DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2000-071 
 
 
   

 

 
 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This  proceeding  was  conducted  under  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 14, 2000, upon receipt of the completed application. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated December 14, 2000, is signed by the three duly 

RELIEF REQUESTED 

 
The applicant, a xxxxxxxxx in the Coast Guard Reserve, asked the Board 
 
to  correct  her  military  record  to  make  her  eligible  for  Basic  Allowance  for 
Housing (BAH) payments from October 1, 1998, to March 31, 1999.  She asked to 
be  awarded  the  payments  denied  her  as  a  result  of  the  Coast  Guard’s 
determination that she was not eligible because she served under two orders for 
90 days of service each, rather than one order for 180 days of service.   
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that in 1998, she “responded to a critical solicitation 
from Group xxxxx for a xxxx to fill a S.P.E.A.R. gap for 180 days.”  She alleged 
that the understanding at the time she accepted the orders was that she would 
serve for approximately six months, until the billet was filled.  However, instead 
of issuing her one set of orders for that period, the Coast Guard issued her two 
sets of orders for 90 days each.  Therefore, she alleged, she was unfairly denied 
BAH because one criterion for eligibility is to be in receipt of orders of at least 
140 days. 

 

SUMMARY OF THE RECORD 

 
 
On September 22, 1998, a petty officer in the Xxxxxx District Budget Office 
sent a chief petty officer in Group xxxxxx an e-mail message stating that Group 
Xxxxxx was authorized 90 days of Active Duty for Special Work in support of the 
Active  Component  (ADSW-AC)  in  fiscal  year  1999,  from  October  through 
December 1998.  The applicant was issued travel orders  stating that she was to 
report to Group Xxxxxx on October 1, 1998, for 90 days of active duty. 
 

On November 18, 1998, the applicant sent an e-mail to the petty officer at 
the Budget Office containing the codes in her orders issued by Group Xxxxxx’s 
PERSRU (apparently in response to a request from the Budget Office for copies 
of her orders).   The petty officer responded, “This is all wrong.  I gave chief the 
accounting data to use.  The orders have to be amended or you will have trouble 
getting payed [sic].” 

 
On December 2, 1998, the chief petty officer in Group Xxxxxx sent an e-

mail to the petty officer at the Budget Office that stated the following: 

 
Request an additional 90  days ADSW for [the applicant] from JAN-MAR 1999.  
Her current ADSW period is covered through  DEC 1998 … .  She  is filling the 
SPEAR gapped XXX Billet here at Group Xxxxxx.  The detailer has told Group to 
expect a replacement around MAY/JUNE 1999 timeframe. 
 
On December 3, 1998, the applicant’s orders were amended to extend her 
active  duty  period  for  90  days,  from  January  1  through  March  29,  1999.    The 
amendment stated that “[T]his amendment is now part of the original orders and 
shall remain attached thereto at all times.” 

 
On December 17, 1998, the chief petty officer sent the Budget Office an e-

mail stating the following: 

 
As discussed (17DEC98) Group Xxxxxx agrees to transfer to D1 the difference in 
cost of providing both [the applicant] and [another petty officer] the Xxxxxx full 
[without  dependents]  BAH  rate  vice  the  BAH  II  [without  dependents]  rate  for 
their full 180 day ADSW-AC.  Currently there [sic] ADSW-AC has been set-up as 
two separate 90 ADSW-AC periods, leaving them short of the 140 day require-
ment to pay them their full respective [without dependents] BAH rates.  Current-
ly the [without dependents] BAH II is $365.10 for Xxxxxx and the Full [without 
dependents]  BAH  is  $588.75,  a  difference  of  $223.65/mo.  …    in  the  meantime, 
corrections to their orders will be completed to get them payed [sic] for their past 
90 day period. …   

 
 
On September 17, 1999, the Commanding Officer of Group Xxxxxx wrote 
a  letter  to  the  Commandant  (G-WPM),  asking  that  the  applicant  be  paid  BAH 

and  a  cost-of-living  allowance  (COLA)  for  the  180  consecutive  days  of  active 
duty she performed from October 1, 1998, through March 29, 1999.  She stated 
that  when  she  hired  the  applicant,  she  expected  the  billet  to  be  vacant  for  six 
months.  She stated that the Xxxxxx District issued the orders for 90 days despite 
a mutual understanding that the applicant’s assignment would be funded for up 
to  six  months,  and  she  accepted  the  90-day  orders  because  she  did  not  know 
their implications for the applicant’s receipt of BAH.  The Commanding Officer 
further stated that, if she had known the applicant would not receive BAH and 
COLA with the 90-day orders, she would not have approved them.  She stated 
that, although the orders have been amended, the PERSRU has informed her that 
the applicant cannot be paid without G-WPM’s approval.  She asked G-WPM to 
approve  her request  because  reserves  are  critical  to  Group  Xxxxxx’s  operation, 
and “[t]his is not the right way to treat our reserve personnel.”  She also stated 
that  the  issue  was  “not  about  money”  because  the  applicant’s  assignment  was 
fully funded. 
 
 
manding  Officer’s  letter. 
explanation: 
 

On  October  18,  1999,  Commandant  (G-WPM-2)  responded  to  the  Com-
  Her  request  was  denied  with  the  following 

Housing allowances for reservists  on  short-term active duty are clearly 

2. 
spelled out in Title 37 USC § 403(g)(3): 

 
“The  Secretary  of  Defense  shall  establish  a  rate  of  basic  allow-
ance for housing to be paid to a member of a reserve component 
while the member serves on active duty under a call or order to 
active duty specifying a period of less than 140 days, unless the 
call or order to active duty is in support of a contingency opera-
tion.” 

 
The Secretary of Defense has established BAH-II as the housing allowance rate 
for reservists under individual active duty orders of 139 days or less. 
 
3. 
Your letter states it was the command’s intention to utilize ADSW-AC to 
cover a gapped billet until a backfill was available.  Unfortunately, because the 
initial orders and subsequent amendment were prepared for a period of less than 
139 days, we have no legal basis to approve your request.  There is nothing to 
indicate that any provisions concerning the member’s duty status were omitted 
from  the  orders  through  error  or  inadvertence,  nor  are  they  incomplete  or 
ambiguous.  The orders, on their face, indicate they were short-term active duty 
orders for a member of a Reserve Component. … 

 
 
On  October  29,  1999,  the  Commanding  Officer  responded  to  the  denial.  
She  stated  that  G-WPM  does  have  the  authority  to  correct  her  mistake  under 
Article 3.D.7 of the Reserve Policy Manual.  She further stated that 
 

 

The response to this appeal is not in the record.  On January 13, 2000, the 
Commanding Officer of Group Xxxxxx signed a letter to the BCMR containing 
the following statements in support of the applicant’s allegations: 
 

the mistake was discovered within one month of being made.  Thus, this is not a 
case where as the reservist approached the end of a 90 day period of ADSW-AC, 
the command then and only then decided to ask for an extension and additional 
entitlements.  The intent was always to bring [the applicant] on for a period of 
180 days.  The delay in sending my request for relief to you was created by my 
attempt  to  get  the  issue  resolved  at  the  lowest  level  possible.    I  pursued  relief 
through  PERSRU,  ISC  Xxxxxx  (fot),  and  the  Xxxxxx  District.    Each  initially 
thought  that  they  could  solve  the  problem.    However,  as  each  reviewed  the 
situation, they recommended contacting the next higher authority. 
 
… Group Xxxxxx set aside all of the money necessary to cover all of [the appli-
cant’s] pay and allowances from the very beginning. … 

[The  applicant]  came  on  active  duty  to  fill  the  E-6  billet  left  vacant  when  the 
incumbent made E-7 prior to executing his orders.  This billet is critical … . 
 
Since  the  assignment  cycle  had  ended  and  no  one  responded  to  the  ‘shopping 
list’ advertising the billet, the detailer decided not to order a relief until March 
1999 at the earliest. …  I was quite certain the billet would in fact remain vacant 
until at least March. …  So, we arranged to bring a reserve E-6 onto active duty.  
[The applicant] accepted the orders and started ADSW-AC on 1 October 1998. 
 
Group  Xxxxxx  is  a  relatively  small  unit  which  receives  no  funding  for  ADSW-
AC.    Since  the  estimated  cost  for  six  months  of  ADSW-AC  was  high,  we 
requested  and  received  funding  from  the  Xxxxxx  Coast  Guard  District.    The 
District agreed to fund the ADSW-AC until March 1999 or the arrival of a relief, 
whichever  occurred  sooner.    Unfortunately,  the  District  issued  the  funds  in  an 
initial increment of 90 days, a practice which we now realize is ‘standard,’ and 
intended to reduce the cost of reserve augmentation.  With orders of only 90 days 
duration  [the  applicant]  was  entitled  to  BAH  II  vs.  full  BAH  and  COLA,  a 
monthly shortfall of $274.65 in 1998 and $436.70 in 1999. 
 
The Group staff questioned this arrangement since our request had been based 
on the mutual understanding that the orders  would  be funded for 182 days or 
longer.  The District advised that they would simply fund orders in a second 90 
day increment when the time came.  Unfortunately, my staff was unaware of the 
full  implications  of  this  course  of  action:    that  [the  applicant’s]  take  home  pay 
would  be  reduced.    Being  unaware,  they  did  not  approach  the  District  with  a 
request to fully fund BAH, nor did the District raise the issue, despite our obvi-
ous intent to keep the XXX on duty for six months.  Had the implications of this 
funding  decision  been  understood,  I  would  have  issued  the  orders  for  the  full 
duration, right from the start. … 
 
The oversight went undetected for about two months.  A BM1 on ADSW-AC at 
Group Xxxxxx (filling a vacancy over nearly the same period of time) observed 
his paycheck as a reserve on active duty was less than his pay check as an active 
duty member had recently been.  He compared with [the applicant], whose pay 

 

VIEWS OF THE COAST GUARD 

was identical.  Both sets of orders were funded by the Xxxxxx District; the BM1’s 
orders were issued by another Group at our request. 
 
The shortfall in pay was identified as the difference between BAH II and BAH 
with COLA.  The situation involving the BM1 and [the applicant] was immedi-
ately brought to the District’s attention.  The District agreed to continue funding 
the orders, but asked that the Group pay the difference.  I was more than happy 
to do so, since it was my original intent to keep both Petty Officers on ADSW-AC 
for  six  months  or  more,  and  in  any  case  beyond  the  139  day  limit  that  defines 
BAH eligibility.  The BM1’s orders were quickly straightened out by the PERSRU 
that issued them, using administrative means. 
 
Since then my staff and the Integrated Support Command PERSRU, who issued 
the XXX’s orders, have spent many fruitless hours trying to correct a simple mis-
take based on my lack of familiarity with reserve orders.  My PERSRU has been 
unable to fix the oversight administratively, noting that permission from higher 
authority is required.  On 17 September 1999 I asked Commandant (G-WPM) to 
issue a waiver based on the authority discussed in Article 3.D.7 of the Reserve 
Policy  Manual  (enclosure  (1)).    The  response,  (enclosure  (2)),  states  that  Com-
mandant has no legal authority to grant the waiver and restore the entitlements 
owed  [the  applicant]  for  duty  faithfully  performed.    G-WPM’s  response  pre-
sumes that the orders were written right the xxxxxx time.  They were not. 

On August 25, 2000, the Chief Counsel of the Coast Guard submitted an 

 
Advisory Opinion of the Chief Counsel 
 
 
advisory opinion recommending that the Board deny the requested relief.   
 
The Chief Counsel alleged that under 23 Comp. Gen. 713 (1944); 37 Comp. 
 
Gen. 627 (1958); and 63 Comp. Gen. 4 (1983), legal rights with respect to travel 
orders may not be modified retroactively unless “an error is apparent on the face 
of the original orders, or all facts and circumstances surrounding the issuance of 
such  orders  clearly  demonstrate  that  some  provision  which  was  previously 
determined and definitely intended had been omitted through error or inadver-
tence  in  preparing  the  orders.”    He  argued  that  the  applicant  voluntarily  and 
knowingly accepted two 90-day orders and that her unit’s “desire” to keep her 
for more than 140 days did “not equate to ‘intent’ nor was this an error of inad-
vertence in preparing the orders.” He alleged that the 140-day provision of the 
regulations “is well known within the Reserve community and such knowledge 
could  reasonably  be  imputed  to  Applicant,  an  administrative  expert  with  20 
years of military service.”  
 
 
The  Chief  Counsel  alleged  that  the  applicant’s  unit  “did  not  have  the 
authority or make adequate funding available to issue ADSW-AC orders.  The 
fact that the total funding eventually received allowed the Applicant to remain on 

ADSW-AC for 180 days is inconsequential.”  The Chief Counsel argued that the 
record  indicates  that  it  was  the  Xxxxxx  District’s  decision,  as  the  source  of  the 
funds, to limit the duration of the applicant’s orders to fewer than 140 days “to 
reduce their expenses.” He argued that it is “the express or implied intent of the 
District decision-maker as to Applicant’s orders [that] governs this case, not the 
intent of the Group Commander.” 
 

The  Chief  Counsel  stated  that  the  Xxxxxx  District  may  have  maximized 
the  number  of  reserves  it  could  hire  by  issuing  short-term  orders  that  did  not 
require payment of BAH.  He argued that under Chevron U.S.A. Inc. v. Natural 
Resources Defense Council, Inc., 467 U.S. 837, 842-44 (1984), and the Decision of the 
Deputy General Counsel in BCMR Docket No. 167-94 at 2, the Board “must defer 
to  the  Coast  Guard’s  interpretation  of  its  own  fiscal  management  policy  and 
allow  the  agency  the  discretion  to  decide  how  it  will  meet  the  statutory 
requirements if Congress was either silent or ambiguous on the issue.”  He stated 
that  “[t]he  internal  management  practices  the  Coast  Guard  employed  in 
managing  and  distributing  its  funding  for  ADSW-AC  were  not  in  error  or  an 
injustice” and that it would be contrary to the Supreme Court’s decision in Chev-
ron for the Board to “restrict the Coast Guard’s management practices and limit 
its flexibility in implementing [37 U.S.C. § 403].” 

 
The Chief Counsel also argued that its regulations did not create any per-
sonal  right  not  provided  for  under  the  statute  and  that,  under  the  Supreme 
Court’s decisions in United States v. Caceres, 440 U.S. 741 (1979), and Cort v. Ash, 
422 U.S. 66, 78 (1975), violations of agency procedural regulations do not create 
private  rights  of  action.    Therefore,  he  alleged,  “the  methodology  the  Coast 
Guard used to allocate and manage reserve funding is not a right that the BCMR 
may independently impose on the Coast Guard as it is within the discretion of 
the Coast Guard to decide how to manage its workforce policies.” 

 
The Chief Counsel concluded that the Board should deny relief in this case 
“consistent  with  its  decision  in  BCMR  Case  No.  1999-023.”    In  that  case,  the 
Chairman denied relief under 33 C.F.R. § 52.32(a)(1) because the applicant sub-
mitted  no  evidence  supporting  his  allegation  that  his  command  originally 
intended  to  retain  him  for  at  least  140  days.    Nor  did  he  prove  that  the  Coast 
Guard  erred  in  refusing  to  merge  his  initial  83-day  orders  and  subsequent  six 
sets of orders, which totaled 321 consecutive days of active duty. 
 
Memorandum of the Chief of the Compensation Division (G-WPM) 
 
The Chief Counsel attached to his advisory opinion a copy of a memoran-
 
dum on the case by the Chief of the Compensation Division (G-WPM).  The Chief 
stated  that  “[t]he  contention  that  Group  Xxxxxx  fully  intended  all  along  to 

employ [the applicant] from 1 October 1998 through 30 March 1999, and had the 
funds to do so is undercut by the fact that neither they nor ISC Xxxxxx issued the 
simple amendment to her orders that would have corrected the alleged oversight 
at  the  time  the  ‘error’  was  discovered.”    He  alleged  that  the  applicant  should 
have known, as a yeoman, of the implications of her 90-day order and that if she 
had  not,  “it  would  have  been  immediately  obvious  on  her  xxxxxx  Leave  & 
Earnings  Statement.    The  issue  could  have  been  immediately  resolved  by  an 
amendment to her initial tour of duty prior to its conclusion, thus avoiding the 
after-the-fact remedy proposed in her CGBCMR application.”  The Chief further 
alleged that “there was no policy, official or informal, that would have precluded 
issuance of ADSW orders for 180 days.”  
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On August 28, 2000, the Chairman forwarded a copy of the views of the 
Coast  Guard  to  the  applicant  and  invited  her  to  respond.    No  response  was 
received by the Board. 
 

APPLICABLE LAW 

 
37 U.S.C. § 403.  Basic Allowance for Housing  
 

Title 37 U.S.C. § 403 provides that members of a uniformed service enti-
tled to basic pay are also entitled to BAH based on a formula spelled out in the 
statute.  Subsection (g)(3) contains the following exception for Reserve members 
serving under short-term orders: 

 

The Secretary of Defense shall establish a rate of basic allowance for housing to 
be paid to a member of a reserve component while the member serves on active 
duty  under  a  call  or  order  to  active  duty  specifying  a  period  of  less  than  140 
days, unless the call or order to active duty is in support of a contingency opera-
tion. 

 
37 U.S.C. § 403b.  Cost of Living Allowance 

 
Title 37 U.S.C. § 403b. authorizes the Secretary to pay eligible members of 
a uniformed service a COLA if they are assigned to an area with high housing 
costs.  Subsection (f)(2)(A) provides that Reserve members are not entitled to this 
COLA unless they are serving under an order to active duty for a period of 140 
days or more.  
 
Coast Guard Reserve Policy Manual (COMDTINST M1001.28) 
 

 
Chapter 3.D. of the Reserve Policy Manual governs members’ assignment 
to ADSW-AC.  Chapter 3.D.2. states that “[n]ormally, the span of the orders is 
limited to one fiscal quarter to allow for proper funds management.” 
 
 
Chapter 3.D.3.a. states that “(1) Long-term ADSW-AC is duty performed 
consecutively in excess of 20 weeks. …  BAH and COLA are paid to members 
who  perform  long-term  ADSW  (JFTR  U8008).  ….    (2)  Short-term ADSW-AC  is 
duty performed consecutively for 20 weeks or less.” 
 
 
vidual unit’s AFC-30 account.” 
 
 
 

Chapter  3.D.6.  states  that  “ADSW-AC  is  normally  funded  from  an  indi-

Chapter 3.D.7. states the following: 

The  authority  to  issue  orders  is  delegated  to  the  member’s  servicing 

Standard Travel Order for Military Personnel, CG-5131, will be used to 

a. 
PERSRU. … 
b. 
issue ADSW orders. 

•  •  • 

e. 
…  (1)  Orders shall not be retroactively amended to change entitlements 
for  duty  already  performed  unless  all  facts  and  circumstances  clearly  demon-
strate  that  some  provision  previously  determined  and  definitely  intended  was 
omitted through error. 

(2)    Retroactive  amendments  of  entitlements  requires  documentation 
concerning  original  intent,  facts  and  circumstances  to  be  sent  to  Commandant 
(G-WPM)  with  the  claim.    This  claim  review  process  is  lengthy.    Careful 
avoidance  of  initial  errors  and  amending  of  orders  only  for  duty  not  yet 
performed will avoid costly administrative delays in processing.  

 
 
Chapter 3.F.4. states that “[a]mendments to orders may only be effected 
by the originating or higher authority, with the following exceptions:  a.  Orders 
inaccurately  reflect  entitlements  due  to  error,  oversight,  or  change  in  member 
status during execution, the orders shall be amended per COMDTINST M7220.29 
(series), CG Pay Manual.” 
 

In re Snapp, 63 Comp. Gen. 4 (1983). 
 

In Snapp, which was cited by the Chief Counsel in his advisory opinion, 
the plaintiff was a warrant officer in the Marine Corps whose permanent change-
of-station orders were canceled and replaced by temporary duty orders after he 
himself had moved to the new station but his family had not yet moved.  The 
plaintiff sought temporary duty allowances (per diem) for the entire period.  The 
Comptroller  General  found  that  he  was  owed  allowances  for  a  permanent 
change of station up until the day his orders were cancelled and for temporary 
duty thereafter.  In so holding, the decision stated the following: 

 
It  is  well  established  that  legal  rights  and  liabilities  in  regard  to  per  diem  and 
other travel allowances vest when the travel is performed under orders, and that 
such orders may not be canceled or modified retroactively to increase or decrease 
the rights which have become fixed under the applicable statutes and regulations 
unless  error  is  apparent  on  the  face  of  the  orders,  or  all  the  facts  and  circum-
stances  clearly  demonstrate  that  some  provision  previously  determined  and 
definitely intended had been omitted through error or inadvertence in the prepa-
ration of the orders.   

 
In re Posey, 1976 Comp. Gen. LEXIS 2186.  
 
In  Posey,  the  plaintiff’s  initial  50-day  temporary  orders  were  later 
 
extended  by  amendment  for  an  additional  89  days  and  were  subsequently 
extended  a  second  time  for  another  125  days.    The  plaintiff  sought  temporary 
duty allowances for the entire period, although the active duty period exceeded 
140 days.  The Air Force argued that no temporary duty allowances were owed 
because  the  extended  period  of  active  duty  was  “foreseeable.”    However,  the 
Comptroller  General  held  that  he  was  entitled  to  temporary  duty  allowances 
because at the time the orders were issued for 50 days and amended to include a 
total  of  139  days,  “it  was  not  contemplated  that  [the  plaintiff’s  assignment] 
would be continued beyond that time period.” 
 
In re Connaughton, 1977 Comp. Gen. LEXIS 2195. 
 
In Connaughton, the plaintiff’s initial 88-day orders were extended several 
 
times  for  short  periods,  which  ultimately  totaled  453  days  of  active  duty.  
Because none of the orders exceeded 140 days, he received per diem and travel 
allowances  for  the  entire  time.    The  evidence  indicated  that  “the  allocation  of 
man  days  may  have  been  the  driving  force  behind  the  issuance  of  multiple 
orders for less than 20 weeks rather than the anticipated period for which clerical 
help  was  required.”    The  short-term  orders  did  not  refer  to  any  unforeseen 
circumstances.  Therefore, the Comptroller General concluded that “[w]hen such 
a period of active duty must be extended by another period of less than 20 weeks 

due  to  ‘unforeseen  circumstances’,  these  allowances  continue  to  be  payable 
throughout the period of the extension.  However, no per diem is payable from 
the date the Reservist receives the extension order if the extension is not due to 
unforeseen  circumstances  and  the  total  period  on  active  duty  is  20  weeks  or 
more.” 
 
In re Silverberg, 1977  Comp. Gen. LEXIS 1674. 
 
 
In Silverberg, the plaintiff received orders for annual training, for which 
no  per  diem  is  allowed,  although  he  was  actually  performing  active  duty  for 
training, for which per diem is payable.  His orders were later amended to reflect 
the  nature  of  his  service.    The  Comptroller General  found  that  the  facts  of  the 
case proved that the initial orders were incorrect because the plaintiff was per-
forming active duty for training rather than annual training.  Therefore, he con-
cluded  that,  “[s]ince  a  material  error  is  apparent  on  the  face  of  the  original 
orders,  and  the  facts  and  circumstances  clearly  demonstrate  that  a  status 
previously determined and definitely intended had been omitted through error 
or inadvertence, he was entitled at the time he performed his duty to receive per 
diem.” 
 
In re Wilkerson, 1982 Comp. Gen. LEXIS 1338. 
 
In  Wilkerson,  the  plaintiff  served  on  continuous  active  duty  for  over  5 
 
months based on short-term orders of less than 20 weeks each.  The Comptroller 
General found that he was not owed per diem because “[i]n this regard we have 
held that when more than one set of orders are issued for active duty and each 
set  of  orders  is  for  less  than  a  20-week  period,  but  the  total  period  exceeds  20 
weeks,  the  [temporary  duty]  allowances  authorized  should  not  be  paid.    The 
only exception to this being when the extension of active duty is ordered because 
of unforeseen circumstances.”  
 
In re Lewis, 48 Comp. Gen. 655 (1969). 
 
In Lewis, the plaintiff was issued one set of orders for 63 days, because the 
 
funding  for  further  service  had  not  yet  been  authorized.    Prior  to  the  day  he 
began serving, however, further funding was authorized.  Therefore, at the end 
of  the  63  days,  he  received  orders  for  another  150  days  of  active  duty.    The 
Comptroller General found that because the Navy had clearly intended to keep 
the applicant on active duty for more than 140 days, his orders should have been 
modified when the further funding was authorized.  Therefore, the plaintiff was 
not  entitled  to  temporary  duty  allowances  because  his  additional  150  days  of 
active  duty  “did  not  arise  from  circumstances  not  foreseen  at  the  time  he 
reported for active  duty on April 29, but was merely an assignment to further 

active duty under the same circumstances, as originally intended.”  The Comp-
troller  General  concluded  that  “since  it  is  clear  that  in  [the  plaintiff’s]  case  the 
assignment  was  intended  to  be  for  a  period  in  excess  of  20  weeks  when  he 
reported for duty and that orders properly should have been issued to accom-
plish this, it is our view that in his case and the other similar cases, the periods of 
duty authorized by the separate sets of orders should be considered as one con-
tinuous period in determining entitlement to per diem and mileage allowance.” 
 
In re Brown, 66 Comp. Gen. 264 (1987). 
 
In Brown, the plaintiff initially received orders for 139 days.  After serving 
 
approximately  45  days,  his  orders  were  amended  to  add  another  26  days  of 
active duty.  The Comptroller General found that he was due per diem for the 
entire  period  because  the  extension  was  not  foreseen  intended  ab  initio.    In 
reaching this conclusion, he held that periods of 5 or 6 months cannot normally 
be considered “temporary” because a temporary duty assignment confers eligi-
bility for per diem, and conversely, that short-term assignments cannot be con-
sidered  “permanent”  because  a  permanent  duty  assignment  confers  eligibility 
for reimbursement of household moving expenses. 
 
BCMR Docket No. 1999-023 
 
 
In BCMR Docket No. 1999-023, cited by the Chief Counsel, the applicant 
alleged that the Coast Guard committed an injustice when it failed to merge his 
initial  83-day  orders  and  six  subsequent  sets  of  orders,  which  totaled  321  con-
secutive days of active duty, so that he would be entitled to BAH.  The applicant 
submitted  a  letter  from  his  commanding  officer  stating  the  following:    “My 
original intention was to keep the member on ADSW-AC for a minimum of six 
months.    The  reason  for  the  various  amendments  was  due  to  my  inability  to 
identify  a  dedicated  funding  source  at  the  beginning  to  cover  the  entire  six-
month period.  Hence, funding was added to [the applicant’s] order as it became 
available.”  The Chairman denied relief under 33 C.F.R. § 52.32(a)(1) (Summary 
denial  by  Chairman)  because,  he  stated,  the  applicant  submitted  no  evidence 
supporting his allegation that his command originally intended to retain him for 
at least 140 days.  
 
BCMR Docket No. 167-94 
 
 
In BCMR Docket No. 167-94, the Board found that the temporary appoint-
ment  of  an  officer  who  had  committed  adultery  and  fraternization  was 
erroneously vacated.  The Board interpreted 14 U.S.C. § 214, “Original appoint-
ment  of  temporary  officers,”  as  allowing  only  the  vacation  of  a  temporary 
officer’s  “original”  appointment  as  an  ensign  and  therefore  not  allowing  the 

vacation of the applicant’s subsequent appointment as a lieutenant junior grade.  
In disapproving the Board’s decision, the  Deputy General Counsel determined 
that the Board’s interpretation of the statute was erroneous and that the statutory 
language (“An appointment under this section may be vacated by the appointing 
officer  at  any  time.”  14  U.S.C.  §  214(e))  authorized  the  Secretary  to  vacate  his 
appointment as a lieutenant junior grade.  She based her decision on a broader 
reading of the statutory language.  She stated that this broader interpretation of 
the  statute  was  supported  by  the  Coast  Guard’s  regulations  implementing  the 
statute  and  that,  under  Chevron  U.S.A.  Inc. v.  Natural  Resources  Defense  Council, 
Inc., 467 U.S. 837, 842-44 (1984), those regulations “represent the service’s imple-
mentation of the applicable statutes, and are entitled to considerable deference.”  

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 over this case under section 1552 of title 

10 of the United States Code.  The application was timely. 
 

2. 

The applicant argued that her record should be corrected to show 
that in September 1998, she was issued orders to serve on active duty at Group 
Xxxxxx for 180 days, instead of 90 days, because her command knew the billet 
would be open for that 180 days and intended to keep her in the position until 
the billet was filled.  She argued that her orders and entitlements should reflect 
the actual intent of the Coast Guard to keep her on active duty for 180 days.   

 
3. 

The  Chief  Counsel  argued  that  the  Coast  Guard’s  regulations  do 
not give the applicant a private cause of action.  However, the applicant’s claim 
is based on both the alleged error in her orders, which gives her a cause of action 
under 10 U.S.C. § 1552, and on the denial of BAH and COLA, entitlements under 
37 U.S.C. §§ 403 and 403b.  In United States v. Caceres, 440 U.S. 741 (1979), which 
the Chief Counsel cited, there was no underlying federal statute to support the 
criminal defendant's claim of being deprived of a right.  Nor does Cort v. Ash, 422 
U.S. 66 (1975), support the Coast Guard's position.  All four factors that the Court 
stated should be considered in Cort weigh in the applicant’s favor here:  (a) Con-
gress specifically intended Coast Guard members to benefit under the BAH and 
COLA statutes; (b) Congress implicitly created a private remedy; (c) a member's 
suit  for  a  wrongfully  withheld  BAH  and  COLA  would  be  consistent  with  the 
underlying legislative scheme; and (d) disputes over these allowances are clearly 
not  within  the  province  of  the  states.    See  Concurring  Opinion  of  the  Deputy 
General Counsel, BCMR Docket No. 69-97. 

5. 

 
 
The Chief Counsel argued that the “desire” of the applicant’s Com-
manding  Officer  to  retain  her  for  180  days  is  irrelevant  because  she  had  no 
authority  to  issue  the  orders.    He  alleged  that  only  the  intent  of  the  Xxxxxx 
District,  which  issued  the  orders,  is    relevant  and  that  the  Xxxxxx  District 
intended to issue 90-day orders.  He indicated that the 90-day orders may have 
been part of a plan to lower the cost of hiring Reservists by issuing orders that 
would not entitle them to BAH or COLA.  He argued that the Board should defer 
to  the  Coast  Guard’s  determination  that  the  law  permits  it  to  save  money  by 
issuing  Reservists  series  of  short-term  orders  that  disentitle  them  to  BAH  and 
COLA, rather than orders covering the foreseen period of active duty.  He also 
argued that under Snapp (summarized above), the Comptroller General has held 
that orders may not be retroactively amended to increase or decrease a member’s 
entitlements unless “an error is apparent on the face of the original orders, or all 
the  facts  and  circumstances  surrounding  the  issuance  of  such  orders  clearly 
demonstrate  that  some  provision  which  was  previously  determined  and 
definitely intended had been omitted through error or inadvertence in preparing 
the orders.” 
 
The Comptroller General’s decisions in Posey, Connaughton, Wilker-
 
son, and Lewis (summarized above) indicate that a Reservist’s short- or long-term 
status  and  consequent  entitlements  depend  not  on  the  duration  of  the  orders 
issued by their commands but on the foreseeable duration of the Service’s need 
for the member and its original intention to keep the member in the position for 
that duration.  The Service’s actual intent supersedes the duration of the orders 
issued in determining the member’s status and entitlements.  Thus, although the 
statutes and regulations prescribe short- and long-term status and entitlements 
by  the  duration  of  orders,  the  Comptroller  General  looks  behind  the  orders 
issued to the Service’s actual intent.  Moreover, the Comptroller General expects 
the Services to amend orders to reflect their intent.  See In re Lewis, 48 Comp. Gen. 
655 (1969).  Therefore, the Services cannot thwart the purpose of the statutes by 
issuing orders that do not reflect their actual intent to retain their members for 
short or long periods.   
 

Under  37  U.S.C.  §§  403  and  403(b),  Congress  clearly  intended 
Reservists  serving  more  than  140  days  of  continuous  active  duty  to  have  the 
same  right  to  BAH  and  COLA  as  regular  enlisted  members,  just  as  under  37 
U.S.C. § 404, it intended members serving away from home on a short-term basis 
to  receive  per  diem.    If  a  Service  cannot  create  an  entitlement  to  per  diem  by 
issuing short-term orders that do not reflect its actual intent to retain the mem-
ber, the Board fails to see how a Service can rightly negate an entitlement to BAH 
and COLA by issuing short-term orders that do not reflect its actual intent.   

4. 

6. 

 

7. 

The  statements  signed  by  the  applicant’s  Commanding  Officer 
indicate that the Coast Guard knew from the start that the billet would remain 
unfilled  for  180  days  and  intended  to  keep  the  applicant  until  the  billet  was 
filled.    In  addition,  the  statements  indicate  that  the  Xxxxxx  District  agreed  to 
fund the billet for 180 days and that the Commanding Officer “set aside all of the 
money necessary“ to cover the applicant’s service for 180 days.  The Chief Coun-
sel  presented  no  evidence  contradicting  the  Commanding  Officer’s  statement 
that  the  Xxxxxx  District  agreed  to  fund  the  applicant’s  duty  for  180  days  and 
intended to do so even though it issued orders for only 90 days.  Both the Chief 
Counsel and the Chief of the Compensation Division (G-WPM) disregarded the 
Commanding Officer’s statements in their arguments and relied on the fact that 
the orders were issued for only 90 days to prove that the Coast Guard did not 
intend  to  retain  the  applicant  for  at  least  140  days.    However,  in  light  of  the 
Commanding  Officer’s  statements  and  Chapter  3.D.2.  of  the  Reserve  Policy 
Manual (which states that “[n]ormally, the span of orders is limited to one fiscal 
quarter  to  allow  for  proper  funds  management”),  the  Board  finds  that  the  fact 
that the applicant was issued 90-day orders is not particularly probative of the 
Coast Guard’s actual intent to keep her for only 90 days.   

In her statements, the applicant’s Commanding Officer repeatedly 
avowed  that  both  she  and  the  Xxxxxx  District  foresaw  the  need  to  retain  the 
applicant for 180 days, intended to retain her for 180 days, and agreed that the 
position would be funded for 180 days.  Under the Comptroller General’s deci-
sions  in  Snapp,  Posey,  Connaughton,  Wilkerson,  Silverberg,  Brown,  and  Lewis,  it  is 
the  true  intent  and  foreseeability  of  a  Reservist’s  duration  of  active  duty  that 
governs her entitlement to duty allowances, not the wording of her orders.  The 
Board  finds  that  the  Commanding  Officer’s  statements  constitute  virtually 
unrebutted, substantial evidence that in September 1998, the Coast Guard fore-
saw the need to retain the applicant for 180 days, intended to retain her for 180 
days, and yet erroneously issued her orders for only 90 days.  

 
8. 

 
9. 

The  applicant’s  Commanding  Officer  stated  that  the  Xxxxxx 
District told her that it issued the 90-day orders under a standard practice to save 
money so that it could afford to employ more Reserves.  Although the Chief of 
the Compensation Division (G-WPM) seemingly denied this in his memorandum 
attached to the advisory opinion, the Chief Counsel did not deny it but argued 
instead that the Board should defer to the Coast Guard’s determination that the 
statutes allow such means of limiting costs so that it can employ more Reserves.  
In  BCMR  Docket  No.  167-94,  the  Deputy  General  Counsel  held  that  the  Coast 
Guard’s interpretation of its statutes are entitled to considerable deference from 
the Board, just as courts defer to agencies’ interpretations under Chevron U.S.A. 
Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984).  However, in this 
case, the Coast Guard’s determination that it can issue orders not reflective of its 

actual intent to retain members in order to increase or decrease their entitlements 
has been soundly refuted by the Comptroller General in the cases summarized 
above.  Although these cases involved Reservists who received pretextual short-
term orders that seemed to entitle them to per diem, the Comptroller General’s 
reasoning applies just as certainly to cases in which pretextual short-term orders 
disenfranchise Reservists. 
 

The Chief Counsel argued that the Board should deny relief in this 
case to be consistent with the Chairman’s denial of relief in BCMR Docket No. 
1999-023.    However,  in  that  case,  the  record  indicated  that,  although  the  com-
manding officer desired to keep the applicant on active duty for six months, he 
was  unable  to  “identify  a  dedicated  funding  source”  and  so  wrote  short-term 
orders as funds became available.  Such uncertainty could be considered to have 
negated any “intent” of the command to keep him and to have rendered unfore-
seeable the ultimate length of his service.1  In contrast, the record here indicates 
that the Xxxxxx District agreed with the applicant’s Commanding Officer in Sep-
tember 1998 that it would fund the applicant’s service through March 1999.  

The Chief Counsel argued that no relief is due because the appli-
cant was an experienced yeoman who knew or should have known the monetary 
implications of her original 90-day orders before she accepted them.  However, 
as  the  Comptroller  General’s  decisions  in  Posey,  Connaughton,  Wilkerson,  and 
Lewis indicate, the applicant’s expectations are irrelevant as to whether she was 
entitled  to  BAH  and  COLA.    Each  of  the  Reservists  in  those  cases  reasonably 
expected  to  receive  per  diem  based  on  their  acceptance  of  short-term  orders.  
However, each of them was denied per diem because the Comptroller General 
determined  that  the  need  for  their  work  for  periods  longer  than  140  days  was 
foreseeable  by  the  military  service  involved.    The  fact  that  they  all  accepted 
short-term  orders  with  the  expectation  of  receiving  per  diem  was  not  even 
mentioned as a factor in the Comptroller General’s decisions. 

10. 

 
11. 

 
12. 

The applicant has also proved by a preponderance of the evidence 
that she was treated differently than a similarly situated BM1 in her unit.  The 
Commanding  Officer’s  statements  indicate  that,  upon  her  inquiry  and  request, 
the  Coast  Guard  amended  the  BM1’s  orders  to  reflect  his  foreseeable  and 
intended  long-term  duty,  thereby  entitling him  to  BAH  and  COLA.    Although 
                                                 
1  The Board notes that the effect of a military service’s indecision as to whether or how to apply 
resources to retain a Reservist upon the Reservist’s right to short-term or long-term allowances is 
unclear.  In Lewis, the Comptroller General’s decision indicates that a lack of authorized funding 
would be a proper basis for issuing short-term orders that entitle a Reservist to per diem.  How-
ever, in Connaughton, the Comptroller General indicated that the Service’s sporadic “allocation of 
man  days”  did  not  justify  short-term  orders  and  entitle  the  plaintiff  to  per  diem  when  “the 
anticipated period for which clerical help was required” exceeded 140 days.  

the BM1’s orders were apparently issued by a different unit, the Commanding 
Officer  indicated  that  they  were  funded  by  the  Xxxxxx  District  under  an 
agreement and arrangement similar to those made for the applicant.  The Chief 
Counsel has not explained why it was correct for the Coast Guard to conserve 
resources  by  issuing  one  Reservist  at  Group  Xxxxxx  short-term  orders  that 
denied her BAH and COLA, although it amended another Reservist’s orders to 
entitle  him  to  the  allowances,  when  the  Service  knew  it  would  need  both 
Reservists’ services for periods longer than 140 days. 

 
13. 

The applicant has proved by a preponderance of the evidence that 
the 90-day ADSW-AC orders she received for active duty service beginning on 
October 1, 1998, were erroneous and inconsistent with the Coast Guard’s actual 
intent to retain her for 180 days.  In accordance with the Comptroller General’s 
decisions in Snapp, Silverberg, and Lewis, her erroneous orders should be correct-
ed to reflect the Service’s true intent. 
 
 
14.  Accordingly, the applicant’s request should be granted by correct-
ing her orders to show that in September 1998, she was called for 180 consecutive 
days of ADSW-AC. 
 
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
 
 
 

ORDER 

 

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

record is hereby granted. 

 
Her  records  shall  be  corrected  to  show  that  she  received  orders  for  180 
consecutive days of ADSW-AC beginning on October 1, 1998, instead of 90-day 
orders.    The  subsequent  orders  she  received  in  December  1998,  amending  her 
original orders to extend them for another 90 days, are therefore redundant and 
void. 

 
The Coast Guard shall pay the applicant any allowances, such as BAH and 

 
 

 
 

 
 

COLA, that she is due as a result of this correction. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Terence W. Carlson 

 

 

 
Beverly Russell 

 

 

 

 

 

 

 

 

 

 

 
 
Jacqueline L. Sullivan