DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-058 
 
 

 

 
 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
 
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.   It was docketed on January 
28, 2005, upon receipt of the applicant’s completed application. 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  30,  2005,  is  signed  by  the  three  duly  appointed 

RELIEF REQUESTED 

 
The applicant asked the Board to award him the pay and allowances of a lieu-
 
tenant  commander  (LCDR),  rather  than  a  lieutenant  (LT),  for  his  service  from 
September  22,  2003,  to  December  9,  2004.    He  alleged  that  he  is  entitled  to  this  relief 
because  as  a  result  of  a  prior  case  before  this  Board,  he  returned  to  active  duty  on 
September 22, 2003, and his date of rank as a LCDR was backdated to August 1, 2000, 
after he was promoted to LCDR on December 9, 2004. 
 

BACKGROUND:  APPLICANT’S PRIOR CASES 

 
BCMR Docket No. 2002-110 
 
 
On December 15, 1999, the applicant, who was a lieutenant in the regular Coast 
Guard, received a general discharge after he pled nolo contendere on February 17, 1998, 
to a State charge of aggravated sexual assault on a child and after his case was reviewed 
by a Coast Guard Determination Board, Board of Inquiry, and Board of Review.  The 
charge had been filed because in 1996, his then nine-year-old niece told a friend that she 
had had sex with him in the summer of 1995.  As a result of a plea bargain, on April 6, 

1998,  the  judge  accepted  the  applicant’s  plea  and  entered  a  Deferred  Adjudication 
Order  against  him,  placing  him  on  probation  for  ten  years  with  multiple  conditions, 
including registration as a sex offender.  However, on December 3, 2001, the criminal 
charge against the applicant was withdrawn because on November 27, 2000, at age 12, 
his niece had fully recanted her story as follows: 
 

5.  
… [My friend and I] started telling each other stories and I was trying to top the 
story that she had told me so that she and I could still be friends.  I told her that my Uncle 
had sex with me.  I never dreamed that this act of bragging to my friend would become 
such a serious problem. 
 
After I told [my friend] the lie about my Uncle having sexual contact with me in 
6. 
the  Summer  of  1995,  she went  and  told  her  mother  what  I  had  said.    Her  mother  then 
told my mother.  When my mother told my father, my father became enraged and upset 
and I was very scared and confused.  Seeing how mad my father was, I was afraid that if 
I told him that it  was a lie, that I would be punished quite  severely.  I was  scared and 
could  not  bring  myself  to  come  forward  with  the  truth.    Later,  I  didn’t  come  forward 
with the truth because my mother told me that we didn’t have to go to court, so I thought 
nothing wrong happened because I told the lie. … 

 

On April 12, 2002, in his first application to the BCMR, the applicant asked the 

Board to correct his record by, inter alia, 
 

•  removing  his  separation  from  the  Coast  Guard  on  December  15,  1999,  and  his 
general  discharge  under  honorable  conditions  and  restoring  him  to  active  duty  as  a 
lieutenant with the same standing he had prior to his discharge;  

•  paying him back pay and allowances from the date of his discharge; and 
•  removing all documentation of the criminal proceedings and the circumstances 
of  his  discharge,  including  two  officer  evaluation  reports  (OERs),  which  documented 
the criminal proceedings and strongly recommended his discharge.   

 
The applicant neglected to ask the Board to remove a third poor OER, covering 
his performance from June 1, 1998, to May 31, 1999, in his first application to the Board. 

 
In  response  to  the  applicant’s  first  application,  the  Coast  Guard  recommended 
that the Board grant most of the requested relief but not back pay.  The Board found 
that  the  Coast  Guard  had  not  committed  any  error  or  injustice  in  discharging  the 
applicant after his plea in State court.  However, the Board also found that in light of his 
niece’s  recantation  and  the  withdrawal  of  the  criminal  charge  against  him,  he  was 
entitled to substantial relief, including the following:   

 

•  correction of his discharge form to show that he was released to inactive duty in 
the Coast Guard Reserve on December 15, 1999, by reason of Secretarial Authority with 
an honorable character of service; 

•  removal  of  all  documents  referring  to  the  proceedings  or  to  his  separation  for 

cause, including all three poor OERs; 

•  removal  of  his  failure  of  selection  for  promotion  to  LCDR  and  placement  of  a 
statement  in  his  record  instructing  selection  board  members  to  disregard  his  release 
from active duty and his missing performance evaluations; and 

•  recall  to  active  duty  within  six  months  and  reintegration  to  the  regular  Coast 
Guard; sufficient additional time on active duty so as to allow him to acquire another 
regular  OER  before  his  record  is  reviewed  by  another  LCDR  selection  board;  and  if 
selected  for  promotion  by  the  next  LCDR  selection  board  to  review  his  record,  “the 
option of having his LCDR date of rank backdated to what it would have been if he had 
been selected for promotion in 1999.” 
 

Although the Board’s order enabled the applicant to receive a backdated date of 
rank if he was selected for promotion to LCDR, it did not provide for payment of cor-
responding back pay and allowances.  On  April 4, 2003, the delegate of the Secretary 
approved the Board’s decision except for the removal of the third OER and the manner 
by which the applicant was released into the Reserve (which is not at issue in this case).  
She noted that because the Coast Guard had not addressed the matter of the third OER 
in its advisory opinion, the record had not been sufficiently developed for her to make 
an informed decision about it.  

 
Pursuant  to  the  Board’s  order  in  BCMR  Docket  No.  2002-110,  the  applicant 

returned to active duty as a lieutenant in the Coast Guard on September 22, 2003. 

 

BCMR Docket No. 2003-116 
 
 
In  his  second  application,  which  was  docketed  on  July  21,  2003,  the  applicant 
asked the Board to remove the third OER.  He alleged that it was unjust in that it failed 
to reflect his true performance as an officer because of the events and circumstances he 
was going through at the time.   
 
 
Although the Coast Guard recommended denying the requested relief, the Board 
recommended  that  the  third  OER  be  removed  because  it  found  that  the  numerical 
marks in the OER “were almost certainly similarly tainted by the rating chain’s knowl-
edge of the applicant’s alleged crime.”   
 

On  August  9,  2004,  the  delegate  of  the  Secretary  approved  the  Board’s  recom-
mendation.  The applicant was selected for promotion to LCDR by the selection board 
that convened on August 16, 2004.  Upon confirmation by the Senate, he was promoted 
on December 9, 2004.  In accordance with the Board’s order, he opted to have his date of 
rank  as  a  LCDR  backdated  to  what  it  would  have  been  had  he  been  selected  for 
promotion in 1999, which was August 1, 2000.  However, because the Board’s order in 

BCMR  Docket  No.  2002-110  had  not  expressly  addressed  the  issue,  the  Coast  Guard 
would not pay him back pay and allowances. 
 

VIEWS OF THE COAST GUARD 

 
 
On March 28, 2005, the Judge Advocate General submitted an advisory opinion 
in  which  he  recommended  that  the  Board  grant  the  requested  relief.    In  doing  so,  he 
adopted a memorandum on the case prepared by the Coast Guard Personnel Command 
(CGPC).   
 
 
CGPC  stated  that  the  applicant  returned  to  active  duty  as  a  lieutenant  on 
September  22,  2003,  and  continued  to  receive  the  pay  and  allowances  of  a  lieutenant 
until  his  promotion  to  LCDR  on  December  9,  2004.    CGPC  stated  that,  in  accordance 
with  the  Board’s  order,  the  applicant  elected  to  have  his  date  of  rank  backdated  to 
August  1,  2000.    CGPC  noted  that  “[h]ad  the  applicant  been  promoted  on  01  August 
2000, he would have received the pay and allowances of a LCDR/O-4 for the period of 
time he was on active duty from 22 September 2003 to 09 December 2004.”  CGPC noted 
that in BCMR Docket No. 2002-110, the Board had concluded that the applicant was not 
owed  back  pay  and  allowances  for  the  time  when  he  was  not  on  active  duty—from 
December  15,  1999,  to  September  21,  2003—because  the  Coast  Guard  had  not  acted 
erroneously or unjustly in discharging him after he pled nolo contendere to aggravated 
sexual assault on a child. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On April 6, 2005, the applicant responded to the Coast Guard’s advisory opinion.  

 
 
He stated that he agreed with the recommendation. 
 

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 appli-
cable law: 
 

1. 

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

2. 

§ 1552.  The application was timely. 
 
 
The applicant alleged that he is entitled to back pay and allowances due to 
the correction of his date of rank as a LCDR.  In its decision in BCMR Docket No. 2002-
110, the Board failed to address the matter of whether the applicant would be entitled to 
back pay if he chose to have his date of rank backdated upon selection for promotion by 
the  next  LCDR  selection  board  to  review  his  record.    CGPC  and  the  Judge  Advocate 
General have recommended that the Board grant the applicant’s request. 

3. 

 
In  Caddington  v.  United  States,  178  F.  Supp.  604,  606  (Ct.  Cl.  1959),  the 
 
Army BCMR had ordered the retroactive promotion of an officer but failed to order that 
he receive corresponding back pay and allowances, which was the difference between a 
lieutenant colonel’s pay and allowances and a colonel’s pay and allowances.  The court 
ordered the Army to pay the plaintiff all back pay and allowances due as a result of his 
promotion and stated the following: 
 

To acknowledge plaintiff’s right to a promotion and at the same time to deprive him of 
one of the principal benefits of the promotion cannot truly be viewed as such action as 
would  remove  an  injustice.  …  An  action  which  is  designed  to  remove  an  injustice  or 
correct  an  error,  as  this  one  must  have  been  under  the  statutory  enactments,  should 
include every essential benefit. … 
 
There are certain principles of equity that through long usage have grown into maxims.  
These include … “equity delights to do justice and not by halves.” … 
 
We  believe  that  the  Board  for  Correction  of  Military  Records  and  the  Secretary  who 
approved the findings reached a conclusion that falls short of complete justice. 

4. 

 
Id. at 607-08. 
 
In accordance with the decision in Caddington, the Board agrees with the 
 
Coast Guard that the applicant’s request should be granted.  Under the circumstances of 
this case, “complete justice” includes the pay and allowances he would have received as 
a  LCDR  since  his  return  to  active  duty  on  September  22,  2003,  had  he  actually  been 
promoted on August 1, 2000.  This decision is consistent with the Board’s decisions in 
prior  cases  wherein  officers’  dates  of  rank  and  members’  dates  of  advancement  were 
backdated.1 
 
 
Accordingly, the applicant’s request should be granted.  He is entitled to 
the pay and allowances of a LCDR from his return to active duty on September 22, 2003, 
until December 9, 2004, when he was actually promoted and began to receive the pay 
and allowances of a LCDR. 
 
 

5. 

 

 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

                                                 
1 See e.g., BCMR Docket Nos. 2004-115, 2004-095, 2003-127, 2001-041, 2000-157, 2000-030, 2000-016, 1999-
187, 1999-183, 1999-142, 1998-073. 

ORDER 

 

The  application  of  __________,  USCG,  for  correction  of  his  military  record  is 
granted.    His  record  shall  be  corrected  to  show  that  he  was  entitled  to  pay  and 
allowances  as  a  lieutenant  commander  (O-4)  from  his  return  to  active  duty  on 
September 22, 2003, until his actual promotion on December 9, 2004.  The Coast Guard 
shall pay him the amount due as a result of this correction. 
 
 
 

No copy of this final decision shall be entered in his military record. 

 

 
 

 
 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 

 
 Bruce D. Burkley 

 

 

 
 Raghav Kotval 

 

 

 
 Kevin M. Walker