DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                        BCMR Docket No. 2011-152 
 
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 upon receipt of the applicant’s 
completed  application  on  April  15,  2011,  and  subsequently  prepared the  final  decision  as 
required by 33 C.F.R. § 52.61(c), with assistance from D. Hale. 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  January  26,  2012,  is  approved  and  signed  by  the  three  duly 

 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant,  a  chief  marine  science  technician  (MSTC),  in  the  Coast  Guard  Selected 
Reserve  asked  the  Board  to  correct  his  record  so  that  the  “[b]ad  year  [2007]  for  retirement  be 
removed.”   A reservist is required to earn 50 points per anniversary  year for that year to count 
toward  the  20  years  of  satisfactory  service  necessary  for  retired  pay  at  age  60.    The  applicant 
earned  only  49  points  for  his  anniversary  year  ending  in  April  13,  2007.    He  currently  has  19 
years of satisfactory service. 
 

The applicant stated that he was injured in an automobile accident on December 26, 2006 
and was unable to resume his reserve drills until March 12, 2007.  The applicant argued that he 
tried to complete a good year after his doctor cleared him to return to work by drilling on March 
17, 18, 25, and again on April 7 and 14, and by performing annual duty for training (ADT) from 
April 16, 2007, to April 27, 2007.   

 
The applicant stated that he did not discover the alleged error until September 2010 when 
he received a  statement of creditable service.1  He stated that  the September 2010 statement of 
creditable service was the first he had received in three years.   

 

 

                                                 
1    What  the  applicant  received  was  probably  a  Retirement  Points  Statement  because  a  Statement  of  Creditable 
Service does not normally record drill points.   

 

 

 

SUMMARY OF THE RECORD 

In support of his application, the applicant submitted the police report and records of his 
medical treatment.  The police report shows that the applicant was struck from behind as he was 
turning into a residential driveway. The police report stated that no injuries were reported at that 
time.    On  the  same  day,  the  applicant  underwent  x-rays  of  his  head  and  cervical  spine  but  no 
significant problems were noted.    

 
On January 3, 2007, an internist gave the applicant a disability certificate stating that he 
was  under  the  doctor’s  care  and  that  he  was  totally  incapacitated  beginning  on  December  26, 
2006.  The doctor did not give a date on which the applicant could return to work.    

 
On  January  8,  2007,  an  orthopedist  diagnosed  the  applicant  with  cervical  and  lumbar 
strains and spasms and prescribed treatment with therapy.  The physician wrote on the attending 
physician’s report that the applicant was disabled “from December 26, 2006, through indefinite.” 
However on a note for the applicant’s employer, the physician stated that the applicant was not 
to return to work until he was evaluated again on January 29, 2007.   
 

On February 21, 2007, the orthopedist saw the applicant for follow-up.  The orthopedist 
diagnosed  the  applicant  with  a  cervical,  lumbar,  and  left  shoulder  strain.    The  medical  note 
indicated  that  the  applicant  was  still  receiving  treatment  and  did  not  state  a  date  on  which  he 
could return to work.    

 
On March 7, 2007, the applicant was seen by the orthopedist for a follow-up evaluation.  
The diagnosis was cervical strain, lumbar strain, and left shoulder strain.   The orthopedist stated 
that the applicant could return to work in a full capacity on March 12, 2007.  

 

 
A Retirement Points Statement printed from  the Coast  Guard’s database  on January 13, 
2012, shows that the applicant  began serving in  the Army Reserve in  1975, and enlisted in  the 
Coast Guard Reserve in 2000.  With the exception of his anniversary years ending on April 13, 
2001, and April 13, 2007, he has earned satisfactory years of service toward retirement in each 
anniversary  year  since  his  enlistment  in  the  Coast  Guard  Reserve.    The  Retirement  Points 
Statement shows that of the 49 points the applicant earned for the anniversary year ending April 
13,  2007,  34  were  from  drills  and  15  were  gratuitous  membership  points.    (A  reserve  unit 
normally  schedules  48  drills  each  year.    The  Retirement  Points  Statement  also  shows  that  the 
applicant  has  also  earned  approximately  10  years  of  satisfactory  service  in  Army  Reserve  and 
National Guard.   
 

 

VIEWS OF THE COAST GUARD 

 

On August 19, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion in which he recommended that the Board deny the applicant’s request based on 
the  analysis  of  the  case  provided  in  a  memorandum  from  the  Commander,  Coast  Guard  Per-
sonnel Service Center (PSC). 

 
 
PSC  argued  that  the  application  should  be  denied  because  the  applicant’s  Coast  Guard 
record is presumptively correct and he failed to substantiate any error or injustice with regards to 
his  record.    PSC  stated  that  the  applicant  earned  only  49  points  for  his  anniversary  year  from 

 

 

April  14,  2006  to April  13,  2007.    PSC  stated  that  the  record  could  not  be  changed  or  altered 
without  documentation  that  proves  the  applicant  received  more  than  49  points  for  that 
anniversary year.  
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On August 26, 2011, the BCMR sent the applicant a copy of the Coast Guard’s views and 
invited  him  to  respond  within  30  days.    The  applicant  responded  on  August  31,  2011,  and 
disagreed with the Coast Guard’s advisory opinion.  He stated: 
 
  

I completely disagree with  the Coast  Guard’s advisory opinion in  my  case.  The 
CG advisory opinion states that I want a bad year removed; that is not the case.  I 
am  requesting  a  (1)  day  waiver  of  my  anniversary  year  which  would  give  me  a 
good year for the year ending 13 April 2007.  In the CG exhibits it shows (from 
Direct Access)  that  I  served  in  the  US Army  Reserve  14 April  2007  to  13 April 
2008.  This is incorrect.  I served in the CG Reserve that year, receiving 94 points 
for  that  year.    Many  times  in  my  25  years  of  service  I  have  been  required  to 
perform  “for  the  benefit  of  the  service.”    The  motor  vehicle  accident  was  not 
“intentional  misconduct,  willful neglect,  or failure to  comply with standards and 
qualifications for retention established by the Secretary: or the disability was not 
incurred during a period of unauthorized absence.”  10 U.S.C. § 12731b. [2] 

 
 

 
 

 

 

I made every effort possible to meet my requirements for a good year, the record 
reflects my efforts.  I am not looking for a gift. I feel I have earned the year.  In 
order for me to meet the ADT requirements for a good year I must perform ADT 
between  the  beginning  of  the  Fiscal  year  (1Oct)  and  13  April  of  the  following 
year.  On 17 April 2007 I performed 12 days of annual ADT.  From 26 December 
2006 until the middle of March 2007 I was on doctor’s orders not to work either 
my civilian job as a Federal Court Security Officer or as a Petty Officer in the CG.  
When  I  was  released  from  these  orders  I  went  back  to  work  at  both  positions.  
Short of working continuously for almost 6 weeks I could not possibly make up 
the drills I missed. 

I  am  not  looking  for  a  magical  point.  I  am  requesting  a  24-hour  waiver  of  my 
anniversary  year  in  order  to  give  me  a  good  year.    The  CG  routinely  waives 
requirements when it’s a benefit to the service. 

  # 

 

 # 

 

# 

                                                 
2  10  U.S.C.  §  12731b.  provides  that  the  Secretary  may  treat  a  member  with  a  physical  disability  that  was  not 
incurred in the line of duty as having met the 20-year service requirements if the member has completed at least 15 
and  less  than  20  years  of  service.    It  does  not  apply  if  the  disability  was  the  result  of  the  member’s  intentional 
misconduct, willful neglect, or willful failure to comply with standard and qualifications for retention established by 
the Secretary; or if the disability was incurred during a period of unauthorized absence. 
 

 

 

 

 

 

Thank  you  for  your  attention  regarding  this  matter  and  although  I  have  no 
intention of retiring until I am forced to leave kicking and screaming, I would like 
the record straight.   

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 submission and applicable law: 
 
 
1. The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 
of the United States Code.  The application was timely because the applicant stated that he did 
not discover the alleged error until September 2010 when he received a Coast Guard statement of 
creditable service.  He stated that he had not received a statement of creditable service for three 
years until he received the one in September 2010.   The Board has no evidence to the contrary 
and  no  basis  not  to  believe  the  applicant  in  this  regard.    Therefore,  his  BCMR  application 
received on April 13, 2011 is timely.   
 

2.  The applicant requested an oral hearing before the Board.  The Chair, acting pursuant 
to  33  C.F.R.  § 52.51,  denied  the  request  and  recommended  disposition  of  the  case  without  a 
hearing.  The Board concurs in that recommendation.  
 

3.  The  applicant  requested  that  the  Board  correct  his  record  to  grant  him  a  one-day 
waiver of his anniversary year that ended on April 13, 2007, so that that year is satisfactory for 
retirement purposes.  The Board interprets this request as one for the correction of his record to 
show that he earned one additional point for the anniversary year ending April 13, 2007, which 
would  give  him  a  total  of  50  points  for  that  year.    A  Retirement  Points  Statement  from  Direct 
Access shows that of the 49 points the applicant earned for the anniversary year ending April 13, 
2007, 34 were from drills and 15 were gratuitous membership points.   
 

4.   The Coast  Guard correctly noted that the regulation  requires that  a reservist  earn 50 
points  per  anniversary  year  for  that  year  to  be  creditable  toward  a  20-year  retirement.    The 
applicant does not allege that the Coast Guard committed an error.  Therefore, the basis for his 
request  is  injustice  because  he  was  unable  to  participate  in  drills  from  December  26,  2006 
through  March  12,  2007  due  to  injuries  sustained  in  an  automobile  accident.    The  applicant 
stated that after his medical release to return to work, he completed drills on  March 17, 18, and 
25, and on April 7 and 14, but he presented no corroborating evidence that he actually drilled on 
these  specific dates’ nor does the military record before the Board contain such corroboration.  
The applicant also stated that he performed annual active duty for training (ADT) from April 16, 
2007, to April 27, 2007.   There is no evidence in the record corroborating these specific dates.  
However,  even  if  there  was  corroboration  for  the  ADT,  it  would  not  count  toward  the 
anniversary  year  ending  April  13,  2007  because  it  was  not  completed  by  April  13,  2007.    As 
stated above, as of April 13, 2007, the applicant had accumulated only 49 points.   
 
5.  Despite the unfortunate circumstances mentioned above, the Board is not persuaded 
 
by the current evidence of record that the applicant has suffered an injustice. For the purposes of 
the  BCMRs,  “‘[i]njustice’,  when  not  also  ‘error’,  is  treatment  by  the  military  authorities,  that 
shocks  the  sense  of  justice,  but  is  not  technically  illegal.”  Reale  v.  United  States,  208  Ct.  Cl. 

 

 

1010, 1011 (1976).  Absences from scheduled drills are either excused or unexcused. If absences 
are excused they are rescheduled.   In this regard, the applicant has offered no evidence that he 
informed  his  command  about  his  motor  vehicle  accident  or  that  he  provided  his  unit  with  his 
doctor’s  statements  that  he  was  not  able  to  work  during  a  specific  period.    Nor  does  he  state 
whether the command excused his absences from scheduled drills in January and February 2007.  
The Board has no evidence that the command agreed that the applicant could not drill, even in a 
limited  duty  status.    In  this  regard,  Article  5.B.5.  of  the  Reserve  Policy  Manual  states  that  if  a 
disability is expected to last less than 4 months, the reservist shall be retained in the SELRES and 
the command shall either schedule the reservist for IDT training in a limited duty status or shall 
reschedule drills for when the member is fit for full duty.   

 
6.  It would be inappropriate for the Board to correct the applicant’s record based upon 
injustice without knowing whether he fulfilled his responsibilities to his command.  There is no 
evidence before the Board whether the command was aware of his temporary injury and inability 
to  drill,  whether  the  command  excused  his  January  and  February  absences,  or  whether  the 
command offered any other options for earning points during his temporary injury.  The military 
record provided to the Board from Coast Guard Headquarters is incomplete and therefore not of 
any assistance to the Board in determining the  applicant’s or command’s actions with regard to 
processing the applicant’s temporary injury.  The Board presumes that the information relating to 
the applicant’s interaction with his unit about his injury is in his local unit record.  Therefore, the 
Board will grant further consideration on this application if the applicant submits a true copy of 
his unit PDR to the Board (including any administrative remarks page (page 7) entries about the 
injury,  what,  if  any,  options  were  offered  to  the  applicant  to  earn  points,  and  what  drills  were 
excused and rescheduled) within 180 days from the date of the final decision in this case.   

 
7.  The applicant cited 10 U.S.C.A § 12731b. in support of his application.  However, this 
law does not apply to the applicant’s situation because he is not permanently disabled and he is 
not seeking retirement.   

 
8.    Accordingly,  the  applicant’s  request  should  be  denied,  with  further  consideration 

granted in accordance with Finding 6.   
  

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

 

 

ORDER 

 
 

 
 

  

 
 
 Katia Cervoni 

 
 
The  application  of  XXXXXXXXXXXXXXXXXXXX,  for  correction  of  his  military 
record is denied.  However, the Board shall grant further consideration of this application if the 
applicant  submits  a  true  copy  of  his  unit  military  record  to  the  Board  (including  any  page  7s 
about the injury, what drills were excused and rescheduled, and what other options, if any, were 
offered for earning points) within 180 days from the date of this final decision.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 Ashley A. Darbo 

 
 
 Lillian Cheng