claim.  In 
this  regard,  TJAG  stated  that  the  awards  earned  by  the  applicant  are  properly 
documented  in  his  military  record,  and  they  were  not  required  to  be  listed  on  the 
separation  document  because  there  is  no  place  on  the  1946  notice  of  separation 
document to list them.  He further asserted that the applicant was ineligible for a Good 
Conduct  Award  because  of  he  received  on  one  3.8  mark  in  conduct  mark  during  a 
three-year  period  rather  than  a  perfect  4.0,  as  required  by  Coast  Guard  Medals  and 
Awards  Manual.  Neither  was  the  applicant  entitled  to  the  American  Defense  Medal, 
according  to  TJAG,  because  he  did  not  serve  during  the  eligibility  period  from 
September 8, 1939 to December 7, 1941.  The applicant entered active duty on December 
30, 1942.  

  
TJAG stated that the applicant offered no evidence to support his claim that the 
Coast  Guard  erred  in  any  way  in  this  case.    He  further  stated  that  absent  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 

(1992).  Moreover applicant bears the burden of proving error.  33 CFR § 52.24.  Here, 
applicant offers no evidence that the Coast Guard committed an error or injustice at the 
time  of  his  separation.    To  the  contrary,  the  record  shows  that  the  applicant  was 
properly credited for the awards he earned.        
 

 

APPLICANT’S RESPONSE TO COAST GUARD VIEWS 

 
On November 10, 2003, the Board sent a copy of the views of the Coast Guard to 
 
the  applicant  together  with  an  invitation  to  submit  a  response  within  30  days.  No 
response was received from the applicant. 
 

 

FINDINGS AND CONCLUSIONS 

1.  The  BCMR  has  jurisdiction  of  the  case  pursuant  to  section  1552  of  title  10, 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
submissions of the applicant and the Coast Guard, the military record of the applicant, 
and applicable law. 
 
 
United States Code.  The application was not timely.  
 
 
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 Board can excuse the failure to file timely if it finds 
that it is in the interest of justice to do so.  In making such a determination, the Board 
should consider the length of the delay, the reasons (or lack thereof) for the delay, and 
the likelihood of success on the merits of the claim.   Dickson v. Secretary of Defense, 68 
F.3d 1396  (D.C. Cir. 1995). 
 
3.      The applicant stated that he discovered the alleged error on September 11, 
 
2002, more than 50 years after his discharge.  He did not provide an explanation why he 
could  not  have  discovered  the  alleged  errors  sooner.    His  signature  on  the  Notice  of 
Separation is evidence that he was aware or should have been aware at that time that no 
medals  were  recorded  on  the  discharge  document.    The  letter  from  the  CO  to  the 
applicant dated March 1, 1946, informed the applicant of the awards that he had earned, 
which did not include the Good Conduct Award or the American Defense Medal.  The 
applicant  should  have  discovered  that  he  had  not  been  awarded  the  Good  Conduct 
Award or the American Defense Medal at the time he received the CO's letter.    
 
4.   With respect to the merits of the applicant's claim, the Board finds that he is 
  
not  likely  to  prevail  on  them.    The  Coast  Guard  has  asserted  that  the  applicant's 
discharge  document  is  correct  because  there  is  no  block  on  the  1946  Notice  of 
Separation  document  to  list  medals.  The  applicant  has  presented  nothing  challenging 
the Coast Guard on this point.  The applicant was discharged prior to the creation for 
the DD Form 214 and the regulations pertaining to that document do not apply in this 
case.   Moreover, the medals and awards earned by the applicant are documented in his 
service record. 

 
 
5.  In addition the applicant has not presented any evidence that he was entitled 
to the Good Conduct Award or the American Defense Medal.  According to Enclosure 
(8) and sections 5.B.1.b.(1)(3) and 5.B.5.b.(2)6. of the Coast Guard Medals and Awards 
Manual, the applicant was not entitled to a Good Conduct Award because he did not 
have  an  average  mark  of  4.0  mark  in  conduct;    nor  was  he  entitled  to  the  American 
Defense Medal because he did not serve during the time period required to earn this 
award.    The  applicant  has  presented  nothing  to  rebut  these  conclusions.  The  Board 
finds, based on the evidence of record, it is unlikely that the applicant will prevail on 
the merits of this claim. 
 
 
6.    Based  on  the  length  of  the  delay,  the  lack  of  any  persuasive  reason  for  not 
filing his application sooner, and the probable lack of success on the merits of his claim, 
the Board finds it is not in the interest of justice to waive the statute of limitations in this 
case.   
 
 
and because it is untimely. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

7.  Accordingly, the applicant's request should be denied because it lacks merit 

[ORDER AND SIGNATURES ON NEXT PAGE] 

 

 

 
 

 
 
military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 

 

 

 

ORDER 

The  application  of  former  XXXXXXXXXXXXX  USCG,  for  correction  of  his 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 
 

 

 
 

        

 
 Philip B. Busch  

 

 

 

 
 
             Marc J. Weinberger 

 

 

 

 
             George A. Weller