DEPARTMENT OF TRANSPORTATION 

 BOARD FOR CORRECTION OF MILITARY RECORDS 

 
______________________________ 
 
Application for Correction of  
Coast Guard Record of: 
 
 
 

 
 
  

 
 
 

 
 
 

 
 

 
 

 
 

 
 

BCMR Docket 
No. 2002-040 

 

DECISION OF THE DEPUTY GENERAL COUNSEL 

ACTING UNDER DELEGATED AUTHORITY 

 

 

The  Final  Decision  of  the  Board  for  Correction  of  Military  Records  (the  Board) 
accurately summarizes the Applicant’s Request for Relief, the Summary of the Record, 
the Applicant’s Allegations, the Views of the Coast Guard, Applicant’s Response to the 
Views  of  the  Coast  Guard,  and  the  Applicable  Law.    In  addition,  I  agree  with  and 
therefore adopt all of the majority Board’s Findings and Conclusions except as they are 
further expanded below. 
 

FINDINGS AND CONCLUSIONS 

 
I agree that the Board has jurisdiction in this case.  The Coast Guard relies on Utah 
Power  and  Light  Co.  v.  United  States,  243  U.S.  389  (1917)  for  its  position  that  the 
Government is not bound by mistaken representations of its agents.  It is important 
to note that the Supreme Court has left undecided whether there are cases in which 
“the public interest in ensuring that the Government can enforce the law free from 
estoppel  might  be  outweighed  by  the  countervailing  interest  of  citizens  in  some 
minimum  standard  of  decency,  honor,  and  reliability  in  their  dealing  with  their 
Government.”  Heckler v. Community Health Services of Crawford County, Inc., 467 
U.S. 51, 61 (1984) (further stating, in dicta, that for a private party to prevail it would 
have  to  demonstrate  that  the  traditional  elements  of  estoppel  are  present).    More 
recently,  the  Supreme  Court  has  stated  that  Congress  may  exercise  its  power  to 
expand recoveries for those who rely on mistaken advice, should it choose to do so.  
Office of Personnel Management v. Charles Richmond, 496 U.S. 414, 428 (1990) (This 
case  concerned  a  citizen  who  received  erroneous  information  from  a  federal 
employee regarding his disability annuity.  The court held that in this case, payments 
of  money  from  the  Treasury  were  not  authorized  by  any  statute  and  rejected  the 
estoppel claim by the claimant).   
 
Congress  has  given  the  BCMR  power  to  expand  recovery  for  members  of  the  Coast 
Guard and this includes giving the BCMR the power to rectify a member’s record when 
an error or injustice has occurred.  The Coast Guard has committed an injustice against 
one of its members when the Coast Guard’s action, or lack thereof, shocks one’s sense of 
justice.    Reale  v.  United  States,  208  Ct.  Cl.  1010,  1011  (1976).    The  BCMR  has  the 
authority to decide on a case-by-case basis if the Coast Guard has committed an error or 
injustice.  It is possible for the Coast Guard to commit an error or an injustice when a 

Final Decision:  BCMR No. 2002-040 
 

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member  has  relied  on  misinformation  by  a  Coast  Guard  employee  to  his  or  her 
detriment.    This  interpretation  of  the  BCMR’s  authority  is  consistent  with  Congress’ 
view  of  what  may  constitute  an  error  or  injustice  as  exemplified  by  Congress’ 
willingness  to  examine  and  grant  relief  for  individual claims against the Government 
for  legal  or  equitable  reasons.    31  USCS  §  3702  (d).    The  Comptroller  General  has 
decided  that  such  claims  presented  to  Congress,  on  behalf  of  employees  of  the 
Government, may include a claim based on erroneous advice or authorization furnished 
by  a  government  official  if  the  employee  demonstrates  reasonable  reliance  on  such 
advice or authorization to his or her detriment.  See, Lester J. Reschley—Transportation 
of  Household  Goods  Incident  to  Transfer—Subsequent  Voluntary  Transfer,  (1993)  72 
Comp Gen 111.  
 
I also agree that the Applicant acted in a reasonable manner by relying on the advice 
given by the yeomen.  Applicant wanted to become an officer as soon as possible, so he 
went to Cadet Administration and asked for information and advice regarding what he 
needed  to  do  to  ensure  that  he  could  become  an  officer  as  early  as  possible  and  also 
qualify for O-1E pay.  Applicant was given materials and advice by two yeomen.  The 
yeomen explained to Applicant that he needed over four years of service to qualify and 
that upon graduation from OCS in September 200X, he would have four years six days 
of service.  During the Applicant’s conversations with the yeomen, nothing was said to 
indicate any hesitation or disagreement among the yeomen regarding the advice they 
gave Applicant.  In this scenario, it was reasonable for Applicant to rely upon the advice 
given  by  the  yeomen.    A  yeoman’s  specific  job  duties  include  having  the  knowledge 
and  skills  to  advise  members  on  routine  personnel  matters,  and  calculation  of  time 
would seem to be such a matter.  Also, Applicant’s Acceptance and Oath of Office show 
he was appointed as an Ensign (O-1E) and his PCS orders also showed his rank as O-1E, 
indicating that others as well accepted the computation of time as being correct.   
 
I further agree that an injustice resulted from the erroneous advice given to Applicant 
by the yeomen.  Applicant relied upon the advice provided by the yeomen and entered 
the  OCS  class  earlier  than  he  had  been  slotted  for.    Had  Applicant  not  received  this 
advice,  he  would  have  remained  in  the  October  200X  class  and  would  not  have 
requested  to  enter  in  the  earlier  OCS  class.    If  Applicant  attended  the  October  200X 
class, he clearly would have had over four years service and would have qualified for 
the O-1E classification.  Unlike BCMR case No. 346-89 in which it was determined that 
the Coast Guard’s withdrawal of a commission that was improperly sent to the member 
due to an administrative error did not rise to the level of “shocking” the sense of justice, 
here  Applicant  relied  to  his  detriment  upon  misinformation  given  to  him  by  the 
yeomen.  This present case is more similar to BCMR case No. 193-92, where the Board 
found that the Coast Guard committed an injustice when it failed to inform its member 
that, upon reenlistment, he would be unable to complete 20 years of satisfactory service 
for retirement purposes prior to his 62nd birthday.  

  

 

 

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Finally,  I  note  that  by  granting  this  remedy,  the  BCMR  is  not  granting  relief  that 
requires the circumvention of a Federal statute.  Rather, the BCMR’s relief concerns an 
administrative interpretation of a requirement to comply with the statute.  Sections 203 
and 1009 of the United States Code state that a commissioned officer in pay grade O-1 is 
entitled  to  the  pay  rate  of  O-1E  if  the  officer  has  over  four  years  of  active  service.  
However, the statute does not say how those four years are to be calculated.  The Coast 
Guard  has  internally  determined  what  process  is  used  to  calculate  the  four  years  of 
service.  That process was apparently so confusing that even the yeomen who advised 
Applicant, and are trained to advise members in personnel matters, did not know that 
they  should  have  calculated  Applicant’s  time  in  service  by  weeks  rather  than  days.  
Ordering  the  Coast  Guard  to  change  Applicant’s  record  to  reflect  over  four  years  of 
service prior to becoming a commissioned officer asks the Coast Guard only to adjust, 
in circumstances as compelling as these, its interpretation of how those four years are 
calculated for this applicant. 
 
 

ORDER 

Applicant will exercise this option no later than 90 days from the date of 

Applicant shall be given the option to have his record corrected to show 

 
The  application  for  correction  of  the  military  record  of    xxxxxxxxxx,  USCG,  is 

 
 
hereby granted as follows:  
 
 
that he was commissioned on October 1, 200X, as an O-1E. 
 
the final decision. 
 
If  Applicant  chooses  to  have  his  record  corrected  to  show  that  he  was 
commissioned  as  an  O-1E  on  October  1,  200X,  he  shall  receive  any  back  pay  and 
allowances that are due because of this correction. 
 
 
 
 
 
_______________ 
Date 
 
 
 
 

___________________________ 
Rosalind A. Knapp 
Deputy General Counsel 
Department of Transportation, 
as designated by the Secretary 

• 

• 

• 

 
 
 
 

 
 
 
 
 

 
 
 
 
 

 
 
 
 
 

 
 
 
 

 
 
 
 
 

 
 

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DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
 
Application for Correction of  
Coast Guard Record of: 
 
 
 
    

 
 
 
BCMR Docket  
No. 2002-040 
 

  FINAL DECISION 

 
ULMER, Chair: 
 
 
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 commenced on February 14, 2002, upon 
the Board’s receipt of the applicant’s complete application for correction of his military 
record. 
 
This final decision, dated October 25, 2002, is signed by the three duly appointed 
 
members who were designated to serve as the Board in this case.  Two of the members, 
the majority, voted to recommend relief.  One of the members, the minority, voted to 
deny relief. 
 
 
The applicant, an ensign (pay grade O-1), asked the Board to adjust his pay grade 
to  that  of  O-1E1  (ensign  with  over  four  years  of  enlisted  active  service)  retroactive  to 
XXXXXX  XX,  XXX,  the  date  he  graduated  from  the  officer  candidate  school  (OCS).  
(Enlisted active service and enlisted service are used interchangeably in this decision.) 
 

SUMMARY OF RECORD AND SUBMISSIONS 

 
 
The applicant alleged that he has suffered an injustice because yeomen assigned 
to Cadet Administration erroneously advised him that upon his graduation from OCS 
in XXXXXX XXXX, he would qualify for the pay of an ensign with over four years of 
enlisted active service (O-1E).  Subsequent to graduation, the applicant learned that he 
did not qualify for this special pay because he was two days short of having “over four 
years”  of enlisted active service.  The applicant claimed that if he had known that he 
would  not  qualify  for  the  special  pay  upon  his  graduation  from  OCS  on  XXXX  XX, 
                                                 
1   Sections 203 and 1009 of Title 37 of the United States Code state that a commissioned officer 
in pay grade O-1 . . . is entitled to the special pay rate for O-1E if the officer has had over four 
years  of  active  service  as  a  warrant  officer  or  enlisted  member.      See  also  Article  2.A.1.j.  of 
COMDTINST M7220.29A (Coast Guard Pay Manual).   
 

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XXXX, he would not have entered OCS until October XXXX, securing his status an O-1E 
upon graduation.   
 
 
The applicant enlisted in the Coast Guard on September 30, 1996, for a period of 
eight  years,  to  include  four  years  of  active  duty.  A  part  of  the  applicant’s  enlistment 
contract called for him to participate in the Minority Officer Recruitment Effort (MORE) 
program.2 As a participant in this program, the Coast Guard required that the applicant 
earn  his  college  degree  by  a  date  certain,  after  which  he  would  enter  OCS.    The 
applicant  initially  entered  the  January  XXXX  OCS  class,  but  failed  to  complete  the 
program  at  that  time  because  of  an  injury  (a  broken  foot).    He  was  disenrolled  and 
reverted to his SN (seaman; pay grade E-3) enlisted rate, until he was medically fit to 
attend a future OCS class.  The applicant stated that it was left up to him and his doctor 
to decide when he would be physically able to reenter OCS. 
 
 
The  applicant  decided  to  join  the  XXXXX  OCS  class.    He  stated,  however,  that 
prior to his decision to enter this class, he discussed the issue of his receiving O-1E pay 
upon completion of OCS with the unit’s two yeomen.  He stated that these yeomen told 
him  that  he  would  receive  pay  as  an  O-1E  upon  graduation  from  the  June  2000  OCS 
class.  The applicant stated that although his doctor wanted him to wait until XXXXXX 
to reenter OCS, the doctor acquiesced and assisted the applicant in obtaining a medical 
waiver so that he could enter the June XXXX OCS class.   
 
 
The  applicant  stated  that  upon  his  graduation,  on  XXXXX  XX,  XXXX,  he  was 
appointed  an  ensign,  pay  grade  O-1E,  as  evidenced  by  his  Acceptance  and  Oath  of 
Office,  which  states  that  he  was  appointed  an  Ensign  (O-1E).    His  PCS  orders  also 
showed  his  rank  as  O-1E,  and  the  applicant  stated  that  he  received  dislocation 
allowance pay at the O-1E rate.  
 
 
The applicant stated that after graduation he decided to apply for advanced pay 
due to a family situation.  He was told that he was not eligible for pay at the O-1E rate 
because he did not have over four years of enlisted service.  He was told, at that time, 
the OCS yeomen had incorrectly calculated his period of enlisted service. The applicant 
stated  that,  according  to  the  Human  Resources  and  Information  Center  (HRSIC),  the 
yeomen at OCS calculated his enlisted time on a per day basis when it should have been 

                                                 
2 The MORE statement of understanding signed by the applicant called for him to enlist in the 
Coast Guard for eight years (four active and four inactive), successfully complete Coast Guard 
Recruit Training, and to successfully complete college by August 199X, where upon he would 
be assigned to OCS.  The Memorandum of Understanding further stated that upon completion 
of  OCS  the  applicant  would  be  discharged  from  his  enlisted  status  and  commissioned  as  an 
ensign  in  the  Coast  Guard  Reserve  to  serve  on  active  duty  for  a  period  of  three  years.  
According  to  the  Advisory  Opinion,  MORE  participants  receive  free  tuition  and  books  in 
addition to their enlisted pay. 
 

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calculated on a per week basis.  The applicant was told that he needed to have been in 
an enlisted status for an additional two days to have over four years of enlisted service. 
The applicant stated that had he known he would not meet the requirement for O-1E 
pay  upon  graduating  from  the  June  XXXX  OCS  class,  he  would  have  waited  and 
enrolled in the October XXXX OCS class. 
 

The applicant submitted a copy of an email, dated October 16, XXXX, written by 

one of the OCS yeomen to a YN1 at HRSIC, stating the following:    
 

I’ve got a question on one of the newly promoted Ensigns that kicked out 
on the exception report.  I thought this one person would be an O1E since 
he’s  got  a  total  of  4  years  active  duty  on  the  dot  (30  Sep96  through 
29Sep00).  The SDA Manual asks if the [member] has 4 years or more of 
active  service  as  an  enlisted  member  and  was  enlisted  prior  to  being 
appointed  a  reserve  commission,  enter  O1E.    I  know  this  person  cuts  it 
close time wise, but shouldn’t he still be an O1E?  Help, please??  

 

The YN1 responded to the yeoman’s email by stating that the applicant needed 
to be discharged from his enlisted status on September 30, XXXX in order to have over 
four years enlisted active service necessary to qualify for O-1E pay.  (The applicant was 
discharged from his enlisted status on XXXX XX, XXXX.) The YN1 then stated that “[the 
applicant] should have waited until the class after the [June XXXX] one!” 
 
 
The  applicant  submitted  a  copy  of  another  email  he  sent  to  the  other  OCS 
yeoman (PO1) who also allegedly provided the applicant with erroneous advice about 
his pay.  This email, dated January 28, 2002, provided the PO1 with a summary of the 
events as the applicant remembered them (essentially the same statement of facts in this 
application). The applicant asked the PO1 to respond to the email with “[PO1’s] account 
of what took place in the determination of [the applicant’s] pay grade upon departure 
from OCS.”  The PO1 responded with the following: 
 

I  don’t  remember  the  specifics  concerning  when  we  looked  in  the 
manuals,  but  if  Cadet Admin promoted you to O1E upon graduation, it 
would  be  safe  to  assume  that  they  calculated  over  4  years  of  active 
services  in  an  enlisted  pay  grade  (whether  or  not  it  was  six days I can’t 
say).  This is the first time I have heard that the time is calculated by week 
and not days  . . .  I checked with [the other YN1] in Cadet Admin, and he 
remembers  that  you  were  promoted  to  an  O1E  and  stated  (so)  on  your 
orders  because  it  had  been  determined  you  had  over  four  years  in  an 
enlisted pay grade. 
 

 
Views of the Coast Guard  
 

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The  Chief  Counsel  submitted  the  Coast  Guard  views  in  this  case.    He 
recommended  that  the  Board  deny  relief.  He  stated  that  the  applicant  was  two  days 
short of having over four years of enlisted service to qualify for the pay of an ensign 
with  over  four  years  of  enlisted  service  (O-1E).    The  Chief  Counsel  argued  that  the 
applicant could not point to any error in his military record.   
 

The Chief Counsel stated that even if the applicant’s allegation - that the Coast 
Guard  provided  him  with  incorrect  advice  -  is  true  the  Government  is  not  estopped 
from repudiating the advice given by one of its officials if that advice was erroneous.  
The Chief Counsel cited Utah Power & Light Co. v. United States, 243 U.S. 389, 409, 37 
S. Ct. 387, 61 L. Ed. 791 (1917) in support of this position.  The Chief Counsel further 
stated that the applicant is estopped from making any claims against the Government 
based on his reliance on the supposed erroneous advice.  He further stated as follows: 
 

In Montilla v. United States, 457 F. 2d 978, 198 Ct. Cl. 48 (1972), the Court 
of Claims held that the misrepresentations of officers of the U.S. Army to 
the plaintiff, leading him to believe that he had completed twenty years of 
active military service and was eligible for retirement pay upon reaching 
age 60, could not alter the fact that the plaintiff had not actually completed 
twenty years of active service as computed under 10 U.S.C.1332 (1964) . . ..   
Even  more  recently  and  more  analogous  to  the  underlying  facts  of  this 
case,  a  federal  claims  court  held  a  “[c]ommissioned  officer  who  had 
previously served exactly four years as enlisted member of Army was not 
entitled  to  receive  pay  for  ‘commissioned  officer  who  had  been credited 
with over 4 years.’”  Colon v. United States, 8 Cl. Ct. 30 (1985).3   In the 
instant  case,  the  applicant  consulted  with  two  yeomen  from  the  [United 
States  Coast  Guard  Academy]  Cadet  Administration  and  received 
inaccurate advice regarding his pay status upon graduation from the June 
2000 OCS class.  As in Montilla and Conlon, the Government cannot now 
waive  the  provisions  of  the  statute  implicated  in  this  case  and  the 
applicant cannot assert a claim of detrimental reliance.     
 
 
A  memorandum  from  the  Commander,  Coast  Guard  Personnel  Command 
 
(CGPC) was attached to the advisory opinion.  CGPC stated that the difference between 
the pay of an O-1E and an O-1 is significant.  In addition, he offered the following: 
 

It  is  note  worthy  that  from  the  time  the  applicant  was  accepted  for  the 
MORE program on September XX, XXXX until his initial entry into OCS 
on January 15, 2000, applicant understood that he would graduate OCS as 

                                                 
3  In Colon v. United States, 8 Cl. Ct. 30 (1985) the applicant was not arguing that his record 
contained  an  error  or  injustice,  but  rather  that  the  Army’s  interpretation  of  the  statute  was 
incorrect.   The plaintiff in this case never applied to the Army BCMR.   
 

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an  O-1  (member  with  less  than  4  years  of  active  duty)  vice  as  an  O-1E 
(member with more than 4 years of active duty).  
 

* 

 

* 

* 

 

There is evidence in the record that supports [the applicant’s] claim that 
he was erroneously counseled.  The applicant entered the June XXX class 
and graduated without further incident or injury.  It was at this time that 
he discovered that he was ineligible to be commissioned as an O-1E.  The 
applicant appears to have had entered the June XXXX OCS class with the 
objective  of  completing  OCS  as  soon  as  possible,  but  at  the  same  time 
obtain a commission as an O-1E.   
 
Was the counseling applicant received, erroneous or otherwise required?  
The answer is no -- the Coast Guard has no obligation to counsel members 
on the impact their request to attend OCS will have on their eligibility to 
be  commissioned  as  an  O-1E  or  O-1.    The  policies  concerning  this  are 
published  in  the  Coast  Guard  Pay  Manual  and  are  available  for  any 
enlisted  OCS  candidate  to  examine.    In  addition,  the  correct  methods  to 
compute  total  time  in service are contained in the Coast Guard Pay and 
Personnel Procedures Manual and are available for any one to study.  The 
applicant  relied  on  the  erroneous  advice  provided  unofficially  by 
administrative personnel, which is unfortunate, but he and not the Coast 
Guard  is  ultimately  responsible  for  the  decision  he  made  to  request 
entrance to the June XXXX OCS class. 
 

 
Applicant’s Reply to the Views of the Coast Guard 
 
 
A copy of the Coast Guard views was mailed to the applicant on June 18, 2002.  
The applicant did not submit an immediate response.  However, on September 16, 2002, 
in  response  to  an  inquiry  by  the  BCMR  staff,  the  applicant  wrote  that  “[he] 
conditionally  authorize[d]  the  official  change  of  my  Date  of  Commissioning  (DOC) 
from 29 Sep XX to the next available date fulfilling the requirement for an Officer with 
four years of enlisted service prior to commissioning. . . “ 
 

FINDINGS AND CONCLUSIONS 

The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 

 
 
applicant's record and submissions, the Coast Guard's submission, and applicable law: 
 
 
United States Code.  The application was timely.  
 

1.    The  BCMR  has  jurisdiction  of  this  case  pursuant  to  section  1552  of  title  10, 

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2.   After considering this case in executive session, two members of the Board, 
the Majority, voted to recommend relief and one member, the minority, voted to deny 
relief.  The following findings constitute the Majority opinion. 
 
 
3.  The  applicant  was commissioned as an ensign (O-1E) upon graduation from 
OCS on September 29, 200X.  This designation entitles junior officers to increased pay 
for  having  over  four  years  of  enlisted  active  service  upon  appointment  as  a 
commissioned officer.  Shortly after graduation, the Coast Guard discontinued paying 
the applicant as an O-1E because he was two days short of having over four years of 
enlisted  active  service  to  qualify  for  O-1E  pay.    He  is  currently  being  paid  as  a 
commissioned officer without enlisted service, although his Oath of Office states that he 
was commissioned an O-1E.    
 

4.    The  applicant  has  shown  by  a  preponderance  of  the  evidence  that  prior  to 
joining  the  June    XXXX  class,  he  was  provided  with  incorrect  counseling  by  senior 
yeomen  in  Cadet  Administration  at  the  Coast  Guard  Academy.  He  was  erroneously 
counseled that if he joined the June OCS class, he would be commissioned in pay grade 
O-1E, upon graduation in September XXXX because he would have four years and six 
days  of  service.    Emails  between  the  applicant  and  the  OCS  yeomen  corroborate  the 
applicant’s  contention  that  he  was  provided  with  erroneous  counseling  by  OCS 
yeomen.  Materials submitted by the Coast Guard admit that the evidence in the record 
supports the applicant's claim that he received erroneous advice.  Under COMDTINST 
1414.8B,  a  part  of  a  yeoman’s  duty  is  to  counsel  members  about  pay  and  personnel 
matters.  Yeomen also calculate creditable service, active duty base date, pay base date, 
expiration of enlistment, date of rank, leave loss, leave balance, and sea time.   

 
5.  The Board finds the applicant’s Acceptance and Oath of Office as well as his 
PCS  travel  orders  stating  that  he  was  commissioned  as  an  Ensign  (O-1E)  further 
corroborate his contention in this regard. Moreover, CGPC stated, in its memorandum 
attached to the advisory opinion as an enclosure, that evidence in the record supported 
the applicant’s contention that he was erroneously counseled.  Since these yeomen were 
assigned to cadet administration and part of a yeoman's duty is to provide counseling 
in  such  matters, it was logical and reasonable for the applicant to presume that these 
yeomen were authorized and qualified to counsel him about receiving O-1E pay upon 
graduating from the June XXXX OCS class.   

 
6.  In fact, and contrary to the advice provided by the OCS yeomen, the applicant 
did not have over four years of enlisted service to qualify for O-1E pay on September 
29, 2000, the date of his commissioning. He enlisted on September 30, 1996 and received 
his officer commission on September XX, XXXX.  According to sections 203 and 1009 of 
Title  37  of  the  United  States  Code,  the  applicant  must  have  had  over  four  years  of 
enlisted service, rather than exactly four years of service, to be eligible for O-1E pay. As 
the Chief Counsel stated, the applicant could not have been commissioned any earlier 
than  October  1,  XXXX  to  have  the  over  four  years  of  enlisted  service  necessary  to 

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qualify for O-1E pay. Accordingly, the Board finds that the Coast Guard committed an 
error by miscalculating the applicant's enlisted service and by erroneously advising him 
that  he  would qualify for O-1E pay upon graduating from the June XXXX OCS class.  
This error is further illustrated by the Coast Guard's issuance of Acceptance and Oath of 
Office and PCS orders stating that the applicant was commissioned as an Ensign O-1E.   

 
7.  The Coast Guard, citing Utah Power and Light Co. v. United States, 243 U.S. 
389,  409  (1917),  argued  that  even  if  the  yeomen  provided  erroneous  advice,  it  is  not 
estopped  from  repudiating  the  advice  given  by  one  of  its  officials  if  that  advice  was 
erroneous.    However,  this  rule  is  not  without  exceptions.    The  Courts  have  held  the 
government accountable for providing erroneous advice on which a reasonable person 
would  have  relied.  See  Tippett  v.  United  States,  2001  U.S.  App.  LEXIS  26376;  28  Fed. 
App.  942  (D.C.  Cir.  2001),  where  a  plaintiff-appellant  relied  to  his  detriment  on 
misinformation  provided  by  Army  personnel.    The  Court  ordered  that  plaintiff  to  be 
reinstated on active duty, to be given constructive service credit, and to be paid back 
pay  and  allowances.    See  also  Scharf  v.  Department  of  the  Air  Force,  710  F.  2d  1572 
(1983),  where  a  civil  service  employee  was  erroneously  advised  that  "if  he  retired 
optionally and that if later his disability retirement were approved and he had already 
retired that the optional retirement would be set aside and he would go on disability 
retirement."    Apparently,  this  could  not  be  done  if  an optional retirement preceded a 
disability  retirement  much  to  the  surprise  of  the  plaintiff.    The  plaintiff  argued  that 
because of this erroneous advice his optional retirement was not voluntary and should 
be  canceled.    The  Court  found  the  retirement  advice  to  be  misleading  and  that  it 
materially  affected  the  plaintiff's  decision  regarding  retirement.    The  Court  further 
stated  that  a  "reasonable  person  would  have  certainly  concluded  from  the  advice 
received  that  there  would  be  no  adverse  consequences  if  an  optional  retirement 
preceded a disability retirement.  Furthermore, it was reasonable for [plaintiff] to rely 
on the advice of his retirement counselor, and he did in fact rely on this advice in good 
faith."  Id. at 1575.  
 

8.  The  Board  finds  that  the  applicant  justifiably  relied  to  his  detriment  on  the 
erroneous advice given to him by the OCS yeomen. The Board further finds that such 
reliance was reasonable. The Board is convinced that if the applicant had been properly 
informed  by  these  yeomen  that  he  would  not  qualify  for  O-1E  pay  upon  graduating 
from OCS in September XXXX, he would have waited and entered the October XXXX 
class.  He could easily have done this by not seeking a medical waiver to enter the June 
200X  class.  Medical  waivers  are  not  automatic.    Article  3-A-7  of  the  Medical  Manual 
states that a medical waiver "is an authorization to change a physical standard when an 
individual  does  not  meet  the  physical  standards  prescribed  for  the  purpose  of  the 
examination."    This  provision  further  states  that  the  Commandant  must  grant  such 
waivers.  The Board finds nothing wrong or greedy in the applicant's desire to become 
an officer at the earliest opportunity and to obtain O-1E pay, since he was ever so close 
to having the necessary time to qualify for that special pay.  Like the counselor in the 
Scharf case, neither the yeomen nor the Coast Guard acted to correct their mistake until 

Final Decision:  BCMR No. 2002-040 
 

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after  the  applicant  had  graduated  from  OCS.    If  this  was  an  administrative  error,  it 
should have been discovered sooner.   

 
9.  The  applicant  stands  to  lose  several  hundred  dollars  in  pay  each  month 
because  he  relied  on  the  information  provided  by  senior  enlisted  yeomen  who  were 
authorized  to  provide  counseling  on  the  issue  of  pay  and  service  credit.    While  the 
Coast Guard argued that it had no duty to counsel the applicant about O-1/O-1E pay, it 
failed  to  explain  what  the  duties  were  for  the  yeomen  assigned  to  OCS  Cadet 
Administration.  Even if the yeomen were not obligated to counsel the applicant, once 
they undertook the duty to do so, they were obligated to provide correct information.  
The applicant gave up an opportunity to enter the October class and guaranteed O-1E 
pay based on the erroneous counseling he received from the yeomen.  Whether at the 
time he enlisted he expected to be an O-1E is irrelevant to his situation after almost four 
years  of  active  service.    Based  on  the  above,  the  Board  finds  that  the  applicant  has 
suffered a serious injustice that requires corrective action. 

 
10.  The Board takes note of the Chief Counsel's argument based on Montilla v. 
United  States,  457  F.  2d  978,  986  (1972),  that  no  officer  or  agent  can  by  his  actions or 
conduct waive the provisions of a statute or nullify its enforcement, unless such statute 
has been repealed or declared unconstitutional.  However, 10 USC 1552 empowers the 
Secretary,  acting  through  a  Board  to  correct  any  military  record  by  removing  error 
and/or  injustice.    Moreover,  as  the  Court  stated  in  Caddington  v.  United  States,  178 
Supp.  604,  607,  147  Ct.  Cl.  629  (1959),  “the  Secretary  and  his  Boards  have  an  abiding 
moral sanction to determine insofar as possible, the true nature of an alleged injustice to 
take  steps  to  grant  thorough  and  fitting  relief.”    Accordingly,  the  Board  has  the 
authority  to  correct  the  applicant's  record  to  cure  what  it  has  found  to  be  a  serious 
injustice.   
 

11.  Having  found  error  and injustice in this case, the pivotal question becomes 
whether the Board can fashion a remedy that is consistent with the governing military 
pay statute. Such a remedy is available.  The applicant’s record can be corrected to show 
that he was commissioned as an O-1E on October X, XXXX.  This correction would give 
him the over four years of enlisted service necessary to qualify for O-1E pay, and it will 
satisfy the statute.  The applicant has indicated his agreement with this correction and 
expressed his understanding that correcting his record in this manner would cause him 
to lose seniority on the Active Duty Promotion List (ADPL).  The granting of relief in 
the manner described is consistent with the statute and cures the injustice suffered by 
the applicant. 
 

12.  Accordingly, the Majority finds that the applicant is entitled to relief.   

 

13.    The  Majority  notes  the  extremely  well  written  Minority  opinion  but  is not 
persuaded by it for the following reasons.  First, the Minority places the blame for this 
situation on the applicant.  It overlooks the fact that yeomen are the military personnel 

Final Decision:  BCMR No. 2002-040 
 

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specialists for the Coast Guard and the applicant was at the time an enlisted member 
(seaman  (SN))  when  he  sought  counseling  from  those  with  apparent  authority  to 
perform such counseling, the OCS senior enlisted yeomen.  

 
14.    Second,  the  Minority sees this case as similar to that in BCMR No. 346-89, 
wherein  the  Deputy  General  Counsel  denied  relief.      The  Deputy  General  Counsel 
found  in  that  case  that  the  Coast  Guard  had  committed  an  administrative  error  by 
accidentally  sending  that  applicant  an  offer  of  a  Reserve  commission  before 
commissioning authority had been granted.  Therefore, the Oath of Office that applicant 
executed  was invalid. This case involves much more than an accidental mailing.  The 
OCS yeomen were charged with the duty of calculating service time and pay (and the 
Coast  Guard  has  presented  no  evidence  to  the  contrary).  The  yeomen  incorrectly 
calculated  the  applicant's  enlisted  service  and  incorrectly  advised  him,  prior  to  his 
entering  OCS,  that  he  would  meet  the  requirements  for  O-1E  upon  graduating  in 
September XXXX.  Even the Coast Guard relied on this erroneous information and used 
it to prepare and execute the applicant's Acceptance and Oath of Office and to prepare 
his PCS orders.  Moreover, the applicant received DLA pay based on the miscalculation. 
If the Coast Guard accepted this calculation, why should not the applicant have relied 
on it?  The applicant's situation involves much more than a simple administrative error, 
but  a  failure  of  the  Coast  Guard  to  correctly  calculate  and  advise  him  about  his  pay 
status.   
 
15.  Third, unlike the applicant in Docket No. 346-89, the applicant in this case 
certainly changed his position to his detriment based on the bad advice. Based on the 
erroneous advice, the applicant changed his position from that of guaranteed O-1E if he 
had  graduated  from  the  October  OCS  XXXX  class  to  a  lesser  pay  status  (O-1)  upon 
graduating from the June XXXX class.  The applicant in Docket No. 346-89 had received 
a piece of paper offering her a commission and nothing else.  As the Deputy General 
Counsel stated in Docket No. 346-89, that applicant did not participate in Reserve duty 
or  suffer  harm  or  prejudice  in  any  manner.    The  applicant  in  this  case  acted 
affirmatively  on  the  advice  he  received.    He  sought  a  medical  waiver and joined and 
completed  the  June  OCS  class  based  on  that  advice.    He  received  and  executed  an 
Acceptance and Oath of Office based on that advice.  He received PSC orders and DLA 
pay  based  on  that  advice.    Last,  based  on  that  advice,  he  gave  up  an  opportunity  to 
enter  the  October  XXXX  OCS  class,  wherein  he  would  have  been  in  pay  status  O-1E 
upon graduation.   

 
16.  With respect to the Minority's argument that even if an injustice exists in this 
case, it does not "shock the sense of justice," the Majority notes that in 1994, the Deputy 
General  Counsel  approved  BCMR  No.  193-92  finding  merely  that  that  applicant  had 

Final Decision:  BCMR No. 2002-040 
 

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suffered  an  injustice.4    The  Board  finds  that  the  applicant's  case  is  not  any  less 
compelling than that in Docket No. 193-92. 
 

17.  Accordingly, the Majority finds that the Coast Guard committed an error in 
improperly  counseling  the  applicant  and  this  error  resulted  in  an  injustice,  which 
entitles the applicant to relief. 
 

 
 
 
 
 
 
 
 
 
 
 

[ORDER AND SIGNATURES ON NEXT PAGE] 

 

                                                 
4  In BCMR No. 193-92, the applicant received significant relief in that his record was corrected 
to  show  that  "he  received  sufficient  points  to  make  his  1979  AY  satisfactory  and  that  he 
performed 20 years of creditable military service in order to receive retirement with pay.  The 
Coast  Guard  shall  pay  the  applicant  all  pay  and  allowances  due  him  as  a  result  of  this 
correction to his record."   

Final Decision:  BCMR No. 2002-040 
 

 
 

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ORDER 

 
 
The application of XXXXXXXXXXXX, USCG, for correction of his military record 
is  granted.    The  applicant  shall  be  given  the  option  of  having  his  record  corrected  to 
show  that  he  was  commissioned on October 1, XXXX as an O-1E. The applicant shall 
exercise  this  option  not  later  than  90  days  from  the  date  of  the  final  decision.    If  the 
applicant’s  record  is  corrected  to  show  that  he  was  commissioned  as  an  O-1E  on 
October 1, XXXX, he shall receive any back pay and allowances that is due because of 
this correction. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

*see  dissenting opinion 
 Angel Collaku 

 
 Stephen H. Barber 

 
 

 

 
 Laura A. Aguilar 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

Final Decision:  BCMR No. 2002-040 
 

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DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2002-040 
 
   

 

 

  

DISSENTING OPINION 

Although I concur with the Board's holding that the Coast Guard has committed 

no actionable error in this case, I dissent from its determination that the applicant has 
suffered an injustice that this Board is required to cure. Accordingly, I believe that the 
applicant's request for relief should be denied.     
 

Pursuant to 10 U.S.C. § 1552, the Board is empowered to correct records in 

instances where it finds that the Coast Guard has committed an error, or where such 
correction is required to cure an injustice.  The two terms are not synonymous.  In 
BCMR Docket No. 346-89, the Deputy General Counsel, acting under delegated 
authority, relied on a standard used by the Court of Claims, which distinguished 
between the two terms, as the basis for determining whether the applicant suffered an 
injustice: 
 

'Error' means legal or factual error…'Injustice', when also not error, is treatment 
by the military authorities that shocks the sense of justice, but is not technically 
illegal. 

 
Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976).  Also see Sawyer v. United States, 18 
Ct. Cl. 860 (1989), rev’d on other grounds, 930 F.2d 1577 (Fed Cir. 1991).   
 

The Deputy General Counsel applied the "shocks the sense of justice" standard 

adopted in Reale to a situation involving an applicant who erroneously received a Coast 
Guard Reserve commission offer, which was intended to be effective upon her signing 
an oath of office following the applicant's discharge from active duty.  Even though the 
applicant accepted the commission and signed the oath, the Deputy General Counsel 
determined that there was no "injustice" resulting from the Coast Guard's actions.  The 
Deputy General Counsel held that the Coast Guard was simply attempting to "correct 
an administrative error by withdrawing the commission, completing its record, and 
acting on that completed record."  Although there were allegations in the record that 
the offer's withdrawal was a "result of a reprisal against [the applicant] for filing [a] 

Final Decision:  BCMR No. 2002-040 
 

- 16 - 

 

discrimination complaint and [a] petition before the BCMR," the Deputy General 
Counsel held that there was "[n]o bad faith or other impropriety … apparent in the 
withdrawal of the offer."  Furthermore, the Deputy General Counsel noted that the 
applicant did not "suffer any harm or prejudice during the period between executing 
the oath of office and having the oath declared invalid."     
 

In this case, I do not find that the erroneous advice provided to the applicant by 
Coast Guard yeomen concerning the applicant's qualifications to receive pay at the O-
1E pay level upon completion of Officer Candidate School (OCS) constitutes an injustice 
that "shocks the sense of justice." Although the applicant received erroneous 
information from the yeomen, the applicant readily admits that he participated in the 
process of going "through the materials and the manuals" with the yeomen.  His 
personal review of the relevant materials is certainly a factor in alleviating some of the 
blame ascribed to the yeomen, as the applicant was ultimately responsible for the 
decision to actively seek a waiver to enter the June 200X class.   
 

In addition, the applicant could not have reasonably had any expectation of ever 

receiving O-1E level pay upon his enlistment with the Coast Guard on September 30, 
199X.  As a constituent part of his enlistment agreement, the applicant was selected to 
participate in the Minority Officer Recruitment Effort (MORE).  Pursuant to the terms of 
his MORE agreement, the applicant was required to complete college by August 199X, 
whereupon he would enter and complete OCS.  It is clear that under this arrangement, 
the applicant would not be eligible for pay at the O-1E level, as he was expected to 
complete OCS prior to accruing over four years of enlisted active service.  Once the 
applicant completed his studies sometime after August 199X, he was enrolled in the 
January, 200X OCS class.  But for an injury (broken foot) sustained during the course of 
this OCS class, the applicant would have completed the class sometime in late April 
200X, well before serving over four years in enlisted active service.  Accordingly, the 
applicant could not have had any expectations of receiving ensign pay at the O-1E level 
until sometime after sustaining this injury.  
 

Unlike the situation in BCMR Docket No. 346-89, in which the applicant alleged 

that he was suffering from reprisal at the hands of the Coast Guard for filing a 
discrimination complaint and a petition before the BCMR, there have been no 
allegations of improprieties in this case.  Moreover, there is absolutely no indication 
that the Coast Guard has acted in bad faith in this case.  In fact, but for the applicant's 
active intervention in seeking a medical waiver to enter the June 200X OCS class, the 
Coast Guard would have enrolled him in the October 200X OCS class.  Had the Coast 
Guard's plan been followed, the applicant would have qualified to receive O-1E level 
pay upon graduation from the October 200X OCS class.    
 

Finally, there is no evidence to suggest that the applicant has suffered any harm 

or prejudice resulting from his receipt of erroneous information during the period 

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between his decision to enter the June 200X class and the date on which he was 
informed that he was not eligible to receive level O-1E pay.        
 

In assessing whether the applicant has suffered an injustice, I note that the facts 
in this case present an even less compelling argument for finding an injustice requiring 
remedy than those discussed in BCMR Docket No. 346-89.  Although unfortunate, the 
applicant's inability to qualify for O-1E level pay is a fact that he should live with, as he 
was the motivating factor responsible for moving up his attendance in the June 200X 
OCS class.  Regardless of any advice provided by the yeomen, the applicant was 
responsible for reviewing the appropriate materials and understanding their impact.  

 
Accordingly, I recommend that the applicant’s request be denied. 

_______ 
 
Angel Collaku 
 

 
 

______