DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-094 
 
MARTINSON, John P. 
529 70 4045, RM3 (former) 
   

 

 
 

FINAL DECISION ON RECONSIDERATION 

 
Author:  Ulmer, D. 
 
 
This  is  a  proceeding  for  reconsideration  of  a  final  decision  issued  under  the 
provisions of section 1552 of title 10 and section 425 of title 14 of the United States Code.  
The  decision  to  be  reconsidered,  BCMR  No.  2003-058,  was  issued  by  the  Board  for 
Correction of Military Records on November 30, 2003.   
 

The  Board  docketed  the  application  for  reconsideration  on  April  15,  2004,  as 

BCMR No. 2004-094.   
 
 
three duly appointed members who were designated to serve as the Board in this case. 
 

This final decision on reconsideration, dated December 16, 2004, is signed by the 

APPLICANT’S REQUEST  

 
The applicant asked the Board to reconsider its decision in BCMR No. 2003-058, 
 
denying his request for a correction to his DD Form 214 (discharge document).  In that 
case he asked that the DD Form 214 be corrected to show his correct date of rank as an 
RM3/E-4 (radioman third class/pay grade E-4).  He alleged then and now that instead 
of  April  19,  1976,  his  DD  214  should  reflect  his  date  of  rank  as  an  RM3  in  the  Navy, 
which was in 1968, or his date of entry in the Coast Guard in 1974. The applicant further 
asked the Board to award him any back pay and allowances he might be due as a result 
of the correction. 
 

 
The applicant also asked that Board to correct an Achievement Sheet, CG-3303, in 
his record.  The form shows (a) his original date of rank in the Coast Guard as his date 
of  enlistment,  October  7,  1974;  (b)  a  demotion  to  seaman-radioman  (SNRM/E-3)  on 
November 29, 1974, which is struck out; (c) a re-advancement to RM3 on December 16, 
1974, which is also struck out; and (d) an entry dated April 19, 1976, showing his rank  
as RM3, with CG-311 cited as authority.  
   
 

The disputed CG-3303 appears as follows. 
 

Authority 
Date of Orig. Enlistment 

Rate 
RM3 

Date 
10-7-74 
Nov 29, 74  SNRM    CO’s NJP 
Dec 18, 74  RM3 
76 Apr 19  RM3 
 
 

CO Mitigated NJP 
CG311[1] 

Signature 
/s/ Acting Officer in Charge 
/s/ CWO3, by direction 
[unsigned] 
/s/ Executive Officer 

Unit 
RO Salt Lake City 
GRU Portland 
GRU Portland 
GRU Portland 

APPLICANT'S ORIGINAL APPLICATION BCMR NO. 2003-058 

 

The  applicant  alleged  that  the  CG-3303  is  erroneous  because  he  served 
continuously as an RM3 in the Coast Guard until his discharge and was never “busted a 
rank”  for  being  AWOL  for  19  days  in  November  1974.      He  alleged  that  he  was 
punished  at  Non-judicial  punishment  (NJP)  under  Article  15  of  the  Uniform  Code  of 
Military Justice (UCMJ), but his sentence was “mitigated” by his  commanding officer 
(CO).2   
 
The applicant claimed that the alleged incorrect date of rank on his DD Form 214 
is hampering his employment opportunities and prevented him from joining the Army 
Reserve. 
 
Summary of the Military Record Available in the Original Case 
 
 
From June 14, 1965, to June 11, 1969, the applicant served on active duty in the 
Navy, attaining the rank of RM3 on April 16, 1968.  After his release, he served in the 
Naval Reserve from June 12, 1969, through July 17, 1974.  
 

On October 7, 1974, the applicant enlisted in the Coast Guard as an RM3.  He was 
assigned to the Marine Safety Office (MSO) in Portland, Oregon.  From November 2 to 
21,  1974,  the  applicant  was  absent  without  leave  (AWOL)  from  his  unit.  Upon  the 

                                                 
1  This  is  the  number  of  the  Coast  Guard’s  Enlisted  Qualifications  Manual  in  effect  in  the  1970s.    The 
manual contained all of the qualifications that petty officers must meet to advance within their ratings. 
2  The  applicant  alleged  that  he  was  unaware  of  the  errors  in  his  record  until  February  2002,  when 
someone at a Reserve recruiting office told him that he might have lost pay because of the alleged errors. 

applicant’s  return  to  the  MSO  on  November  21,  1974,  he  was  taken  to  mast,  which 
resulted in a sentence of reduction in rate from RM3/E-4 to SNRM/E-3 and restriction 
to the MSO for 30 days. 

 
In  a  December  10,  1974,  letter  to  the  District  Commander,  the  commanding 
officer  (CO)  requested  a  psychiatric  evaluation  for  “SNRM  [applicant’s  name].” 
Subsequent correspondence3 in December 1974 and in January, February, March, and 
August  1975—concerning  the  applicant’s  mental  health  and  his  attempt  to  void  his 
enlistment contract because of false promises allegedly made by his recruiter—refers to 
him as an RM3.   
 

A record of the applicant’s performance marks while stationed at the MSO shows 
that his rate was RM3 when he received performance evaluations on December 31, 1974; 
June 30, 1975; December 31, 1975; June 30, 1976; and December 31, 1976.  On the Decem-
ber 31, 1974, evaluation, he received a mark of 3.5 (out of 4) for conduct, but thereafter, 
he  received  all  marks  of  4.    On  February  24,  1976,  the  applicant  received  a  security 
clearance, and the certificate shows that he was an RM3 at the time.* 

 
On March 31, 1977, while still stationed at the MSO, the applicant was honorably 
discharged.  No reason for the discharge is shown on the DD 214.  His date of rank as 
an RM3 is given as April 19, 1976. 

 
On  April  20,  1983,  the  applicant  enlisted  in  the  Coast  Guard  Reserve  for  two 

years as an RM3.  He was discharged at the end of his enlistment on April 19, 1985. 

 
Views of the Coast Guard in Original case  
 
 
On August 7, 2003, the Chief Counsel of the Coast Guard submitted an advisory 
opinion in which recommended that the Board deny the applicant’s request because of 
the untimeliness of his request in light of the Board’s three-year statute of limitations.4  
He also argued that the doctrine of laches should bar the applicant’s request. 
 
 
The Chief Counsel submitted with his advisory opinion a memorandum on the 
case  prepared  by  the  Coast  Guard  Personnel  Command  (CGPC).    CGPC  stated  that, 
although the applicant’s official military record does not contain the disputed CG-3303 
and  other  documentation  submitted  by  the  applicant,  a  thorough  examination  of  the 

                                                 
3   The applicant submitted this document. 
 
4      The  timeliness  issue  is  rendered  moot  as  the  Board  waived  the  statute  of  limitations  in  the  original 
proceedings.   
 

documents  indicated  that  they  are  authentic.    CGPC  stated  that  evidence  of  the  NJP 
would have been removed from his record when he enlisted in the Reserves in 1983. 
 

CGPC stated that the record indicates that, following the applicant’s 19-day per-
iod of being AWOL, he was taken to mast on November 29, 1974, and his punishment, 
in part, was reduction in rate to SNRM/E-3.  However, his CO mitigated the reduction 
in rate on December 18, 1974, in accordance with Chapter 1.E.6.b. of the Military Justice 
Manual, which stated that a “[r]eduction in pay grade regardless of whether the reduc-
tion has been executed, may be mitigated to forfeiture.”  CGPC stated that it “is possible 
that  the  mitigation  was  not  fully  carried  out  administratively,  i.e.,  the  mitigation  was 
approved locally, but never fully administratively processed at the time it took place, 
and that the final entry on his achievement sheet was an inappropriate attempt to rec-
tify these administrative lapses.”   

 
CGPC stated that under the Pay and Personnel Procedures Manual, the date of 
rank  entered  on  the  applicant’s  March  31,  1977,  discharge  form  DD  214,  should  have 
been “the date of latest advancement,” or December 18, 1974, since his reduction in rate 
to SNRM was reversed on that date.  CGPC stated that if the BCMR approved the appli-
cant’s  request  to  change  his  date  of  rank  on  his  DD  214,  the  Coast  Guard  “should 
determine,  if  the  pay  records  still  exist,  whether  the  Applicant’s  pay  for  [the  period 
from December 18, 1974, through April 18, 1976] was at pay grade E-4.  If not, the Coast 
Guard should pay the Applicant the difference between pay grade E-3 and E-4.”  

 
The Chief Counsel disagreed with CGPC and argued that the applicant’s request 
should  be  denied.    He  stated  that  the  applicant’s  allegations  are  inconsistent  and 
“present  a  puzzling  picture,”  which  is  aggravated  by  the  lack  of  documentation 
concerning his NJP and the mitigation.  

 
The  Chief  Counsel  alleged  that  the  applicant’s  claim  is  moot  because  no  harm 
was  caused  by  the  alleged  error  in  his  date  of  rank  on  the  March  31,  1977,  discharge 
form since his date of rank was reestablished as April 20, 1983, when he enlisted in the 
Reserve.  The Chief Counsel also alleged that no harm was caused by the alleged error 
because the Pay and Personnel Center has investigated the matter and reported that the 
applicant  was  paid  as  an  E-4  throughout  the  entire  enlistment  from  October  7,  1974, 
until March 31, 1977.  The Chief Counsel submitted an email from the Coast Guard Per-
sonnel Service Center and printouts of microfiche pay records supporting his statement 
about the applicant’s pay grade.  The microfiche records show that the applicant was 
paid as an RM3 throughout the enlistment and that the only adjustment made was for 
the 19 days he was AWOL. 

 
Regarding  the  date  of  rank  on  the  March  31,  1977,  DD  214,  the  Chief  Counsel 

stated that his review of the merits  

 

creates more questions than answers.  Admittedly, Applicant’s military pay records sup-
port his original assertion that he was never reduced in rank.  However, [his CO’s letter 
dated December 10, 1974] which refers to Applicant as [an SNRM] contradicts this con-
clusion.    Additionally,  subsequent  correspondence  provided  by  Applicant,  addressing 
him as an RM3 clearly conflicts with the 19 April 76 date of rank at issue.  The fact that all 
of these documents were dated after 18 Dec 74 supports CGPC’s conclusion that Appli-
cant’s punishment was mitigated on that date. … However, this position does not explain 
why entries regarding the mitigation of Applicant’s punishment were lined out and ini-
tialed  on  the    CG-3303.    It  is  simply  impossible  to  determine  the  precise  disposition  of 
Applicant’s NJP sentence, and resulting date of rank from the limited record available. 

 
 
The Chief Counsel concluded, therefore, that even if the Board waives the statute 
of  limitations  for  this  case,  it  should  find  that  the  doctrine  of  laches  bars  the  claim 
because  many  of  the  documents  that  would  have  clarified  the  matter  were  properly 
purged  from  the  applicant’s  record  when  he  enlisted  in  the  Reserve.    He  also  argued 
that the microfiche pay records counter the applicant’s concern that he was not properly 
paid  as  an  RM3  but  “do  not  shed  any  light  on  the  circumstances  surrounding 
applicant’s NJP proceedings.  Thus the government is prejudiced by the delay in this 
case and should not be forced to solve the mystery surrounding Applicant’s NJP when 
Applicant himself cannot present a clear and cogent explanation.”  The Chief Counsel 
argued that “any attempt by the Board to insert a substitute date of rank [on the appli-
cant’s March 31, 1977, DD 214] would border on the capricious rather than serve to cor-
rect any ‘injustice.’”  
 
 
 
 
Applicant's Reply to the Original Views of the Coast Guard  
 
 
On August 11, 2003, the BCMR sent the applicant a copy of the Chief Counsel’s 
advisory opinion and invited him to respond within 30 days.  On November 3, 2003, the 
Board received a response from the applicant, who submitted nine additional copies of 
correspondence showing that his rank after December 18, 1974, was RM3. 
 
Findings and Conclusions in Original Case 
 

The Board found that the application was not timely but waived  the statute of 
limitations in the interest of justice after a cursory review of the merits.  However, the 
Board still denied the applicant's request.  In this regard, the Board made the following 
pertinent findings: 

 
5.    Copies  of  official  Coast  Guard  correspondence  between  the 
applicant’s  command  and  Coast  Guard  headquarters  following  the 
mitigation  of  his  NJP  on  December  18,  1974,  indicate  that  the  applicant 
was  considered  to  be  an  RM3  by  his  CO.    A  certificate  for  a  security 

clearance  dated  February  24,  1976,  also  refers  to  him  as  an  RM3.    In 
addition,  Coast  Guard  records  show  that  he  was  paid  as  an  RM3 
throughout the enlistment.  There is no explanation in the record for the 
applicant’s April 19, 1976, date of rank on the CG-3303 or on his DD 214.  
The  authority  for  the  entry  cited  on  the  CG-3303,  which  is  CG-311—a 
reference to the Enlisted Qualifications Manual in effect at the time—does 
not elucidate the reason for the entry.  

 
6.  Unfortunately, however, most of the applicant’s military records 
for his enlistment from 1974 to 1977 are not in the files sent to the Board 
by the NPRC.  Some of the records may have been properly purged when 
he enlisted in the Reserve in 1983, but other records that would not have 
been  purged,  including  his  enlistment  contract,  his  performance  marks, 
and the CG-3303, are clearly missing from the official records provided by 
the NPRC. 

 
7.  The Chief Counsel has argued that the Board should deny the 
applicant’s request under the doctrine of laches, which bars a claim if an 
applicant’s undue delay in seeking relief has prejudiced the Coast Guard’s 
ability to defend the record.  In light of the fact that after the applicant’s 
25-year delay, most of the documentation of his 1974 to 1977 enlistment, 
including the mitigated NJP and the reason for the April 19, 1976, date of 
rank  entry  on  the  CG-3303,  is  missing,  and  the  people  at  the  MSO  who 
were responsible for making the allegedly erroneous entries are no longer 
available  to  explain  their  actions,  the  Board  finds  that  the  applicant’s 
request should be denied under the doctrine of laches.  His DD 214 was 
prepared at the same MSO where he had served for the entire enlistment.  
Therefore, if the applicant had timely applied to the Board, the allegedly 
erroneous entries could have been investigated, elucidated, and corrected 
if they proved to be erroneous.  However, 25 years after the fact and with 
many  of  the  official  records  purged  or  missing,  it  is  impossible  for  the 
Board to know exactly what did or did not occur in April 1976 that might 
have caused his date of rank to change. 
 

BCMR NO. 2004-094 (CURRENT CASE) 

 

On 

January  28,  2004, 

for 
 
reconsideration  of  BCMR  No.  2003-058.    The  Chair  denied  that request  informing  the 
applicant that he had not met the requirements for reconsideration under the Board's 
rules.5 He was further told the following: 

the  applicant's  request 

the  Board  received 

                                                 
5    Section  52.67(a)  of  title  33  of  the  Code  of  Federal  Regulations  states  that  reconsideration  of  an 
application shall occur if: 

 

[T]he Board denied your request because there was nothing in the record 
that shed light on the April 19, 1976, date of rank entry on the CG-3303.  
By law, the Board must presume that such  entries are correct unless the 
applicant  submits  sufficient  evidence  to  prove  that  they  are  incorrect.  
While  the  record  contained  substantial  evidence  about  the  temporary 
reduction in rank in 1974, there was no evidence in the record regarding 
the April 19, 1976, date of rank.  The Board  could not assume that your 
date or rank was erroneous without substantial evidence about the 1976 
entry.  

 
 
On  February  4,  2004,  the  Board  received  another  letter  from  the  applicant 
requesting  that  the  Board  reconsider  his  case.    He  submitted  as  new  evidence  the 
second page of a February 11, 1977 letter from his CO regarding the applicant's request 
for a hardship discharge.  Paragraph 6 on this page stated as follows: 
 

[The applicant] has had one (1) CO's NJP, 29 November 1974 - Violation of 
Article  86,  UCMJ:  AWOL  from  1600,  2  November  1974,  to  1400,  21 
November 1974; Sentence Awarded:  30 days restriction and reduction to 
pay  Grade  E-3  (Sentence  mitigated  and  punishment  reduced  to  10  days 
restriction and reduction to E-3 suspended for 6 months). 
 
On March 1, 2004, the Chair sent the applicant a letter requesting that he provide 

On  March  5,  2004,  the  applicant  forwarded  the  entire  February  11,  1977  letter 

 
the first page of the CO's February 11, 1977 letter. 
 
 
from his CO to the Board. 
 
 
On  April  2,  2004,  the  Board  advised  the  applicant  that  his  case  would  be 
reconsidered because the letter dated February 11, 1977, constituted new evidence that 
"no captain's masts occurred in 1975 or 1976 that could have resulted in your demotion 
to pay grade E-3 and a new date of rank on April 19, 1976."  The letter to the applicant 
further stated that the February 11, 1977 letter was not in his military record.   
                                                                                                                                                             
 

(1) 
An  applicant  presents  evidence  or  information  that  was  not  previously 
considered  by  the  Board  that  could  result  in  a  determination  other  than  that  originally 
made.    Evidence  or  information  may  only  be  considered  if  it  could  not  have  been 
presented to the Board prior to its original determination if the applicant had exercised 
reasonable diligence; or 
 
An applicant presents evidence or information that the Board, or the Secretary as 
(2) 
the case may be, committed legal or factual error in the original determination that could 
have resulted in a determination other than that originally made. 

 

On  April  15,  2004,  the  application  for  reconsideration  was  given  Docket  No. 

 
 
2004-094 and placed on the Board's docket. 
 

VIEWS OF THE COAST GUARD  

 

 
On  August  23,  2004,  the  Judge  Advocate  General  (TJAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  objecting  to  the  Chair's  determination  that  the  case 
should be reconsidered and recommending that the Board deny relief.  He stated that 
even  if  the  documents  submitted  by  the  applicant  in  support  of  his  request  for 
reconsideration were able to meet the first prong of 33 CFR 52.67(a)(1), they could not 
meet  the  second.    He  argued  that the  applicant  should  have  known  these  documents 
were relevant to his case and he should have produced them in the original proceeding.  
The TJAG also stated the following: 
 

Applicant's  request  for  reconsideration    .  .  .  failed  to  meet  the  criteria 
established by 33 CFR 52.67(a)(2).  Applicant submitted no evidence that 
the  Board  committed  legal  or  factual  error.    The  Board  properly 
considered Applicant's package, the Coast Guard's advisory opinion, and 
Applicant's  response  before  rendering  its  decision.    The  Board  decided 
that although it would excuse Applicant's untimely filing and consider the 
merits  of  the  case,  the  Coast  Guard  was  entitled  to  raise  the  equitable 
doctrine of laches.  The Board appropriately ruled that Applicant's claim 
was  barred  by  laches.    BCMR  Final  Decision  Docket  No.  2003-058.    In 
deciding  that  Applicant's  claim  was  barred  by  laches,  the  Board 
committed  no  legal  or  factual  error.    In  fact,  the  additional  documents 
submitted by Applicant that resulted in the Chair docketing this case for 
reconsideration highlight the selective nature of the documents submitted 
by Applicant, the prejudice to the Coast Guard resulting from Applicant's 
delay in filing his application, and the validity of the Board's decision that 
Applicant's claim should be denied under the doctrine of laches.  Because 
the  Board  committed  no  legal  or  factual  error  in  BCMR  Final  Decision 
Docket No. 2003-058, Applicant's request for reconsideration fails to meet 
the criteria established by 33 CFR 52.67(a)(2). 
 
 
TJAG  stated  that  even  if  the  applicant's  request  for  reconsideration  were 
properly docketed, Applicant's request should be denied for the same reasons his initial 
application was denied in BCMR No. 2003-058.   
 

Applicant's  request  for  reconsideration  underscores  the  importance  of 
laches  as  an  affirmative  defense  in  cases  such  as  this.    Applicant  waited 
more than a quarter of a century to bring his claim before the Board.  Even 
when he did so, Applicant chose to submit the support for his position in 

dribs  and  drabs  -  concealing  what  he  refers  to  as  "conclusive  evidence" 
until after the Board already decided his case.  Laches is designed to deal 
with such behavior.  In seeking an equitable remedy - Applicant should 
have  clean  hands.    Applicant  should  not  be  allowed  to  benefit  from 
having  hidden  from  the  Coast  Guard  and  the  Board  the  "conclusive 
evidence"  he  now  attempts  to  offer  as  ground  for  "reconsideration."  
Applicant  has  demonstrated  through  his  conduct  in  this  matter  that  he 
cannot be trusted to freely disclose the information required to properly 
adjudicate  this  case.    Laches  was  a  valid  ground  for  denying  his  initial 
claim and laches remains a valid ground for denying applicant's request 
for reconsideration.   

 

APPLICANT'S REPLY TO THE VIEWS OF THE COAST GUARD 

 

On September 9, 2004, the Board received the applicant's reply to the views of the 
 
Coast Guard in Docket No. 2004-094.  He strongly objected to the recommendation that 
his case should be denied.  He stated that he did not discover the alleged error until a 
few  years  ago  when  he  signed  up  for  Reserve  duty  in  the  Army.    He  stated  that  the 
recruiter told him that the date of rank on his DD Form 214 was incorrect if had been 
advanced  to  RM3  in  the  Navy  as  he  claimed.    The  applicant  stated  that  after  being 
advised by the Army recruiter, he wrote to the Board for a correction to his record.  The 
applicant further stated as follows: 
 

Time  passes  by  for  people  getting  medals  and  other  mistakes  they  find.  
As  mentioned  before,  World  War  II  people  get  medals  after  a  lot  more 
time has passed.  So, it is "favoritism" how you run your cases?  However, 
because  one  day  or  twenty-five  years  has  passed,  should  make  no 
difference  whatsoever.    A  mistake  was  made  and  I  showed  you  factual 
letters  from  my  Coast  Guard  material,  and  still  you  folks  have  your 
blinders on. 

The  applicant  denied  that  he  sent  in  information  in  dribs  and  drabs.    In 

 
 
this regard he commented as follows: 
 

Unlike the Military Records Center, I tried to keep all my records, but as 
mentioned over time some records were out in my garage and filed away 
due  to  moving  and  not  unpacking  everything.    No,  Sir,  I  did  not 
intentionally  send  in  my  supporting  information  "in  dribs  and  drabs 
concealing" evidence.  I just did not find them until after I did a complete 
search of my files.   

 

 

THE APPLICANT'S MILITARY RECORD 

 
On October 7, 1974, the applicant enlisted in the regular Coast Guard with the 

 
In BCMR No 2003-058, the Coast Guard and the Board indicated that many of the 
documents  from  the  applicant's  time  on  active  duty  in  the  Coast  Guard  were  not 
included in the military record they received.  The indication was that the applicant's 
military  record  provided  by  the  National  Personnel  Records  Center  (NPRC)  only 
covered his time in the Coast Guard Reserve from1983 to 1985, plus his DD Form 214.  
 
 
After the Board decided the applicant's original application, the military record 
was returned to NPRC.  Upon accepting the applicant's request for reconsideration, a 
new  order  for  the  applicant's  military  record  was  placed  with  NPRC.    In  response  to 
this request, the Board received the applicant's complete military record, including the 
portion  of  his  record  covering  his  active  duty  Coast  Guard  service.    The  applicant's 
military record shows the following pertinent information. 
 
 
rank of RM3. 
 
 
On  November  29,  1974,  the  applicant  was  taken  to  NJP  for  an  unauthorized 
absence of approximately 19 days.  His punishment included restriction to the limits of 
the Marine Safety Office, Portland, and reduction to pay grade E-3 (SNRM).  
 
 
On  December  3,  1974,  a  Personnel  Action  Form  (Coast  Guard  document  CG-
3312A),  known  as  a  page  12,  was  prepared  and  placed  in  the  applicant's  record, 
showing that he had been reduced in rate to pay grade E-3 as a result of the captain's 
mast.  (This page also contained a hand written note, which stated:  "This form deleted 
Sentence of NJP was changed to a suspended reduction for 6 [months]  . . .). 
 
 
On  December  18,  1974,  a  court  memorandum  was  placed  in  the  applicant's 
record documenting that the CO mitigated and amended the punishment given to the 
applicant  on  November  29,  1974,  as  follows:    "Reduction  in  rate  from  RM3  [E-4]  to 
SNRM  [E-3]  suspended  for  a  period  of  six  months,  and  ten  [10]  of  thirty  [30]  days 
restriction to limits of U.S. Coast Guard Marine Safety Office, Portland [are] suspended 
for a period of six [6] months." 
 
On December 26, 1974, another page 12 was prepared and place in the record.  It 
 
stated  that  "[p]age  12  of  Transmittal  031  deleted  [completely  wiped  out  submission] 
because reduction in rate was incorrect, with an effective date of November 29, 1974. 
 
 
On April 19, 1976, a page 12 was placed in the applicant's record documenting a 
change  in  the  applicant's  qualification  codes.    The  effective  date  for  this  change  in 
qualification  codes  was  April  19,  1976.    This  document  lists  the  applicant's  rate  as  an 
RM3.  This information from this personnel action document was also recorded on the 
CG 3303,  as required by COMDINST M1080.9 (PMSI/JUMPS Manual). 
 

Also  included  in  the  military  record  was  the  CO's  original  February  11,  1977 

 
letter.    
 

FINDINGS AND CONCLUSIONS 

 

The  Board,  upon  reconsideration,  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.  The Board has jurisdiction concerning this matter pursuant to section 1552 of 

title 10 of the United States Code.  The request for reconsideration was timely.  
 
 
2.  For the reasons discussed below, the Board finds that the applicant has met 
the  requirements  for  reconsideration  of  Docket  No.  2003-058,  in  accordance  with  the 
Board's  rules  at  33  CFR  52.67(a)(1).6    The  CO's  letter  addressed  to  the  Commandant 
dated  February  11,  1977,  was  new  evidence  that  could  result  in  a  different 
determination than in the earlier case. The CO's letter supported the applicant's request 
for a hardship discharge.  The CO clearly stated in the letter that the applicant was an 
RM3 and that he had had only one NJP, which included punishment of a reduction in 
rate  to  SNRM  [E-3]  that  was  suspended  for  six  months.  There  is  no  indication  in  the 
letter  that  the  suspension  had  been  vacated  or  that  the  applicant  had  suffered  a 
subsequent reduction in rank for any reason.   The Coast Guard asserted that even if the 
letter  from  the  CO  was  relevant  new  evidence,  reconsideration  should  still  be  denied 
because the applicant could have submitted the letter in the original proceeding, if he 
had acted with reasonable due diligence.  
 

3.  However, the Board finds that the applicant made a serious effort to prove his 
case by submitting copies of eleven documents from his active duty service during the 
1970's  that  showed  his  rate  as  RM3  with  his  original  application.    In  response  to  the 
advisory opinion he submitted several other pieces of evidence showing his rate to be 
RM3.  It was only after the Board rejected what reasonably could have been interpreted 
as persuasive evidence, did the applicant seek further evidence to show his record was 
in error.  The applicant is not a lawyer and could have reasonably believed that he had 
submitted sufficient evidence to prove his case in the original application.  Therefore, 
the Board finds the applicant's actions since filing his original case with the BCMR to be 
that  of  an  individual  doing  all  he  could  to  prove  his  case  and  that  he  acted  with 
reasonable due diligence as required under 33 CFR 52.67(a)(1).   
 

4.    The  Coast  Guard  argued  that  the  applicant  did  not  act  in  good  faith  by 
intentionally submitting his evidence in "dribs and drabs."  However, the Board notes 

                                                 
6    An applicant is only required to satisfy one of the grounds for reconsideration under 33 CFR 52.67(a), 
not both as suggested by the Coast Guard.   

that  the  lack  of  all  available  evidence  during  its  deliberation  of  BCMR  No.  2003-058 
resulted,  in  part,  from  the  failure  of  NPRC  to  provide  the  Board  with  the  applicant's 
complete military record.  The  Board in BCMR No. 2003-058 had only the applicant's 
DD Form 214 and records pertaining to his Coast Guard Reserve service from 1983 to 
1985.  If the Board had received the applicant's complete military record, as requested, 
during  its  earlier  deliberation,  it  would  have  reached  a  different  outcome  in  BCMR 
2003-058 because the CO's letter, as well as other documents explaining the action taken 
by the CO with respect to the reduction in rate and explaining the April 19, 1976 entry 
on the CG-3303, would have been available to that Board.   Justice and equity require 
that the Board reconsider this case.     
 

4.    Upon  reconsideration  of  all  of  the  evidence,  including  the  applicant's 
complete military record, this Board finds that the applicant's DD Form 214 is in error 
by listing the applicant's RM3 date of rank as April 19, 1976. Therefore, the applicant is 
entitled to relief.  The Board is persuaded in this finding by the CO's February 11, 1977 
letter, in which he referred to the applicant as an RM3.  The CO told the Commandant, 
in that letter, that the applicant had had only one NJP and that the reduction in rate that 
was imposed as punishment was suspended for six months.  The CO did not indicate 
that  the  suspension  had  ever  been  vacated.    Therefore,  the  Board  concludes  that  the 
applicant successfully served his suspension and was never reduced.  

 
5. Documents in the applicant's complete military record received by the Board 
on  April  13,  2004,  corroborated  the  CO's  letter  that  although  the  applicant  had  been 
reduced in rate as a result of NJP, the reduction was suspended (held in abeyance) by 
the CO for six months on December 18, 2004, as permitted under Para. 6 of Part V of the 
Manual  for  Courts-Martial  (MCM).    According  to  Para.  6.a.  of  Part  V,  "[u]nless  the 
suspension  is  sooner  vacated,  suspended  portions  of  the  punishment  are  remitted, 
without  further  action,  upon  the  termination  of  the  period  of  suspension."    Since  the 
applicant  committed  no  violations  during  the  period  of  suspension,  the  reduction  in 
rate was canceled automatically at the end of the sixth month.  

 
6.    The  advisory  opinion  in  Docket  No.  2003-058  led  to  some  confusion  in  this 
regard  by  stating  that  the  CO  had  mitigated  the  reduction  in  rate  to  forfeitures.  
However,  the  Court  Memorandum  dated  December  18,  1974  made  it  clear  that  the 
reduction in rate was suspended for six months not mitigated to forfeitures.  (Mitigation 
is  a  reduction  in  either  the  quantity  or  quality  of  a  punishment,  its  general  nature 
remaining the same.)  In addition, the December 26, 1974 page 12 stated that November 
29, 1974  (date of the NJP) was the effective date of the suspension.  Accordingly, the 
CO's letter, the lack of evidence of other NJP's or reductions in rate in the applicant's 
record, and the fact that the applicant was always paid as an RM3 persuades the Board 
that the applicant was never reduced in rate to SNRM (E-3). 

 

7.  In denying relief in BCMR No.  2003-058, the Board expressed some concern 
about  what  was  then  an  unexplained  April  19,  1976  entry on  a  CG-3303  showing  the 
applicant as an RM3.  That Board found the evidence insufficient to establish that this 
entry did not result from some further punishment of the applicant by the CO.   The 
applicant's recently obtained complete military record contained a page 12 (Personnel 
Action  Form)  that  explained  on  April  19,  1976  there  was  a  change  in  the  applicant's 
qualification codes.  The information on the Personnel Action Sheet was repeated on the 
CG-3303  as  required  by  regulation.  Therefore,  this  Board  concludes  that  the  April  19, 
1976  entry  on  the  CG-3303  was  made  to  document  a  change  in  the  applicant's 
qualification  codes  and  not  to  document  a  subsequent  advancement  to  RM3  from  a 
reduction in rate.  Moreover, the CO's February 11, 1977 letter corroborates the fact that 
the applicant suffered no reductions in rate.   

 
8.    The  question  now  is  what  date  of  rank  should  have  been  listed  on  the 
applicant's DD Form 214.  In contrast to CGPC, the Board finds that the DD Form 214 
should have listed the applicant's date of rank as October 7, 1974, the date he entered 
the regular Coast Guard.  As discussed above, the applicant's suspended reduction in 
rate, which was effective from the date of his NJP, was never vacated, and therefore, he 
was never reduced in rate.  Moreover, there is no evidence in the record that he was 
ever reduced in rate subsequent to the 1974 punishment.  Accordingly, he maintained 
his RM3 rate uninterrupted from the point of his enlistment in the regular Coast Guard 
until his discharge from active duty.   

 
9.    The  Board  in  BMCR  No.  2003-058  relied  in  part  on  laches  to  deny  this 
application because it determined that the Coast Guard's ability to defend against the 
allegations was prejudiced because documents from the applicant's military record had 
been  destroyed  and  witnesses  were  either  deceased  or  otherwise  unavailable.  
However, we now know that the military record was at NPRC.  Had the Board been in 
possession  of  this  information  when  it  deliberated  in  BCMR  No.  2003-058,  we  are 
certain that it would have reached a different conclusion because the preponderance of 
the  evidence  would  have  shown  that  the  applicant's  DD  Form  214  was  in  error.    In 
addition, had NPRC acted to send a complete military record to the Board in BCMR No. 
2003-058,  the  Coast  Guard  would  have  had  sufficient  evidence  on  which  to  defend 
against  the  applicant's  allegation  of  error.    It  is  interesting  to  note,  that  the  Coast 
Guard's  advisory  opinion  in  the  current  case  does  not  address  the  newly  discovered 
information contained in the applicant's complete military record.   

 
10.  The Board will not order a correction to the CG-3303 because it is essentially 
correct.  Entries were made and updated as circumstances required.  Nor will the Board 
order  any  back  pay  and  allowances  because  the  Coast  Guard  has  stated  that  the 
applicant was always paid as an RM3, which the applicant acknowledged in his August 
28, 2004 letter to the Board.   

 

11.  Accordingly, the applicant is entitled to partial relief.   
 

 

ORDER 

 

The application of former RM3 John P. Martinson, 529 70 4045, for correction of 
his military record upon reconsideration is granted, in part.  His DD Form 214 shall be 
corrected to show his date of rank as October 7, 1974. 

 
All other requests for relief are denied. 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 

 

 

 

 

 

 

 

 

 

 

 
 
 Donald A. Pedersen 

 

 

 
 J. Carter Robertson 

 

 

 
 Darren S. Wall