DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2000-018 
 
 
   

 

 
 

FINAL DECISION ON RECONSIDERATION 

 
ANDREWS, Attorney Advisor: 
 
 
This proceeding for reconsideration has been conducted under the provi-
sions of 33 C.F.R. § 52.67.  The original proceeding in this case, BCMR Docket No. 
1998-103,  was  conducted  according  to  the  provisions  of  section  1552  of  title 10 
and section 425 of title 14 of the United States Code.  A final decision in the origi-
nal  proceeding,  which  denied  relief,  was  issued  by  the  Board  on  May  6,  1999.  
The application for reconsideration was docketed on July 11, 2000. 
 
 
This final decision on reconsideration, dated May 3, 2001, is signed by the 
three duly appointed members who were designated to serve as the Board in this 
case. 

 

 

RELIEF REQUESTED 

 
 
The applicant, a former xxxxxxxxx in the Coast Guard, asked the Board to 
reconsider his request to be paid for his two last weeks as an officer in the Coast 
Guard, xxxxxxx, 1996.  The applicant stated that, although he could understand 
why the Board denied his request for retirement in the original proceeding, he 
could not understand why he would be denied pay and allowances for his two 
last  weeks  on  active  duty.    He  alleged  that  he  was  not  actually  processed  for 
discharge until Monday, xxxxxxxx, 1996.  
 

SUMMARY OF ORIGINAL PROCEEDING 

 
 
In  BCMR  Docket  No.  1998-103,  the  applicant  alleged  that  in  June  1996, 
when his discharge was pending due to his failures of selection for promotion, he 
requested an evaluation of his back injury by a medical board.  As a result, his 

discharge  was  delayed  while  he  was  referred  for  a  physical  examination  and 
underwent surgery.  On August 22, 1996, his command received orders stating 
that his separation date was postponed to October 1, 1996.  However, on August 
29, 1996, he was found fit for duty (and therefore fit for separation) even though, 
he alleged, he was still disabled by his back condition.  The applicant alleged that 
after his discharge, the Department of Veterans’ Affairs (DVA) awarded him a 30 
percent disability rating as of his date of discharge. 
 

At 2:00 p.m., EDT, on Friday, xxxxxxxxx, 1996, the Coast Guard Personnel 
Command  (CGPC)  issued  orders  to  the  applicant’s  command  canceling  the 
August 22, 1996, orders and retroactively discharging him as of xxxxxxxx, 1996.  
The applicant alleged that these retroactive orders were illegal and unjust.  He 
alleged that he was administratively processed for discharge on Monday, xxxxxx, 
1996, but his discharge was backdated as ordered by CGPC, so he was not paid 
for  his  final  two  weeks  on  active  duty.    His  DD  214  indicates  that  he  was 
discharged on xxxxxxxx, 1996.  It also states that he refused to sign it.  He alleged 
that if he had served on active duty until October 1, 1996, his 18th active duty 
anniversary, as provided by the extension orders issued on August 22, 1996, he 
would  have  been  entitled  to  remain  on  active  duty  until  he  could  retire  upon 
completion of 20 years of military service.  He also alleged that he should have 
been retired under the Temporary Early Retirement Act (TERA) since he met all 
the qualifications. 

 
The applicant alleged that the Coast Guard had treated him unjustly by 
(a) refusing to process him for a medical retirement due to his disability; (b) dis-
charging him before October 1, 1996, while his medical condition was still unsta-
ble and thereby denying him the chance to continue serving until he could earn a 
20-year retirement; and (c) issuing retroactive discharge orders that denied him 
pay and allowances for his last two weeks on active duty.   

 
The applicant asked the Board to correct his record by (a) returning him to 
active duty (with all back pay and allowances) so that he could be evaluated by a 
medical  board  and  medically  retired  if  found  physically  disqualified  for  active 
duty and, if not, retained on active duty until he could retire upon completing 20 
years  of  active  duty;  (b)  directly  awarding him  a  medical  retirement  with  a  30 
percent  disability  rating  as  of  xxxxxxxx,  and  back  pay  and  allowances;  or  (c) 
retiring him under TERA as of xxxxxxxx, 1996, with back pay and allowances.  
 
 
On March 19, 1999, the Chief Counsel recommended that the Board deny 
the applicant’s original application.  He alleged that the Coast Guard committed 
no errors in processing the applicant for discharge.  He alleged that the applicant 
was not entitled to military pay between xxxxxxxx, 1996, because he had begun 
working for the Coast Guard as a civilian on xxxxxxxx, 1996, and was not in a 

terminal leave status as a military member of the Coast Guard.1  Therefore, he 
alleged, the applicant’s xxxxxxxxx, 1996, date of discharge is correct, and under 5 
U.S.C. § 5533, he could not receive both military and civilian pay for those two 
weeks. 
 
 
The  Chief  Counsel  also  argued  that  the  applicant  was  not  entitled  to 
evaluation by a medical board prior to his discharge because he was found fit for 
duty  on  August  29,  1996,  and  he  has  presented  no  evidence  indicating  that  he 
was unfit to perform his duties at the time of his discharge.  He argued that the 
DVA’s  disability  rating  is  immaterial  because  the  Coast  Guard’s  physical  dis-
ability  system  “is  designed  to  compensate  members  whose  military  service  is 
terminated due to a service connected disability.”  See Lord v. United States, 2 Ct. 
Cl.  749,  754  (1983).    Because  the  applicant  was  fit  for  duty  and  was  being  dis-
charged  for  failure  of  selection  rather  than  for  any  medical  reason,  the  Chief 
Counsel  alleged,  he  was  not  entitled  to  evaluation  by  a  medical  board  under 
Article 2.C.2.a. of the Physical Disability Evaluation System (PDES) Manual.   
 
 
Finally,  the  Chief  Counsel  argued  that  the  applicant  was  not  entitled  to 
retirement under TERA.  He stated that TERA was a downsizing tool Congress 
provided  the  military  services  to  separate  members  who  would  otherwise  be 
retained on active duty for 20 years.  He stated that absolutely nobody was enti-
tled to a TERA separation because the statute left it to the discretion of the mili-
tary services to determine whether and whom to offer early retirement.  Because 
the applicant was already slated for discharge due to his failures of selection, the 
Chief Counsel argued, early retirement under TERA would have been contrary 
to the purpose of the act. 
 
 
The applicant responded to the Chief Counsel’s recommendation on April 
5, 1999.  He pointed out that the Chief Counsel admitted that the Coast Guard 
had  issued  retroactive  discharge  orders  but  cited  no  authority  permitting  such 
action.  He repeated his allegation that the Coast Guard cannot issue retroactive 
discharge  orders  and  that  therefore  his  status  from  xxxx  to  xxxx,  1996,  must 
either  have  been  active  duty  or  terminal  leave.    He  argued  that  regardless  of 
whether he was considered to be on active duty or on terminal leave, he is owed 
pay  and  allowances  for  that  period.    Furthermore,  he  argued  that  his  actual 
status was terminal leave because he filled out the paperwork for it on XXXXX, 
1996,  at  Coast  Guard  Headquarters.    On  terminal  leave,  he  alleged,  he  was 
entitled to accept pay as a civilian government employee under 5 U.S.C. § 5534a.   
 
 
In  addition,  the  applicant  argued  that  the  Secretary  was  required  to 
implement TERA and that 14 U.S.C. § 283 requires an officer who has failed of 

                                                 
1  Terminal leave is leave taken immediately prior to official separation from the service. 

selection  twice  to  be  retired  if  retirement  is  available  under  any  existing  law.  
Therefore, he argued, because he was qualified for retirement under TERA, the 
Coast Guard was required to grant him a TERA retirement.  The applicant also 
repeated his allegations that he should have been evaluated by a medical board. 
 
 
following three substantive findings: 
 

On  May  6,  1999,  the  Board  denied  the  applicant’s  request  based  on  the 

5.  The Coast Guard followed all proper procedures for processing 
this applicant for discharge.  The Chief Counsel concluded that applicant 
was not entitled to a medical board under the physical disability evalua-
tion  system.    The  applicant  failed  to  present  any  medical  evidence  to 
demonstrate that his separation physical was incorrect.  The Chief Coun-
sel stated that the applicant has failed to provide evidence that he was not 
fit for duty at the time of separation. 

 
6.    The  applicant  is  not  entitled  to  any  back  pay  for  the  period 
xxxxxx, 1996 because he was not working as a member of the active duty 
military during that period. 

 
7.  The applicant was not entitled to TERA retirement.  The TERA 
statutes did not create individual entitlements or mandate procedures; no 
person in the CG was entitled to be retired under TERA merely by meet-
ing  TERA’s  minimum  criteria.    The  decision  as  to  who  was  entitled  to 
TERA was entirely within the CG’s discretion to determine eligibility for 
TERA retirement.  Since this discretion was properly exercised, the appli-
cant has no cause for relief. 

 

APPLICANT’S NEW ALLEGATIONS 

 
 
The  applicant  alleged  that  the  Board  committed  a  legal  error  in  its  final 
decision for the original proceeding.  He alleged that the Board ignored the fact 
that  he  was  on  terminal  leave  from  xxxxx  to  xxxxxx,  1996,  and  that  the  law 
allows members on terminal leave to receive pay for both time spent on terminal 
leave and civilian government work.  5 U.S.C. § 5534a.  He alleged that he com-
pleted the paperwork for taking terminal leave and began his civilian job as soon 
as  he  heard  that  he  had  been  found  fit  for  duty.    He  alleged  that  he  did  not 
receive  the  retroactive  discharge  orders  from  his  command  until  Monday, 
xxxxxxx, 1996. 
 
 
The applicant further alleged that because he had disagreed with the ret-
roactive discharge orders and refused to sign his DD 214, he was denied transi-
tion  benefits:  three  months  of  medical  benefits  and  two  years’  use  of  military 
facilities.  He asked the Board to reconsider its decision and award him back pay 

and  allowances,  including  the  transition  benefits  he  was  denied  because  he 
would not accept the illegally retroactive discharge orders. 
 

VIEWS OF THE COAST GUARD 

 
 
On January 11, 2001, the Chief Counsel of the Coast Guard recommended 
that the Board grant relief “based on the equities presented in the case.”  He rec-
ommended that the Board correct the applicant’s record to show that he was dis-
charged on xxxxxxxxxx, 1996; that he served 17 years, 11 months, and 18 days on 
active duty; and that he is entitled to back pay and transition benefits. 
 
 
The Chief Counsel alleged that the applicant failed to prove that the Coast 
Guard committed error by discharging him retroactively.  However, he admitted 
that  the  Coast  Guard  committed  an  injustice  by  retroactively  discharging  the 
applicant after his command had already authorized him to begin terminal leave 
pending his expected  discharge on September 30, 1996.  See generally 14 U.S.C. 
§ 283.    He  argued  that  “[n]otwithstanding  the  Coast  Guard’s  authority  to  dis-
charge Applicant effective xxxxxxxx 1996, the record shows Applicant believed 
he was scheduled for separation effective 30 September 1996 and had managed 
his  terminal  leave  accordingly.”    He  alleged  that  while  members  are  not 
necessarily entitled to use the terminal leave in lieu of a lump sum payment, “it 
was entirely reasonable for Applicant to manage his annual leave as he did.” 
 
The Chief Counsel agreed with the applicant that under 5 U.S.C. § 5534a, a 
 
military  officer  in  a  terminal  leave  status  may  receive  compensation  both  as  a 
military  officer  and  as  a  civilian  employee  of  the  Coast  Guard.    Therefore,  he 
argued,  since  the  applicant  was  in  an  approved  terminal  leave  status  from 
xxxxxxx through xx, 1996, while performing his civilian job for the Coast Guard, 
he was entitled to receive the dual compensation. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On January 12, 2001, the Chairman sent the applicant a copy of the Chief 
Counsel’s advisory opinion and invited him to respond within 15 days.  On Feb-
ruary 28, 2001, the Board received his response.  He stated that “[i]f their intent is 
for me to receive pay and allowances for the time in question, and that the tran-
sition benefits available in 1996 be granted to myself and my dependents, I have 
no objections.”  He also asked the Board to consider using “constant dollars” or 
current pay scales in determining any monetary award. 
 

APPLICABLE LAWS 

 

Under 14 U.S.C. § 283, each lieutenant on active duty who fails of selection 

 
for promotion to lieutenant commander twice shall: 
 

be  honorably  discharged  on  June  30  of  the  promotion  year  in 

(1) 
which his second failure of selection occurs; or … 
(3) 
if,  on  the  date  specified  for  his  discharge  in  this  section,  he  has 
completed at least 20 years of active service or is eligible for retirement 
under any law, be retired on that date; or 
(4) 
if, on the date specified for his discharge in clause (1), he has com-
pleted at least eighteen years of active service, be retained on active duty 
and retired on the last day of the month in which he completes twenty 
years of active service, unless earlier removed under another provision of 
law.  

 
Under  10  U.S.C.  § 1168,  a  “member  of  an  armed  force  may  not  be  dis-
 
charged or released from active duty until his discharge certificate or certificate 
of release from active duty, respectively, and his final pay or a substantial part of 
that pay, are ready for delivery to him or his next of kin or legal representative.”  
Under 10 U.S.C. § 101, the Coast Guard is included in the term “armed force.”  A 
member of an armed force who has not been discharged is still on active duty.  
Garrett  v.  United  States,  625  F.2d  712  (La.  Ct.  App.),  cert.  denied,  450  U.S.  918 
(1980). 
 

Various  electronic  searches  for  words  and  phrases  such  as  “retroactive” 
and  “discharge  orders”  in  all  of  the  Coast  Guard’s  manuals  and  instructions 
revealed  no  regulation  authorizing  or  prohibiting  retroactive  discharge  orders.  
However, Chapter 2.F. of the Coast Guard Pay Manual (COMDTINST 7220.29) 
provides the following: 
 

F. 
Termination of Active Duty Pay.  Active duty pay is terminated 
upon separation or change in status.  Credit active duty pay and allow-
ances through the appropriate date as indicated below: 

•   •   • 

3. 

 

a.   

Resignation, Discharge, or Dismissal.  The date shown as 
official date of separation in official notice or date officer receives official 
notice if no official date of separation is shown except: 
 
         
Discharge  orders  do  not  of  themselves  relieve  the 
Government of its obligation to an officer.  The officer must have received 
actual or constructive notice by the effective date, unless the officer will-
fully avoids notice of separation.  If an officer is kept in service without 
fault, in ignorance of an order of dismissal, entitlement to all salaries and 
benefits of the office continue (27 Comp Dec 13). 
 

 

Under 5 U.S.C. § 5534a, an officer “who is on terminal leave pending sepa-
ration from, or release from active duty in, that service under honorable condi-
tions  may  accept  a  civilian  office  or  position  in  the  Government  of  the  United 
States, … and he is entitled to receive the pay of that office or position in addition 
to pay and allowances from the uniformed service for the unexpired portion of 
the terminal leave.” 
 

FINDINGS AND CONCLUSIONS 

 

b. 

       
If held in service under orders after the date shown 
in separation orders, an officer is entitled to pay if there is nothing in the 
record showing nonentitlement (27 Comp Dec 15). 

 
 
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  over  this  matter  pursuant  to  10  U.S.C. 

§ 1552 and 33 C.F.R. § 52.67.  The application for reconsideration was timely. 
 

2. 

The applicant has proved by a preponderance of the evidence that 
on xxxxxx, 1996, the Coast Guard issued illegal and unjust orders retroactively 
discharging him as of xxxxxxxxxx, 1996.  Under 10 U.S.C. § 1168, he could not be 
retroactively discharged as of xxxxxxx, 1996, because his discharge papers were 
not ready for delivery on that date. See Desjardins v. Department of the Navy, 815 F. 
Supp. 96, 98 (E.D.N.Y. 1993); Garrett v. United States, 625 F.2d 712, 713 (5th Cir. 
1980), cert. denied, 450 U.S. 918 (1981) (holding that under 10 U.S.C. § 1168, the 
plaintiffs  remained  on  active  duty  until  their  discharge  papers  were  ready  for 
delivery).  However, the applicant has not proved that the Coast Guard erred in 
canceling  the  remainder  of  the  extension  granted  on  August  22,  1996,  since  he 
had been found fit for duty. 
 

The applicant signed a sworn statement alleging that, although the 
order to cancel his extension and discharge him was issued by CGPC on Friday, 
xxxxxxxxxx, 1996, he was not processed for discharge until Monday, xxxxxxxx, 
1996.    The  Coast  Guard  did  not  deny  this  allegation  or  offer  any  contrary 
evidence, and the orders indicate that they were issued at 2:00 p.m. on the Fri-
day.  Therefore, the Board finds that the applicant has proved by a preponder-
ance of the evidence that his discharge papers were not ready for delivery to him 
until Monday, xxxxxxxx, 1996. 
 
 
The applicant has proved by a preponderance of the evidence that 
his DD 214 is in error because it states that he was discharged on xxxxxxx, 1996, 

4. 

3. 

5. 

6. 

having performed a total of 17 years, 11 months, and 5 days on active duty.  In 
fact, under 10 U.S.C. § 1168, he was discharged on xxxxxxxxx, 1996, having per-
formed 17 years, 11 months, and 21 days  on active duty, because that was the 
day his discharge papers were ready for delivery. 
 
 
The  applicant  alleged  and  the  Chief  Counsel  admitted  that  the 
applicant’s  command  had  approved  his  request  for  terminal  leave  during  the 
period in question.  Therefore, even though he was paid as a civilian for his work 
during that period, he was entitled to military pay and allowances for the same 
period under 5 U.S.C. § 5534a. 
 
 
Even  if  retroactive  discharges  were  legal,  the  applicant  would  be 
owed pay and allowances for the two weeks in question because he was given no 
notice  of  his  discharge  prior  to  receiving  the  orders  sometime  after  they  were 
issued  on  Friday,  xxxxxxxxx,  1996.    Coast  Guard  Pay  Manual  (COMDTINST 
7220.29), Chapter 2.F.3.; cf. Willingham v. United States, 35 Fed. Cl. 633, 647 (1996) 
(citing a previous holding in Wilkinson v. United States, 27 Fed. Cl. 180, 181 (1992), 
that a service member is not entitled to additional pay simply because he has not 
yet received a discharge certificate if he was aware of and on notice of discharge).  
There is no evidence in the record indicating that he had notice of his discharge 
prior to xxxxxxxxxx, 1996.  
 

Given  the  illegally  retroactive  discharge  awarded  him  on  xxxxxx, 
1996, the Board finds that the applicant reasonably refused to sign the DD 214 as 
presented.  As a result of his refusal, he was not issued a transition benefits card 
and did not receive those benefits.  The Board finds that the applicant has proved 
by  a  preponderance  of  the  evidence  that  he  was  unjustly  denied  transition 
benefits.    In  addition,  the  Board  believes  that  the  notation  on  his  DD  214 
indicating that he refused to sign it may be prejudicial and should be corrected. 

7. 

It  is  not  clear  to  the  Board  that  the  applicant  would  have  been 
entitled to remain on active duty until he qualified for a 20-year retirement even 
if he had served on active duty until October 1, 1996.  Under 14 U.S.C. § 283 (a)(1) 
and (a)(4), he would have to have completed 18 years of active service by June 
30, 1996, to be entitled to remain on active duty for 20 years.  On June 30, 1996, 
the applicant had served approximately 17 years and 9 months on active duty.  

 
8. 

 
9. 

Accordingly, relief should be granted.  

 

ORDER 

 

The  application  of  former  XXXXXXXXXXX,  USCG,  for  correction  of  his 

military record is granted as follows:   

 
•  His  DD  214  and  any  other  applicable  military  records  shall  be  cor-
rected to show that he was discharged on xxxxxxxxxxx, 1996.   

•  Specifically,  the  separation  date  shown  in  block  12.b.  of  his  DD  214 
shall be xxxxxxxxx, 1996.  The net active service shown in block 12.c. and 
the total prior active service shown in block 12.d. on his DD 214 shall be 
adjusted accordingly. 

•  His records shall be corrected to show that he was on approved termi-
nal  leave  after  xxxxxxxxx,  1996.    The  number  of  days  of  “accrued  leave 
paid”  shown  in  block  16  of  his  DD  214  shall  be  adjusted  in  accordance 
with this correction as necessary. 

•  The  notation  “MBR  REFUSED  TO  SIGN.”  in  block  21  of  his  DD  214 
shall be corrected to show that he did not refuse but was unavailable to 
sign the DD 214.   

•  The Coast Guard shall pay the applicant any back pay and allowances 
he is due as a result of this correction.  In addition, the Coast Guard shall 
issue the applicant a transition benefits card so that he and his family may 
receive, beginning as of the date he receives the card, the same benefits he 
would have received had he signed his DD 214 when it was first issued. 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
Robert H. Joost 

 

 

 

 
 
Jacqueline L. Sullivan 

 

 

 
 
Betsy L. Wolf