FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section 
1552 of title 10, United States Code.  It commenced upon the BCMR’s receipt of 
the applicant’s application on April 11, 1997. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  January  14,  1999,  is  signed  by  the  three  duly 

RELIEF REQUESTED 

 

 
 

 

DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 1997-097 
 
 
   

 
The applicant, a xxxxxxxxxxx on active duty in the Coast Guard, asked the 
 
Board to correct her military record by restoring her aviation designator, which 
the Coast Guard cancelled on xxxxxxx, 199x.  The applicant also asked the Board 
to restore retroactively her aviation career incentive pay (ACIP), which she has 
not received since xxxxxxxx, 199x.  In addition, she asked the Board to order the 
Coast Guard to pay her all back pay, ACIP, and allowances she would be due as 
a result of the corrections. 
 

APPLICANT’S ALLEGATIONS 

The applicant alleged that in a letter to her dated xxxxxxxxxxxxx, 199x, the 
Coast Guard arbitrarily removed her aeronautical designator and terminated her 
entitlement to ACIP as of xxxxxxx, 199x.  She alleged that, in doing so, the Coast 
Guard violated its own regulations because none of the required procedures set 
forth in the Personnel Manual was followed prior to the removal of her designa-
tor.  She alleged that the Coast Guard had removed her aeronautical designator 

in order to save money after it xxxxxxxxxxx under which she flew.  She alleged 
that this motive was an improper ground for the removal of her designator. 

 
The  applicant  further  alleged  that  because,  by  xxxxxxxx  199x,  she  had 
“operationally [flown] for over four (4) years, [she] had qualified to draw ACIP 
through twelve (12) years of service, from February 24, 19xx to February 24, 20xx, 
even without flying again.”  Her four years of operational flying had given her a 
“statutorily vested right to ACIP” in the amount of $650 per month.  Although 
she currently is performing non-flight duty by xxxxxxxxxxxxxxx, she alleged that 
pilots in her position are entitled to ACIP “regardless of whether [they] ever [fly] 
again.”  Moreover, the applicant stated that she is “still physically qualified to fly 
and could be ordered to operational flight duties at any time.”   
 

INITIAL VIEWS OF THE COAST GUARD 

 
 
On  February  24,  1998,  the  Chief  Counsel  of  the  Coast  Guard  recom-
mended that the Board deny the applicant’s request.  The Chief Counsel stated 
that “[t]here is no ‘entitlement’ to career incentive pay for a specialty and a des-
ignator that no longer exists.”  “[T]he Coast Guard cannot be required to main-
tain  a  rating  for  xxxxxxx  it  does  not  have.”    The  Chief  Counsel  compared  the 
elimination of the xxxxxx’s aeronautical designation to  the Coast Guard’s can-
cellation of the sonar technician rating when sonar was removed from all Coast 
Guard ships. 
 
 
Furthermore, the Chief Counsel questioned whether the BCMR had juris-
diction  over  the  applicant’s  case.    He  stated  that  the  case  is  “largely  a  claim 
against  the  United  States”  and  should  therefore  be  settled  by  the  Comptroller 
General, pursuant to 31 USC § 37021 and BCMR Docket No. 176-95.  According to 
the Chief Counsel, the Comptroller General has held that the BCMR statute does 
not  grant  the  Secretary  authority  to grant or  withhold  monetary benefits;  such 
entitlements “depend solely on a proper application of the statutes to the facts or 
purported  facts  as  shown  by  the  corrected  record  in  the  particular  case.”  34 
Comp. Gen. 7, No. B-117367 (July 7, 1954; accord, In re Garcia, 1982 U.S. Comp. 
Gen. LEXIS 367, No. B-20299 (Oct. 6, 1982). 
 
 
The Chief Counsel incorporated into his advisory opinion for this case a 
supplemental advisory opinion prepared for BCMR Docket No. 96-084.  In that 
supplemental advisory opinion, the Chief Counsel argued that the Coast Guard’s 
decision to cancel all xxxxxxxx designators was a matter within its discretion.  He 
explained  that  the  “xxxxxxxxx  were  hired  for  a  specific  function:  to  plan  and 
conduct  xxxxxxx  aboard  XXX  aircraft,  and  to  operate  the  XXX’s  xxxxxxxxx  to 
                                                 
1  In 1996, the authority to settle members’ claims was transferred from the Comptroller General 
to the Secretary of Defense.  31 U.S.C. § 3702. 

provide  on-scene  command,  control  and  communications  in  support  of  other 
missions.  .  .  .    [W]ith  the  removal  of  the  XXX  xxxx  from  the  Coast  Guard’s 
inventory, no documented mission existed for xxxxxxxxx. . . .  The Coast Guard 
had no need for career officers to maintain aeronautical qualifications unique to 
an aircraft that it no longer flew.”  The Chief Counsel identified the central issue 
as “whether the Coast Guard, having determined that it no longer needed xxxxx 
to perform its missions, was nevertheless required to continue Applicant’s xxxxx 
designation and continue paying Applicant career incentive pay.” 
 
 
In  the  supplemental  advisory  opinion  to  BCMR  Docket  No.  96-084,  the 
Chief Counsel also argued that the assignment of “members to specific duties is a 
matter  committed  to  the  discretion  of  the  Commandant.”    “The  Comptroller 
General  has  determined  that  the  Commandant  may  terminate  a  Coast  Guard 
aviator’s designator, and his entitlement to ACIP, when that officer’s duties are 
changed.”    In  re  Miller,  No.  B-195691,  1989  U.S.  Comp.  Gen.  LEXIS  47  (Jan.  9, 
1989).    He  stated  that  the  xxxxxx  were  not  entitled  to  an  Aviator  Evaluation 
Board before the removal of their designators because their job performance was 
not at issue.   
 
 
The  applicant  in  BCMR  Docket  No.  96-084  also  argued  that  his  right  in 
ACIP was “vested.”  However, the Chief Counsel argued, the applicant’s right 
was dependent on the statute, and without the aeronautical designator, he had 
no statutory right to ACIP.  “[A] close reading of the statute shows that passing 
the  requisite  ‘career  gates’  does  not  itself  establish  entitlement  to  career-long, 
continuous  ACIP.”    The  Chief  Counsel  argued  that  the  statutory  provision  for 
continuous monthly ACIP for officers who complete a certain number of years of 
operational flying (37 USC § 301a(a)(4)) does not affect the requirement that offi-
cers hold an aeronautical rating to receive ACIP in Section 301a(a)(3).  Therefore, 
he  argued,  the  applicant  had  not  proved that  the  Coast  Guard  had  committed 
any error or injustice. 
 
 
Furthermore, the Chief Counsel argued, COMDTINST 7220.39 states that 
“[o]fficers who are not designated aviators, flight officers or flight surgeons are 
not entitled to ACIP.”  Therefore, the Board cannot find that the applicant is enti-
tled  to  ACIP  “absent  a  showing  that  the  Coast  Guard’s  regulations  are  ultra 
vires.” 
 

APPLICANT’S RESPONSE TO THE INITIAL ADVISORY OPINION 

On September 20, 1998, the applicant submitted a response to the Coast 

 
 
Guard’s advisory opinion. 
 

 
The applicant cited BCMR Docket No. 96-084 as a recently decided prece-
dent  and  very  similar  case  in  which  the  Board  had  granted  the  applicant’s 
request to restore his aeronautical designator and ACIP.  
 
 
The applicant alleged that Coast Guard regulations permit an aeronautical 
designator to be removed in only two ways and that both ways give the officer 
an opportunity to be heard.  She cited Article 6-A-1 of the Personnel Manual and 
Article 7-A of the Pay and Personnel Manual for this proposition.  She also stated 
that  the regulation  the  Chief  Counsel  cited  as  authorizing  the  Commandant  to 
revoke a designator, COMDTINST 7220.39, was issued in August 1994 and was 
not in existence when her aeronautical designator was revoked in October 199x. 
 

The applicant said that the Chief Counsel’s comparison of the removal of 
her designator to the termination of the sonar technician rating was not sound 
because the sonar technicians did not lose any pay or benefits to which they had 
become entitled when the rating ended.  The case In re Miller, which was cited 
by the Chief Counsel, is not relevant because the officer in that case had volun-
tarily chosen to leave an aviation career for a law career.  Her case, she pointed 
out,  is  more  like  that  of  the  Coast  Guard’s  astronaut.  The  Coast  Guard  main-
tained the astronaut designator until the person holding it retired even though 
the Coast Guard was not planning to send up any spacecraft.  In addition, she 
alleged that, contrary to the Chief Counsel’s claim that the xxxxxxs’ mission was 
unlikely to be revived, “[t]he XXX program was nearly revived by Presidential 
order in the winter of 199x-199x.”  Moreover, if war were declared, the xxxxxxs 
could serve on Navy XXX or C-130V aircraft. 

 
 
The applicant alleged that the Coast Guard had acted in bad faith when it 
recruited  xxxxxxs  for  the  XXX  program  because  it  “never  really  intended  to 
develop a viable career path” for them.  She alleged that the Service had used 
ACIP  to  attract  aviators  but  had  removed  the  incentive  once  the  xxxxxxs  had 
been induced to serve.  She likened her situation to that of the plaintiffs in United 
States v. Larinoff, 431 U.S. 864 (1977).  In Larinoff, the Supreme Court held that 
the  Navy  could  not  renege  on  its  promise  to  award  a  bonus  to  members  who 
extended their enlistments when, after it had induced them to extend, their skills 
became less critical.  Like the plaintiffs in Larinoff, she argued, “she is entitled to 
the  ACIP  award  level  which  existed  at  the time  she  agreed to  become  a  Coast 
Guard Xxxxxx.” 
 

SUPPLEMENTAL VIEWS OF THE COAST GUARD 

 
On  October  26,  the  Chief  Counsel  submitted  a  supplemental  advisory 
 
opinion indicating that the Coast Guard had changed its position to recommend 
that partial relief be granted. 

 
 
The  Chief  Counsel    stated  that  the  Coast  Guard  would  “not  contest  the 
restoration  of  Applicant’s  Xxxxxx  designator  in  view  of  the  Deputy  General 
Counsel’s . . . endorsement of the Board’s action in BCMR Docket #96-084.  How-
ever, the  Coast  Guard  does  not  agree  with Applicant’s  request  as  to  her  ACIP 
entitlement.”  The Chief Counsel stated that, [i]f the Board directs the restoration 
of  Applicant’s  designator,  the  Coast  Guard  would  then  evaluate  Applicant’s 
status under COMDTINST 7220.39 to determine what ACIP back pay, if any, is 
due.” 
 
 
and one-half years of operational flying time.  Because of that, her 
 

The  Chief  Counsel  noted  that  the  applicant  had  accumulated  only  four 

claim to ACIP . . . is factually distinguishable from the recently decided 
BCMR case in Docket #96-084.  The applicant in Docket #96-084 had met 
the requirements of 37 U.S.C. § 301a(a)(4) for continuous monthly incen-
tive  pay  by  completing  more  than  12  years  of  operational  flying  duties 
thus meeting the requirements of the 2nd “gate” provision in the statute 
(12 years or more operational flying during the first 18 years of the offi-
cer’s aviation service).  This applicant has not even passed the 1st gate. . . .  
Under  the  provisions  of  COMDTINST  7220.39,  if  a  member  is  initially 
qualified for ACIP with an aviation designator, their eligibility ends when 
they  can  no  longer  attain  a  total  of  8  years  of  operational  flying  time 
within  the  first  12  years  of  their  aviation  service.    This  Applicant  will 
never attain 8 years of operational flying time and, therefore, Applicant 
cannot even qualify for her 1st “gate.” 

 

 
 
The  Chief  Counsel  alleged  that,  whereas  the  applicant  claimed  she  is 
owed ACIP through February 24, 20xx, she would only have qualified for ACIP 
through April 1, 199x, if her designator had not been removed and assuming she 
met all of the other criteria.  After April 1, 199x, it would have been impossible 
for the applicant to qualify for the first “gate” since the XXX program had ended.   
Based on a cursory review of her record, the Chief Counsel stated that, with only 
4 years, 5 months, and 7 days of operational flying time, the applicant needed 3 
years, 6 months, and 23 days more to meet the first “gate” of 8 years out of the 
first 12.  The Chief Counsel calculated that the applicant’s first 12 years would 
end on October 22, 199x.  After April 1, 199x, it was impossible for her to accu-
mulate the 3 years, 6 months, and 23 days of additional operational flying time 
she needed before October 22, 199x.  Thus, the Chief Counsel concluded, if the 
Board restored her aeronautical designator, the applicant would be owed at most 
29 months of ACIP. 
 

APPLICANT’S RESPONSE 

TO THE SUPPLEMENTAL ADVISORY OPINION 

 
On  November  12,  1998,  the  applicant  responded  to  the  Chief  Counsel’s 
supplemental advisory opinion.  The applicant contended that the only remain-
ing  issue  for  the  Board  to  decide  is  how  her  ACIP  should  be  calculated.    She 
stated that the Aviation Career Incentive Act of 1974 (Pub. L. No. 93-294, 88 Stat. 
177,  codified  at  37  U.S.C.  §  301)  is  a  “wait  and  see”  statute  that entitles  her  to 
ACIP until the end of her first 12 years of aviation service.  She alleged that only 
at the end of those 12 years, on October 23, 199x, should the Coast Guard deter-
mine whether she has met the first “gate” and, if not, terminate her ACIP.  She 
calculated  that  her  ACIP  payments  through  October  199x  would  amount  to 
$39,560.    She  also  alleged  that,  even  if  the  Coast  Guard  were  to  terminate  her 
ACIP when it becomes “impossible” for her to meet the first “gate,” she would 
still be due ACIP through October 23, 199x, in the amount of $23,400.  She asked 
the  Board  to order the  Coast  Guard  to  calculate  her ACIP  entitlement  through 
her 12th year of aviation service, which ends October 23, 199x. 
 

THE COAST GUARD’S THIRD RESPONSE 

On  November  30,  1998,  the  Chief  Counsel  responded  to  the  applicant’s 

 
 
submission.  He stated that the applicant had  
 

misconstrue[d] the Coast Guard’s comment regarding the restoration of 
her Xxxxxx designator.  The Coast Guard has decided not to contest the 
Board’s decision regarding restoration of Applicant’s Xxxxxx designator.  
That does not concede that back ACIP is automatically due to Applicant.  
ACIP may only be paid if the Applicant also fulfills all other requirements 
. . . 

 

 

 
The  Chief  Counsel  reiterated  that the  calculation  of  any  monies  due  the 
 
applicant  as  a  result  of  the  Board’s  decision  is  outside  the  jurisdiction  of  the 
Board, pursuant to 31 U.S.C. § 3702. 
 

APPLICANT’S FINAL RESPONSE 

 
 
On December 29, 1998, the applicant responded to the final submission of 
the Coast Guard.  The applicant asked the Board to follow its decision in BCMR 
Docket No. 96-084 and grant her the reinstatement of her aeronautical designator 
and the retroactive payment of ACIP. 
 

SUMMARY OF THE RECORD 

On May xx, 198x, the applicant graduated from the U.S. Coast Guard Aca-
demy and received her commission.  On xxxxxx, 198x, she began flight training.  
This date marks the beginning of her aviation service.  

 On xxxxxxx, 198x, the applicant completed flight training, was designated 
a xxxxxx, and was certified as an xxxxxxxxx.  According to a report on xxxxxx 
career paths forwarded to the Commandant by the Commanding Officer of the 
Coast Guard Air xxxxxxxxxx, a xxxxxx “is an XXX [aircraft] aviator whose pri-
mary  duty  is  to  plan  and  conduct  missions  to  xxxxxxxxxxxxxxxxxxxxxxxxxx.   
They also operate the XXX’s xxxxxxxxxx to provide on-scene command, control 
and communications in support of xxxxxxxx and xxxxxxxxx missions.”   
 

On xxxxxxx, 198x, the applicant completed her training and was certified 
for xxxxxxxxx.  Soon after, she began serving at the Coast Guard Air Station in 
xxxxxxxxx.  On xxxxxx, 199x, she was designated an xxxxxxxxx in the XXX air-
craft.  On xxxxxxx, 199x, she was designated a xxxxxxxxxxxx in the XXX aircraft. 
 

On xxxxxxx, 199x, the applicant received orders to attend graduate school.  
On October 6, 199x, while the applicant was attending school, the Military Per-
sonnel Command issued a letter to all XXX xxxxxxs.  The letter announced that 
their aviation designators were to be removed as of xxxxxxx, 199x, and that they 
would  no  longer  receive  ACIP.    However,  the  letter  stated,  the  xxxxxxs  could 
continue wearing the xxxxxx insignia.  After receiving her graduate degree, the 
applicant was transferred on July 28, 199x, to a xxxxxxxxxxxxxxxxxxxxxxxx. 

 

APPLICABLE LAWS 

 
United States Code 
 
 
nent part: 

Title 37 U.S.C. § 301a (the ACIP statute) provides the following in perti-

hold or are in training leading to an aeronautical designator; and  
engage and remain in aviation service on a career basis. 

is entitled to basic pay; and 
frequently and regularly performs flying duty required by orders. 

 
Subsection (a)(1) states that a member is entitled to ACIP if she 
• 
• 
 
Subsection (a)(2) restricts payment of ACIP to officers who 
• 
• 
 
Subsection (a)(3) states that an officer is entitled to continuous ACIP if she 
• 
• 
• 
 
Subsection (a)(4) restricts entitlement to continuous ACIP to officers who 

is entitled to basic pay; 
holds an aeronautical designator; and 
is qualified for aviation service under the Secretary’s regulations. 

• 

perform operational flying duties for 9 of the first 12 or 12 of the 
first 18 years of aviation service. 

Subsection (a)(6) provides that entitlement to ACIP begins when an officer 

 
Subsection  (a)(5)  ends  entitlement  to  continuous  ACIP  “[i]f  upon  the 
completion  of  either  12  or  18 years  of  aviation  service  it  is  determined  that  an 
officer has failed to perform” the required 9 or 12 years of flying duty. 
 
 
begins training that leads to an aeronautical designation. 
 
Coast Guard Personnel Manual (COMDITINST M1000.6A) 
 
 
Article  6.A.1.  of  the  Personnel  Manual  prescribes  the  qualifications  for 
Coast Guard aviators.  Subsection d. permits the Commander of the Personnel 
Command to terminate the flight status of any aviator who, due to a non-tempo-
rary condition, does not meet the physical standards for aviators set out in the 
Medical Manual.  Subsection h. of Article 6.A.1. permits the Commander of the 
Personnel Command to terminate the flight status of any aviator after convening 
and  receiving  the  recommendation  of  an  Aviator  Evaluation  Board  upon  the 
advice of an aviator’s commanding officer or an “administrative senior” that the 
aviator (1) has shown faulty judgment; (2) has demonstrated a lack of skill; (3) 
has demonstrated an emotional or mental inaptitude; (4) has shown him or her 
self to be “professionally unfit for flying for any reason”; or (5) has been deter-
mined by a military flight surgeon “not to be aeronautically adaptable.” 
 
Coast Guard Pay and Personnel Manual (COMDTINST M5230.1) 
 
 
Article 7.B.8.a. of the Pay and Personnel Manual provides that the follow-
ing table shall govern how the Personnel Command pays ACIP to officers with 
an  aeronautical  designator  who,  like  the  applicant,  had  less  that  six  years  of 
aviation service as of October 1, 1991: 
 
NUMBER OF YEARS [OF] 
AVIATION SERVICE 
Under 12 years 

[TOTAL OPERATIONAL 
FLYING] TIME 
No minimum 

ACIP STATUS 

NOTES 

Continuous 

12 (Gate I) 

12 (Gate I) 

18 (Gate II) 

18 (Gate II) 

18 (Gate II) 

Less than 9 years 

Monthly 

9 years minimum 

Continuous 

Less than 10 years 

Monthly 

10 years minimum, 
but less than 12 
12 years minimum 

Continuous or 
monthly 
Continuous 

No minimum flight hour requirements 
necessary to qualify for ACIP. 
Required to fly minimum hours each 
month to qualify for monthly ACIP. . . . 
No minimum flight hour requirements 
necessary to qualify for ACIP. 
Required to fly minimum hours each 
month to qualify for monthly ACIP. . . . 
Continuous ACIP to 22 years of officer 
service, then monthly. 
Continuous ACIP to 25 years of officer 

service, then monthly. 

APPLICABLE CASE LAW 

 

 
BCMR Docket No. 96-084 
 
 
In Docket No. 96-084, the applicant was a former Navy xxxxxx who had 
left the Navy after completing xx years of operational flying for a direct commis-
sion as a Coast Guard xxxxxx.  When the Coast Guard revoked his aeronautical 
designator  as  of  xxxxxx,  199x,  the  applicant  had  completed  over  12  years  of 
operational flying.  Therefore, he had passed the second “gate” and was entitled 
to continuous ACIP through the end of his first 25 years of service as an officer 
pursuant to 37 U.S.C. § 301a(a)(4). 
 
 
ignator based upon the following findings: 
 

The Board granted the applicant’s request to restore his aeronautical des-

4. 
. . . [T]he applicant performed the requisite amount of operational 
flying to preserve his entitlement to ACIP.  Under Section 301a(a)(4), the 
applicant was not required to perform any more operational flying to pre-
serve  that  entitlement.   By  removing the applicant’s  aeronautical  desig-
nator, and thereby terminating the applicant’s aviation service, the Coast 
Guard has unjustly deprived the applicant of ACIP after the applicant ful-
filled  all  of  the  statutory  requirements  that  were  necessary  for  him  to 
establish his entitlement to that pay, and to preserve that entitlement until 
the applicant completes 25 years of service as an officer. 
 
5. 
The Coast Guard committed an error in canceling the applicant’s 
aeronautical designator and terminating his receipt of ACIP. . . .  The fact 
that  no  present  or  prospective  missions  may  exist  does  not  negate  the 
entitlement  to  ACIP  that  the  applicant  has  already  earned  by  virtue  of 
performing 12 years of operational flying duties. 

  
United States v. Larinoff, 431 U.S. 864 (1977). 
 
 
In the early 1970s, the appellee extended his enlistment in the Navy in or-
der to receive a bonus under the Variable Re-enlistment Bonus (VRB) program.  
Id. at 867.   Before the extension became operative, however, the Navy reduced 
the size of the promised bonus because the appellee’s skills were determined to 
be less critical.  In addition, Congress repealed the VRB program in 1972, prior to 
the  effective  date  of  the  appellee’s  extension.    Id.    When  the  extension  became 
operative, the Navy refused to pay the promised bonus.  Id.  
 
 
The  Court  found  that  payment  of  members  of  the  armed  forces  is  gov-
erned by statutory rights rather than by ordinary contract rights.  Id. at 869.  After 

reviewing  the  legislative  history  of  the  VRB  program,  the  Court  held    that 
“[b]ecause  Congress  intended  to  provide  at  the  re-enlistment  decision  point  a 
promise of a reasonably certain and specific bonus for extending service in the 
Armed Forces, Larinoff and the members of his class are entitled, as the Court of 
Appeals held, to payment of VRB’s determined according to the award levels in 
effect at the time they agreed to extend their enlistments.”  Id. at 877. 
 

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: 
 

The Board has jurisdiction concerning this matter pursuant to sec-

The  Chief  Counsel’s  decision  not  to  contest  the  restoration  of  the 
applicant’s aeronautical designator does not close the inquiry into that issue for 
the Board.  In BCMR Docket No. 96-084, neither the Board nor the Deputy Gen-

tion 1552 of title 10 of the United States Code. 
 

3. 

The  applicant  requested  an  oral  hearing  before  the  Board.    The 
Chairman, acting pursuant to 33 C.F.R. § 52.31, denied the request and recom-
mended  disposition  of  the  case  without  a  hearing.    The  Board  concurs  in  that 
recommendation. 
 
 
The applicant asked the Board to restore her aeronautical designa-
tor, which the Coast Guard removed on xxxxxxxxxxx, 199x, making her ineligible 
for ACIP.  She alleged that in doing  so, the Coast Guard had violated its own 
regulations and the ACIP statute.  She argued that her four-plus years of opera-
tional  flying  gave  her  a  “statutorily  vested  right  to  ACIP”  until  February  24, 
20xx, when she would have finished 12 years of aviation service.  Citing BCMR 
Docket No. 96-084 and United States v. Larinoff, 431 U.S. 864 (1977), the applicant 
stated that “she is entitled to the ACIP award level which existed at the time she 
agreed  to  become  a  Coast  Guard  Xxxxxx.”    She  therefore  asked  the  Board  to 
order the Coast Guard to pay her ACIP through February 24, 20xx. 
 
 
The Chief Counsel of the Coast Guard chose not to contest the res-
toration  of  the  applicant’s  designator  in  light  of  the  Final  Decision  in  BCMR 
Docket No. 96-084.  The Chief Counsel stated that pursuant to 31 U.S.C. § 3702, 
the Board has no authority to calculate any monies due the applicant as the result 
of a decision to correct her record by restoring her aeronautical designator.  The 
Chief Counsel stated that a cursory review of its regulations suggested that, if the 
Board restored the applicant’s designator, she might be owed up to 29 months of 
ACIP. 

4. 

1. 

2. 

 
5. 

eral  Counsel  concluded  that  the  Commandant  can  never  remove  an  aviator’s 
designator and stop his or her ACIP because the Coast Guard has abolished the 
program under which the aviator flies.  Instead, the Board held that, because the 
applicant  in  BCMR  Docket  No.  96-084  had  completed  over  12  years  of  opera-
tional flying time and thereby passed the second “gate,” he had a statutory right 
to  continuous  ACIP  through  his  twenty-fifth  year  as  an  officer  pursuant  to  37 
U.S.C. § 301a(a)(4).  The Board found that the Coast Guard had committed error 
and injustice by removing his aeronautical designator in order to cancel his ACIP 
in violation of his statutory right to continuous ACIP. 

The Board finds that, following the decision in BCMR Docket No. 
96-084, it must determine whether this applicant had a statutory right to continu-
ous ACIP that rendered the removal of her designator due to the xxxxxxxxxxxxx 
erroneous  or  unjust.    Absent  a  statutory  right  to  continuous  ACIP,  the  Board 
must  determine  whether  the  Coast  Guard  violated  its  own  regulations  or 
committed  injustice  in  removing  the  applicant’s  designator  and  denying  her 
ACIP. 

 
6. 

 
7. 

 
8. 

The applicant argued that as of xxxxxxxx, 199x, she had acquired a 
“statutorily vested” right to continuous ACIP because she had completed more 
than four years of aviation service.  If the Board were to read the subsections of 
37 U.S.C. § 301a as providing separate, independent bases for entitlement to con-
tinuous ACIP, that interpretation would be reasonable.  In fact, read independ-
ently, subsections (a)(3) and (a)(5) would seem to entitle an officer who held an 
aeronautical designator for just one day to continuous ACIP for 12 years even if 
the Coast Guard no longer flew any planes (assuming the officer remained quali-
fied to fly).  However, the Board does not believe that it can ignore subsection 
(a)(4) in determining whether an officer has a statutory entitlement to continuous 
ACIP.  Subsection (a)(4) expressly restricts the statutory entitlement to continu-
ous ACIP to officers who have performed operational flying duties for 9 of the 
first 12 years of aviation service.  With less than five years of operational flying 
duties,  the  applicant  has  not  met  this  requirement.    Therefore,  the  Board  finds 
that the Coast Guard did not violate a statutory right of the applicant’s when it 
removed her aeronautical designator and denied her ACIP. 

The  applicant  also  argued  that  the  Coast  Guard  violated  its  own 
regulations when it removed her designator.  She alleged that the Coast Guard 
could only remove aeronautical designators pursuant to Article 6.A.1. of the Per-
sonnel Manual and Article 7.A. of the Pay and Personnel Manual.  Article 6.A.1. 
of the Personnel Manual is inapplicable because the removal of the applicant’s 
designator was not caused by any change in her physical, mental, or other quali-
fications.  Article 7.A. of the Pay and Personnel Manual is irrelevant to whether 
the applicant has a right to an aeronautical designator.  That article merely pre-

scribes how the Coast Guard Personnel Command is to pay ACIP to officers who 
hold those designators. 

The applicant argued, in essence, that because there were no regu-
lations  prescribing  how  the  Commandant  could  terminate  the  designators  of 
participants in a terminated program, the Commandant could not terminate her 
designator.  The Board is not persuaded by the applicant’s argument.  No law or 
regulation states that the Commandant may only remove designators when the 
removal is justified by a personal failure of the officer to qualify for the designa-
tor.  Article 6.A.1. merely provides the process by which a designator should be 
removed when an officer does fail to qualify.  Therefore, the Board finds that the 
Coast Guard did not violate its own regulations when it removed the applicant’s 
aeronautical designator. 

 
9. 

 
10. 

 
11. 

The applicant argued  that under United States v. Larinoff, 431 U.S. 
864 (1977), she is entitled to the ACIP award level which existed at the time she 
agreed to become a xxxxxx.  In Larinoff, the Court found that payment of a mem-
ber of the armed forces is governed by statutory rights rather than by ordinary 
contract rights. Id. at 869.  As stated in Finding No. 7, above, the Board finds that 
the applicant had no statutory right to continuous ACIP.  

The  applicant  also  argued  that,  because  the  Coast  Guard  had  not 
removed the designator of an astronaut even though “the Coast Guard was not 
planning to send up any spacecraft,” it was unjust for the Coast Guard to remove 
her  designator  when  it  scrapped  the  XXX  program.    The  Coast  Guard  did  not 
address this issue.  Nevertheless, the Board is not persuaded that the applicant’s 
circumstances can be fairly equated to those of the astronaut.  Because the Board 
is not aware that the Coast Guard has ever operated spacecraft, it presumes that 
the astronaut designator has been assigned to members participating in a space 
program  conducted  by  another  government  agency.    There  is  nothing  in  the 
record  to  suggest  that  the  Coast  Guard  has  terminated  its  participation  in  the 
space program.  In contrast, the Coast Guard has specifically canceled the XXX 
program, on which the applicant relied in requesting retention of her aeronauti-
cal designator. 

 
12.  Accordingly, the Board finds that the Coast Guard did not commit 
any  error  or  injustice  in  removing  the  applicant’s  aeronautical  designator  and 
denying her ACIP.  Therefore, her application should be denied.  
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 

 
 
 

The  application  for  correction  of  the  military  record  of  XXXXXXXX, 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
Angel Collaku 

 

 

 
 
Mark A. Holmstrup 

 

 

 
Coleman R. Sachs 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

USCG, is hereby denied.