DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-069 
 
Xxxxxxxxxxxxxx 
  xxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
 
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 this 
case on February 18, 2004, upon receipt of the applicant’s completed application. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated January 13, 2005, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, an ensign (O-1E) in the Coast Guard Reserve, asked the Board to 
correct  her  record  to  show  that  she  was  commissioned  as  a  lieutenant  (LT;  O-3E)  on 
September 27, 2002, instead of as an ensign, and to award her backpay and allowances.   
 
 
The applicant alleged that under 14 U.S.C. § 727, 1 she should have been commis-
sioned as a lieutenant.  At the time of her commissioning, she was “a licensed attorney 
assigned to a purely legal billet, acting as an attorney.”  She stated that according to the 
Coast  Guard  “law  specialists”  are  either  Direct  Commission  Lawyers  (DCLs)  or  are 
“officers who have gone to law school under the Coast Guard’s postgraduate advanced 

                                                 
1 Title 14 U.S.C. § 727, titled “Constructive credit upon initial appointment,” states that “[u]nder regula-
tions prescribed by the Secretary, a person, appointed as a Reserve officer, may be assigned a date of rank 
and precedence which reflects that person's experience, education, or other qualifications. …. [A] person 
appointed for the purpose of assignment or designation as a law specialist in the Reserve shall be credited 
with a minimum of three years service in an active status.”  In 2004, the credit was reduced to one year. 
Pub. L. 108-293, Title II, § 208, 118 Stat. 1035 (Aug. 9, 2004). 
 

education program, or on their own.”  The applicant stated that she graduated from law 
school in May 2000 and was admitted to a state bar in October 2000.  Therefore, she met 
the  eligibility  criteria  for  designation  as  a  law  specialist  at  the  time  she  was  commis-
sioned.  She stated that “[b]ased on [her] law license and prior to commissioning, [she] 
was  assigned  as  a  legal  assistance  attorney  at  USCG  xxxxx  District,  which  is  a  legal 
billet.  After [her] commissioning, [she] was returned to that legal billet at XXX Legal.  
When  [she]  was  activated  pursuant  to  Title  10,  [she]  …  served  as  a  legal  assistance 
attorney.  [Her] RPAL remains XXX Legal and [she is] scheduled to attend Army JAG 
School in xxxxxxxx.” 
 
 
In support of her allegation, the applicant submitted a copy of one of her officer 
evaluation  reports,  which  shows  that  she  is  a  “legal  assistance  attorney”  for  the  xxx 
District.   
 

SUMMARY OF THE RECORD 

 
 
On February 23, 1981, the applicant enlisted in the Coast Guard.  She served on 
active duty as a boatswain’s mate until July 22, 1985.  Thereafter, she advanced to boat-
swain’s mate second class (E-5) while drilling in the Reserve and performing short peri-
ods  of  active  duty.    In  2000,  while  still  an  enlisted  reservist,  she  graduated  from  law 
school and passed the bar.  She was assigned to serve as a legal assistance attorney for 
the  xxx  District.    On October  15,  2001,  while  still  an  E-5,  she  was  designated  a  “legal 
assistance  attorney.”    On  her  performance  evaluation  for  the  period  ending  June  27, 
2002, she received marks of 7 (on a scale of 1 to 7, with 7 being best) in the performance 
categories “Professional/Specialty Knowledge,” “Quality of Work,” “Using Resources,” 
“Setting an Example,” and “Adaptability.” 
 
 
On September 27, 2002, at the age of 40 and upon completing officer training, the 
applicant signed an Oath of Office, accepting a commission as an ensign (O-1E) through 
the Selected Reserve Direct Commission (SRDC) Program.  Thereafter, she continued to 
be assigned to the xxxx District as a legal assistance attorney.  On March 29, 2003, she 
was involuntarily recalled to serve on extended active duty.   
 

VIEWS OF THE COAST GUARD 

 
 
On June 22, 2004, the Judge Advocate General (TJAG) of the Coast Guard sub-
mitted an advisory opinion recommending that the Board deny the applicant’s request.  
TJAG attached and adopted a memorandum on the case prepared by CGPC.   
 
 
CGPC stated that the applicant never applied for designation as a law specialist 
in accordance with the Military Justice Manual and Article 6.A.6. of the Personnel Man-
ual.    CGPC  stated  that  the  applicant  applied  for  her  commission  through  the  SRDC 
program rather than the DCL program.  CGPC stated that the two programs differ in 

significant ways.  For example, the DCL program is intended to recruit lawyers for full-
time active duty billets, whereas the SRDC program is intended to commission officers 
with various needed skills (not just legal) in a part-time Reserve status.  CGPC stated 
that the “SRDC selection panels also consider advanced ranks for candidates, but this is 
typically reserved for those with prior military officer experience. … The preponderant 
majority of SRDC candidates are commissioned as O-1s/O-1Es.” 
 
 
CGPC stated that because the applicant had served as a legal assistance attorney 
for two years before seeking a commission, she “knew or should have known that the 
service obtains military law specialists through one of three avenues: DCL, active duty 
officers  selected  to  attend  law  school  at  Coast  Guard  expense,  and  any  member  who 
becomes  a  lawyer  through  some  other  means.”    CGPC  noted  that  “[w]hile  Applicant 
exceeded the maximum allowable age for admission to DCL by the time she was com-
missioned  an  O-1E  in  2002  …,  Applicant  would  have  been  eligible  to  apply  for  DCL 
soon after graduating from law school.”  CGPC pointed out that she not only applied 
through the SRDC but also accepted the commission as an O-1E that the SRDC selection 
board offered. 
 
 
CGPC stated that officers are designated as law specialists only after submitting 
a  written  application  and  being  certified  by  the  Chief  Counsel.    CGPC  further  stated 
that the applicant had never submitted an application although “[t]he service expects all 
attorneys serving in a legal program billet on extended active duty to earn designation 
as a law specialist … .  However, the reverse does not hold true: an attorney’s service in 
a legal program billet does not by itself constitute the basis for designation.” 
 
 
CGPC  further  stated  that,  even  if  the  Board  decides  to  correct  the  applicant’s 
record to show that she was commissioned as a lieutenant, she should not be awarded 
backpay because she “has not overcome the presumption of regularity with respect to 
the SRDC selection process that commissioned her an O-1E.”  Moreover, “[d]esignation 
as a law specialist does not itself require the Coast Guard to appoint candidates as O-3E, 
either on initial commissioning or retroactively.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  June  25,  2004,  the  BCMR  sent  the  applicant  a  copy  of  the  Chief  Counsel’s 
advisory opinion and invited her to respond within 30 days.  The applicant was granted 
an extension of 60 days and responded on September 23, 2004.  
 
 
The applicant stated that she remains a legal assistance attorney assigned to the 
xxxx  District  Legal  Office,  which  “is  clearly  NOT  a  ‘general  duty  officer  billet’”  since 
only attorneys may be assigned to the billet.  The applicant stated that because 14 U.S.C. 
§ 727 requires that persons appointed for the purpose of assignment or designation as a 

law  specialist  be  credited  with  three  years  of  service  by  using  the  word  “shall,”  the 
matter is not discretionary. 
 
The applicant further stated that she “originally applied to the DCL program in 
 
1999, during her last year of law school and prior to exceeding the maximum age limit.  
Because the application process is not, as the Coast Guard suggests, nearly as clear cut 
and easily navigated as it should be, [her] application had to be resubmitted three times, 
through no fault of [her] own, and required special attention and support from various 
commands, and ultimately a request for an age waiver, before it made it to the proper 
channels.”    She  alleged  that  her  applications  were  never  rejected  but  “simply 
‘disappeared’ after [she] submitted [them] to the person and office to which [she] was 
directed to submit the application.”  Thereafter, she alleged, her application was  con-
verted  to  an  SRDC  application  “by  others,  but  with  [her]  tacit  consent,  solely  for  the 
reason that [she] was unwilling to sign a four-year active duty contract as a condition of 
eligibility for that program.”  The applicant stated that she repeatedly asked why she 
should not receive the rank of lieutenant but received no explanation. 
 
 
The  applicant  argued  that  the  requirement  in  Article  4.D.5.b.  of  the  Recruiting 
Manual,  COMDTINST  M1100.2D,  that  applicants  to  the  DCL  program  be  required  to 
commit to a minimum of four years of active duty contravenes the plain language of 
14 U.S.C. § 727.  She also argued that the requirement frustrates the purpose of the stat-
ute  “by  ensuring  that  no  Reserve  officers  serving  in  a  Reserve  capacity  will  actually 
realize the benefit of the statute.”  She alleged that “[a]lthough it is true that [she] was 
denied  a  designation  as  a  law  specialist  solely  because  [she]  was  unwilling  to  sign  a  4 
year EAD contract, I was unquestionably appointed for the purpose of assignment as a law 
specialist”  because  her  sole  duties  as  a  legal  assistance  attorney  are  to  provide  legal 
services.  She argued that the “practical effect of the Coast Guard’s policies regarding 
14 USC 727 is to provide the 3-year credit not on the basis of the person’s experience, 
education or other qualifications as mandated by the statute, but solely on the basis of 
the person’s willingness to serve on 4 years of active service upon commissioning. …  
There is no logical, rational or legitimate reason which is served by the application of 
this policy, at least none that is in keeping with the purpose and spirit of the statute.  
Furthermore,  the  policy  degrades  Reserve  attorneys,  their  contributions  and  perform-
ance.”  She alleged that the policy unfairly deprives Reserve attorneys of the rank and 
pay that would reflect their education, experience, and other qualifications as required 
under 14 U.S.C. § 727. 
 
 
The applicant argued that CGPC’s suggestion that “because a  Legal Assistance 
Attorney is not a ‘law specialist,’ [her] designation as such does not satisfy the require-
ment that [she] be appointed ‘for the purpose’ of assignment as a law specialist” lacks 
merit  because  only  attorneys  may  be  designated  as  Legal  Assistance  Attorneys.    She 
argued that her billet is clearly a “legal program billet” since only an attorney can fill 

the position and that if a legal assistance attorney were not available, the billet would be 
filled by a law specialist or perhaps a contracted civilian attorney. 
 
The  applicant  pointed  out  that  six  months  after  she  refused  to  commit  to  four 
 
years  of  active  duty  so  that  she  could  become  a  law  specialist,  she  was  involuntarily 
recalled to extended active duty and had to close her own law practice to serve full-time 
as an O-1E, while her active duty colleagues have all received the three years of con-
structive credit under 14 U.S.C. § 727 and do not face separation without income. 
 

APPLICABLE LAW 

 
COMDTINST 1131.23 
 

Commandant Instruction 1131.23 contains the regulations for the Coast Guard's 
direct  commission  programs.    Paragraph  10.a.  of  the  instruction  concerns  the  direct 
commissioning  of  law  school  graduates  as  lawyers  in  the  Coast  Guard  Reserve  and 
provides that “[u]nder this program, graduates of accredited law schools may apply for 
appointment  in  the  Coast  Guard  Reserve  at  the  rank  of  lieutenant.    The  date  of  rank 
shall be the date of appointment to commissioned status in the Coast Guard Reserve.”  
Paragraph 10.b. provides that candidates must serve a minimum of four years on active 
duty.  Paragraph 10.d. provides that candidates “must not have reached age 38” as of 
the date they would begin Direct Commission Officer training. 

 
Paragraph 11.a. of COMDTINST 1131.23 concerns the SRDC2 and provides that 
“[u]nder  this  program,  individuals  may  apply  for  a  direct  commission  in  the  Coast 
Guard Selected Reserve at the ranks of ensign, lieutenant (junior grade), and lieutenant.  
… Enlisted candidates may apply for a direct commission at the rank of ensign.  Prior or 
current officers may apply for the highest rank held, up to lieutenant (O-3).”  Paragraph 
11.b.  states  that  “[a]pplicants  who  receive  commissions  shall  be  assigned  to  Selected 
Reserve  units.”    Paragraph  11.d.  provides  that  applicants  must  not  have  reached  36 
years of age and have “a bachelor’s or higher degree” or two years of college credit and 
“be at least E-4 and have passed the most recent Servicewide Examination for E-5.” 

 

COMDTINST M1100.2D (Recruiting Manual) 

 
Chapter  4.D.5.a.  of  the  Recruiting  Manual  provides  that  “[q]ualified  law  school 
graduates are commissioned in the Coast Guard Reserve as lieutenant (junior grade) to serve as 
lawyers.”[3] Chapter 4.D.5.b. provides that “[a]ppointed applicants who have been admitted to 

                                                 
2  Although the Coast Guard refers to this as the Selected Reserve Direct Commission (SRDR) Program, 
the regulations refer to it as the Ready Reserve Direct Commission Program. 
3  In 2001, the Coast Guard determined that DCL officers should be commissioned as lieutenants rather 
than LTJGs. 

practice as a member of the bar of any State or the District of Columbia shall serve a minimum 
of four years on active duty.” 

 
Chapter 4.D.11.a. provides that under the SRDC, “[a]ll candidates may apply for 
appointment  as  an  ensign.  …  Applicants  with  commissioned  officer  experience  may 
apply for the highest grade previously held, up to lieutenant (O-3).”  
 
COMDTINST M1000.6A (Personnel Manual) 
 

Article 6.A.6.a. of the Personnel Manual provides that a “Coast Guard Law Spe-
cialist is a commissioned officer of the Coast Guard who has successfully completed all 
requirements specified in paragraph b. of this article and has been designated as a law 
specialist  by  the  Commandant.”    Article  6.A.6.b.  provides  that  “[a]ctive  duty  commis-
sioned  officers  of  the  Coast  Guard  and  commissioned  officers  of  the  Coast  Guard 
Reserve serving on active duty or in a Coast Guard Reserve legal billet if not on active 
duty  are  eligible  to  be  designated  a  law  specialist  …  .”    Article  6.A.6.c.  provides  that 
“[c]ommissioned  officers  desiring  designation  as  a  law  specialist  shall  submit  a  letter 
request via their chain of command to Commandant (G-LPD) for determination by the 
Chief Counsel. …” 
 

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 appli-
cable 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. 
 

3. 

2. 

The applicant requested an oral hearing before the Board.  The Chairman, 
acting pursuant to 33 C.F.R. § 52.31, denied the request and recommended disposition 
of the case without a hearing.  The Board concurs in that recommendation. 
 
 
The applicant alleged that she was denied designation as a law specialist 
and three years of constructive credit under 14 U.S.C. § 727 because upon her commis-
sioning in September 2002, she refused to sign a four-year contract.  She alleged that the 
requirement  to  sign  a  four-year  contract  contravenes  both  the  language  and  intent  of 
14 U.S.C. § 727, which provides that “[u]nder regulations prescribed by the Secretary, a 
person, appointed as a Reserve officer, may be assigned a date of rank and precedence 
which reflects that person's experience, education, or other qualifications. …. [A] person 
appointed  for  the  purpose  of  assignment  or  designation  as  a  law  specialist  in  the 
Reserve shall be credited with a minimum of three years service in an active status.” 
 

4. 

5. 

 
The  statute  does  not  state  that  any  person  appointed  for  the  purpose  of 
practicing law, serving as an attorney, or filling a legal billet shall be credited with three 
years of active service.  Instead, it provides that the person must be appointed for the 
purpose of assignment or designation as a “law specialist,” and it leaves the definition 
of that designation up to the Secretary (or his delegate).  Therefore, the Board finds that 
the  requirement  to  sign  a  four-year  contract  does  not  contravene  the  language  of  the 
statute. 
  
 
The applicant’s argument that the four-year requirement contravenes the 
spirit or intent of the statute assumes that Congress intended every attorney practicing 
law  in  the  Coast  Guard  to  receive  the  three-year  credit.    However,  the  statutory  lan-
guage is not so broad.  Instead, it limits the three-year credit to persons appointed speci-
fically for the purpose of assignment or designation as a “law specialist,” and it allows 
the  Secretary  (or  his  delegate)  to  define  the  position.    Under  paragraph  10.a.  of 
COMDTINST 1131.23, the Commandant has chosen to limit the direct commissioning of 
lieutenants to those attorneys who are willing to commit to four years of active duty.  
The Coast Guard apparently uses the statute, in part, to entice attorneys to commit to 
four  years  of  active  duty  by  offering  them  the  higher  pay  and  rank  that  comes  with 
three years of constructive credit.  The applicant has not proved that the Coast Guard’s 
implementation of this statute is contrary to the intent of Congress. 
 
 
The Board, however, is not limited to correcting legal errors in members’ 
records,  but  may  also  remove  injustices.    “Injustice”  is  “treatment  by  the  military 
authorities that shocks the sense of justice, but is not technically illegal.”4  The applicant 
complained that the Coast Guard’s refusal to commission her as a lieutenant without a 
four-year commitment has worked a great hardship and injustice upon her and other 
similarly situated Reserve attorneys, who must practice law alongside active duty Coast 
Guard attorneys without the same rank and pay.   
 
 
The  Coast  Guard  makes  COMDTINST  1131.23,  which  governs  all  direct 
commission programs, and COMDTINST M1100.2D, which governs the recruitment of 
direct commission officers, readily available on in Internet.  Therefore, upon applying 
for a commission under the DCL program, the applicant knew or should have known 
that she would be required to make a four-year commitment to be eligible.  Likewise, 
she knew or should have known that under the SRDC program, only prior service offi-
cers receive commissions above the rank of ensign.  With these two options available, 
the applicant voluntarily accepted a commission as an ensign under the SRDC to avoid 
having to commit to four years of active duty.  Moreover, she did so knowing that she 
remained subject to recall to extended active duty as an O-1E and, in light of the war, 
was perhaps even likely to be recalled to extended active duty.   

6. 

7. 

                                                 
4 See Reale v. United States, 208 Ct. Cl. 1010,1011 (1976); Decision of the Deputy General Counsel, BCMR 
Docket No. 2001-043. 

 

8. 

The Board understands that the applicant’s decision in 2002 to try to stay 
in the Reserve and seek a commission as an officer on inactive duty may have created a 
significant financial hardship and placed her in an unequal status with respect to other 
new  attorneys  in  the  Coast  Guard,  especially  since  she  has  been  recalled  to  extended 
active duty.  However, the Board is not persuaded that the Coast Guard’s implementa-
tion of its direct commission programs in such a way as to offer only attorneys willing 
to commit to four years of active duty the immediate rank and pay of a lieutenant upon 
commissioning constitutes “treatment by the military authorities that shocks the sense 
of justice.”5 
 
 
 
 
 
 
 

Accordingly, the applicant’s request should be denied. 

9. 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
 
 
 

                                                 
5  Id. 

The  application  of  xxxxxxxxxxxxxxxxx,  USCGR,  for  correction  of  her  military 

ORDER 

 

 
 

 
 

 
 

 
 

record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Nancy L. Friedman  

 

 

 
 William R. Kraus 

 

 

 
 
 Eric J. Young