DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

_________________________________ 
 
Application for Correction            
of Coast Guard Record of:             
                                                                                                                      BCMR Docket       
 
_________________________________ 
 

No. 2002-094 

 

 

 

 

 

 

 

 

 

FINAL DECISION 

 

This  final  decision,  dated  June  19,  2003,  is  signed  by  the  three  duly  appointed 

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 May 8 2002, upon the Board's 
receipt of the applicant's complete application for correction of his military record. 
 
 
members who were designated to serve as the Board in this case. 
 
Application for Relief 
 
The  applicant  asked  that  his  1967  DD  Form  2141  (Certificate  of  Release  or 
 
Discharge  from  Active  Duty)  documenting  his  disability  retirement  from  the  Coast 
Guard  be  amended  to  include  his  service  with  the  Army  Transport  Service  and  the 
Merchant Marine totaling one year, four months, and 22 days, as creditable service for 
pay  purposes.    The  applicant  stated  that  this  time  was  not  included  in  block  24 
(creditable service for pay purposes) of his Coast Guard DD Form 214.  
 
 
 
On May 26, 1952, after five years, one month, and 26 days in the Naval Reserve, 
 
the applicant was appointed a lieutenant junior grade in the Coast Guard. On February 

                                                 
1 Section 4.a. of COMDTINST M1900.4D states, "The DD Form 214 provides the member 
and the service with a concise record of a period of service with the Armed Forces at the 
time of the member's separation, discharge or change in military status (Reserve/active 
duty).    In  addition,  the  form  is  an  authoritative  source  of  information  for  both 
governmental agencies and the Armed Forces for purposes of employment, benefit and 
reenlistment eligibility, respectively." 
 

Final Decision: BCMR No. 2002-094 

                                                2 

 
 
 

2,  1967,  he  was  temporarily  retired  from  the  Coast  Guard  by  reason  of  physical 
disability, and on February 3, 1972, he was permanently retired by reason of physical 
disability in the rank of lieutenant commander (LCDR).  At the time of his temporary 
disability retirement, the applicant had 14 years, eight months, and seven days of active 
duty, and five years, one month, and 26 days of other (Naval Reserve) service.  
 
 
Prior to his Naval Reserve and Coast Guard service, the applicant worked in a 
civilian  capacity  for  the  Army  Transport  Service  and  the  Merchant  Marine  during 
WWII.  At that time, this civilian employment was not considered active duty service.   
 
 
In  1977,  pursuant  to  Public  law  95-202,  Congress  gave  veterans  status  to 
individuals  in  certain  civilian  occupations  that  rendered  service  to  the  United  States 
during WWII.  
 
Public Law 95-202 (1977) states in pertinent part: 
 

 
 
The Congress left it to the Secretary of Defense (DOD) to prescribe regulations to 
be  used  in  determining  which  group's  service  constituted  active  military  service.    In 
1979, DOD adopted regulations implementing the law and delegated his function under 
the law to the Secretary of the Air Force.  See Schumacher v. Aldridge, 665 F. Supp. 43, 
44 (D.D.C. 1987) 
 

Notwithstanding any other provision of law, the service of any person as 
a  member  of  the  Women's  Air  Forces  Service  Pilots  (a  group  of  Federal 
Civilian Employees attached to the United States Army Air Force during 
World War II), or the service of any person in any other similarly situated 
group the members of which rendered service to the Armed Forces of the 
United States in a capacity considered civilian employment or contractual 
service at the time such service was rendered, shall be considered active 
duty for the purposes of all laws administered by the Secretary of Veteran 
Affairs, if the Secretary of Defense [DoD], pursuant to regulations which 
the secretary shall prescribe __ 

(A)  [D]etermines  .  .  .  .  that  the  service  of  such  group  constituted 
active military service, and  
 
(B)  In  the  case  of  any  such  group  with  respect  to  which  such 
Secretary had made an affirmative determination that the service of 
such group constituted active military service, issues to each member 
of  such  group  a  discharge  from  such  service  under  honorable 
conditions  where  the  nature  and  duration  of  the  service  of  such 
member so warrants.   

 

 
 
 

Final Decision: BCMR No. 2002-094 

                                                3 

 
The Secretary of the Air Force initially did not designate the Merchant Marine as 
such a group.  However, the D.C. Circuit Court, in Schumacher, refused to uphold the 
Secretary's  decision  that  certain  Merchant  Marine  service  should  not  be  considered 
"active military service."  On January 11, 1988, the Secretary of the Air Force issued a 
memorandum  stating,  "the  service  of  the  group  known  as  the  "American  Merchant 
Marine" in Oceangoing Service [which included civil service crew members of the U.S. 
Army  Transport  Service]  during  the  period  of  Armed  Conflict,  December  7,  1941,  to 
August 15, 1945, . . . be considered active duty for the purposes of all laws administered 
by the Veterans Administration."  See Memorandum for SAF/06 Thru SAF/MR, dated 
January 11, 1988.  The Secretary further directed that those merchant mariners who met 
certain eligibility criteria would be issued 
 

[a] Certificate of Release or Discharge from Active Duty and a discharge 
certificate,  or  an  Honorable  Service  Certificate/Report  of  Casualty  .  .  . 
Total  active  duty  service  shall  be  the  summation  of  each  foreign,  near 
foreign,  coastwise,  and  intercoastal  voyage  within  the  period  of  armed 
conflict of World War II.  Inclusive dates of each creditable voyage shall be 
reflected on the DD Form 214.   

 
On February 2, 1988, the Secretary of the Air Force designated the United States 
 
Coast Guard as the agency responsible for issuing Coast Guard discharge documents to 
eligible merchant seamen, as the custodian for merchant seaman records.  See Air force 
Memorandum  for  Commandant,  United  States  Coast  Guard,  dated  February  2,  1988.  
(The Coast Guard did not issue the DD Form 214 documenting the applicant's service 
with the Army Transport service.) 
     
 
Subsequently in 1988, the applicant received DD Forms 214 showing one month 
and 23 days of employment with the Army Transport Corps as active service and one 
year,  two  months,  and  29  days  of  employment  with  the  Merchant  Marine  as  active 
service.  The DD Form 214 documenting his Merchant Marine service states in block 18 
(remarks) "THIS DOCUMENT ISSUED UNDER THE PROVISIONS OF PUBLIC LAW 
95-202 (38 USC NOTE 106), ADMINISTRATIVELY ESTABLISHES ACTIVE DUTY FOR 
THE  PURPOSES  OF  VETERANS  BENEFITS."    (EMPHASIS  ADDED.)    The  DD  Form 
214 documenting the Army Transport Service contains similar language.   
 
 
further stated the following: 
 

The applicant stated that he discovered the alleged error on January 24, 2001.  He 

On January 24, 2001, I became cognizant that legislation was pending in 
Congress that would have a definite impact on my retired pay.  On that 
date a Bill was introduced in the U.S. Senate  . . . that would correct the 
century-old  injustice  of  requiring  military  retirees  to  forfeit  from  their 
military 
the  Veterans 

the  amount 

retired  pay 

received 

from 

 
 
 

Final Decision: BCMR No. 2002-094 

                                                4 

Administration as Disability Compensation.  Upon determining that this 
correction  applied  only  to  military  retirees  with  20  or  more  years  of 
service creditable for basic pay purposes, it became immediately obvious 
that the DD-214 issued to me on my retirement in 1967 did not correctly 
state . . . my total service creditable for pay purposes.  Resolution of this 
problem could only be obtained by an amended DD-214.  
 
This  proposed  legislation  was  not  successful  in  its  path  through  both 
houses  of  Congress,  but  sponsors  have  vowed  to  reintroduce  it  in  each 
successive  session  until  it  is  enacted  into  law.    It  is  therefore  imperative 
that  I  possess  the  required  documentation,  DD-214,  to  qualify  for  the 
benefits that will flow from this legislation. 

 
 
 

Final Decision: BCMR No. 2002-094 

                                                5 

 
Views of the Coast Guard 
 
On November 1, 2002, the Chief Counsel of the Coast Guard recommended that 
 
the Board deny relief in this case for lack of jurisdiction or in the alternative for lack of 
merit.  
 
 
With  respect  to  lack  of jurisdiction, the Chief Counsel stated that the applicant 
has  not  pointed  to  any  error  or  injustice  in  his  record,  rather  his  allegation  is  in  the 
nature  of  a  claim  because  he  is  requesting  that  the  time  he  spent  with  the  Army 
Transport  Corp  and  Merchant  Marine  be  credited  towards  an  active  duty  retirement 
and by extension the calculation of his retirement pay.  The Chief Counsel stated that 
since the applicant's request amounts to a claim it should be settled by the Secretary of 
Defense under 31 U.S.C. 3702.  
 
 
With respect to the merits of this application, the Chief Counsel stated that the 
applicant is not entitled to relief because 38 U.S.C. 106 Note states that civilian service 
that is determined to be active duty during WWII "would be considered "active duty" 
for the purposes of all laws administered by the Secretary of Veterans Affairs . . ." In 
addition,  the  Chief  Counsel  stated  that  37  U.S.C.  §  2052  does  not  include  Merchant 
Marine service as service creditable for basic pay purposes.   
 
 
In  a  memorandum  attached  as  Enclosure  (1)  to  the  advisory  opinion, 
Commander, Coast Guard Personnel Command, stated that the applicant's application 
was not timely.   
 
Response of the Applicant to the Views of the Coast Guard                                                                           
 
 
Coast Guard.   He disagreed with the recommendation of the Chief Counsel. 
 
 
The applicant asserted that the Board has jurisdiction to decide the issue in this 
case,  stating  that  the  Board  has  jurisdiction  to  correct  errors  in  official  Coast  Guard 
records, particularly where such alleged error will result in harm to the applicant.   In 
addition,  the  applicant  argued  that  his  application  was  timely,  having  been  filed  on 
March 20, 2003, within three years of January 24, 2001, the date on which he stated he 
discovered the alleged error.   
 
 
                                                 
2  Section  205  of  Title  37  of  the  United  States  Codes  lists  the  organizations  "for  the 
purpose of computing the basic pay of a member of a uniformed service."  Service with 
the Merchant Marine is not included in this statute.  

On February 24 2003, the Board received the applicant's reply to the views of the 

The applicant stated that the Coast Guard's refusal to issue a corrected DD Form 

 
 
 

Final Decision: BCMR No. 2002-094 

                                                6 

214 showing the years, months and days of active duty creditable under 38 USC 106 , as 
amended, is without regulatory or statutory authority.  He stated this law requires the 
Coast  Guard  to  issue  an  honorable  discharge  certificate  and  a  DD  Form  214  to  those 
whose service had been determined to be active military service.   
 
The applicant stated that the Coast Guard committed an error in preparing his 
 
DD  Form  214  documenting  his  service  with  the  Merchant  Marine.    He  stated  that 
instead  of  listing  the  length  of  his  net  active  serve,  his  foreign  service,  and  his  sea 
service  (blocks12.c.,  f.,  and  g.),  the  Coast  Guard  placed  asterisks  in  these  blocks.    He 
stated  that  COMDINST  M1900.4D  (Completion  of  the  DD  Form  214)  makes  no 
provision for the use asterisks.  Nor does the instruction make provisions for recording 
any active duty other than that creditable for basic pay purposes.  He claimed that the 
Army  properly  completed  the  DD  Form  214  for  service  in  the  Army  Transportation 
Corps by documenting that he served one month and 29 days on active duty.     
  

 FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
submissions of the applicant and the Coast Guard, the applicant's military record, and 
applicable law: 
 
 
1.  The  BCMR  has  jurisdiction  of  the  case,  pursuant  to  section  1552  of  title  10, 
United States Code, which states that the Secretary, acting through a Board of civilians, 
may correct any military record.  Therefore, if the applicant is correct with regard to his 
allegation, the Board has the authority to correct his record.  
 

2.    The  applicant  requested  an  oral  hearing.    The  Chair,  under  section  52.51  of 
title 33, Code of Federal Regulations, recommended disposition on the merits without a 
hearing.  The Board concurred in that recommendation. 
  
 
3.  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 or 
should have discovered the alleged error or injustice.  See 33 CFR 52.22.  
 
 
4.  The Board may still consider the application on the merits, however, if it finds 
it is in the interest of justice to do so.  The interest of justice is determined by taking into 
consideration the reasons for and the length of the delay and the likelihood of success 
on the merits of the claim. See, Dickson v. Secretary of Defense, 68 F. 3rd 1396 (D.D.C. 
1995). 
  
 
5. Although the applicant listed January 24, 2001, as the date he discovered the 
alleged  error  or  injustice,  the  Board  finds  that  he  has  submitted  insufficient  evidence 
showing that he could not or should not have reasonably discovered the alleged error 

 
 
 

Final Decision: BCMR No. 2002-094 

                                                7 

sooner.  He admitted he received the DD Forms 214 documenting his Army transport 
service  and  his  Merchant  Marine  service  in  1988.    He  should  have  reviewed  those 
documents in conjunction with his 1967 DD Form 214 within three years of his receipt 
of the 1988 DD Forms 214.  He only decided to review the matter after becoming aware 
of  recent  legislation  that  could  possibly  result  in  future  monetary  gain.    The  alleged 
error was present in 1988, 14 years before the applicant filed this application with the 
Board,  and  could  have  been  discovered  with  reasonable  diligence.    Accordingly,  the 
applicant's reasons for not filing his application sooner are not persuasive.  
 
  
 
6.  The Board further finds that it is not likely that the applicant would prevail on 
the  merits  of  this  claim,  even  if  the  Board  were  to  waive  the  statute  of  limitations.  
Section 106 Note (a)(1) of title 38, United States Code, states, "the service of any group    
.  .  .  which  rendered  service  to  the  Armed  Forces  of  the  United  States  in  a  capacity 
considered  civilian  employment  or  contractual  service  at  the  time  such  service  was 
rendered, shall be considered active duty for the purposes of all laws administered by 
the Secretary of Veterans Affairs."  It is clear from the language of the law that the active 
service  granted  by  Congress  for  certain  civilian  service  during  WWII  was  for  the 
purpose  of  qualifying  eligible  individuals  for  veterans'  benefits.      If  Congress  had 
intended  for  this  active  service  to  be  credited  for  all purposes, including basic pay, it 
certainly  would  have  written  the  law without the words, "for the purpose of all laws 
administered by the Secretary of Veterans Affairs." 
 
 
7.    Even  the  DD  Forms  214  that  the  applicant  received  recognizing  his  civilian 
time  in  the  Army  Transport  Service  and  the  Merchant  Marine  as  active  duty  service 
stated  that  the  active  service  was  for  the  purpose  of  all  laws  administered  by  the 
Veterans  Department.    Accordingly,  the  applicant  is  only  entitled  to  the  benefits  for 
which  he  is  eligible  under  the  laws  and  regulations  of  the  Department  of  Veterans 
Affairs.  
 
8.   Moreover, basic pay for military service is determined by statute.  See Bell v. 
 
United States, 366 U.S. 393, 81 S. Ct. 1230 (1961).   Nowhere in section 205 of title 37 of 
the United States Code, does it state that service with the Army Transport Service or the 
Merchant Marine qualifies as creditable service for pay purposes.  (In addition Article 
12.C.2.  of  the  Coast  Guard  Personnel  Manual  lists  the  kind  of  service  creditable  to 
qualify for retirement, which does not include service with the Merchant Marine.) The 
Board is not aware of any statute that authorizes civilian Army Transport Service and 
Merchant  Marine  service  as  being  creditable  service  for basic pay purposes.  Without 
such a statue, a finding that the applicant's time with the Army Transport Service and 
Merchant  Marine  should  be  creditable  service  for  basic  pay  purposes  would  be 
unenforceable.    In  light  of  this  conclusion,  the  1967  DD  Form  214  documenting  the 
applicant's retirement from the Coast Guard is correct as it stands.  
 
 

 
9.  The applicant complained that the 1988 Merchant Marine DD Form 214 was 

 
 
 

Final Decision: BCMR No. 2002-094 

                                                8 

improperly prepared because it placed asterisks in block 12.c.(net active service) instead 
of  a  numerical  amount.  At  the  direction  of  DoD,  the  Coast  Guard  was  given 
responsibility for preparing and issuing DD Forms 214 for the Merchant Mariners.  The 
applicant  should  apply  to  that  office  for  a  corrected  DD  Form  214,  if  in  light  of  this 
decision he still believes that his 1988 DD Form 214 is in need of correction. The address 
is National Maritime Center, NMC-4A, United States Coast Guard, 4200 Wilson Blvd., 
Suite  510,  Arlington,  VA      22203-1804.  A  revised  DD  Form  214  listing  the  applicant's 
approximately  one  year  and  two  months  of  Merchant  Marine  service,  as  net  active 
service would not be dispositive of the issue presented in this case.  For this Board to 
direct  the  Coast  Guard  to  include  that  service  as  creditable  service  for  basic  pay 
purposes  on  the  applicant's  1967  discharge  from  the  Coast  Guard,  it  must  find  a 
statutory basis on which to do so.  As stated earlier the Board is not aware of any such 
statute.  
 
 
10.  Based on the length of the delay, the lack of persuasive reasons for not acting 
sooner to correct his record, 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  three-year  statute  of 
limitations in this case.  
  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

11. Accordingly, the application should be denied. 

[ORDER AND SIGNATURES ON NEXT PAGE] 

 
 
 

Final Decision: BCMR No. 2002-094 

                                                9 

 
 
 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Margot Bester 

 

 

 
 
 Patricia V. Kingcade 

 

 

 
 Dorothy J. Ulmer 

 

 

 

 

 

 

 

 

The  application  of  xxxxxxxxxxxxxx,  USCG  (Ret.).  for  correction  of  his  military 

ORDER 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
record, is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

Final Decision: BCMR No. 2002-094 

                                                10