DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-123 
 
  
   

 

 
 

FINAL DECISION 

 
Author:  Ulmer, D. 
 
 
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  application  was 
docketed  on May  19, 2004,  upon  receipt  of the  applicant’s  completed  application  and 
military records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated March 17, 2005, is signed by the three duly appointed 

APPLICANT’S REQUEST 

 
 
 The applicant asked the Board to correct his military record to show that he was 
commissioned as a Lieutenant (LT; 03) rather than as a Lieutenant junior grade (LTJG; 
02) on July 1, 2002, with back pay and allowances. 
 

APPLICANT’S ALLEGATIONS AND SUBMISSIONS 

 
 
The applicant alleged that although he had applied for a direct commission as a 
LT  under  the  Licensed  Officer  Merchant  Marine  (LOMM)  program  in  July  2001,  his 
application  was  erroneously  considered  under  the  Maritime  Academy  Graduate 
(MARGRAD)  Direct  Commissioned  Officer  (DCO)  program.    He  stated  that  his 
application was placed before the DCO board that convened on November 26-27, 2001, 
to select candidates for direct appointments in the fields of aviation, engineering, law, 
MARGRAD,  naval  engineering,  and  information  technology.    He  stated  that  his 
application  was  incorrectly  lumped  with  the  MARGRADs,  which  selected  him  for  a 
direct commission in that field at the rank of LTJG.   

 
 
The applicant alleged that after he was selected under the MARGRAD program, 
the  recruiter  told  him  that  the  LOMM  program  no  longer  existed  and  that  his  only 
option was to accept the commission at a lower rank (LTJG).   The applicant stated that 
he has subsequently learned that the LOMM selection board is not normally held and is 
opened  only  on  a  case-by-case  basis.    He  stated  that  the  MARGRAD  program  is  for 
recent graduates of maritime academies with little or no sea experience, but he had ten 
years of sea time with an unlimited chief officer's license that clearly placed him in a 
different category.   
 
 
The  applicant  was  granted  an  age  waiver  to  receive  a  commission  under  the 
MARGRAD  program.    The  age  waiver  memorandum,  which  the  applicant  alleged 
corroborates  his  allegation  that  he  should  have  been  considered  for  the  LOMM 
program, stated that the "applicant is really more a LOMM than a MARGRAD, but he 
got lumped under MARGRAD.  LOMM age maximum for JG is 32".  The age waiver 
memorandum further stated the following: 
 

This  one  is  unique.    The  MARGRAD  selected  [the  applicant],  but  he  is 
really  a  Licensed  Officer  of  the  Merchant  Marine  (LOMM).    LOMM  age 
limit  for  LTJG  is  32,  which  would  require  a  3  year,  2  month,  14  day 
waiver. MARGRAD would require a 7 year, 2 month, 14 day age waiver.  
Even though he's been lumped under MARGRAD Board (he qualified for 
DCE,  DCEM,  and  LOMM),  we  should  consider  him  LOMM  for  age 
waiver  purposes.    This  guy  is  very  versatile.    Recommend  positive 
consideration.   

 
 
The  applicant  complained  that  at  no  time  did  anyone  contact  him  to  let  him 
know  that  his  application  would  not  be  reviewed  under  the  LOMM  program.    He 
asserted that had he known that the LOMM program still existed he would not have 
accepted  the  commission  as  a  LTJG.    He  restated  that  he  applied  for  a  commission 
under the LOMM program, not the MARGRAD program.   
 
 
The  applicant  stated  that  in  December  2003  he  met  a  LT  who  had  been  a 
recruiter.    According  to  the  applicant,  the  LT  told  him  that  the  LOMM  program  still 
exists and that it can be opened as needed for a candidate who fits the profile, even if 
the Coast Guard is not actively recruiting under the LOMM program.  He stated that 
the  LT  opined  that  the  applicant's  package  was  incorrectly  placed  with  those  under 
consideration for a direct commission under the MARGRAD program. 
 
 
On  April  12,  2004,  the  applicant's  commanding  officer  (CO)  submitted  a 
memorandum  to  the  recruiting  command  on  the  applicant's  behalf  requesting  a 
correction to the applicant's rank.  On May 10, 2004, a LTJG responded for the recruiting 
command.  The LTJG stated that the recruiting command could not make corrections to 

dates  of  rank  after  a  contract  has  been  executed.    She  referred  the  applicant  to  the 
BCMR.   
 
The  applicant  submitted  evidence  showing  that  he  was  a  Licensed  Chief 
 
Engineer of the Merchant Marine.  He submitted a copy of 46 CFR § 10.510 containing 
the qualifications one must meet to be a Licensed Chief Engineer. 
 
 
The  applicant  also  submitted  a  pertinent  portion  of  Article  4.D.7.  of  the 
Recruiting  Manual  entitled  "Licensed  Officers  of  the  Merchant  Marine"  (LOMM).  
Subsection 4.D.7.a. states as follows: 
 

To  ensure  continued  representation  of  the  Merchant  Marine  industry  in 
the Coast Guard Marine Safety Program, a number of licensed officers of 
the  U.S.  Merchant  Marine  are  to  be  commissioned  as  lieutenants  or 
lieutenants  junior  grade  in  the  Coast  Guard.    The  selection  board 
determines  the  rank  of  those  selected.    These  personnel  serve  as 
inspectors, investigators, and as licensing program personnel.  LOMM are 
offered an indefinite contract, with the first three years as a probationary 
status.   

 
 
Subsection 4.D.7.b. states that for the rank of lieutenant an applicant should have 
a minimum age of 21 and a maximum age of 38.  It provides that the applicant should 
have "3 or more years' service as a licensed officer aboard U.S. commercial vessels, at 
least 6 months of which should be as Chief Mate, First Assistant Engineer, or higher."  It 
further  provides  that  an  applicant  applying  for  the  rank  of  LT  should  hold  at  a 
minimum  either  a  "license  as  a  Chief  Mate  (unlimited),  Oceans  or  Coastwise"  or  as  a 
"Master  and  First  Class  Pilot  (unlimited),  Great  Lakes,  First  Assistant  Engineer  (any 
horsepower)."     
 

VIEWS OF THE COAST GUARD 

 
 
On  October  14,  2004,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  the  applicant’s 
request.    He  stated  that  the  Coast  Guard  was  not  accepting  LOMM  accessions  at  the 
time  the  applicant  applied  to  join  the  Coast  Guard.    He  stated  that  the  applicant 
exceeded  the  requirements  for  MARGRAD  accessions  and  was  offered  a  commission 
under that program.   
 
 
The  JAG  stated  that  the  applicant  has  the  burden  of  proving  either  error  or 
injustice  in  his  record,  which  he  failed  to  do  in  this  case.    He  further  stated  the 
following: 
 

a.    There  is  no  dispute  that  applicant  appears  to  have  sufficient 
qualifications for him to compete for a commission as a Licensed Officer 
of  the  Merchant  Marine  (LOMM).    Unfortunately  for  applicant,  that 
program wasn't an available option.  . . .   
 
b.  The Coast Guard is under no obligation to offer particular accessions 
programs  every  time  an  Applicant  happens  to  be  qualified  for  one.  
Applicant  was  considered  under  another  program  for  which  he  was 
qualified,  MARGRAD,  and  voluntarily  chose  to  accept  a  commission 
under the MARGRAD program.  If the Recruiter did in fact tell Applicant 
that the LOMM program "no longer existed," a fact posited by Applicant 
but  not  supported  by  any  evidence,  that  statement,  while  arguably 
technically  incorrect,  was  in  fact  a  true  statement  with  respect  to 
Applicant's attempt to enter active duty with a Coast Guard commission.  
The  LOMM  program  was  not  offered  at  the  time  applicant  sought  his 
commission.  It "no longer existed" as an option for him if he wanted to be 
commissioned as an officer at the time he sought to be commissioned.   
 
c.    Absent  strong  evidence  to  the  contrary,  government  officials  are 
presumed to have carried out their duties correctly, lawfully, and in good 
faith.    Arens  v.  United  States,  969  F.2d  1034,  1037  (1992)    .  .  .  Moreover, 
applicant  bears  the  burden  of  proving  error.    33  CFR  §  52.24.    Here, 
applicant offers no evidence that the Coast Guard committed an error or 
injustice.  To the contrary, the record shows that Applicant was correctly 
informed that a commission as a LOMM was not an available option.   

 
 
The  Coast  Guard  attached  a  statement  from  the  Assistant  Chief,  G-MRP-3 
(Human  Resources  Division),  Coast  Guard  Headquarters.    He  wrote  the  following 
under penalty of perjury. 
 

My  division  .  .  .  is  the  Program  Policy  Manager  for  the  LOMM, 
MARGRAD,  and  MARTP  programs.    As  Program  Policy  Manager,  this 
office advises the Coast Guard Recruiting Command (CGRC) on whether 
any  accessions  for  a  particular  program  are  sought  or  will  be  accepted.  
When  seeking  or  accepting  applications  we  say  the  program  is  "open," 
when not seeking or accepting applications the program is referred to as 
"closed." 
 
LOMM  is  not  currently  an  open  officer  accessions  program;  nor  was  it 
open in years 2001 through 2004.  When a particular accession program is 
closed,  CGRC  is  precluded  from  evaluating  candidates  under  that 
program.   

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On November 18, 2004, the Board received the applicant's response to the views 

 
 
of the Coast Guard.  He disagreed with the Coast Guard's recommendation. 
 
 
The  applicant  stated  that  the  critical  question  is  how  the  LOMM  program  is 
opened for the consideration of applicants.  In response to the Coast Guard's position 
that it is opened based on the needs of the service, the applicant questioned what that 
means.    "Does  it  mean  that  when  a  highly  qualified  applicant  applies,  the  board  is 
opened to commission the individual since his/her Merchant Marine Officer experience 
is  wanted?  Or,  does  it  mean  that  the  CG  decides  that  it  needs  highly  experienced 
Merchant  Marine  Officers  for  commission  in  the  CG  and  then  opens  the  board  and 
candidates  are  sought  out"?    He  complained  that  the  Coast  Guard  would  not  answer 
these questions for him.   He further stated as follows: 
 

My position is that the Coast Guard desired my skills as an experienced 
Merchant Marine Officer and recruited me under a pretense to provide a 
position commensurate with my skill set but then shifted to a less costly 
rank after I entered the process.  This change happened after I had already 
made the personal and family sacrifices of ending employment with my 
civilian employer and committed myself to the service.  The Coast Guard 
used the LOMM program to entice me and then told me that the LOMM 
program no longer existed in order to bring me in at a lower pay grade.  I 
have  been  filling  a  billet  for  a  0-3  since  my  commission    .  .  .  My  OERs 
clearly  show  that  I  have  been  performing  at  an  exceptional  level.    The 
Coast  Guard  has  clearly  demonstrated  a  need  for  my  service  and 
experience, yet they do not want to pay for it.   

 
 
The applicant stated that he has provided sufficient evidence to substantiate his 
allegation  that  he  applied  under  the  LOMM  program,  that  he  exceeded  the 
requirements to be commissioned as an 0-3, and that his application was mishandled.  
He repeated that the age waiver board stated that he was a LOMM candidate that was 
lumped into the MARGRAD program.  He stated that the age waiver considered him as 
a LOMM when considering his request for an age waiver.   
 
 
The  applicant  submitted  a  copy  of  an  email  he  sent  to  the  Assistant  Chief,  G-
MRP-3 asking for a written policy on the opening and closing of the LOMM program. 
The applicant stated that he did not receive a reply to the email. 
 

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.  The applicant has submitted insufficient evidence to establish that the Coast 
Guard committed an error by not considering his application for a direct commissioned 
officer appointment as a LT under the LOMM program.  The Coast Guard has stated 
that based on service need, the LOMM program is closed and was closed at the time the 
applicant  submitted  his  application  for  an  appointment  under  the  program.    The 
applicant has not presented any evidence, and the Board is aware of none, requiring the 
Coast  Guard  to  offer  appointments  under  a  program  that  it  has  closed  because  of 
Service need.  The Board finds no error in the Coast Guard's refusal to open the LOMM 
program to consider the applicant's application. 

 
3.    In  the  absence  of  error,  the  Board  must  consider  whether  the  applicant’s 
treatment by the Coast Guard constitutes an injustice that “shocks the sense of justice.”  
See Reale v. United States, 208 Ct. Cl. 949 (1976).  Apparently the Recruiting Manual listed 
the LOMM program as one under which a potential applicant could apply for a direct 
commission.    However,  the  Board  is  not  persuaded  that  this  fact  alone  created  an 
injustice  under  the  circumstances  presented  here.  While  the  recruiter  accepted  the 
applicant's  application  for  the  LOMM  program,  there  is  no  evidence  that  the  mere 
acceptance of the application by the recruiter would lead to an appointment under the 
program.  In this regard, Article 4.d.7. of the Recruiting Manual states that any decision 
with respect to selection and rank under the LOMM is left to a selection board.   

 
4.    The  applicant  suggested  that  the  Coast  Guard  enticed  him  to  apply  for  an 
appointment under the LOMM program and later offered him an appointment under 
another program at the lower rank of LTJG. However, nowhere does the applicant state, 
or provide proof, that any Coast Guard personnel with authority to do so promised him 
an appointment under the LOMM program, much less at the rank of LT.  Nor is there 
evidence that the Coast Guard advertised or actively sought applicants for this closed 
program.   The evidence suggests that the applicant wanted to apply under the LOMM 
program, hoping to receive an appointment at the higher rank of LT.   It is up to the 
Commandant to determine service need and the Board finds no injustice in the fact that 
the Coast Guard refused to open a closed program just because the applicant requested 
it.  

5.  The applicant was offered an appointment as a LTJG under another program, 
which  he  accepted.    The  applicant  asserted  that  he  had  to  accept  the  offer  of  an 
appointment  under  the  other  program  at  a  lower  rank  because  he  had  already 
terminated his civilian appointment.  It appears to the Board that the applicant had the 

option  not  to  terminate  his  civilian  employment  before  receiving  an  offer  for  a  direct 
commission from the Coast Guard under the LOMM program.   Even if the applicant 
had terminated his civilian employment, he still had the choice of refusing the offer of 
an appointment under the MARGRAD program at the rank of LTJG. 

 
6.  The applicant's argument that the age waiver board's comment that he was a 
LOMM  candidate  that  was  lumped  under  the  MARGRAD  program  proves  that  the 
Coast  Guard  erred  by  not  placing  his  application  before  a  LOMM  board  is  without 
merit.    The  age  waiver  board  stated  that  the  applicant  was  more  a  LOMM  than  a 
MARGRAD  and  it  also  stated  that  he  qualified  for  consideration  for  a  commission  in 
two other programs.  Apparently, the Coast Guard offered him an appointment in the 
area  that  best  fit  its  needs.    The  age  waiver  board  is  just  that;  it  determines  whether 
individuals  who  exceed  the  maximum  age  for  an  appointment  in  the  Coast  Guard 
should  still  be  considered.    There  is  no  evidence  that  the  age  waiver  board  had  any 
authority  to  determine  which  programs  were  open  and  which  were  closed.      The 
Commandant determines service need and that does not change because of comments 
made by an age waiver board.   The applicant certainly could not have relied on these 
comments since there is no indication that he discovered them before the DCO process 
began. 
 

7. 

Accordingly,  the  Board  finds  neither  error nor  injustice  in  this  case,  and 

the applicant’s request should be denied. 

 
8.    The  Board  notes  that  if  the  Coast  Guard  had  taken  the  time  to  answer  the 

applicant's questions, this application may not have been before the Board.  
 

 

 
 

 
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

The application of ______________ USCG, for correction of his military record is 

ORDER 

 

 
 

 
 

hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Quang D. Nguyen 

 

 

 
 Kathryn Sinniger 

 

 

 

 

 
 Molly McConville Weber