DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-008 
 
Xxxxxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
ANDREWS, Deputy Chair: 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section  1552  of 
title 10 and section 425 of title 14 of the United States Code.  On October 27, 2003, the 
BCMR docketed the applicant’s request for correction. 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  30,  2004,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The applicant asked the Board to correct his record to show that, upon his dis-
charge from the Coast Guard on May 6, 2003, he had 61.5 days of accrued annual leave 
instead of just 13 days.  The applicant alleged that at the time of his discharge he was 
authorized to sell back 62 days of leave.  However, two months after his discharge, the 
Coast  Guard  adjusted  his  leave  total  to  13  days.    The  applicant  alleged  that  he  never 
used that much leave. 
 
 
In support of his allegations, the applicant submitted a Statement of Intent dated 
April 30, 2003.  It shows that he intended to sell 62 days of leave upon his discharge.  It 
also  contains  the  following  information:    “Number  of  days  [of]  leave  taken  and  the 
dates of the leave, not posted in recents: None.” 
 
 
The  applicant  also  submitted  copies  of  his  Leave  and  Earnings  Statements 
(LESes) for the months of February, March, and April 2003.  The February LES shows 
that he accrued 2.5 days of annual leave during the month, used 1 day, and had 56.5 
days of accrued leave at the end of that month.  His March LES shows that he accrued 

another 2.5 days of annual leave during March, used none, and had 59 days of accrued 
leave at the end of the month.  His April LES shows that he accrued another 2.5 days of 
annual  leave  during  April,  used  none,  and  had  61.5  days  of  leave  at  the  end  of  the 
month.    A  copy  of  his  LES  for  May  2003,  which  was  submitted  by  the  Coast  Guard, 
shows that he began the pay period with 61.5 days of accrued leave, earned 0.5 days of 
annual  leave  prior  to  his  discharge  on  May  6,  2003,  and  was  charged  for  49  days  of 
annual leave, which left a balance of 13 days of annual leave. 
 

SUMMARY OF THE RECORD 

 
 
On  August  3,  1999,  at  the  age  of  22  years,  the  applicant  enlisted  in  the  Coast 
Guard.  On November 23, 2000, after completing “A” School, he became a xxxxxxxxxx.  
On May 31, 2001, the applicant was placed on performance probation.  On August 31, 
2001,  his  commanding  officer  (CO)  made  an  entry  in  his  record  indicating  that  the 
applicant  was  not  recommended  for  advancement  because  his  work  “constantly 
need[ed] monitoring” and he did not show a “good understanding of routine concepts, 
numbers  and  codes.”    The  applicant  received  low  marks  for  “Setting  an  Example” 
because of his poor attitude and disparaging remarks about the Coast Guard, and for 
“Integrity” because he had told colleagues that he had sold a tool that had been issued 
to  him  and  suggested  that  they  do  so  as  well  and  because  he  had  “made  false 
statements about [his] whereabouts” on two occasions. 
 
 
On March 31, 2002, the applicant was again not recommended for advancement.  
Moreover,  because  of  his  performance  problems  and  verbal  outbursts,  the  applicant 
was sent for psychiatric evaluation and anger management training.  On November 21, 
2002, while arguing with a Master Chief Petty Officer, the applicant stated that he was 
homosexual  and  wanted  to  leave  the  Coast  Guard.    An  investigation  ensued,  during 
which  the  applicant  alternately  admitted  and  denied  being  homosexual  to  various 
members.   
 

On  February  7,  2003, the  applicant  submitted  a  letter to  his  CO  stating  that  he 
was not homosexual and that his admissions were false.  On April 6, 2003, he signed 
another letter stating that “I, [name] am indeed gay” and that his prior letter was false. 
 
 
On  April  9,  2003,  the  applicant’s  CO  notified  him  that  he  was  initiating  proce-
dures to discharge him because of his admissions.  The applicant was informed of his 
right to consult counsel, to appear at a hearing, and to submit a statement in his own 
behalf.    On  April  10,  2003,  after  consulting  with  counsel,  he  waived  his  right  to  a 
hearing and to submit a statement in his own behalf 
 
On  April  10,  2003,  the  CO  recommended  to  the  Coast  Guard  Personnel  Com-
 
mand  (CGPC)  that  the  applicant  receive  a  general  discharge  for  homosexual  conduct 
because  of  (a)  his  admissions,  (b)  his  past  poor  performance,  and  (c)  his  “fail[ure]  to 

uphold  the  basic  core  values  of  loyalty  and  integrity.”    On  April  28,  2003,  CGPC 
ordered the CO to discharge the applicant as recommended no later than May 23, 2003. 
 

On  May  6,  2003,  the  applicant  was  involuntarily  discharged  from  the  Coast 

Guard.  His DD 214 indicates that he was paid for 13 days of annual leave. 
 

VIEWS OF THE COAST GUARD 

 
 
On March 9, 2004, the Judge Advocate General (TJAG) of the Coast Guard sub-
mitted an advisory opinion in which he recommended that the Board grant partial relief 
by compensating the applicant for an additional 20 days of leave.  He attached to his 
opinion a memorandum on the case prepared by CGPC. 
 
CGPC  stated  that  under  Article  7.A.20.a.  of  the  Personnel  Manual,  members 
 
being discharged may sell leave and that members may sell a maximum of 60 days of 
unused  annual  leave  during  their  careers.    CGPC  alleged  that  the  applicant  actually 
used 49 days of leave during his last three months on active duty even though it was 
not reflected in his February, March, and April LESes.  CGPC alleged that it is not nec-
essary for members to complete leave authorization request forms in order to take leave 
and that leave may be authorized upon a verbal request due to circumstances.  CGPC 
stated that the applicant was granted leave prior to his discharge to allow him to look 
for a job in his home state. 
 
CGPC  stated  that  although  the  applicant  actually  took  the  49  days  of  annual 
 
leave, under Article 7.A.10.b.11. of the Personnel Manual, he was authorized to take “up 
to 20 days of administrative absence (absence not chargeable as leave) to conduct a pre-
separation job search and house hunting/relocation activities prior to the effective date 
of separation.”  CGPC stated that this “benefit is granted at the discretion of the com-
mand” and that there is no evidence in the record that the applicant was told about or 
offered this benefit.  CGPC stated that there is “no compelling reason why the Appli-
cant’s command would deny the Applicant this benefit, while at the same time approv-
ing his absence for a purpose for which the benefit was specifically authorized.”  CGPC 
stated that the command’s failure to grant the applicant the 20 days of administrative 
absence  “was  the  result  of  administrative  oversight”  and  that  the  applicant  should 
therefore be granted an additional 20 days of leave. 
 
 
In support of these allegations, CGPC submitted a copy of an electronic record —
a leave authorization dated May 6, 2003—showing that the applicant took leave from 
February  15  through  April  4,  2003.    CGPC  also  submitted  copies  of  emails  from  the 
applicant’s command.  In one, dated April 3, 2003, a commander stated to a lieutenant 
commander that another officer had called him “over the weekend (I believe 23 March) 
to request a leave extension for a couple of days for [the applicant].  The answer was yes 
with  an  emphatic,  ‘You  have  to  be  back  to  meet  your  medical  appointment,’”  which 

was  scheduled  for  April  3,  2003.    The  email  further  indicates  that  the  applicant  had 
called his command on April 2, 2003, stating that he was in his home state, that his car 
had broken down, and that he could not return in time for his appointment. 
 
 
Other  emails  submitted  by  CGPC  indicate  that  after  his  discharge,  on  June  25 
and 29, 2003, the applicant asked about the 49 days of leave and stated that he had been 
“robbed” of them.  In one response dated July 1, 2003, a lieutenant commander  stated 
that  “[a]fter  your  February  11  mast,[1]  you  requested  to  take  leave  for  job  hunting 
purposes in xxxxxxx.  You departed this unit 1600 hours, February 14 and returned to 
this unit 1500, Friday April 04.  You were rightfully charge[d] 49 days of leave (14 days 
in February, 31 days in March, 4 days in April) you used to job hunt in [his home state].  
Let  me  remind  you  of  your  Negative  Page  7  for  missing  a  medical  appointment  on 
Thursday, 03 April, 2003 at xxxxxxxxxxx Naval Hospital at 0830.[2]  You had transmis-
sion problems Wednesday, April 02 and finally returned to this unit at 1500 on Friday, 
April 04, 2003.” 
 
 
Adding to CGPC’s arguments, TJAG stated that the applicant has failed to sub-
mit evidence to contradict his command’s statement that he was verbally authorized to 
take leave and did in fact take it.  TJAG stated that because the applicant took the leave 
to  seek  employment,  “it  seems  appropriate,  purely  as  a  matter  of  equity  and  not  of 
right, to credit Applicant with twenty additional days of leave at the time of his separa-
tion.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On March 11, 2004, the BCMR sent the applicant a copy of the views of the Coast 

 
 
Guard and invited him to respond within 30 days.  No response was received. 
 

APPLICABLE LAW 

 
Under 37 U.S.C. 37(b), a member of the armed forces “who has accrued leave to 
 
his credit at the time of his discharge, is entitled to be paid in cash or by a check on the 
Treasurer of the United States for such leave on the basis of the basic pay to which he 
was  entitled  on  the  date  of  discharge.  …    However,  the  number  of  days  of  leave  for 
which payment is made may not exceed sixty, less the number of days for which pay-
ment was previously  made under this section after February 9, 1976.”  This  statute is 
reflected in Article 7.A.20.a. of the Personnel Manual, which authorizes upon discharge 
a lump sum payment of unused leave “to a maximum career total of 60 days.” 
 

                                                 
1  The records of and reason for this mast are not in the record before the Board. 
2  There is no copy of this page 7 in the record before the Board. 

 
Article  7.A.10.b.  of  the  Personnel  Manual  states  that  “[r]etiring  members  and 
members  separated  involuntarily  may  be  authorized  up  to  20  days  (if  separated  IN-
CONUS) … of administrative absence to conduct pre-separation job search and house 
hunting/relocation activities prior to the effective date of separation.  The administra-
tive  absence  can  be  taken  in  consecutive  days,  including  weekends  and  holidays;  in 
increments … “ 
 

FINDINGS AND CONCLUSIONS 

The Board has jurisdiction over this matter pursuant to the provisions of 

 
 
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 appli-
cable law: 
 
 
10 U.S.C. § 1552.  The application was timely. 
 
 
Absent  evidence  to  the  contrary,  the  Board  presumes  that  Coast  Guard 
records are correct and that Coast Guard officers have acted “lawfully, correctly, and in 
good faith.” Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United 
States,  594  F.2d  804,  813  (Ct.  Cl.  1979);  33  C.F.R.  § 52.24(b).    The  record  indicates  that 
upon  the  applicant’s  discharge  on  May  6,  2003,  his  command  deducted  49  days  of 
annual leave from his accumulated total.  The applicant alleged that he did not take the 
49 days of leave and that his leave balance should have been 62 days instead of 13.  In 
support  of  his  allegations,  he  submitted  LESes  showing  that  no  leave  was  charged  to 
him in February, March, and April 2003 and that as of April 30, 2003, his leave balance 
was 61.5 days.  In addition, the Coast Guard is apparently unable to produce any leave 
request  for  the  49  days  signed  by  the  applicant.    Therefore,  the  Board  finds  that  the 
applicant has submitted sufficient evidence to overcome the presumption of regularity. 
 
 
 Under  the  Board’s  rules  at  33  C.F.R.  § 52.24(b),  the  applicant  “has  the 
burden of proving the existence of an error or injustice by the preponderance of the evi-
dence.”  The Coast Guard alleged that the applicant took leave to look for a job in his 
home  state  for  49  days,  from  February  15  through  April  4,  2003.    In  support  of  these 
allegations,  the  Coast  Guard  has  submitted  a  leave  authorization  completed  by  his 
command  on  May  6,  2003,  and  emails  from  the  applicant’s  command  discussing  his 
visit to his home state and his failure to return to his unit on time for an April 3, 2003, 
medical appointment because of an apparent problem with his car. 
 
 
In  weighing  the  evidence,  the  Board  also  notes  that  the  applicant  some-
times displayed a lack of integrity during his Coast Guard service.  His record of dis-
honesty casts doubt upon the credibility of his allegations.  Moreover, the applicant did 
not respond to the Coast Guard’s advisory opinion, and he has not submitted any evi-
dence—other than the LESes—that he actually worked at his unit during the 49 days in 

3. 

1. 

2. 

4. 

5. 

The applicant has failed to prove by a preponderance of the evidence that 

6. 

question.  If he had actually worked at his unit during this period, he could presumably 
have submitted numerous statements to this effect from his coworkers, but he has not. 
 
 
he is entitled to have 49 days of annual leave restored in his record. 
 
 
The Coast Guard noted that under Article 7.A.10.b. of the Personnel Man-
ual,  the  applicant’s  command  could  have  authorized  him  to  take  an  administrative 
absence—in lieu of annual leave—for up to 20 days to go to his home state and look for 
a job.  The record does not indicate whether the command failed to consider this provi-
sion or considered it and intentionally chose not to authorize him 20 days of adminis-
trative absence.  In light of the applicant’s record of misconduct and poor performance, 
it is certainly possible that his command intentionally withheld this discretionary bene-
fit, especially since the applicant had accumulated sufficient annual leave to conduct his 
job  search.    However,  after  reviewing  the  record,  CGPC  concluded  that  there  is  “no 
compelling reason why the Applicant’s command would deny the Applicant this bene-
fit, while at the  same  time approving his absence for a purpose  for which the  benefit 
was  specifically  authorized.”    Likewise,  TJAG  concluded  that  “it  seems  appropriate, 
purely as a matter of equity and not of right, to credit Applicant with twenty additional 
days of leave at the time of his separation.”  In light of the views of the Coast Guard, the 
Board is persuaded that the applicant’s record should be corrected to show that he was 
granted 20 days of administrative absence in lieu of 20 of his 49 days of annual leave. 
 
7. 
 
granted.  

Accordingly,  the  partial  relief  proposed  by  the  Coast  Guard  should  be 

ORDER 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

military record is granted in part as follows: 

 
The Coast Guard shall correct his record to show that—instead of taking 49 days 
of  annual  leave  from  February  15  through  April  4,  2003—he  was  first  granted  an 
administrative absence of 20 days in accordance with Article 7.A.10.b. of the Personnel 
Manual and then took 29 days of annual leave.   

 
The Coast Guard shall correct his DD 214 accordingly and pay him any back pay 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Philip B. Busch 

 

 
 Richard Walter 

and allowances he may be due as a result of this correction. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 

 
 Suzanne L. Wilson