DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2001-108 
 
XXXXXXXX, XXXXX X. 
XXXXXXXXXXX XXXXXX 
   

FINAL DECISION 

 
GARMON, Attorney-Advisor: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on July 10, 2001, upon the 
BCMR’s receipt of the applicant’s request for correction. 
 
 
members who were designated to serve as the Board in this case. 

This  final  decision,  dated  May  30,  2002,  is  signed  by  the  three  duly  appointed 

 
 

APPLICANT’S REQUEST 

 

 
 

 

 
 

The applicant asked the Board to order the Coast Guard to pay him interest on 
back pay and allowances previously paid to him for an 18-month period during which 
the applicant held a lower rank and pay grade than that for which he was qualified. 

APPLICANT’S ALLEGATIONS 

 
The applicant stated that 14 U.S.C. § 727 mandates that the Coast Guard provide 
an  active  service  constructive  credit  to  Direct  Commissioned  Lawyers  (DCL).    The 
applicant,  a  DCL  since  July  1998,  further  stated  that the  Coast  Guard  had  previously 
failed  to  provide  him  with  the  active  service  constructive  credit  but  has  since  taken 
corrective  measures,  though  only  of  a  partial  nature.    The  applicant  alleged  that 
although  the  Coast  Guard  administratively  changed  his  dates  of  rank  and  provided 
back  pay  and  allowances  covering  the  18-month  period,  the  corrective  actions  taken 

failed  to  provide  interest  on  his  back  pay  and  allowances  and  thus,  denied  him  full 
relief.   
 
In  support  of  his  allegations,  the  applicant  cited  the  Back  Pay  Act,  5  U.S.C.  § 
5596, as providing for back pay and interest, calculated for the period of erroneous pay, 
for federal employees of executive agencies.   The applicant also cited Sanders v. United 
States, 594 F.2d 804 (Ct. Cl. 1979) as suggesting that the Board is authorized to afford the 
applicant equitable relief in a manner similar to the relief provided to federal employees 
under the Back Pay Act.   The applicant noted that the Sanders court pointed out that 
BCMRs have a duty and are obligated to act to correct records to eliminate errors and 
injustices.    The  applicant  further  cited  Loeffler  v.  Frank,  486  U.S.  549,  558  (1988),  as 
supporting the proposition that the payment of prejudgment interest is a component of 
full  compensation.    The  applicant  alleged  that  in  order  to  fully  correct  his  record  to 
eliminate the indicated injustice, the Board should find that the applicant is entitled to 
receive interest on his back pay and allowances. 
 

 

SUMMARY OF THE APPLICANT’S RECORD 

 
 
The applicant was commissioned as a lieutenant junior grade in the Coast Guard 
Reserve on July 14, 1998.   The applicant’s date of rank for lieutenant was July 14, 2001.  
However, the Coast Guard, in correcting an administrative error, changed his date of 
rank  as  a  lieutenant  to  January  14,  2000.    Subsequent  to  the  applicant’s  date  of  rank 
adjustment,  the  Coast  Guard  calculated  and  provided  all  authorized  back  pay  and 
allowances.  To date, the applicant continues to serve in the Coast Guard Reserve. 
 
 

VIEWS OF THE COAST GUARD 

 
 
On November 15, 2001, the Chief Counsel provided the Coast Guard’s comments 
to  the  Board.    The  Chief  Counsel  adopted  the  Coast  Guard  Personnel  Command’s 
analysis as its advisory opinion and recommended that the applicant’s request for relief 
be denied. 
 

The  Chief  Counsel  stated  that  the  doctrine  of  sovereign  immunity  operates  to 
preclude any claim against the Federal Government not expressly authorized by statute.  
In  the  absence  of  express  authority  to  pay  interest,  the  Chief  Counsel  argued,  a  “no 
interest rule” applies.  The Chief Counsel cited Library of Congress v. Shaw, 478 U.S. 
310, 314 (1986), in support of his contention that under the rule’s application, a waiver 
separate  from  the  general  waiver  of  immunity  to  suit  is  required  in  order  to  recover 
interest where recovery of back pay has been obtained.   
 

 
The  Chief  Counsel  stated  that  the  phrase  “other  pecuniary  benefits”  within  10 
U.S.C. § 1552 provides only for the usual types of pay and benefits earned by military 
personnel in accordance with law.  The Chief Counsel contended that under the rules of 
statutory  construction,  because  the  general  phrase  “other  pecuniary  benefits”  is 
preceded by specific categories of military pay, the general phrase contemplates only 
those  items  within  the  meaning  of  the  specific  pay  and  benefits  enumerated.    Such 
being  the  case,  he  argued,  an  interpretation  of  this  general  phrase  that  incorporates 
interest payments in its recovery contravenes congressional intent. 
 
 
The Chief Counsel cited several cases in support of his assertion that the courts 
and  Comptroller  General  have  unanimously  held  that  the  Board  lacks  the  power  to 
award  interest  on the basis  of  equity.    The Chief  Counsel  argued  that the  applicant’s 
reliance  on  Loeffler  v.  Frank,  Postmaster  General  of  the  United  States,  486  U.S.  549 
(1988), is misplaced, as interest within a compensation scheme fails to serve as lawful 
authority for its award by the Board.   
 
 
The Chief Counsel stated that authority to pay interest on back pay is found in 
Section 5596 in Title 5 of the United States Code.  However, payment of such interest is 
available  to  civil  servants  only.    The  Chief  Counsel  contended  that  because  the  term 
“civil service” is defined in 5 U.S.C. § 2101 with the express exclusion of “positions of 
the  uniformed  services,”  the  applicant,  as  a  member  of  the  armed  forces,  is  not 
statutorily  entitled to interest on back pay.  The lack of any known authority to allow 
the payment of interest on back pay to members of the uniformed services, he stated, 
requires that the Board deny the applicant’s request. 
 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On November 26, 2001, the Chairman forwarded a copy of the views of the Coast 
Guard to the applicant and invited him to respond within 15 days. On December 10, 
2001, the applicant provided the Board with his response. 
 
 
The applicant argued that the Coast Guard did not provide any legal support for 
its assertion that 10 U.S.C. § 1552 fails to include “interest” in its scheme of relief.  The 
applicant moreover asserted that Comptroller General opinions are not binding on the 
Board, and accordingly, should not be given deference.  The applicant contended that 
the  Coast  Guard  admits  that  “interest  is  an  element  of  complete  compensation,”  yet 
concurrently fails to support its assertion that interest may not be awarded by the Board 
in the instant case. 
 
The applicant stated that the expansive words included in the text of § 1552 fail 
 
to  demonstrate  congressional  intent  that  the  statute  be  read  narrowly,  particularly  in 
light of the remedial spirit of the legislation.  The applicant noted that within the Coast 

Guard’s  Pay  Manual  (COMDTINST  M7220.29A),  general  terms,  such  as  “pay”  and 
“allowances,” have meanings broader than their topical sense and include a variety of 
specific  payments.    The  applicant  argued  that  a  liberal  reading  of  the  general 
phraseology  at  issue  in  §  1552  (c)  is  similarly  required,  as  both  § 1552  and  the  noted 
provision  in  the  Pay  Manual  serve  as  remedial  devices  in  making  those  aggrieved 
whole. 
 
 
The  applicant  alleged  that  the  non-payment  of  interest  on  back  pay  and 
allowances fosters the postponement of corrective action taken by the Coast Guard, and  
thereby  imposes  on  service  members  varying  degrees  of  harm,  depending  upon  the 
timing  of  correction.    The  applicant  argued  that  as  interest  is  collected  by  the  Coast 
Guard from members on overpayments, so should interest be paid by the Coast Guard 
to  members  on  underpayments.    The  power  to  enforce  such  corrective  action,  the 
applicant contended, is within the Board’s statutory authority.   
 
 
 
 
 
 

10  U.S.C.  §  1552  (c)  provides  that  the  “Secretary  concerned  may  pay,  from 
loss  of  pay,  allowances, 
applicable  current  appropriations,  a  claim 
compensation, emoluments, or other pecuniary benefits, … if as a result of correcting a 
record under this section, the amount is found to be due the claimant on account of his 
or another’s service in the … Coast Guard ….” 

 
28 U.S.C. § 2516 (a) provides that “[i]nterest on a claim against the United States 
shall be allowed in a judgment of the United States Court of Federal Claims only under 
a contract or Act of Congress expressly providing for payment thereof.”   

the 

 
Interest is not recoverable in a suit against the government absent a showing of 
the right to collect interest under statute or contract.  First Nat’l Bank v. United States, 
548  F.2d  928  (1977).    “A  general  waiver  of  sovereign  immunity,  allowing  litigation 
against  the  United  States,  does  not  automatically  effectuate  a  waiver  of  sovereign 
immunity allowing recovery of interest.”  Jetco, Inc. v. United States, 11 Cl. Ct. 837, 850 
(1987); see Library of Congress v. Shaw, 478 U.S. 310, 315 (1986).   

 
“[T]he intention of Congress to permit the recovery of interest must be expressly 
and specifically set forth in the statute.  …  Mere use of the term ‘just compensation,’ 
without more, is no substitute for an express provision for interest.”  United States v. 
Thayer-West Point Hotel Co., 329 U.S. 585, 590 (1947).   

 

APPLICABLE LAW 

for 

 
 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submission, and appli-
cable law: 
 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 

§ 1552.  The application was timely. 
 

1. 

2. 

 
4. 

 
5. 

The applicant contends that 10 U.S.C. § 1552 (c) is a remedial statute that 
should be applied to grant him interest on the back pay and allowances he received as a 
result  of  a  correction  of  his  record.    However,  the  applicant  conceded  that  §  1552  (c) 
does not expressly authorize the recovery of interest by its stated terms.  Instead, the 
applicant cited the general phrase “other pecuniary benefits,” coupled with the Board’s 
equitable  powers,  as  the  source  of  the  Board’s  alleged  authority  to  order  payment  of 
interest. 
 
3. 

Title 28 U.S.C. § 2516 (a) is strictly construed against the award of interest 
in the absence of express authorization.  The interpretive caselaw also prohibits claims 
for interest, based on a statute, that have not been authorized by the express terms of 
the statute.  See, e.g., United States v. Jackson, 34 F.2d 241 (10th Cir. 1929); Fitzgerald v. 
Staats, 578 F.2d 435 (D.C. Cir. 1978); Bromley Contracting Co. v. United States, 596 F.2d 
448 (Ct. Cl. 1979); Tuftco Corp. v. United States, 614 F.2d 740 (Ct. Cl. 1980).  Therefore, 
despite  the  applicant’s  argument  that  interest  is  sometimes  considered  a  part  of 
“compensation,” the Board finds that the phrase “other pecuniary benefits” in 10 U.S.C. 
§ 1552 (c) does not, by itself, authorize the Board to award interest. 

Had Congress intended that interest be included in 10 U.S.C. § 1552 (c), it 
could  have  so  stated,  as  it  has  done  in  other  provisions  of  the  Code  relating  to  the 
recovery of interest.  As noted by the applicant, code provisions, such as the Back Pay 
Act,    which  designate  specific  judgments  against  the  United  States  on  which  interest 
would be allowed establish very detailed schemes of both the rate of interest and the 
time  period  during  which  interest  is  payable.    Congressional  appropriations  to  pay 
interest under the Back Pay Act, however, are expressly limited to civil servants.  In the 
absence  of  both  express  language  and  a  statutory  scheme  permitting  the  award  of 
interest, the Board cannot find that Congress intended for the Board to award interest 
under 10 U.S.C. § 1552 (c). 

Title 10 U.S.C. § 1552 is remedial legislation, which should be construed 
liberally  rather  than  narrowly  or  technically.    Oleson  v.  United  States,  172  Ct.  Cl.  9 
(1965);  41  Ops.  Atty.  Gen.  203,  206,  208  (1954).    However,  a  statute  is  considered 

remedial if it “neither enlarges nor impairs substantive rights but relates to the means 
and procedures for enforcement of those rights.”  United States v. Kairys, 782 F.2d 1374, 
1381 (7th Cir. 1986).  The applicant’s interpretation of § 1552 (c) would clearly expand 
the  substantive  rights  of  members  because  it  would  provide  a  new,  previously 
unavailable right to interest.1   
 

Even  though  the  applicant  has  not  proved  that  the  Coast  Guard 
committed any legal error in refusing to pay him interest, the Board may exercise its 
equitable power to correct injustice if it finds that the member’s “treatment by military 
authorities shocks the sense of justice.”2  However, the applicant has not persuaded the 
Board that the Coast Guard acted toward him in a way that “shocks the sense of justice” 
in failing to pay interest on his back pay and allowances. 
 
 
 
 

Accordingly, the applicant’s request should be denied. 

 
6. 

7. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
1 See New York v. United States, 160 U.S. 598 (1896) (holding that the allowance of interest is not a matter 
of discretion but of legal right). 
 
2 Sawyer v. United States, 18 Cl. Ct. 860, 868 (1989), rev’d on other grounds, 930 F.2d 1577 (Fed. Cir. 1991); 
see also Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976).  The Deputy General Counsel has also ruled 
that in the absence of legal error, an applicant’s treatment by military authorities must “shock the sense of 
justice” to justify correction by the Board.  BCMR Docket No. 346-89. 

The  application  of  XXXXXXXXXX  XXXXXXX,  USCG,  for  correction  of  his 

ORDER 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
Julia Andrews 

 

 
 
Angel Collaku 

 

 
Gareth W. Rosenau 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 
military record is denied.