DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2005-086 
 
XXXXXXXXXXXXXXX 
xxxxxxxxxxx, YN3 (Ret.) 
   

 

 
 

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 March 30, 2005, upon receipt of the applicant’s completed application and 
military records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  December  8,  2005,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  to  show  that  he 
retired as a YN1 (pay grade E-6) the highest grade he held in the Coast Guard, rather 
than as a YN3 (pay grade E-4).   
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that he satisfactorily performed the duties of a YN1 for 36 
months and should have been retired in that grade.  He stated that Article 12.C.15.e. of 
the Personnel Manual states that "any enlisted member who retires under any provision 
of  14  U.S.C.  retires  from  active  service  with  the  highest  grade  or  rate  he  or  she  held 
while  on  active  duty  in  which,  as  Commander  [Coast  Guard  Personnel  Command 
(CGPC)]  or  the  Commandant,  as  appropriate,  determines  he  or  she  performed  duty 
satisfactorily, but  not lower than his or permanent grade or rate with retired pay of the 
grade  or  rate  at  which  retired."    The  applicant  further  alleged  that  although  CGPC 

convened a rate determination board to determine the highest held, he was not notified 
in writing of the Board or its decision, as he should have been.  He also alleged that he 
was  denied  the  opportunity  to  consult  with  counsel  and  present  evidence  to  the 
determination  board.    He  stated  that  he  feels  that  he  is  being  punished  twice  for  the 
same offenses.   
 

SUMMARY OF THE RECORD 

 
 
The  applicant  enlisted  in  the  Coast  Guard  on  February  5,  1980.    After 
approximately 24 years of active service, the applicant requested voluntary retirement.   
He was scheduled to retire on July 1, 2005.  However, on December 27, 2004, prior to his 
scheduled retirement, the applicant's urine tested positive for cocaine.  On January 24, 
2005, he was found guilty of illegal use of cocaine at a non-judicial punishment ((NJP) 
also known as captain's mast) under Article 15 of the Uniform Code of Military Justice 
(UCMJ).  The commanding officer (CO) punished the applicant by reducing him in rank 
from  YN1  to  YN2,  fining  him  $800,  and  by  restricting  him  and  assigning  him  extra 
duties. 
 

On  January  25,  2005,  the  applicant  requested  to  be  retired  in  lieu  of  being 

discharged by reason of misconduct due to drug abuse.    
 
 
In a February 3, 2005, letter to CGPC, the applicant's CO recommended that the 
applicant be allowed to retire instead of being discharged by reason of misconduct.  He 
also recommended that the applicant be retired in pay grade E-5.  The CO noted that 
the applicant's urine had tested positive for a second time on January 11, 2005 and that 
he anticipated punishing the applicant at NJP for this violation of the UCMJ.   
 
 
The  CO  stated  in  his  letter  to  CGPC  that  for  several  years  the  applicant's 
performance  had  been  far  below  that  expected  of  a  journeyman  petty  officer.  He 
informed CGPC that the applicant had been placed on performance probation on April 
6, 2004 and had failed to show improvement during the first few months of probation.  
The CO stated that the applicant was habitually tardy, failed to communicate with his 
supervisor, and was inept in his rating and lacked good judgment.  The CO also noted 
that  from  1982  through  1992,  the  applicant  had  been  to  NJP  for  disrespect  and 
unauthorized  absences,  and  that  he  had  been  counseled  extensively  on  his  poor 
performance  as  well  his  financial  irresponsibility.      The  CO  concluded  his  letter  to 
CGPC by stating the following: 
 

I recommend that [the applicant] be retired as soon as possible, hopefully no 
later than 1 April 2005 . . . Because of his dismal performance as a YN1/E6, I 
recommend that [the applicant] receive permanent retirement as a YN2/E5.  
He will very likely be discharged as a YN3/E-4 in the wake of his pending 
NJP!    Additionally,  because  of  his  repeated  misconduct,  I  recommend  that 

[the applicant] surrender all uniforms and be given a reenlistment code that 
prevents future military service. 

 
On  February  17,  2005,  the  applicant  was  taken  to  NJP  for  his  second  drug 
 
violation.  The CO ordered the applicant to forfeit $250 per month for two months, to be 
reduced to pay grade E-4, to be restricted for 30 days, and to perform extra duties for 30 
days. 
 
 
On  February  23,  2005,  Headquarters  Enlisted  Division  personnel  informed  the 
applicant that he would be discharged no later than April 1, 2005 and that based upon 
an administrative review of his service record he would be retired in pay grade E-4. On 
March 31, 2005, the applicant was retired in pay grade E-4. 
  
 

 

APPLICABLE REGULATION 

 

Article 12.C.15.g. (Procedure to Certify Highest Grade or Rate on Retirement) of 

the Personnel Manual provides the following, in pertinent part: 
 
"1.  Commander, (CGPC-epm) or (CGPC-opm) will administratively review the record 
of each individual scheduled to retire to determine the highest grade or rate in which 
his or her Coast Guard service is satisfactory.   
 
"2.    Service  will  be  considered  satisfactory  and  the  member  will  be  certified  to  the 
highest grade if he or she served on active duty . . . for at least 31 days in a chief warrant 
officer  or  enlisted  grade  and  his  or  her  official  records  indicate  overall  satisfactory 
performance for the entire period served in the higher grade.   
 

  * 

 

* 

 

* 

 
4.    If  the  administrative  review  described  in  subparagraph  1.  does  not  result  in  a 
determination  of  satisfactory  service,  the  determination  will  be  referred  to  a  special 
board  of  officers  who  will  review  the  member's  official  records  and  make  its 
recommendation to the Commandant.  The Board acts in an advisory capacity and its 
recommendation  shall  be  considered  as  such.    The  Commandant  makes  the  final 
determination of satisfactory service."   
 

VIEWS OF THE COAST GUARD 

 
 
On  September  6,  2005,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted an advisory opinion recommending that the Board grant alternative relief to 
the applicant by returning the record to the Coast Guard and directing it to convene a 
special board of officers, in accordance with Article 12.C.15.g. of the Personnel Manual. 

 
 
The  JAG  stated  that  CGPC  reviewed  applicant's  record  in  accordance  with 
Article  12.C.15.g.1  of  the  Personnel  Manual  and  found  that  YN3/E-4  was  the  highest 
rank  satisfactorily  held  by  the  applicant  and  ordered  the  applicant  to  be  honorably 
retired as an E-4.  The JAG admitted, however, that the Coast Guard did not refer the 
matter  to  a  special  board  of  officers  to  review  the  applicant's  record  and  make  a 
recommendation to the Commandant on whether the applicant should be retired in a 
higher grade, as required by Article 12.C.15.g.4. of the Personnel Manual.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  September  7,  2005,  a  copy  of  the  Coast  Guard  views  was  mailed  to  the 
applicant  with  30  days  allotted  for  him  to  respond.    The  BCMR  did  not  receive  a 
response from the applicant.   
 
 

 
 

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. 
 

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 Coast Guard admitted, and the Board finds, that an error was committed 
when  the  Coast  Guard  retired  the  applicant  in  pay  grade  E-4  without  convening  a 
special board of officers to review the applicant's record and to make a recommendation 
to the commandant on whether the applicant should be retired in a higher grade.  The 
Coast  Guard's  failure  in  this  regard  violated  Article  12.C.15.g.4.  of  the  Personnel 
Manual, which states, "If the administrative review [of a member's record]  . . . does not 
result in a determination of satisfactory service, the determination will be referred to a 
special  board  of  officers  who  will  review  the  member's  official  records  and  make  its 
recommendation to the Commandant.  The Board acts in an advisory capacity and its 
recommendation  shall  be  considered  as  such.    The  Commandant  makes  the  final 
determination of satisfactory service." 

 

4.  To remedy this error, the Coast Guard asked the Board to direct it to convene 
a special board of officers to review the applicant's military service and to recommend 
to  the  Commandant  the  grade  in  which  the  applicant  should  be  retired.    The  Board 
concurs in the Coast Guard's recommendation and notes the absence of any objection 
from the applicant.  The Board further finds the Coast Guard's recommendation to be 
an  equitable  remedy  under  the  circumstances  of  this  case.    The  Coast  Guard  is 
reminded  to  provide  the  applicant  with  any  due  process  rights  to  which  he  may  be 
entitled under this procedure.   

 
5.  If the applicant is not satisfied with the special board review and final decision 

by the Commandant, he has the option of reapplying to the BCMR. 
 

6. 

Accordingly, the applicant is entitled to the alternative relief set out in the 

order below.    
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
 
 
 

ORDER 

 

The  application  of  YN3  xxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 
military record is granted as follows.  Pursuant to Article 12.C.15.g.4. of the Personnel 
Manual,  the  Coast  Guard  shall  convene  a  special  Board  of  officers  to  review  the 
applicant's  military  record  and  to  recommend  to  the  Commandant  whether  the 
applicant should be retired in the highest grade held while on active service.  The Coast 
Guard is directed to provide the applicant with any due process rights to which he may 
be  entitled  during  this  administrative  process.  The  special  board  shall  be  convened 
within  60  days  from  the  date  of  this  final  decision.    If  the  Commandant  directs  the 
applicant's  retirement  in  a  grade  higher  than  YN3/E-4,  the  Coast  Guard  shall  correct 
the  applicant's  record  in  this  regard  and  pay  him  any  sum  due  as  a  result  of  the 
correction.   

 
All other requests are denied. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Charles P. Kielkopf 

 

 

 
 William R. Kraus 

 

 

 

 
 Thomas H. Van Horn