DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

                                         BCMR Docket    
                                                                                No. 2001-006   

 
 
 

 

 

___________________________ 
                                                                           
Application for Correction     
the Coast Guard Record  of: 
                                                               

 

  
 ___________________________ 
 

FINAL DECISION 

JOOST, Chairman: 
 
 
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 proceeding was docketed 
on October 31, 2000, upon the BCMR's receipt of the applicant's complete request 
for correction of his military record. 
 
 
appointed members who were designated to serve as the Board in this case.   
 

The  final  decision,  dated  October    11,  2001,  is  signed  by  the  three  duly 

REQUESTED RELIEF 

The applicant, a lieutenant (junior grade) (LTJG), applied for a retroactive 
 
promotion to LTJG.  He asked that the effective date of his promotion to LTJG 
should be                          , the  date of applicant’s graduation from the Physician 
Assistant (PA) school.    
 
  
In                          , while  the applicant was attending PA school, he was 
found qualified for advancement to either Master Chief Petty Officer (E-9) or to 
Chief Warrant Officer-med.  He was rated                       for advancement on both 
lists.    He  asked  five  “superiors”  what,  in  their  opinion,  would  be  the  best 
promotion  for  him  in  terms  of  career  and  financial  opportunities.    He  was 
advised  that  he  should  accept  the  short-term  loss  of  pay  and  perks  of  a  Chief 
Warrant  Office  (CWO2-Med)  and  should  reject  the  goal  of  becoming  a  Master 
Chief.  If he did so, he would advance to LT (O-3) eighteen months earlier at a 
higher pay rate than that of a Master Chief. The applicant said that two CWOs 
who  graduated  from  the  PA  program  were  tendered  the  grade  of  LTJG  (O-2) 
upon graduation.   

 
 
In                          , two months prior to graduation from PA school and l8 
months after he made his decision, he was notified that his request to be a LTJG 
was denied.  Upon graduation, he was tendered the rank of ensign (O-1).  His 
request for reconsideration was denied in                          .  He wrote that had he 
been informed that he “would not be promoted to LTJG upon graduation, [he] 
would have remained             on the E-9 list for advancement.“   
 

VIEWS OF THE COAST GUARD 

 

the  Commander  of 

the  Coast  Guard                            

On  March  2,  2001, 

 
Personnel Command (CGPC) recommended that “partial relief “ be granted to 
the  applicant.    On  March  6,  2001,  the  Chief  Counsel  of  the  Coast  Guard 
recommended that alternative relief be granted to the applicant “as a matter of 
equity.”   
 
According  to  the  Chief  Counsel,  the  applicant  failed  to  prove  that  the 
 
Coast  Guard  committed  error  in  appointing  him  an  ensign  rather  than  a 
lieutenant junior grade upon graduation from PA school.  “Only those members 
who held the grade of chief warrant officer for 21  months or more prior to the 
convening  of  the  OCS  class  were  eligible  for  appointment  to  the  rank  of 
lieutenant (junior grade) upon graduation.”   
 
 
follows:  
 

Article  1.B.5.b.8.  of  the  Coast  Guard  Personnel  Manual  provides  as 

 Regular chief warrant officers with 21 or more months as a chief 
warrant officer on the published class convening date are eligible to 
apply for temporary commissions as lieutenant (junior grade).  All 
chief warrant officers with fewer than 21 months on that date will 
be commissioned as ensigns. 

 

 According  to  the  Chief  Counsel,  the  Government  is  not  estopped  from 
repudiating erroneous advice given by one of its officials.  Utah Power & Light 
Co. v. United States, 243 U.S. 389, 409 (1917).  The Chief Counsel explained that 
the  “government  could  scarcely  function  if  it  were  bound  by  its  employees 
unauthorized  representation.  .  .  .    [The]  party  must  satisfy  the  requirements 
imposed by Congress.”   Goldberg v. Califano, 546 F.2d 477 (2d Cir. 1976), denied 
sub nom. Goldberg v. Califano, 431 U.S. 937 (1977).  The applicant in this case 
appears  to  have  relied  on  the  advice  of  a  seemingly  authorized  government 
employee  to  his  detriment.    That  advice  misstated  the  requirements  of  the  
Service.    The  applicant  cannot  now  claim  an  entitlement  based  on  the  actions 
taken based on the inaccurate information he received. 

 
 
The Chief Counsel said that the Board should grant alternative relief “as a 
matter of equity.”  The applicant asserted in his application  “that had he been 
properly  counseled  as  to  the  choice  between  accepting  advancement  to  E-9  or 
appointment to Chief Warrant Officer in 1996, he “would have remained         on 
the E-9 list for advancement” and accepted advancement to E-9. 
 
 
order correcting applicant’s record to show he accepted advancement to E-9. 
 

The Chief Counsel said that the Coast Guard will not object to a BCMR 

On  March  2,  2001,  CGPC  recommended  that  the  applicant  be  granted 
“partial  relief.”  On  March  6,  2001,  the  Chief  Counsel  recommended  that 
“alternative relief” based on equity be granted to the applicant.   The outcome 
was the same.              

 
CGPC  phrased  its  recommendation  as  follows:    “Since  applicant  chose 
promotion to CWO versus the higher paying Master Chief Petty Officer based on 
incorrect counsel that he would graduate from PA school as a  LTJG verus (sic) 
an ensign, the Coast Guard is not opposed to granting Applicant partial relief.  
The Coast Guard recommends that Applicant be offered the opportunity to have 
his promotion to CWO voided and replaced with advancement to Master Chief 
Petty Officer.”  CGPC recommended paying compensation for “saved pay” but 
did not recommend back-dating his appointment as an LTJG. 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 
  
On March 6, 2001, the Chairman sent the applicant a copy of the views of 
the  Coast    Guard  and  invited  him  to  respond  within  15  days.    The  applicant 
responded with a request for a 30-day extension of the 15-day deadline (which 
was granted).   

 
On  April  18,  2001,  the  Board  received  from  the  applicant a “Rebuttal to 

 

Coast Guard’s Recommendation to BCMR Docket 2001-006.” 

 
The applicant ignored the Chief Counsel’s proposal (alternate relief) and 
disagreed  with  the    CGPC  proposal    (partial  relief).    “To  the  casual  reader  it 
would appear that the Coast Guard is making a good faith effort to correct an 
injustice,” but  he alleged that this is not so.  He alleged that the Coast Guard’s 
proposal to retroactively promote him to master chief petty officer only partially 
correct his financial losses and failure to grant full relief would negatively affect 
his family, active duty career and retirement pay. 

 

He also alleged that the 21 month service requirement, as a CWO, in order 
to advance to lieutenant (junior grade) was not consistently applied in the past.  
One of the two so advanced only had 17 months of active duty.  He quoted the 
following  sentence  from  Article  1.B.5.b.8  of  the  Personnel  Manual:    “All  chief 
warrant officers with fewer than 21 months on that date will be commissioned as 
ensigns.” 

 
On  August  10,  2001,  the  Chairman  received  copies  of  his  OERs  for  the  
period ending September 30, 2001 and the period ending January 31, 2001.  He 
received a mark of “7,” the highest possible mark, on the comparison scale for 
both OERs.   

 

 
 
 
 

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 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 application was timely. 
 

2.  Article  1.B.5.b.8.  of  the  Coast  Guard  Personnel  Manual  provides  as 
follows:  “Regular chief warrant officers with 21 or more months as a [CWO . . .] 
are  eligible  to  apply  for  temporary  commissions  as  [LTJG].    All  [CWO]s  with 
fewer than 21 months on that date will be commissioned as ensigns. 
 

3. The applicant and the officers whom he consulted for advice apparently 

were  not  aware  of  the  provisions  in  Article  1.B.5.b.8  of  the  Personnel  Manual.    
Erroneous  advice  by  a  government  official  is  not  binding  on  the  government.    
Utah Power & Light Co. v. United States, 243 U.S. 389, 409 (1917).  CGPC wrote 
that the applicant did not meet the criteria for appointment to O-2.  The Chief 
Counsel concurred with CGPC.  He said that the applicant failed to prove that 
the Coast Guard committed error in appointing the applicant an ensign, rather 
than  a  lieutenant  junior  grade,  upon  his  graduation  from  physician  assistant 
school.  
 
 
4. Although the Coast Guard did not err in commissioning the applicant 
as  an  ensign,  the  applicant  has  experienced  an  injustice.    Every  official  he 
consulted advised him that he would graduate from PA school as an LTJG if he 
accepted  appointment  as  a  CWO.    CGPC  said  that  in  view  of  the  fact  that  he 

  The  Chief  Counsel  concurred 

6. Accordingly, the alternative relief proposed by the Coast  Guard should 

chose  promotion  to  CWO  as  a  result  of  incorrect  counsel,  rather  than  to  the 
higher  paying  E-9  (master  chief)  position,  “the  Coast  Guard  is  not  opposed  to 
granting  Applicant  partial  relief.” 
in 
recommending “alternative relief based on the equities presented.” 
 
 
 
5.  The  applicant  stated  that  he  would  lose  certain  benefits  if  the  Board 
granted the alternative relief proposed by the Chief Counsel rather than the relief 
he  requested.    However,  it  is  the  Board’s  policy  to  return  an  applicant  to  the 
position he  would have been in had the injustice never  occurred.  In this case, if 
the applicant had been properly advised, he would have chosen advancement to 
E-9.  
 
 
be granted. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 

 
 

 

 
 

ORDER 

The application of                                , USCG, for correction  of his  military 

 
 
record is granted as follows: 
 
 
The applicant’s record shall be corrected to show that he remained on the 
E-9  advancement  list  and  was  advanced  to  E-9  (rather  than  to  CWO-2)  on  the 
date he would have been advanced to  E-9 had he originally chosen to stay on 
the E-9 advancement list.  His commissioning as a CWO shall be null and void.  
His commissioning as an ensign shall remain unchanged.   
 
 
which he may be due as a result of this correction. 
 
 
 
 
 

The  Coast  Guard  shall  pay  the  applicant  any  back  pay  and  allowances 

All other relief is denied. 

 

 

 

 
 

 

 

 

 
 

 

 

 

 
 

 

 

 

 
 

 
 
 
 
 

 
 
 
 
 
 
 
 

 
 

______________________________ 
Mark A. Holmstrup 

 
 
 

 
 

______________________________ 
Sherri L. Pappas 

______________________________ 
Cynthia B. Walters