DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 2004-023
Xxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxx
FINAL DECISION
ANDREWS, Deputy Chair:
This proceeding was conducted according to the provisions of section 1552 of
title 10 and section 425 of title 14 of the United States Code. The BCMR docketed the
applicant’s request for correction on November 10, 2003.
members who were designated to serve as the Board in this case.
This final decision, dated July 27, 2004, is signed by the three duly appointed
APPLICANT’S REQUEST AND ALLEGATIONS
The applicant asked the Board to correct his record to show that immediately
prior to his advancement from chief petty officer (E-7) to temporary lieutenant (LT) on
June 1, 1999, he was advanced to chief warrant officer (CWO2) and that his permanent
pay grade is CWO3.
The applicant stated that while serving as a chief petty officer, he was simultane-
ously selected for appointment to CWO and to temporary LT. His command told him
that he could not be appointed to CWO prior to temporary LT. Therefore, his perma-
nent grade remains E-7.
The applicant alleged that a Coast Guard legal office has since advised him that
“personnel being advanced under similar circumstances are advanced to CWO first.”
The applicant alleged that if he had properly been appointed to CWO prior to accepting
the appointment to temporary LT, he would have been selected for promotion to CWO3
on June 1, 2003. Therefore, he alleged, his permanent grade should be CWO3.
VIEWS OF THE COAST GUARD
On March 30, 2004, the Judge Advocate General of the Coast Guard submitted an
advisory opinion in which he recommended that the Board grant partial relief in this
case. He based his recommendation on a memorandum on the case prepared by the
Coast Guard Personnel Command (CGPC).
CGPC stated that the applicant applied for appointment to CWO in 1998 and
was selected for appointment to CWO, as number one on the list of selectees, on June 1,
1999. CGPC stated that the Assignment Officer told the applicant that if he accepted the
temporary LT appointment, he could not be appointed to CWO.
CGPC stated that there was no firm policy regarding the applicant’s situation
prior to December 2000. However, in December 2000, the Chief Counsel found that a
member could be appointed to CWO prior to an appointment as a temporary LT, even
if the two appointments were made on the same day, as long as the CWO appointment
was made first. Therefore, CGPC recommended that the Board correct the applicant’s
record to show that he was appointed to CWO on June 1, 1999.
CGPC stated, however, that “it cannot be determined that [the applicant] would
have been selected by the PY [promotion year] 2003 CWO3 Promotion Board.” There-
fore, CGPC recommended that, if the applicant is selected for promotion by the next
CWO3 promotion board to review his record, his date of rank to CWO3 should be
backdated to June 1, 2003, and he should “be assigned precedence immediately senior
to the most senior CWO3 with the same date of rank, since he was number one on the
June 1999 CWO (WEPS) appointment list.”
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On March 31, 2004, the BCMR 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
Title 14 U.S.C. § 214, entitled “Appointment of temporary officers,” provides that
“[t]he President may appoint temporary commissioned officers in the Regular Coast
Guard in a grade, not above lieutenant … from among the commissioned warrant offi-
cers, warrant officers, and enlisted members of the Coast Guard ….”
Title 10 U.S.C. § 575(a) states that “[a] selection board … shall recommend for
promotion to the next higher grade those warrant officers considered by the board
whom the board, giving due consideration to the needs of the armed force concerned
for warrant officers with particular skills, considers best qualified for promotion within
each grade (or grade and competitive category) considered by the board.”
Article 1.A.3.b. of the Personnel Manual deals with the effect that a temporary
appointment has on a member’s permanent status. It states that a temporary appoint-
ment “does not change these temporary officers’ permanent, probationary, or acting
status; prejudice their promotion or appointment opportunities; or abridge their rights
or benefits. A temporary officer may not lose any rightful pay and allowances due to
his or her permanent status when appointed.”
Article 1.A.3.c. provides that “[a] temporary appointment … may be vacated at
anytime. If an officer’s appointment is so vacated, he or she reverts to his or her per-
manent status (14 U.S.C. § 214).”
FINDINGS AND CONCLUSIONS
1.
2.
The Board has jurisdiction concerning this matter pursuant to 10 U.S.C.
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 appli-
cable law:
§ 1552. The application was timely.
The applicant alleged that he was erroneously counseled that he could not
be appointed to CWO prior to being appointed to the rank of temporary LT. The Coast
Guard has admitted that the applicant was erroneously counseled and that he could
have executed an oath of office for appointment to CWO2 on the day he was also
appointed to temporary LT. Moreover, there are no laws that prohibited the applicant
from accepting his appointment to CWO2 first and subsequently executing the oath for
the temporary appointment to LT on the same day. Therefore, the applicant has proved
by a preponderance of the evidence that he was erroneously counseled and that his
record should be corrected to show that he executed an Acceptance and Oath of Office
for appointment to CWO2 on June 1, 1999, before he executed one for appointment to
LT.
3.
The applicant requested that his permanent rank be changed to CWO3, as
of June 1, 2003. However, 10 U.S.C. § 575(a) requires members to be recommended for
promotion to CWO3 by a promotion board prior to being promoted to the permanent
rank of CWO3. Therefore, this Board will not correct his record to show that he has
already been promoted to CWO3 without requiring proper review and consideration by
a promotion board. However, if the applicant is selected for promotion to CWO3 when
he is considered by the next CWO promotion board, his date of rank should be back-
dated to June 1, 2003, the date he would have been promoted to CWO3 had he been
duly considered by the PY 2003 CWO promotion board. In addition, as CGPC recom-
mended, he should “be assigned precedence immediately senior to the most senior
CWO3 with the same date of rank, since he was number one on the June 1999 CWO
(WEPS) appointment list.”
Accordingly, the relief recommended by the Coast Guard should be
4.
granted.
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
ORDER
The application of xxxxxxxxxxxxxxxxxx, USCG, for the correction of his military
record is granted in part as follows:
Quang D. Nguyen
The Coast Guard shall pay him any back pay and allowances he may be due as a
His record shall be corrected to show that he executed an Acceptance and Oath
of Office and was appointed to CWO2 on June 1, 1999, immediately prior to his
appointment to temporary LT. Thereafter, his military record shall be considered by
the next CWO promotion board for promotion to CWO3. If, at that time, he is selected
for promotion to CWO3, his date of rank shall be backdated to June 1, 2003. His
precedence shall be immediately senior to the most senior CWO3 with the same date of
rank because he was number one on the June 1999 CWO (WEPS) appointment list.
result of these corrections.
Darren S. Wall
Eric J. Young
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