DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-130 
 
XXXXXXXXXXX 
xxxxxxxxxx, LCDR 

 

 
 

FINAL DECISION 

 
Author: Ulmer, D. 
 
 
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.    The  application  was 
docketed on June 13, 2006, upon remand from the Court of Federal Claims pursuant to 
28 U.S.C. § 1491(a)(2).   See Baird v. United States, No. 04-1454C (Fed. Cl. June 1, 2006).   
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  September  28,  2006,  is  signed  by  the  three  duly 

INTRODUCTION AND REMAND 

 

On  September  14,  2004,  the  applicant  filed  an  action  in  the  Court  of  Federal 
Claims seeking to enjoin the Coast Guard from attempting to recoup $1785 from him.  
The Coast Guard believed that the applicant had been erroneously paid for four days of 
active  duty  from  September  23,  2001  through  September  26,  2001.    In  addition,  the 
applicant sought back pay for 22 days of accrued unused leave that he was not permit-
ted to sell back to the Coast Guard.   He also alleged the following in his complaint: 

 
[T]he Integrated Support Command provided the plaintiff with a record 
of his military service as outlined on the [DD Form 214].  Plaintiff noticed 
that 
[the  DD  FORM  214]  contained  an  approximately  one-year 
discrepancy  in  active  duty  service  performed.    Plaintiff  attempted  to 
correct this error, but was told that his military record had been tampered 
with  and  that  he  would  need  to  have  them  corrected  by  competent 
authority.  In September 2000, the plaintiff became aware of other errors of 
service, 
falsified  documents,  which 

including  computerized  and 

fictitiously  changed  his  military  service.    These  records  were  brought 
forward  in  front  of  the  several  promotion  boards  dating  as  far  back  as 
1990. 

 
 

In its Opinion and Order on Motion to Dismiss that concluded with a remand to 

this Board, the Court summarized the applicant's allegations and claims as follows: 
 

First, [Plaintiff] seeks to have his record of military service corrected with 
respect to the period during which he was recalled to active duty (June 24, 
2001  to  December  27,  2001).[1]    Second,  [Plaintiff]  seeks  back  pay  and 
allowances allegedly forfeited as a result of his service in the absence of 
written  orders  between  September  23  and  September  26,  2001.    Third, 
Plaintiff  seeks  to  enjoin  the  Coast  Guard  from  continuing  its  collections 
efforts related to the alleged overpayments  . . . Finally, [Plaintiff] alleges a 
violation of his Fifth Amendment Due Process rights, though the specifics 
of this claim are not clear. (Baird at 7.)   
 
On  June  1,  2006,  the  Court  remanded  the  case  to  the  BCMR  to  resolve  the 
following issues within 90 days:2  (1 ) Whether and to what extent the applicant's record 
of  military  service  contained  errors.    (2)  Whether  and  to  what  extent  the  applicant  is 
entitled to back pay and allowances as a result of his service in the absence of written 
orders between September 22 and September 26, 2001.3  (3) Whether and to what extent 
the United States Coast Guard made overpayments to the applicant in connection with 
the  period  between  September  22  and  September  26,  2001,  and  whether  the  Coast 
Guard's efforts to collect such sums may resume. Id. at 11. 

 

 

 

 
BCMR No. 107-96 

BACKGROUND 

                                                 
"[1]    [The  applicant]  also  alleges  the  existence  of  errors  in  his  service  record  that  fall  outside  the  June-
December  time  period.    Specifically,  he  complains  of    'fraudulent  entries  .  .  .  made  by  unidentified 
persons  that  were  hidden  from  plaintiff,  excluded  from  previous  administrative  record,  and  not 
discovered until September 2000.'  He further claims to have been illegally excluded from consideration 
for  promotion  in  1990.    Finally,  [the  plaintiff]  claims  the  Coast  Guard  altered  his  'retirement  points 
statement'  in  2001  and  2002,  and  'deleted  retirement  credits'  from  his  record  of  service."      Baird  at  7, 
footnote 9.   
2      On  June  14,  2001,  the  court  issued  a  stay  to  allow  the  parties  to  search  for  and  exchange  certain 
documents related to the case.    On July 26, 2006, the applicant received the documents that he requested 
from the Coast Guard, and a new 90-day period began for the Board to resolve the remanded issues.     
3 Although the remand order lists the dates between September 22, 2001, and September 26, as the days 
not covered by written orders, the actual period is from September 23, 2001 through September 26, 2001.   

 
 
On  April  19,  1996,  the  BCMR  received  an  application  from  the  applicant 
requesting  that  the  Board  make  several  corrections  to  his  military  record.      The 
application was placed on the Board' s docket as BCMR No. 107-96.  The evidence in the 
case revealed that the applicant was a Reserve officer who served temporary periods of 
active duty.  On January 6, 1989, a new set of active duty orders was prepared for the 
applicant covering the period from January 23, 1989 to May 31, 1989.  On January 10, 
1989, the Commander, Eighth Coast Guard District, canceled the orders, and on January 
17, 1989, the applicant was placed in the Individual Ready Reserve (IRR). 
 
 
On June 1, 1990, the applicant was convicted in the United States District Court 
of  one  count  of  violating  18  U.S.C.  §  203.1    He  was  sentenced  to  one  year  of 
incarceration, the execution of which was suspended; one year of probation; 200 hours 
of  community  service;  pay  a  special  assessment  of  $50.00;  and  he  was  barred  from 
holding a future position in the federal government.   
 
 
On  November  21,  1990,  having  failed  to  earn  the  required  minimum  27 
retirement points to remain in the IRR, the applicant was placed on the Inactive Status 
List (ISL).  He was advised that while assigned to the ISL he could not earn retirement 
points, participate in any Reserve training activities, or be considered for promotion.    
 
 
On  July  15,  1994,  the  Court  of  Appeals  set  aside  the  applicant's  conviction 
because of the erroneous exclusion of certain testimony.  United States v. Baird, 29 F.3d 
647 (D.C.C. 1994).  On October 28, 1994, the indictment was dismissed. 
 
 
After  his  conviction  was  reversed  and  the  indictment  dismissed,  the  applicant 
requested  that  he  be  returned  to  the  active  Reserve.    On  December  2,  1994,  he  was 
transferred into the IRR. 
 
The relevant requests for relief by the applicant in BCMR No. 107-96 were as follows: 
 

a.    Effect  the  payment  of  all  pay  and  allowances  lost  as  a  result  of  the 
actions taken against [him]  . . . from 23 Jan 1989 until [present].   
 

  * 

 

 

* 

* 
 

                                                 
1   18 U.S.C. § 203(a) imposed criminal penalties for "[w]hoever, otherwise than as provided by law, for 
the  proper  discharge  of  official  duties,  directly  or  indirectly--.  .  .  demands,  seeks,  receives,  accepts,  or 
agrees to accept  any compensation for any representational services, as agent or attorney or otherwise, 
rendered or to be rendered either personally or by another--” 

 

 

 

b.  Determine that the cancellation of a set of temporary active duty orders 
[which] were scheduled to commence on 23 Jan 1989 for 129 days  . . . was 
improper and without due process.   

  * 

 

* 

 

* 

d.    Find  that  my  involuntary  transfer  from  the  Selected  Reserve  and 
transfer to the IRR [Individual Ready Reserve] (and subsequently the ISL 
[Inactive  Status  List])  .  .  .  was  not  done  in  accordance  with  procedures 
outlined  in  32  CFR,  Part  100,  Section  100.5,  Paragraph  3,  which  calls  for 
convening of a board of officers as required by 10 U.S.C. 1163.  

e.    Determine  that  the  Coast  Guard  had  in  fact  attempted  to  effect  a 
discharge,  as  evidenced  by  [his]  removal  from  the  Register  of  Reserve 
Officers   . . .  
 

  * 

 

* 

 

* 

 
i.    Conclude  that  [he]  would  have  been  eligible  for  consideration  for 
promotion  to  Commander  by  the  FY91  selection  board,  and  due  to 
removal from a status allowing consideration for promotion without due 
process,  and  .  .  .  effect  the  promotion  to  the  grade  of  Commander  (O-5) 
with a date of rank of 1 July 1991.    
 

  * 

 

* 

 

* 

 
k.    Determine  that    .  .  .  that  the  time  spent  awaiting  the  outcome  of  the 
matter  should  be  credited  as  active  duty  and  satisfactory  years  for 
retirement purposes.  
 

Final Decision, BCMR No. 107-96, pp. 1-2. 
 
 
made the following pertinent findings and conclusions: 
 

In  a  final  decision,  issued  on  September  12,  1997,  the  Board  denied  relief  and 

12.  The applicant has not shown that the Commandant committed 
any error by placing him in the IRR (non-pay) rather than in the Selected 
Reserve (pay) upon the applicant's release from active duty.  The Board is 
not aware of any law or regulation that entitles a Reservist to be placed in 
the Selected Reserve. In Sharp v. Weinberger, 593 F. Supp. 886 (D.C. 1984), 
the court dismissed the challenge of a Ready Reserve officer's transfer to 
the Standby Reserve, notwithstanding the fact that he had signed a Ready 
Reserve agreement.  The court stated that  "[a] change in status of reserve 

officer is a matter committed solely to the discretion of the Secretary of the 
officer's  branch  of  service  or  the  President  of  the  United  States."    In  the 
instant case, the applicant had no agreement at all, only active duty orders 
that had been completed to term.  
 
 
13.  Since the applicant was not separated from the Reserve, he was 
not  entitled  to  a  Board  of  Officers  at  the  time  of  his  transfer  to  the  ISL 
(inactive duty status list).  The applicant was placed on the ISL because he 
did not earn the minimum number of retirement points (27) to remain in 
the  IRR.    A  member  on  the  ISL  is  not  eligible  for  consideration  for 
promotion  and  can  not  earn  pay  or  retirement  points.    Encl:  (1-1), 
COMDTINST M1001.27.  Since the applicant was on the ISL at the time the 
CDR  selection  board  met  in  1990  and  1991,  he  was  not  eligible  for 
consideration for promotion to that grade.   
 

  * 

 

* 

 

* 

 
 
15.    The  applicant  has  failed  to  prove  that  the  Coast  Guard 
committed  any  error  or  injustice  in  the  handling  of  his  case.    Thus,  no 
basis  exists  to  consider  whether  an  adjustment  to  his  date  or  rank  is 
appropriate,  if  he  is  later  selected  for  CDR.  There  is  also  no  basis  to 
consider awarding back pay and allowances.   
 

  * 

 

* 

 

* 

 
 
17.  All of the applicant's contentions have been considered.  Those 
not  discussed  within  the  findings  and  conclusions  are  considered  to  be 
without merit.  
 

Id. at 13-14 
 
Court Appeal of Final Decision in BCMR No. 107-96 
 
The  applicant  appealed  the  Board's  final  decision  in  Docket  No.  107-96  to  the 
 
Court of Federal Claims.  On March 23, 1999, that Court granted summary judgment in 
favor of the Coast Guard and the United States.  Baird v. United States, No. 98-CV-387 
(Fed. Cl.  March 23, 1999).  The United States Court of Appeals for the Federal Circuit 
affirmed the Court of Federal Claims decision.  Baird v. United States, No. 99-5097 (Fed. 
Cir. August 28, 2000).   The Court of Appeals decision stated the following: 
 

[Plaintiff-Appellant  (hereafter  applicant)]  claims  that  his  service  from 
October 1, 1987 to December 31, 1988 and potential service from January 
23,  1989  to  May  31,  1989  were  periods  of  extended  active  duty,  even 

though  he  did  not  enter  into  a  written  active  duty  agreement  with  the 
government.      An  active  duty  agreement  is  not  automatically  created 
when  a  period  of  temporary  active  duty  is  extended  beyond  twelve 
months.  See 10 U.S.C. § 679 (1988) (renumbered 10 U.S.C. § 12311 (1994)) 
(providing  the  terms  for  active  duty  agreements  without  addressing 
whether  temporary  active  duty  performed  in  excess  of  twelve  months 
automatically  converts  to  an  active  duty  agreement).    The  [B]oard 
properly concluded from the record that [the applicant] did not have an 
active duty agreement and that his period of active duty in 1987 to 1988 
contained  no  guarantees  against  early  release  or  for  further  extension  of 
active duty. 
 
[The  applicant]  also  claims  that  his  active  duty  orders  were  improperly 
cancelled and his due process rights were violated.  A reservist on active 
duty without an active duty agreement does not have an indefinite active 
duty assignment and may be released from active duty at any time.  See     
. . . (10 U.S.C. § 12313(a) (1994); Groves v. United States, 47 F.3d 1140, 1145 
(Fed.  Cir.  1995). 
  A  reservist  on  active  duty  does  not  have  a 
constitutionally  protected  property  interest  in  his  active  duty  position.  
See  Alberico  v.  United  States,  783  F.2d  1024,  1027  (Fed.  Cir.  1986).    The 
[B]oard  properly  concluded  that  [the  applicant]  was  not  contractually 
entitled  to  retain  his  active  duty  position,  that  he  had  no  reasonable 
expectation of continued service and that his right to due process was not 
violated  upon  his  release  from  active  duty  because  he  had  no  property 
rights in the position. 
 
In  addition,  [the  applicant]  seeks  back  pay  pursuant  to  37  U.S.C.  §  204, 
even though he was not on active duty during the disputed time period.  
However,  a  reservist  is  entitled  to  compensation  only  if  he  actually 
performs  his  duties.    See  Dehne  v.  United  States,  970  F.2d  890,  894  (Fed 
Cir.  1992).    Thus,  the Board  held  that  [the  applicant]  was  not  entitled  to 
pay, allowances,  credit or retired pay for that time period.  He does not 
point  to  any  statute  or  regulation  that  mandates  pay  for  constructive 
service.  We therefore agree that [the applicant] is not entitled to back pay.   
 
[The applicant] further claims that the Commandant of the United States 
Coast Guard improperly removed him from the rolls of the Coast Guard 
Reserve.    Although  he  raised  the  issue  before  the  [B]oard,  the  records 
show that [the applicant] was at all relevant times a reserve officer on the 
rolls.  He was on active duty from October 1, 1987 to December 31, 1988. 
On January 6, 1989, he was ordered to active duty from January 23, 1989 to 
May 31, 1989, but these orders were cancelled before being executed and 
he  was  placed  in  the  Selected  Reserve.    He  was  moved  on  January  17, 

1989,  from  the  Selected  Reserve  to  the  Individual  Ready  Reserve  (IRR), 
and he was notified on November 21, 1990 that he was being transferred 
to  the  inactive  status  list  (ISL)  for  failure  to  earn  the  minimum  required 
retirement  points  in  the  preceding  year  in  accordance  with  the  Reserve 
Administration  and  Training  Manual  .  .  .  Section  14-1.    Each  of  these 
alterations in [the applicant's] status was within the sound discretion and 
in  accordance  with  the  procedures  of  the  United  States  Coast  Guard.  
There is no clear and convincing evidence that he was actually removed 
from the rolls.   
 
Finally,  [the  applicant]  claims  that  he  is  entitled  to  collateral  remedies.  
However, unless the plaintiff is entitled to a monetary remedy, the United 
States Court of Federal Claims lacks jurisdiction over collateral remedies.   
See  Holley  v.  United  States,  124  F.3d  1462,  1466  (Fed.  Cir.  1997) 
Accordingly,  the  Court  of  Federal  Claims  correctly  declined  to  reinstate 
[the applicant] to the rank of captain, to remove the July 20, 1989 officer 
evaluation report from his records, and to grant attorney's fees or costs.  
 

Baird v. United States, No. 99-5097 (Fed. Cir. August 28, 2000) at 2-4. 
 
 
The applicant petitioned the Court of Appeals for a rehearing, which was denied 
on  December  14,  2000.        Baird  v.  United  States,  No.  99-5097  (Fed.  Cir.  December  14, 
2000).    On December 20, 2002, the applicant petitioned the Court of Federal Claims to 
set aside its March 1999 summary judgment and for a new trial.4  On December 20, 2002 
the Court returned the applicant's motion unfilled stating that the case was closed and 
noting the mandate issued by the Court of Appeals for the Federal Circuit on December 
21, 2000. 

 

Applicant's Requests for Reconsideration of BCMR No. 107-96 
 
The  BCMR  file  shows  that  on  two  different  occasions,  the  applicant  requested 
 
that the Board reconsider its final decision denying his requests for relief in BCMR No. 
107-96.  His second request for reconsideration, received by the Board on December 27, 
2000, was based upon the discovery of certain computer entries that, he alleged, show 
that the Commandant separated him or dropped him from the rolls in 1992.  He alleged 
that  the  Coast  Guard  purposefully  failed  to  disclose  this  information  to  the  Board 
during the processing of his BCMR case. See DD149 (request for reconsideration) with 
attachments, dated December 21, 2000. 5 
                                                 
4   The applicant's motion to set aside the summary judgment and for a new trail was based in part on 
allegations  that  the  Coast  Guard  committed  fraud  by  concealing  computer  entries  showing  that  the 
applicant was allegedly discharged from the Coast Guard in 1992.   
5   The applicant attached to his request for reconsideration a copy of a September 21, 2000, Article 138 
complaint  against  the  Commandant  alleging  that  his  subordinates  had  misled  the  Board  and  civilian 

 
 
On  June  5,  2001,  the  Chairman  of  the  Board  determined  that  the  applicant's 
reconsideration  request  did  not  meet  the  requirements  for  reconsideration  under  33 
CFR § 52.67 of the Board's rules.  The Chairman informed the applicant that even if the 
keystrokes allegedly dropping him from the rolls were new evidence, it could not cause 
the Board to reach a different conclusion in his case.  In this regard, the Chairman noted 
that the applicant had already raised the allegations of fraud in a petition for rehearing 
before  the  Court  of  Appeals  that  had  been  denied.    With  respect  to  the  applicant's 
allegation that computer entries placing him on the ISL were made two days after the 
commander  selection  board  had  convened,  the  Chairman  told  the  applicant  the 
following: 
 

[The BCMR], in its final decision, found that you were properly placed on 
the  ISL  because  you  did  not  earn  the  number  of  points  necessary  to 
remain in the IRR  . . . The fact that computer keystrokes were allegedly 
made placing you on the ISL based on the Commandant's earlier decision 
of November 21, 1990, that you would be transferred to the ISL, effective 
November  30,  1990,  will  not  cause  this  Board  to  reach  a  decision  other 
than that already made with respect to your non-consideration by the 1990 
and  1991  commander  selection  boards.    It  was  the  Commandant's 
November 21, 1990 decision that you would be placed on the ISL effective 
November  30,  1990,  that  is  determinative  of  your  status,  not  when  the 
entries  were  made  into  the  computer  system."    [See  BCMR  June  5,  2001 
letter denying reconsideration.] 

 
Current BCMR Case (2006-130) 

 

                                                                                                                                                             
judges about the applicant's alleged 1992 separation from the Coast Guard.  He alleged that information 
he  received  explaining  the  computer  entries  verifies  that  on  May  28,  1992,  the  Commandant  separated 
him from the Coast Guard and terminated his appointment as an officer.  Subsequently, he alleged that 
the Commandant caused the 1992 entry to be deleted from the computer.  The applicant suggests that the 
computer codes and entries prove that he was discharged from the Coast Guard without his knowledge 
and without due process.   
 
  On  November  7,  2000,  the  Commandant  responded  to  the  applicant's  Article  138  complaint.    He 
explained  to  the  applicant  that  a  Headquarters'  employee  likely  made  the  entries,  but  such  entries 
standing alone were insufficient to effect the applicant's separation from the Coast Guard Reserve.  The 
Commandant  further  stated,  "To  have  been  effectively  separated  from  the  Coast  Guard  Reserve,  you 
must have been provided a DD 214 or other valid notification of the separation action.  You have stated 
that  you  never  received  any  notice  of  your  separation  from  the  Coast  Guard,  and  our  records  do  not 
indicate that any such notice was prepared.  A separation is only effective if the service has the intent to 
separate  the  member  and  the  member  receives  actual  or  constructive  notice  of  the  intended  separation 
actions.  See United States v. Howard, 20 M.J. 353, 354 (CMA 1985)."  The Commandant told the applicant 
that  the  separation  was  not  completed  and  that  his  record  was  corrected  on  November  10,  1994,  by 
removing the computer entries. 

As  discussed  earlier,  the  applicant  was  on  the  ISL  from  1990  until  December 
1994, when he was returned to the Ready Reserve.  Subsequently, after earning 20 years 
of  satisfactory  federal  service,  the  applicant  was  placed  on  the  retired  list  (RET-2), 
effective  April  1,  2001.    Pursuant  to  10  U.S.C.  §  12301(d),  Commander,  Coast  Guard 
Personnel  Command  (CGPC)  recalled  the  applicant  to  active  duty,  with  his  consent, 
from his retired status, effective April 1, 2001.  This period of active duty was scheduled 
to and ended on September 22, 2001.  After the September 11, 2001 terrorist attacks, a 
Coast Guard officer verbally requested that the applicant remain on active duty for an 
additional 90 days, with written orders to follow.  On September 23, 2001, the applicant 
commenced this period of active duty and continuously performed military duties until 
December 27, 2001.  However, when the written orders were received, the effective date 
was September 27, 2001, instead of September 23, 2001, leaving a four-day gap between 
the  termination  date  (September  22,  2001)  of  the  applicant's  prior  orders  and  the 
effective date of the new written orders (September 27, 2001).  The Coast Guard paid the 
applicant  for  the  entire  month  of  September,  including  the  four  days  that  were  not 
covered  by  the  written  orders.    The  applicant  was  released  from  active  duty  on 
December 27, 2001, the date his most recent orders terminated.    
 

Prior  to  September  22,  2001,  the  applicant  had  already  sold  the  maximum  60 
days of unused leave permitted under 37 U.S.C. § 501(b)(3).6  However, he alleged that 
but for the four-day break in service, he would have been permitted to bring forward 
the unused leave from the earlier period and to sell his entire balance of unused leave 
upon his release from active duty on December 27, 2001 under section 501(b)(5)(B) of 
title 37, United States Code.7   This provision of law states that the 60-day limit shall not 
apply  with  respect  to  leave  accrued  by  a  member  of  the  armed  forces  in  the  Retired 
Reserve  while  serving  on  active  duty  in  support  of  a  contingency  operation.    The 
applicant's  October  2001  leave  and  earnings  statement  (LES)  shows  that  he  brought 
forward 17 days of previously accrued, unused leave from his earlier period of active 
duty.    His  December  2001  LES  shows  that  at  the  end  of  the  active  duty  period  that 
terminated on December 27, 2001, the applicant had a balance of 20.5 days of unused 
leave.  It also shows that he used 4 days of leave during the month of December 2001.   
 
 
Although  it  is  not  clear  from  the  record,  it  appears  that  in  reconciling  the 
applicant's final pay in December 2001, the Coast Guard determined that he had been 
overpaid  and  instituted  action  to  collect  a  $1785  overpayment  for  the  four  days  in 
                                                 
6   Section 501(b)(1) states that a member of the Coast Guard 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.   Subsection 501(b)(3) states in pertinent part that the number of days of leave for 
which payment is made may not exceed sixty, less the number of days for which payment was previously 
made.  
7  Section 501(b)(5)(B) states, "The limitation  . . . shall not apply with respect to leave accrued-- . . . by a 
member  of  the  armed  forces  in  the  Retired  Reserve  while  serving  on  active  duty  in  support  of  a 
contingency operation."   

September 2001 that were not covered by written orders.  The applicant stated that he 
applied for a debt waiver; but there is no evidence in the record that the Coast Guard 
acted  on  the  request  for  a  waiver.    Subsequently,  the  Coast  Guard  began  efforts  to 
collect the alleged debt.   
 

As stated above, on September 14, 2004, the applicant filed an action in the Court 
of  Federal  Claims  seeking  to  enjoin  the  Coast  Guard  from  collecting  the  alleged 
overpayment,  seeking  back  pay  for  the  unused  leave,  and  seeking  the  correction  of 
other  alleged  errors  in  his  record.    These  other  errors  are  identified  in  Baird  v.  United 
States as  "fraudulent entries . . . made by unidentified persons that were hidden from 
plaintiff,  excluded  from  previous  administrative  record,  and  not  discovered  until 
September 2000[;]" his illegal exclusion from consideration for promotion in 1990; and 
claims that the Coast Guard altered his retirement points statement in 2001 and 2002, 
and deleted retirement points from his service record.  See footnote 1, supra.  On June 1, 
2006, this case was remanded to the Board to resolve three issues discussed on page 2, 
supra.   
 
Additional Submission by Applicant 
 
 
On  August  15,  2006,  the  applicant  asked  for  permission  to  supplement  the 
record.    He  provided  additional  documents  to  the  Board  (many  of  which  were 
duplicates of earlier submissions) that he contended show the following: 
 

  

•  That  he  was  improperly  removed  from  an  active  reserve  status  in  November 
1990, and improperly excluded from consideration by the Reserve Commander 
Selection Board that convened on December 3, 1990. 

 

 

•  That  the  date  of  processing  for  the  November  1990  reserve  pay  and  point 
accounts  was  December  11,  1990.    "The  alleged  screening  that  occurred  on 
November  21,  1990  was  incomplete,  as  it  did  not  include  November  01,  1990 
information.    I  also  note  that  the  transmittal  documentation  from  the  Eighth 
Coast Guard District to the applicant was dated December 11, 1990."  

•  That the Commandant's November 21, 1990 letter that transferred the applicant 
to the inactive status list (ISL) did not comply with the regulation.  In this regard, 
the  applicant  stated  that  he  was  not  given  30  days  to  respond,  i.e.  provide 
evidence  of  completed  drills;  he  did  not  have  the  ability  to  request  a  one  time 
waiver  of  the  participation  standards;  and  he  was  not  afforded  any  of  the  due 
the  Reserve  Training  and 
process  protections  under  Article 

[14-I]  of 

 

Administration  Manual  (RATMAN)8;  and  that  the  annual  screening  did  not 
occur within three months of his anniversary date.  

•  That the Coast Guard did not provide him with prior notice of his transfer to the 
ISL.  The applicant stated that he received notice of the transfer on December 11, 
2001, but the transfer occurred on November 21, 2001, with the computer entry 
made on December 5, 2001. 

 
 
The  applicant  argued  that  a  statement  from  a  YN1  explains  why  he  was  not 
screened  for  promotion  in  1990.    The  YN1  stated  that  he  was  a  personnel  specialist 
attached to the Eighth Coast Guard District from January 1989 through December 1990.  
He further stated the following: 
 

Part  of  my  assigned  duties  was  to  prepare  and  send  certified  letters  to 
reserve  officers  who  were  being  considered  for  promotion  to  the  next 
grade.  These letters advised each officer that they were being considered 
for  promotion  by  a  Reserve  promotion  board  and  that  they  had  the 
opportunity  to  communicate  pertinent  information  with  the  board  that 
they believed was important in demonstrating their fitness for promotion.   
 
I was aware that the Coast Guard was monitoring a civilian criminal case 
involving  [the  applicant].    I  was  also  instructed  not  to  send  a  certified 
letter to [the applicant] and I am not aware of any letter being sent to [the 
applicant]  prior  to  the  convening  of  the  Reserve  Commander  Selection 
Panel.   

 
 
  The  applicant  alleged  that  documents  of  computer  entries  obtained  from  the 
Coast Guard show that he received a discharge under other than honorable conditions 
on May 28, 1992.  He stated that these documents were previously concealed from the 
BCMR  during  the  1996  proceedings.    He  claimed  that  he  was  not  able  to  obtain  this 
information until 2001, and therefore his record with respect to this issue could not have 
been corrected during the 1996 BCMR proceedings.   
 
 

                                                 
8      Article  14-I-1.  of  the  RATMAN  calls  for  the  annual  screening  of  officers  in  an  active  status  not  on 
extended active duty for compliance with the minimum yearly point requirement (27).  The screening is 
done at the end of an officer's anniversary year with notification to the officer approximately 3 months 
after the month in which the anniversary year ends.  Article 14-I-2 provides procedures for transferring 
an  officer  to  the  ISL  who  failed  to  earn  the  required  minimum  points  in  an  anniversary  year.    Officers 
notified  of  the  transfer  have  30  days  from  receipt  of  notification  to  request  a  waiver  of  the  minimum 
participation  requirement,  supply  documentation  of  additional  points  earned,  request  resignation,  or 
request transfer to the Retired Reserve, if eligible.  If no response is received, transfer to the ISL will be 
made 45 days from the date of the notification letter.   

VIEWS OF THE COAST GUARD 

 
 
On  August  17,  2006,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  make  three  pertinent 
findings, as discussed below.    
 

1.  "The BCMR should find that the Coast Guard made no overpayment to the 
Applicant in connection with service performed between the dates of September 22, 
2001  and  September  26,  2001.    The  Coast  Guard  should  cease  all  efforts  to  recoup 
payments for service performed during this period." 
 
 
The JAG stated that the applicant had met his burden of showing that due to an 
administrative error written orders to active duty for the time period in question were 
never created and that he never received overpayment from the Coast Guard.  The JAG 
stated that the applicant received payment for duty performed for September 23, 2001 
through  September  26,  2001  and  therefore  was  not  overpaid.    The  JAG  further 
recommended that the Board find that the Coast Guard should permanently suspend 
all actions to collect any payments for service performed between September 22, 2001 
and September 26, 2001.   
 

2.  "The BCMR should find that the applicant is not entitled to any additional 
back  pay  or  allowances  resulting  from  the  alleged  break  in  service  in  September 
2001."   
 

The JAG stated that this issue relates to the applicant's claim that "as a result of 
the  'erroneous'  break  in  service  that  he  forfeited  22  days of  leave  that  he  would  have 
been  entitled  to  payment  for  as  unused  accrued  leave  had  there  been  no  break  in 
service."   According to Chapter 10.A. of the Coast Guard Pay Manual and section 501 of 
title 37 of the United States Code, a member may receive payment for unused accrued 
leave up to a career maximum of 60 days, which the applicant had already met at the 
time of his release from active duty in December 2001.  The JAG noted that 37 U.S.C.  §  
501(b)(5)(B) and Chapter 10.A.1.a.(2) of the Pay Manual authorize an exception to the 
60-day limit for those retired reserve members serving on active duty in support of a 
contingency operation.  The JAG recommended that the Board find that the applicant 
may  receive  payment  for  unused  leave  accrued  from  September  23,  2001  through 
December 27, 2001.  The JAG supplied the following reasoning: 
 

On 29 March 01, the Coast Guard issued the Applicant temporary active 
duty  (TEMAC)  orders  to  report  for  duty  beginning  1  April  01  and  [the 
orders] were subsequently extended through 22 September 01.  The orders 
covering this period were not issued for duty in support of a contingency 
operation.  As the orders covering this period were not issued in support 
of  a  contingency  operation,  the  Applicant  is  not  entitled  to  payment  for 

unused  leave  that  accrued  up  until  22  September  01.    The  Coast  Guard 
issued orders beginning on 23 September 01 pursuant to a declaration of 
national  emergency  and  in  support  of  contingency  operations  in  the 
aftermath of the September 11 terrorist attacks.  Accordingly, the applicant 
may receive payment for unused leave only for service from 23 September 
01 to 27 December 01.   
 
During the period from 23 September to 27 Dec 01, the Applicant accrued 
(8) days of leave.  The Applicant's records indicate that he used (4) days of 
leave from 11 Dec 01 to 14 Dec 01 . . . Coast Guard pay records indicated 
that the applicant was paid for those 4 days of unused leave.  However, 
the  Coast  Guard  pay  center  informed  me  that  the  Coast  Guard  applied 
payment  for  the  4  unused  days  of  leave  to  the  debt  it  believed  the 
Applicant owed for payments for the dates between 22 September 01 and 
26 Sep 01.  
 
 Accordingly, I recommend that the board find that the Applicant did not 
lose the right to payment for unused leave.  Specifically, I recommend that 
the Board conclude that the Applicant could not be paid for the  unused 
leave for the periods between 1 April 01 and 22 September 01 because the 
Applicant's duty during that period was not in support of a contingency 
operation and the Coast Guard had previously paid him for the maximum 
(60) days of unused leave.  I recommend on this issue that the BCMR find 
that  the  Coast  Guard  correctly  paid  the  Applicant  for  the  four  days  of 
unused  leave  but  that  based  on  the  conclusions  above  the  Coast  Guard 
should  not  have  applied  this  payment  to  the  debt  the  Coast  Guard 
believed the applicant owed.   

 

3.  "The applicant has not met his burden of showing that there are errors in 
his record."  The JAG stated that the court's order does not specify any alleged errors in 
the applicant's military record.  However, the JAG stated that based on his reading of 
the  applicant's  court  complaint  and  other  filings,  two  errors  were  identified  by  the 
applicant.  First, the applicant alleged an error in the DD FORM 214 that was provided 
to  him  upon  his  release  from  active  duty  in  2001.    Second,  the  applicant  alleged  that 
there  were  "computerized  and  falsified  documents  which  fictitiously  changed  his 
military service.  These records were brought before board dating back as far as 1990." 

 
With  respect  to  the  erroneous  DD  FORM  214,  the  Coast  Guard  agreed  in  a 
supplemental  advisory  opinion  dated  August  31,  2006,  that  errors  existed  on  the 
document  releasing  the  applicant  from  active  duty  on  December  27,  2001,  and 
recommended that it be corrected.  The JAG stated that block 12.c. on the DD Form 214 
should read 3 months and 2 days (92) days of net active service, and block 12.d. should 
be corrected to show the applicant's total prior active service as 13 years, 1 month, and 2 

days.      The  Coast  Guard  classified  these  as  administrative  errors  and  stated  that  the 
applicant has not lost any benefits or entitlements as a result of the errors.   

 
The JAG noted that in some of his court pleadings, the applicant alleged that the 
Coast Guard had "changed retirement point statements in February 2001 and July 2002 
and deleted retirement credits which were included in [the applicant's] record of service 
that  was  reviewed  and  approved  by  the  BCMR  in  1996."    On  June  6,  2006,  the  Coast 
Guard Personnel Command (CGPC) produced a printed copy of the applicant's Reserve 
Retirement  Points  Statement  showing  5,637  points.    The  JAG  recommended  that  the 
Board find this point statement to be correct, as the applicant has produced nothing to 
demonstrate that it is incorrect.     

 
With  respect  to  the  applicant's  contention  of  computerized  and  falsified 
documents,  the  JAG  presumed  that  these  are  the  entries  that  it  investigated  in  2000 
upon  receiving  a  complaint  from  the  applicant.      On  this  issue,  the  JAG  stated  as 
follows: 
 
As discussed in the Coast Guard's 7 November 2000 letter to the applicant, 
it  appears  that  on  July  27,  1992,  a  member  of  the  Coast  Guard 
Headquarters staff entered the necessary computer codes to the Personnel 
Management  Information  System  (PMIS)  to  document  action  separating 
the applicant from the Coast Guard Reserve.  This was an administrative 
error because the applicant was never separated from the service.[footnote 
omitted]  

 

On 10 November 1994, after the applicant's conviction in federal court was 
overturned and the indictment dismissed, the applicant notified the Coast 
Guard  of  the  dismissal  and  that  his  name  was  missing  from  the  1994 
Register  of  Reserve  Officers.    The  Coast  Guard  corrected  the  computer 
entry  in  order  for  the  applicant's  record  to  reflect  that  he  was  never 
separated.  On 2 December 1994, the Coast Guard returned the applicant 
to the IRR and he resumed eligibility for selection to Commander.  From 
10 November 1994 onward, the applicant's record as it appeared before all 
selections  boards  no  longer  reflected  any  break  in  service.    In  fact,  the 
applicant's  PDR  as  it  appeared  before  the  BCMR  in  1997  reflected  that 
there  was  no  break  in  service.    All  selection  boards  that  considered  the 
applicant for promotion only reviewed his record, as it reflected no breaks 
in  service.    I  recommend  that  the  BCMR  find  that  the  applicant  is  not 
entitled  to  relief  based  on  the  computer  entries  made  in  1992  and  then 
corrected  in  1994  because  no  promotion  board  ever  considered  the 
computer entries.     
 

The JAG summarized the Coast Guard's recommendations, as follows:  

 

 

A)  the  applicant  received  no  overpayments  in  connection  with  his  service 
between 22 September 2001 and 26 September 2001; 
 
B) the applicant could not be paid for the unused leave for the periods between 3 
April  2001  and  22  September  2001  because  the  applicant's  duty  during  that 
period was not in support of a contingency operation and the Coast Guard had 
previously paid him the maximum (60) days of unused accrued leave; 
 
 C)  the  Coast  Guard  correctly  made  payment  to  the  applicant  for  four  days  of 
unused  accrued  leave  for  service  ending  27  December  2001  but  that  the  Coast 
Guard erroneously applied payment for this unused leave to the debt it believed 
the applicant owed; 
 
D)  the  Coast  Guard  should  issue  a  corrected  DD  FORM  214  that  reflects  [the 
corrections recommended in the advisory opinion];  
 
E)  the  Coast  Guard  record  indicating  that  the  applicant  has  5,637  retirement 
points is correct;  
 
F)  the  Coast  Guard  did  not  erroneously  exclude  the  applicant  from  any 
Commander selection board from 1989 through 1994 because the applicant was 
on the ISL and ineligible for consideration; and 
 
G) the applicant is not entitled to relief based on the computer entries made in 
1992 and then corrected in 1994 because no promotion board ever considered the 
computer entries.        

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On  August  17,  2006,  the  Board  sent  the  applicant  a  copy  of  the  Coast  Guard's 
 
views, and on August 24, 2006, the Board sent the applicant a copy of the supplemental 
advisory opinion.  On September 7, 2006, the BCMR received the applicant's reply to the 
views of the Coast Guard.  He restated arguments and contentions made earlier in his 
previous  BCMR  application.    In  this  regard,  he  contended  that  he  is  entitled  to 
constructive active duty credit for the period January 23 1989 through December 1, 1994 
because the Coast Guard committed a series of errors and injustices against him during 
this period as evidenced by a letter dated May 19, 1992 from the Commandant to the 
Commander,  Eighth  Coast  Guard  District.    The  letter  stated  that  the  applicant's 
sentence for his civil criminal conviction had not been stayed and that his appeal of that 
conviction did not cause an automatic stay of the sentence.  The applicant stated that the 
letter  is  evidence  that the  Coast  Guard  erroneously  believed  that he  was  barred  from 
consideration and participation in the Coast Guard Reserve.  He argued that if the Coast 

Guard  had  produced  this  letter  along  with  evidence  of  the  alleged  deleted  discharge 
contained  in  the  computer  records  during  his  earlier  BCMR  application,  the  outcome 
might have been more positive.   
 

The applicant appears to argue that he was illegally discharged from the Coast 
Guard  with  an  other  than  honorable  discharge,  which  if  proven,  entitles  him  to 
constructive active duty credit.   Along this vein, he argued as he did in his earlier case 
that because he served on active duty for periods totaling more than 360 days in the late 
1980s, his active duty should have been considered extended active duty under 10 USC 
679, which would have afforded him some protection from discharge.  He stated that 
Coast Guard regulation states that "Requests for more than 360 days duty will normally 
be considered extended active duty under 10 USC 679."   
 

 The  applicant  restated  his  argument  that  his  placement  on  the  ISL  was  not  in 
compliance with Article 14-I of the RATMAN, and further stated that it should not have 
occurred until January 5, 1991, 45 days after he was notified of the transfer.  Therefore, 
he  argued  that  he  was  illegally  excluded  from  consideration  by  the  1990  IDPL  CDR 
selection board.  

 
The applicant contended that on January 4, 2002, his retirement point statement 
was altered resulting in the deletion of 59 Coast Guard Reserve membership credits and 
the adjustment of his anniversary date to December 1, 1994.  He alleged that the Coast 
Guard took these actions to reflect a "break in service."  He stated that the Board should 
ensure proper credit be given for the period between January 23, 1989 and December 1, 
1994 and eliminate this break in service.   

 
The  applicant  stated  that  although  the  Coast  Guard  has  acknowledged  that  he 
performed  active  duty  from  September  23,  2001  through  September  27,  2001,  it  has 
failed to provide him with a remedy that cures the errors caused by the erroneous four-
day  break.      In  this  regard,  he  stated  that  but  for  the  gap  in  service  he  would  have 
carried leave forward from one period to the next.  He stated that the statute is silent as 
to  the  point  and  time  that  leave  must  have  actually  accrued  while  serving  on  active 
duty in support of a contingency operation to qualify for the exception under 37 U.S.C. 
§ 501(b)(5)(B).   

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,  Court 
filings, and applicable law: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10 of the United States Code.   

 
2.  The Court of Federal Claims remanded this case to the Board on June 1, 2006 
and directed the Board to address the following issues: (1) Whether and to what extent 
the  applicant's  record  of  military  service  contained  errors.    (2)  Whether  and  to  what 
extent the applicant is entitled to back pay and allowances as a result of his service in 
the  absence  of  written  orders  from  September  23  through  September  26,  2001.    (3) 
Whether and to what extent the United States Coast Guard made overpayments to the 
applicant in connection with the period from September 23 through September 26, 2001, 
and  whether  the  Coast  Guard's  efforts  to  collect  such  sums  may  resume.    The  Board 
addresses these issues in reverse order, as discussed below. 
 
Issue:  Whether  and  to  what  extent  the  United  States  Coast  Guard  made 
overpayments  to  the  applicant  in  connection  with  the  period  from  September  23 
through  September  26,  2001,  and  whether  the  Coast  Guard's  efforts  to  collect  such 
sums may resume. 
 
 
3.  The JAG admitted, and the Board finds, that the Coast Guard committed an 
administrative error by not amending the applicant's September 28, 2001 written orders 
to  show  an  effective  commencement  date  of  September  23,  2001.  The  Commander, 
Eighth  Coast  Guard  District,  requested  that  CGPC  amend  the  September  28,  2001 
written orders to show an effective date of September 23, 2001, but this was never done. 
The  Commander  also  corroborates  the  fact  that  the  applicant  actually  performed 
assigned military duties from September 23 through September 26, 2001, for which he 
received  pay  and  allowances.  The  preponderance  of  the  evidence  supports  the 
applicant's contention that he had valid verbal orders to active duty with an effective 
date of September 23, 2001, and that he performed duties under such verbal orders from 
September 23, 2001 through September 26, 2001.  Therefore, the applicant was entitled 
to the pay he received for this 4-day period and is not in an overpayment status.   The 
Coast Guard should permanently cease any efforts to collect money from the applicant 
with  respect  to  this  4-day  period.  To  correct  the  error  and  to  avoid  confusion  in  the 
applicant's record with respect to this 4-day period, the effective date of the active duty 
orders  issued  on  September  28,  2001  should  be  corrected  to  have  an  effective  date  of 
September 23, 2001.  
 
Issue:  Whether  and  to  what  extent  the  applicant  is  entitled  to  back  pay  and 
allowances  as  a  result  of  his  service  in  the  absence  of  written  orders  between 
September 22 and September 26, 2001. 
 
 
4.  The back pay requested by the applicant relates to his allegation that because 
of the 4-day break in service he lost 22 days of unused accrued leave upon his release 
from  active  duty  on  December  27,  2001.    According  to  the  applicant,  had  the  4-day 
break  in  service  not  occurred,  he  would  have  been  permitted  to  carry  forward 
approximately 17 days of accrued leave  from his earlier period of active duty and he 

would not have been subjected to the 60-day limit on the sale of accrued leave because 
his  recall  to  duty  on  September  23,  2001,  was  in  support  of  a  national  emergency. 
Section 501(b)(3) of title 37 U.S.C. states, "the number of leave days for which payment 
is made may not exceed sixty, less the number of days of leave for which payment was 
previously  made  under  this  section  after  February  9,  1976."    Stated  another  way,  a 
member of the armed forces may sell up to a maximum of 60 days of leave during a 
career, unless the member meets the requirements for an exception to the 60-day limit.  
Section  501(b)(5)(B)  of  title  37  of  the  United  States  Code  provides  such  an  exception.  
This  provision  states  that  the  60-day  limitation  shall  not  apply  with  respect  to  leave 
accrued  by  a  retired  reserve  officer  while  serving  on  active  duty  in  support  of  a 
contingency operation.  Therefore, since the applicant had earlier in his career sold the 
maximum 60 days of accrued leave permitted under 37 U.S.C. § 501(b)(3), he could only 
sell additional leave in excess of the 60-day maximum if it were accrued during a period 
of recall from his retired status to active duty in support of a national contingency.  The 
written  orders  issued  on  September  28,  2001,  with  an  effective  date  of  September  27, 
2001, which the Board will order corrected to September 23, 2001, clearly state that the 
orders  were  issued  in  support  of  the  declared  national  emergency  with  respect  to 
September 11, 2001.  Therefore, the Board finds that the applicant was entitled to sell 
that  portion  of  unused  leave  that  he  accrued  while  serving  on  active  duty  from 
September  23  through  December  27,  2001,  under  orders  in  support  of  a  national 
emergency.   
 

5.  Contrary to the applicant's argument that he was not allowed to carry forward 
accrued leave from his earlier period of active duty that ended on September 22, 2001, 
his October 2001 LES shows a beginning leave balance of 17 days.  Therefore, he must 
have carried forward the 17 days from September 2001.  The applicant's December 2001 
LES shows that he had a leave balance of 20.5 days and that he had previously used 4 
days. The Coast Guard noted, however, that the applicant accrued only 8 days of leave 
from  September  23,  2001  through  December  27,  2001,  while  serving  in  support of  the 
national emergency.  Leave is credited on a monthly basis; therefore, leave that accrued 
to  the  applicant  under  the  orders  calling  him  to  active  duty  in  support  of  a  national 
contingency is easily ascertainable.9  Of the 8 days of leave that he accrued during the 
contingency period, the applicant used 4 days, and the JAG stated that the Coast Guard 
deemed  the  applicant  to  have  sold  the  remaining  4  days  and  applied  the  proceeds 
toward  the  applicant's  erroneous  overpayment  debt.    The  applicant  has  submitted 
nothing to contradict this statement. 

 
6.    The  JAG  recommended  that  the  applicant  be  reimbursed  for  the  4  days  of 
leave that was sold and applied toward the erroneous debt.  The Board agrees with the 

                                                 
9   Article 7.A.19.b. of the Personnel Manual states that leave is credited at the rate of 2 1/2 days for each 
full calendar month of active duty, with charts showing leave credited for fractional parts of a calendar 
month. 

Coast Guard and finds that under 37 U.S.C. § 501(b)(5)(B), the applicant was entitled to 
sell  the  4  days  of  unused  leave  that  actually  accrued  during  the  period  that  he  was 
serving under recall orders in support of the declared national emergency.  He was not 
entitled,  however,  to  sell  any  of  the  leave  he  accrued  and  brought  forward  from  the 
earlier period of active duty because that leave was not accrued under orders recalling 
him to service in support of a national emergency. The pertinent statute states that the 
60-day  limit  will  not  apply  to  leave  accrued  by  a  member  of  the  armed  forces  in  the 
Retired Reserve while serving on active duty in support of a contingency operation.  It 
does not state that such a member is entitled to the exception for leave accrued while 
serving on active duty for other reasons.  The Board finds the statute to be very specific, 
in permitting the 60-day limit to be exceeded only for leave accrued during the period 
that a retired member is serving in support of a national contingency.10 Therefore, the 
applicant was entitled to sell the 4 days of unused leave that he accrued and did not use 
from September 23, 2001, through December 27, 2001,11 and the Board will so direct it.  
 
Issue: Whether and to what extent the applicant's record of military service contained 
errors. 
 

7.    After  reviewing  the  court  filings  and  supplemental  information  from  the 
applicant, the Board finds that the applicant set forth numerous allegations, only two of 
which have not been previously considered and rejected by the BCMR:  He alleged that 
his DD Form 214 was incorrect and that his retirement point statement was incorrect.  
The  JAG  agreed  with  the  applicant  that  the  DD  Form  214  releasing  him  from  active 
duty on December 27, 2001, was erroneous in that it did not accurately record his net 
active service for that period in block 12.c.; nor did it accurately record the applicant's 
total prior active service in block 12.d.  The  JAG stated that block 12.c. should read 3 
months  and  2  days  of  net  active  service  instead  of  3  months  and  1  day  of  net  active 
service; and that block 12.d. should read 13 years, 1 month, and 2 days of prior active 

                                                 
10   In Comp. Gen. B-228683 (1987) & B-181008 (1974), the Comptroller General strictly  interpreted  that 
provision of the law that limited the sale of accrued unused days to 60 days during a military career.  In 
the  two  cases,  each  member  had  accrued  leave  that  exceeded  the  60-day  maximum  upon  their 
release/discharge from active duty.   The Comptroller General wrote in B-228683, "Because neither the 
statute nor regulation permits exceptions to the 60-day limitation, we have held that payment for accrued 
leave in excess of 60 days is prohibited irrespective of the member's reasons for failing to use the leave."   
The  law  is  equally  clear  that  the  60-day  limit  may  be  exceeded  by  a  retired  reserve  officer  for  leave 
accrued  during  recall  to  active  duty  in  support  of  a  national  emergency.    It  makes  no  provisions  for 
tacking on leave from other periods of active duty.   
11  In  the  Armed  Forces,  leave  is  charged  and  accounted  for  on  a  "Last  In,  First  Out,"  basis.    Therefore, 
although the applicant carried over 17 days of unused leave on September 23, 2001, the 4 days of leave he 
took  while  serving  in  support  of  a  contingency  operation  were  properly  charged  against  the  8  days  of 
leave he earned from September 23 through December 27, 2001, rather than against the 17 days of leave 
he carried over.  See Coast Guard Personnel Manual, Art. 7.A.19.a.1.  DOD 7000.14-R, Vol. 7A, Chap. 35, 
Para.  350102.C.  states  that  "when  used,  leave  will  be  charged  in  reverse  order  with  the  most  recently 
accrued leave charged first.  This method is known as Last In, First Out (LIFO)." 

duty instead of 12 years, 4 months, and 12 days of prior active duty.  The applicant did 
not object to this recommendation in his reply to the advisory opinion.  Therefore the 
Board finds that he agrees with it.  In light thereof, the Board finds that the DD Form 
214  is  erroneous  with  respect  to  blocks  12.c.  and  d.  and  should  be  corrected  as 
recommended by the JAG. 
 

8.  With respect to the applicant's other new allegation, that his retirement point 
statement is incorrect, the Board finds that he has not produced any evidence that the 
5,637 retirement points (which include active duty and inactive duty points) recorded 
on  his  June  6,  2006  retirement  point  statement  are  incorrect.    He  contended  that  on 
January 4, 2002, the Coast Guard altered his retirement point statement resulting in the 
deletion  of  59  Coast  Guard  Reserve  membership  credits  and  the  adjustment  of  his 
anniversary date to December 2, 1994.  In a December 2, 2002, letter, the Coast Guard 
Human  Resources  Service  &  Information  Center  (HRSIC)  wrote  the  applicant  and 
informed him that in accordance with the Reserve Policy Manual, his anniversary date 
had been adjusted to December 2, 1994, based upon the resumption of his ready reserve 
status from his ISL status.  Article 8.C.3.a.(1) & (2) of the Reserve Policy Manual state 
the following: 

 
"(1) The periods used for crediting of qualifying years for non-regular retirement 
shall be based on "anniversary" years that are calculated from an anniversary date.  The 
date  used  to  determine  the  anniversary  year  is  established  by  the  date  the  member 
entered into active service or into active status in a Reserve Component. 

 
"(2) The start date (month and day) for each successive anniversary year will not 
be adjusted unless the member has a break in service.  A break in service occurs only when 
a member transfers to an inactive status list, a temporary disability retired list, the Retired 
Reserve,  or  is  discharged  to  civilian  life  for  a  period  of  greater  than  24  hours."  
(Emphasis added.) 

 
In  light  of  the  above  regulation,  the  applicant's  anniversary  year  was  adjusted 
because he had a break in service caused by his transfer to the ISL in 1990. He remained 
on the ISL until December 1994.  Therefore, no error occurred in the adjustment of the 
applicant's anniversary date resulting from his reentry to the Ready Reserve from the 
ISL.  The applicant alleged that he lost 59 membership credits due to the adjustment of 
the  anniversary  date.    He  does  not  identify  the  years  in  which  he  allegedly  lost  the 
membership points.  The Board surmises that he is contending that he lost membership 
points for the years that he was on the ISL.  If so, the Coast Guard acted in accordance 
with regulations under both the RATMAN and the Reserve Policy Manual in deleting 
any membership points previously awarded to the applicant while on the ISL.  Article 
12-C-9.a  of  the  RATMAN  in  effect  until  1997  stated  that  15  points  are  awarded  each 
anniversary  year  for  membership  in  the  Ready  Reserve  or  Standby  Reserve  (active 

status)12;  and  Article  8.C.3.c.  of  the  Reserve  Policy  Manual  states  that  service  in  the 
inactive section of a Reserve component may not be counted in determining entitlement 
to retirement.   From 1990 until late 1994, the applicant was in an inactive status on the 
ISL  and  was  not  entitled  to  earn  any  points  either  for  service  or  membership.      The 
Board  finds  that  the  Coast  Guard  acted  appropriately  in  adjusting  the  applicant's 
anniversary year after he returned to an active status in the ready reserve from the ISL; 
that it properly deleted any membership points awarded to the applicant while on the 
ISL; and that it accurately recorded the break in service from the applicant's placement 
on  the  ISL  until  his  return  to  the  ready  reserve.    As  stated  above  with  respect  to  the 
applicant's  total  number  of  retirement  points,  the  June  6,  2006,  retirement  point 
statement shows that the applicant has 5,637 such points, and he has produced nothing 
to show this figure to be inaccurate.  
 

9.  After  the  remand  to  the  Board,  the  applicant  requested  to  supplement  the 
record.  He submitted a statement and several documents from pay records, regulations 
from  the  RATMAN  dealing  with  transfers  to  the  ISL,  and  other  documents  in  an 
attempt to reargue the issues that were considered and decided by the Board in BCMR 
No. 107-96.  In this regard, the applicant alleged that he was placed on the ISL in 1990 in 
violation of the regulation; that he was illegally excluded from the 1990 IDPL selection 
board; and that he was illegally discharged or dropped from rolls without due process. 
He  also  alleged  that  he  is  entitled  to  constructive  active  duty  credit  for  the  period 
January 23, 1989, through December 1, 1994.  In its final decision issued on September 
12,  1997  in  BCMR  No.  107-96,  the  Board  addressed  each  of  these  issues  and  denied 
relief.    Moreover,  the  applicant  appealed  that  final  decision  to  the  Court  of  Federal 
Claims,  where  it  was  found  not  to  be  arbitrary,  capricious,  or  contrary  to  law.  
Subsequently, the Court of Appeals for the Federal Circuit sustained the decision of the 
Court  of  Federal  Claims  that  the  BCMR  had  not  acted  arbitrarily,  capriciously,  or 
contrary to law in denying the applicant's request in BCMR No. 107-96.  
 
 
10. Therefore, for the applicant to obtain reconsideration on any of the restated 
allegations from the earlier BCMR case mentioned in Finding 9. above, he must meet 
the  requirements  for  reconsideration  at  33  C.F.R.  §  52.67(1)  &  (2),  which  state  that 
reconsideration is granted only if: 
 

(1) An applicant presents evidence or information that was not previously 
considered  by  the  Board  that  could  result  in  a  determination  other  than 
that originally made. Evidence or information may only be considered if it 
could  not  have  been  presented  to  the  Board  prior  to  its  original 
determination if the applicant had exercised reasonable diligence; or 
 

                                                 
12   See also Enclosure (1-1) of the RATMAN. 

(2) An applicant presents evidence or information that the Board, or the 
Secretary  as  the  case  may  be,  committed  legal  or  factual  error  in  the 
original determination that could have resulted in a determination other 
than that originally made. 
 
 
Of the numerous  documents submitted by the applicant in court filings and to 
the  Board  after  the  remand,  the  Board  finds  three  of  them  to  be new  documents  that 
were not before the Board in BCMR No. 107-96 and that are relevant to whether to grant 
reconsideration  on  any  issue  previously  decided  by  the  BCMR.      One  document  is  a 
letter  dated  May  19,  1992,  the  contents  of  which  state  only  that  an  appeal  does  not 
automatically stay the sentence of a court in a criminal conviction.  (The applicant was 
convicted  in  1990  of  violating  18  U.S.C.  203;  the  conviction  was  later  overturned  on 
appeal in 1994.)  The letter further informed the applicant that an order from the district 
court was required to cause a stay in the execution of the sentence. He claimed that the 
May  19,  1992  letter  from  the  Commandant  to  the  Commander,  Eighth  Coast  Guard 
District,  showed  that  the  Coast  Guard  mistakenly  believed  that  he  was  barred  from 
participating in the Coast Guard Reserve due to his criminal conviction. However, the 
Board considered this information in reaching a decision in BCMR No. 107-96.  At that 
time,  the  Board  had  a  February  11,  1992  letter  from  the  Commander,  Eighth  Coast 
Guard District informing the applicant that his sentence included an order barring him 
from holding a federal position and that the sentence would be executed unless he was 
granted a stay.  Thus, the Coast Guard's position that part of the applicant's sentence 
barred him from holding a federal office was available to the Board when it considered 
BCMR  No.  107-96;  therefore  such  information  is  not  new  and  could  not  result  in  a 
determination other than that made by the Board.  
 
 
11.  The other document(s) submitted by the applicant is a computer print out of 
certain  codes  that  were  entered  into  the  Coast  Guard's  internal  computer  system 
allegedly  showing  that  the  applicant  was  discharged  from  the  Coast  Guard  in  July 
1992.13  This  information  about  the  computer  entries  may  be  new,  but  it  is  not 
information that could cause the Board to reach a different decision with respect to the 
finding  in  BCMR  No.  107-96  that  the  applicant  was  at  all  relevant  times  a  Reserve 
officer.  While certain keystrokes indicating a separation may have been entered into the 
computer system, there is no evidence that the applicant was ever actually discharged 
from the Reserve.  As the Court of Appeals for the Federal Circuit stated:   
 

[The applicant]. . . claims that the Commandant of the United States Coast 
Guard  improperly  removed  him  from  the  rolls  of  the  Coast  Guard 
Reserve.  Although he raised the issue before the board, the records show 
that [the applicant] was at all relevant times a reserve officer on the rolls.  
He  was  on  active  duty  from  October  1,  1987  to  December  31,  1988.  On 

                                                 
13  The Board notes that the Coast Guard corrected these erroneous computer codes in 1994. 

January  6,  1989,  he  was  ordered  to  active  duty  from  January  23, 1989  to 
May 31, 1989, but these orders were cancelled before being executed and 
he  was  placed  in  the  Selected  Reserve.    He  was  moved  on  January  17, 
1989,  from  the  Selected  Reserve  to  the  Individual  Ready  Reserve  (IRR), 
and he was notified on November 21, 1990 that he was being transferred 
to  the  inactive  status  list  (ISL)  for  failure  to  earn  the  minimum  required 
retirement  points  in  the  preceding  year  in  accordance  with  the  Reserve 
Administration and Training Manual . . . Section 14-1 . . . There is no clear 
and  convincing  evidence  that  he  was  actually  removed  from  the  rolls.  
(Baird v. United States, No. 99-5097 (Fed Cir, August 28, 2000) at 2.)    
 
12.  Moreover, the fact that the applicant was returned to the Ready Reserve from 
the ISL in 1994 without having to be re-commissioned or reappointed as an officer in 
the Coast Guard Reserve is persuasive evidence that he was not dropped from the rolls 
or  separated  from  the  Coast  Guard.    A  discharge  completely  severs  the  relationship 
between  an  individual  and  the  Coast  Guard.14    In  addition,  even  if the  applicant  had 
been separated in July 1992, it would have had no effect on his non-consideration for 
promotion  by  the  FY91  IDPL  selection  board.    In  this  regard,  he  has  presented  no 
evidence  that  any  selection  board  saw  the  computer  entries.    However,  more 
importantly,  such  entries  would  not  have  been  available  to  the  FY91  IDPL  selection 
board  because  they  were  not  entered  until  July  1992,  while  the  FY91  selection  board 
convened in December 1990.  Further, whether separated or not, the applicant  would 
have  been  on  the  ISL  from  1990  until  1994  and  ineligible  to  compete  for  promotion. 
Accordingly,  the  computer  print  out  document  allegedly  showing  the  applicant's 
discharge could not cause the Board to reach a different conclusion in this case, as the 
BCMR explained to the applicant in a December 27, 2000 letter.  

 
13.  The third relevant document not previously seen by the Board is the YN1's 
January 14, 2005 letter that could have been obtained and presented to the Board during 
its  deliberation  of  BCMR  No.  107-96.  For  this  reason  alone,  reconsideration  may  be 
denied.    However,  the  more  important  reason  is  that  the  letter  could  not  cause  the 
Board to reach a different outcome with respect to the 1990 IDPL selection board.  The 
YN1 stated that he was instructed not to send a certified letter to the applicant advising 
him that the 1990 IDPL selection board would screen him. Since the Commandant had 
determined that the applicant would be placed on the ISL effective November 30, 1990, 
he  was  not  eligible  for  consideration  for  promotion  by  the  IDPL  selection  board  that 
was scheduled to meet after his placement on the ISL.   Members on the ISL cannot be 
promoted.  See  Encl:  (1-1)  of  the  RATMAN.    The  YN1's  letter  is  consistent  with  the 
action  taken  by  the  Commandant  in  placing  the  applicant  on  the  ISL  and  with  Coast 
Guard  policy.    While  this  letter  is  a  new  document,  it  does  not  meet  the  Board's 
requirement for reconsideration because it could have been obtained and presented to 
                                                 
14  See Article 12.B.1.f.2. of the Personnel Manual. 

the  Board  in  BCMR  No.  107-96  and  it  could  not  cause  the  Board  to  reach  a  different 
outcome in this case.    

 
14.  The Board notes that the applicant now argues that his transfer to the ISL did 
not  take  place  in  accordance  with  Article  14-I  of  the  RATMAN.  As  stated  earlier, 
reconsideration can only be granted based on new evidence or information that could 
not reasonably have been discovered through due diligence and that could result in a 
different  decision,  or  based  on  evidence  that  the  Board  committed  a  legal  or  factual 
error  in  the  original  determination  that  could  result  in  a  different  decision.  
Reconsideration is not granted to allow applicants to repeatedly reargue issues  solely 
because  of  their  disagreement  with  the  outcome.    Article  14-I  of  the  RATMAN  is  not 
new evidence and reasonably could have been discovered through due diligence prior 
to final decision in BCMR No. 107-96.  The RATMAN was available for review by the 
applicant and/or his attorney during the BCMR proceeding in BCMR No. 107-96.  The 
failure to raise alleged violations of Article 14-I of the RATMAN by the Coast Guard for 
the  Board's  consideration  during  the  processing  of  BCMR  No.  107-96  rests  with  the 
applicant and his attorney. The Board did not commit any factual error with respect to 
the Article 14-I because it was not raised as an issue before the Board in BCMR No. 107-
96 and is therefore waived. Accordingly, the Board finds that the applicant's arguments 
in this regard do not meet the requirements for reconsideration.  

 
15.  For the reasons discussed above, the Board finds that the applicant has failed 
to meet the requirements for reconsideration of BCMR No. 107-96 in all respects.   As 
found in the Final Decision issued by the Board in BCMR No. 107-96 and as sustained 
by the Court of Appeals for the Federal Circuit, the applicant's military record contains 
no errors with respect to his placement in the IRR, his placement on the ISL, or his non-
consideration  by  the  selection  board  while  on  the  ISL.    Nor  does  evidence  of  the 
computer  entries  cause  the  Board  to  reconsider  its  original  finding  that  the  applicant 
was at all relevant times a Coast Guard Reserve officer.  

 
16.    All  of  the  applicant's  allegations  and  evidence  have  been  reviewed  and 
considered by the Board.  Those not discussed within the Findings and Conclusions are 
considered not to be dispositive of this case.   

 
17.  Accordingly, 

the  applicant  should  be  granted  partial  relief,  as 

recommended by the Coast Guard, which is directed below.  
 
 
 

 

 
 
 

ORDER 

 

The  application  of  LCDR  XXXXXXXXXX,  xxxxxxxxxxxxxx,  USCGR,  for 

correction of his military record is granted in part as follows:   

 
 His DD Form 214 documenting his release him from active duty on December 
27, 2001, shall be corrected to show 3 months and 2 days of net active service in block 
12.c. and 13 years, 1 month, and 2 days of prior active duty in block 12.d.   

 
The Coast Guard shall reimburse him for (or allow him to sell back) the 4 days of 
unused  leave  accrued  while  serving  under  orders  recalling  him  to  active  duty  in 
support of a national emergency on September 28, 2001.   

 
The Coast Guard shall correct or amend his September 28, 2001, recall orders to 
active  duty  to  show  an  effective  date  of  September  23,  2001.    The  Coast  Guard  shall 
correct his record to show that he is not in an overpayment status for the period from 
September 23, 2001 through September 26, 2001, and shall permanently cease all efforts 
to recoup payments made to him for this 4-day period.   

 
All other requests are denied.   

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Julia Andrews 

 

 

 
 H. Lee Einsel, Jr. 

 

 

 
 Kathryn Sinniger