DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-238 
 
Xxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxx 

FINAL DECISION 

 

 
 

 

This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.  The Chair docketed the case after receiving the applicant’s 
completed application on August 22, 2010, and assigned it to staff member J. Andrews to pre-
pare the decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
ed members who were designated to serve as the Board in this case. 
 

This final decision, dated June 3, 2011, is approved and signed by the three duly appoint-

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, who was medically retired from the Reserve on November 24, 2004, asked 
the Board to re-advance his rate and pay grade from SK3/E-4 to SK2/E-5.  In support of this 
request, he submitted a copy of a chit, dated January 12, 2002, in which he asked for his rate to 
be reinstated, and a copy of an email he sent to a lieutenant on February 4, 2003.  The chit bears 
no  signature  other  than  the  applicant’s.    In  the  email,  the  applicant  stated  that  when  he  was 
punished at mast in September 2000, he was told that his reduction in rate from SK2 to SK3 
would be temporary but, despite numerous requests and inquiries through his chain of command, 
his rate had never been restored.  The applicant also stated that although he had previously been 
told that he could simply request reinstatement, he had recently been told by a master chief petty 
officer that he had to re-compete for advancement.  He also complained that a determination as 
to whether he was fit for duty had been greatly delayed. 
 

The applicant stated that he discovered the alleged error on January 12, 2002, but that it is 
in the interest of justice for the Board to excuse the untimeliness of his application because he 
has  previously  taken  all  steps  to  get  this  matter  corrected  but  only  recently  learned  about  the 
Board.  
 
 

 

 
 
On July 27, 1987, after having served in the National Guard since July 1984, the appli-
cant enlisted in the regular Coast Guard as a seaman/E-3.  He advanced from SN/E-3 to SK3/E-4 
in 1990 and to SK2/E-5 in 1992.  He was honorably discharged January 23, 1996.   
 

On April 16, 1996, the applicant enlisted in the Coast Guard Reserve.  As a reservist, he 
drilled regularly and completed satisfactory  years of service for retirement purposes for a few 
years.  However, on October 27, 2000, the applicant received non-judicial punishment (NJP) at a 
mast conducted pursuant to Article 15 of the Uniform Code of Military Justice (UCMJ).  Docu-
mentation of the applicant’s misconduct states that after reporting for a drill and being ordered to 
participate in an unscheduled urinalysis, the applicant instead left the unit without authorization 
or justification.  His punishment for this misconduct apparently included reduction in rate from 
SK2/E-5 to SK3/E-4 although his record contains no Court Memorandum documenting his sen-
tence.  All of the military and medical documents in the applicant’s record dated after the mast 
refer to him as an SK3.   
 
 
On September 14, 2004, the Central Physical Evaluation Board  (CPEB)  recommended 
that the applicant be permanently retired from the Reserve with a 40% disability rating due to 
back pain resulting from intervertebral disc syndrome.  The applicant accepted the findings and 
recommendation of the CPEB and did not demand a hearing.  The CPEB’s recommendation was 
approved on October 25, 2004. 
 
 
On October 27, 2004, the Personnel Command issued orders placing the applicant on the 
permanent disability retired list as of November 24, 2004, with a 40% disability rating.  Upon his 
separation from the Reserve on November 23, 2004, the applicant had 15 years, 5 months, and 
27 days of satisfactory service for retirement purposes. 
 

VIEWS OF THE COAST GUARD 

SUMMARY OF THE RECORD 

 
 
On December 17, 2010, the Judge Advocate General of the Coast Guard recommended 
that the Board deny relief in this case.  In so doing, he adopted the findings and analysis provided 
in a memorandum prepared by the Personnel Service Center (PSC).   
 
 
because the applicant did not justify his delay.   
 

The  PSC  stated  that  the  application  is  untimely  and  should  be  denied  on  that  basis 

Regarding the merits of the application, the PSC stated that under Article 5.C.33.b. of the 
Personnel Manual, after a member’s rate has been reduced at mast, the member is “subject to the 
normal  advancement  system,  unless  they  are  considered  by  their  commanding  officers  to  be 
deserving of special advancement.”  The PSC stated that there is no evidence in the record that 
the applicant successfully competed for advancement after his reduction in rate; that his com-
manding officer considered him deserving of special advancement; that his reduction in rate was 
intended to be temporary; or that his punishment was vacated.  Given this lack of evidence, the 
PSC concluded that the applicant has failed to rebut the presumption of regularity or to prove 
that his SK3 rate upon retirement is erroneous or unjust. 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On January 4, 2011, the Chair sent the applicant a copy of the views of the Coast Guard 

 
 
and invited him to respond within 30 days.  No response was received. 
 

APPLICABLE LAW 

stated the following: 

Chapter 7.C.18. of the Reserve Policy Manual, entitled “Advancement After Reduction,” 

 
The  policy  contained  in  the  Personnel  Manual  COMDTINST  M1000.6  (series)  shall  apply  to 
Reserve enlisted members with the following modifications: 
 
a. When the reduction was made for sub-standard performance as distinguished from reduction as 
punishment,  the  individual  may  be  recommended  to  compete  in  a  Service  Wide  Examination,  if 
required,  after  serving  one-half  the  normal  number  of  required  months  in  pay  grade  and  in  the 
SELRES.  
 
b. Members who voluntarily request a reduction in rate for the purpose of going on EAD will have 
their rate restored on the day following termination of active duty. 
 
Article 5.C.33.b. of the Personnel Manual provides the rules for advancing members after 

they have been reduced in rate as punishment and states the following: 
 

1. Members who have been reduced in rate, except those who fall within the provisions of Articles 
15(d) and 15(e) of the Uniform Code of Military Justice, are subject to the normal advancement 
system,  unless  they  are  considered  by  their  commanding  officers  to  be  deserving  of  special 
advancement. 
 
2. Commanding officers who consider enlisted members to be deserving of restoration to a for-
merly held rate, or deserving of advancement, but to a rate lower than formerly held, may recom-
mend such restoration or advancement by letter to Commander, (CGPC-epm). In making such a 
recommendation, the present commanding officer shall set forth in detail a full justification of the 
action recommended based on at least five, but not more than 36 months observation of perfor-
mance of duty by the member concerned since reduction in rate. … 

 

 

 

Article 15 of the UCMJ (10 U.S.C. § 815) states the following regarding punishments 

awarded at mast: 
 

 
(d)  The  officer  who  imposes  the  punishment  authorized  in  subsection  (b),  or  his  successor  in 
command, may, at any time, suspend probationally any part or amount of the unexecuted punish-
ment imposed and may suspend probationally a reduction in grade or a forfeiture imposed under 
subsection (b), whether or not executed.  In addition, he may, at any time, remit or mitigate any 
part or amount of the unexecuted punishment imposed and may set aside in whole or in part the 
punishment,  whether  executed  or  unexecuted,  and  restore  all  rights,  privileges,  and  property 
affected. He may also mitigate reduction in grade to forfeiture or detention of pay. … When miti-
gating reduction in grade to forfeiture or detention of pay, the amount of the forfeiture or detention 
shall not be greater than the amount that could have been imposed initially under this article by the 
officer who imposed the punishment mitigated. 
 

(e) A person punished under this article who considers his punishment unjust or disproportionate 
to the offense may, through the proper channel, appeal to the next superior authority. The appeal 
shall  be  promptly  forwarded  and  decided,  but  the  person  punished  may  in  the  meantime  be 
required to undergo the punishment adjudged. The superior authority may exercise the same pow-
ers  with  respect  to  the  punishment  imposed  as  may  be  exercised  under  subsection  (d)  by  the 
officer who imposed the punishment. … 
 
Title 10 U.S.C. § 1372, entitled “Grade on retirement for physical disability: members of 

armed forces,” states the following: 

 
Unless entitled to a  higher retired grade under some other provision of  law, any  member of an 
armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose 
name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is 
entitled to the grade equivalent to the highest of the following: 
 
(1) The grade or rank in which he is serving on the date when his name is placed on the temporary 
disability retired list or, if his name was not carried on that list, on the date when he is retired.  
 
(2) The highest temporary grade or rank in which he served satisfactorily, as determined by the 
Secretary of the armed force from which he is retired.  
 
(3) The permanent regular or reserve grade to which he would have been promoted had it not been 
for the physical disability for  which  he is retired and  which  was found to exist as a result of a 
physical examination.  
 
(4) The temporary grade to which he would have been promoted had it not been for the physical 
disability  for  which  he  is  retired,  if  eligibility  for  that  promotion  was  required  to  be  based  on 
cumulative  years  of  service  or  years  of  service  in  grade  and  the  disability  was  discovered  as  a 
result of a physical examination.  

FINDINGS AND CONCLUSIONS 

 
 
military record and submissions, the Coast Guard’s submissions, and applicable law: 

The Board makes the following findings and conclusions on the basis of the applicant’s 

Chapter 8.D.5. of the Reserve Policy Manual, entitled “Grade on Retirement for Disabil-

ity,” states the following: 
 

Unless entitled to a higher grade under some other provision of law, a member retired for physical 
disability is entitled to the highest of the following: 
 
a. The grade or rank in which the member was serving when placed on the TDRL, or retired  
 
b. The highest temporary grade or rank in which the member served satisfactorily  
 
c. The permanent regular or Reserve grade to which the member would have been promoted had it 
not been for the physical disability which was found to exist as a result of a physical examination 
for promotion 
 
d. The temporary grade to which the member would have been promoted had it not been for the 
physical disability, if eligibility for that promotion was required to be based on cumulative years 
of service in grade and disability was discovered as a result of that member's physical examination 
for promotion 

 

 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  

An application to the Board must be filed within three  years after the applicant 
discovers, or reasonably should have discovered, the alleged error in his record.1  The applicant 
knew he had not been re-advanced to SK2/E-5 when he was retired from the Reserve in 2004.  
Therefore, his application is untimely. 

1. 
 
2. 

 
3. 

 
4. 

 
5. 

 
6. 

 

Under 10 U.S.C. § 1552(b), the Board may excuse the untimeliness of an applica-
tion if it is in the interest of justice to do so.  In Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 
1992), the court stated that to determine whether the interest of justice supports a waiver of the 
statute of limitations, the Board “should analyze both the reasons for the delay and the potential 
merits of the claim based on a cursory review.”  The court further instructed that “the longer the 
delay  has  been  and  the  weaker  the  reasons  are  for  the  delay,  the  more  compelling  the  merits 
would need to be to justify a full review.”2   

The applicant stated that he did not previously apply to the Board because he was 
unaware of its existence.  This explanation is not compelling as nothing prevented the applicant 
from complaining about his pay grade and discovering the existence of the Board sooner.     

A cursory review of the merits of this case shows that it lacks potential merit.  The 
record shows that the applicant was reduced in rate from SK2 to SK3 at mast as punishment for 
evading a urinalysis.3  Nothing in the record suggests that the applicant was advanced to SK2, 
authorized advancement, or entitled to advancement under applicable regulations4 at any point 
between the date of his mast and the date of his retirement.  Nor was he entitled to advancement 
upon his disability retirement under applicable laws.5  The applicant’s retirement as an SK3/E-4 
is  presumptively  correct,6  and  he  has  not  submitted  sufficient  evidence  to  overcome  the 
presumption.  Therefore, the Board finds that his claim cannot prevail on the merits. 

Accordingly, the Board will not excuse the application’s untimeliness or waive the 

statute of limitations.  The applicant’s request should be denied.  
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
 
 
                                                 
1 10 U.S.C. § 1552(b); 33 C.F.R. § 52.22. 
2 Allen v. Card, 799 F. Supp. 158, 164-65 (D.D.C. 1992); see also Dickson v. Secretary of Defense, 68 F.3d 1396 
(D.C. Cir. 1995). 
3 A positive urinalysis result would most likely have resulted in the applicant receiving a swift general discharge for 
misconduct, rather than retention and a disability retirement.  Personnel Manual, Article 12.B.18.b.4. (stating that 
“[a]ny member involved in a drug incident … will be processed for separation from the Coast Guard with no higher 
than a general discharge”).   
4 Reserve Policy Manual, Chapter 7.C.18; Personnel Manual, Article 5.C.33.b.  
5 10 U.S.C. § 1372; Reserve Policy Manual, Chapter 8.D.5.  The Personnel Manual authorizes temporary appoint-
ments as commissioned and warrant officers, but not petty officers.  See Personnel Manual, Articles 5.A. and 5.B. 
6 33 C.F.R. § 52.24(b); see Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992) (citing Sanders v. United 
States, 594 F.2d 804, 813 (Ct. Cl. 1979), for the required presumption, absent evidence to the contrary, that Gov-
ernment officials have carried out their duties “correctly, lawfully, and in good faith.”).   

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCGR,  for  correction  of  his 

ORDER 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Andrew D. Cannady 

 

 

 
 Nancy L. Friedman 

 

 

 
 Dorothy J. Ulmer 

 

 

 

 

 

 

 

 

 

 

 

 

 

military record is denied.