DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-128 
 
xxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxx 
   

FINAL DECISION 

 
 
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 Chair docketed the case on April 27, 2007, 
upon receipt of the completed application, and assigned it to staff member J. Andrews to pre-
pare the decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  February  7,  2008,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

 
 

 
 
 

The applicant stated the following: 

I am being discharged  for twice non-selection for promotion to  LT.  I  was  informed by CGHQ 
opm-1 in October 2006 that I was to be discharged no later than 30 June 2007, and could change 
my date to any earlier date without loss of benefits that would have accrued up to 30 June 2007.  I 
was told I would be receiving severance pay from the CG according to the CG Personnel Manual 
and the CG Pay Manual.  I am now being told that because of the law change that occurred on 26 
November 2006, MTSA of 2002, I am no longer eligible to receive severance pay or separation 
pay.  I will be working for the CG until 22 MAY 2007 to help my current unit and the CG and 
deserve all the pay and benefits that I have accrued since 25 NOV 2006.  I think my separation 
date should be changed to reflect a discharge date of 25 NOV 2006 to allow  me to receive the 
severance pay that I am due and since I have continued to work for the Coast Guard up until 22 
MAY 2007 I deserve to keep all the pay and benefits that I collected during that time period as 
well. 

 
 
The applicant argued that he is entitled to the requested relief because the Coast Guard 
failed to update the Personnel Manual or to issue any notice or instruction of the change in the 
law so he did not know that he would lose entitlement to severance pay if he continued to serve 
on active duty past November 25, 2006.  In support of his allegations, the applicant submitted 
copies of 14 U.S.C. § 286; the Maritime Transportation Security Act of 2002; and Coast Guard 
publications and regulations.   
 

Applicable Statutes 

 
Under 14 U.S.C. § 286(b), as in effect prior to November 25, 2006, any Coast Guard offi-
cer  who  is  discharged  due  to  having  twice  failed  of  selection  for  promotion  “is  entitled  to  a 
lump-sum payment computed by multiplying his years of active commissioned service, but not 
more than twelve, by two months’ basic pay of the grade in which he is serving on the date of his 
discharge.” 
 
 
On November 25, 2002, the President signed the Maritime Transportation Security Act of 
2002, Public Law 107-295, section 416 of which is titled “Align Coast Guard Severance Pay and 
Revocation  of  Commission  Authority  with  Department  of  Defense  Authority.”    Subsection 
416(a)(3)(A) substituted the word “separation” in place of the word “severance” in 14 U.S.C.  
§ 286.  Subsection 416(a)(3)(B) of the act amended § 286(b) by limiting entitlement providing 
that an officer who is discharged due to having twice failed of selection for promotion “and has 
completed 6 or more, but less than 20, continuous years of active service immediately before that 
discharge or release is entitled to separation pay … ”  Subsection 416(c) states that the amend-
ments made in 416(a)(3) “shall take effect 4 years after the date of enactment of this Act.” 
 
Coast Guard Publications 
 
 
The  applicant  submitted  copies  of Articles  12.A.13.c.  and  12.A.19.b.  of  the  Personnel 
Manual, which he printed from the Coast Guard’s website on March 16, 2007.1  Paragraph 2 of 
Article 12.A.13.c. states that at his request, an officer being discharged for twice failing of selec-
tion for promotion to lieutenant shall “be honorably discharged at an earlier date [than the June 
30th following the second failure of selection] without loss of benefits that would accrue if the 
member  were  discharged  on  [June  30th].”    Paragraph  1  of Article  12.A.19.b.,  which  is  titled 
“Severance Pay,” states that “[e]ach Regular lieutenant (junior grade), lieutenant, lieutenant com-
mander, or commander involuntarily, honorably discharged under Article 12.A.13. is entitled to a 
lump sum payment. … (14 USC 286).” 
 
 
The applicant also submitted copies of Chapter 10.F.1. of the Pay Manual, printed from 
the Coast Guard’s website on March 16, 2007, which states that a regular commissioned officer 
who is discharged for twice failing of selection may receive severance pay, under 14 U.S.C. § 
286.2    Article  10.F.1.b.(2)  states  that  the  officer’s  severance  pay  equals  “2  months  basic  pay 
times the number of years of active commissioned service, but not more than 12.  Fractions of 
one-half year or more are counted as a whole year.  The maximum amount payable is 2 years 
basic pay.  The basic rate of pay to which the member is entitled on the date member is dis-
charged is used.”3 
                                                 
1 Although the Coast Guard amended the Personnel Manual on June 18, 2007, with Change 41, Article 12.A.19.b., 
regarding officers’ entitlement to severance pay, it still does not reflect the new law. 
2 The Pay Manual currently available from the Coast Guard’s website was last amended on June 2, 2003, and it does 
not reflect the new law.  
3 Therefore, had the applicant been discharged on November 24, 2006, he would have been entitled to severance pay 
in  an  amount  equal  to  his  monthly  basic  pay  on  that  date  ($3774.30)  times  2  (“2  months  basic  pay”),  times  5 
(because he had more than 4.5 years of active duty on that date), for a total of $37,743.00.  Instead, the applicant 
served on active duty for six more months. 

 

The applicant submitted a publication of the Coast Guard Personnel Command (CGPC) 
titled “Frequently Asked Questions Regarding Officer Separations,” which he printed from the 
Coast Guard’s website on March 14, 2007, and which states the following under the question 
“What changes to severance pay are coming in the future?”:  The Maritime Transportation Secu-
rity Act of 2002 changed the pay package for those that are discharged due to failing selection 
twice.  Instead of severance pay, it was changed to separation pay.  This change goes into effect 
on 26 Nov 2006, so if your separation date is after 26 Nov 2006 and you were entitled to sever-
ance pay, you will receive separation pay instead.”  The publication does not mention that the 
new law also limited entitlement to separation pay to officers with more than six years of active 
duty. 
 
 
Finally,  the  applicant  submitted  a  copy  of  an  email  from  the  Coast  Guard’s  Personnel 
Services Center (PSC) to the applicant dated March 16, 2007, in which the PSC forwarded infor-
mation about the new severance pay law and acknowledged that the applicant had “been given a 
lot of different answers, but in the YN’s defense, the changes have not been incorporated into any 
of [the Coast Guard’s] manuals.”  The PSC noted that under the new law, which mirrors the law 
for the other military services, lieutenants junior grade will not normally receive severance pay 
because they do not usually have six years of active duty.  The PSC also noted that the separation 
pay formula results in a substantially lower payment than the prior severance pay formula. 
 

SUMMARY OF THE RECORD 

 
 
On May 22, 2002, the applicant was commissioned an ensign in the Coast Guard.  He 
was promoted to lieutenant junior grade (LTJG) on November 22, 2003.  The applicant failed of 
selection for promotion to lieutenant in 2005.  He was not selected for promotion for a second 
time when the LT selection board convened on September 25, 2006.  Therefore, under 14 U.S.C. 
§ 282, he had to be discharged on June 30, 2007, but could request an earlier date of discharge.  
 

On November 1, 2006, the Commandant released the results of the LT selection board in 
ALCGPERSCOM  087/06,  which  noted  that  9  of  the  21  officers  whose  records  were  being 
reviewed for promotion to LT a second time—i.e., who were “above the zone”—were selected 
for promotion, and the other 12 were not. 

 
On November 8, 2006,  the applicant submitted  a memorandum to CGPC asking to be 

discharged on May 22, 2007. 
 
 
On November 25, 2006, the provisions of section 416(a)(3) of the Maritime Transporta-
tion Security Act of 2002 went into effect, changing officers’ entitlement, upon failing of selec-
tion twice, from severance pay to separation pay and precluding officers with less than six years 
of continuous active duty from being entitled to separation pay. 
 
 
by issuing orders authorizing his separation on May 22, 2007. 
 
 

On December 29, 2006, CGPC responded to the applicant’s November 8, 2006, request 

On May 22, 2007, the applicant was discharged from the Coast Guard. 

 

VIEWS OF THE COAST GUARD 

 
 
On October 18, 2007, the Judge Advocate General of the Coast Guard submitted an advi-
sory  opinion  in  which  he  forwarded  and  adopted  the  findings  and  analysis  provided  in  a 
memorandum on the case prepared by CGPC.   
 
CGPC  recommended  that  the  Board  deny  the  requested  relief.    CGPC  stated  that  the 
 
applicant began active duty on May 22, 2002, and so had completed five years of active duty 
when he was separated on May 22, 2007.  Under the Maritime Transportation Security Act of 
2002, only officers with more than six years of continuous active duty are eligible for separation 
pay beginning as of November 26, 2006.  Therefore, the applicant is not entitled to severance or 
separation pay. 
 
CGPC  stated  that  there  is  no  evidence  in  the  record  that  the  applicant  was  advised  in 
 
October 2006, as he alleged, that he would be entitled to severance or separation pay if he waited 
until  May  22,  2007,  to  leave  active  duty.    CGPC  stated  that  the  amendments  made  under  the 
Maritime Transportation  Security Act  of  2002  are  being  incorporated  into  upcoming  Changes 
(editions) of the Personnel Manual and Pay Manual.  CGPC alleged that “the changes effected by 
MTSA  regarding  severance  and  separation  pay  were  in  place  on  the  Coast  Guard  Personnel 
Command website before they became effective.”4 
 
 
CGPC  noted  that  in  a  letter  to  his  congressman  dated  March  14,  2007,  the  applicant 
named LCDR B as the officer in CGPC opm-1 who allegedly miscounseled him over the tele-
phone in October 2006, but LCDR B does not remember counseling the applicant.  However, 
CGPC alleged, LCDR B claims to have known and applied the statutory changes when counsel-
ing officers about entitlements. 
 
 
separation pay based on his date of discharge. 
 
 
opm-1 dated September 25, 2007, who wrote the following: 
 

In  support  of  this  recommendation,  CGPC  submitted  a  letter  from  LCDR  B  of  CGPC 

CGPC  concluded  that  there  is  no  law  allowing  the  applicant  to  receive  severance  or 

As Chief, Officer Separations Section at Coast Guard Personnel Command, I  was familiar  with 
most of the personnel statutes contained in Titles 10 and 14 of the U.S. Code.  I was most conver-
sant  with  and  used  on  a  regular  basis  those  statutes  directly  relating  to  separations  from  the 
service. 
 
Included among the aforementioned statutes was the U.S. Code cite in Title 14 authorizing sever-
ance pay.  I knew this statute was amended in November 2002 to incorporate the separation pay 
calculations found in Title 10 of the U.S. Code.  Additionally, I knew that this amendment was set 

                                                 
4 CGPC submitted nothing to show that the changes effected by the act were available to officers on the website.  On 
the  date  of  this  decision,  the  Coast  Guard  had  not  yet  amended  either  the  Personnel  Manual  (which  was  last 
amended by Change 41 on June 18, 2007) or the Pay Manual (which was last amended by Change 4 on June 2, 
2003)  to  reflect  the  change  in  the  law  regarding  officers’  severance  and  separation  pay.    A  search  of  the  Coast 
Guard’s website for the “Maritime Transportation Security Act” of 2002 did produce several results, one of which 
was a copy of the act. 

to take effect in November 2006.  Lastly, I was aware that some officers who may have been enti-
tled to severance pay under the old statute would either have their severance (now separation) pay 
reduced or eliminated.  I did not, however, maintain a specific, name-by-name listing of officers 
whom  this  change  might  affect  as  this  was  entirely  dependent  on  the  outcome  of  the  selection 
boards whose results could not be anticipated.  As such, my general strategy was to handle queries 
only  on  a  case-by-case  basis,  and  then  only  when  prompted,  i.e.,  I  did  not  initiate  contact  with 
mandatorily  separating  officers.    One  related  note:    I  was  not  comfortable  discussing  monetary 
calculations/impacts  and  would  defer  any  such  related  questions  to  pay  technicians  at  CG  PSC 
Topeka. 
 
With regards to the present matter, I do not specifically recall speaking to [the applicant].  I do not 
remember if his requested change in date—from the mandated 30 June 2007 to 22 May 2007—
was solely through email and/or memo communications or included a phone call to me.  If asked, I 
would have counseled [him] accordingly, but I cannot recall what, if anything, we may have dis-
cussed. 

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 applicable law: 
 

The Board has jurisdiction concerning this matter pursuant to section 1552 of title 

1. 

10 of the United States Code.  The application was timely. 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  November  20,  2007,  the  applicant  submitted  a  response  to  the  views  of  the  Coast 
Guard.  He alleged that in late October 2006, when he was notified that he had failed of selection 
for  promotion  a  second  time  and  would  be  discharged,  he  called  CGPC  opm-1  and  spoke  to 
LCDR B about changing his separation date from June 30, 2007, to May 22, 2007.  “During this 
conversation, I asked him if this in any way would affect my ability to receive severance/separa-
tion pay from the Coast Guard.  He said it would not, other than I would not be getting severance 
pay, but separation pay instead due to an upcoming law change in November.”  When the appli-
cant asked about the new law, LCDR B directed him to visit the OPM website, the Personnel 
Manual, and the Pay Manual.  However, none of those sources informed him that officers leaving 
active duty after November 25, 2006, would no longer be entitled to severance or separation pay.  
Therefore, on November 8, 2006, he submitted a request to be discharged as of May 22, 2007.   
 

The applicant alleged that, had his command known he could not receive severance or 
separation pay after November 25, 2006, he would have been allowed to leave active duty on 
that date.  In support of this allegation, the applicant submitted copies of email correspondence 
with his prior commanding officer.  On November 7, 2007, the applicant asked his command for 
a statement to the effect that “no one was informed of the change to the law and that it was not 
reflected in any manual and that if it had, you would have allowed me to change my separation 
date to the 25th of November, the day prior to the law taking effect and preventing myself and a 
number of my classmates from receiving severance or separation pay.”  The command responded 
on November 21, 2007, saying that he was unaware of the change in the law and that if the com-
mand had known about the law, he “would have done everything that [he] could  have done to 
accommodate your desired separation date to maximize your entitlements under the new laws.” 
 

FINDINGS AND CONCLUSIONS 

 

2. 

The applicant requested an oral hearing before the Board.  The Chair, acting pur-
suant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case without 
a hearing.  The Board concurs in that recommendation. 

Under subsections 416(a)(3) and (c) of the Maritime Transportation Security Act 
of 2002, now incorporated at 14 U.S.C. § 286(b), the applicant was not entitled to severance or 
separation  pay  when  he  was  involuntarily  separated  from  active  duty  on  May  22,  2007.   The 
applicant argues, however, that because he was not timely advised of the new law—which took 
effect on November 25, 2006, and denied  any kind of severance or separation pay to officers 
with  less  than  six  years  of  active  duty—he  should  be  granted  severance  pay  as  if  he  had  left 
active duty prior to November 25, 2006, and he should also retain all of the active duty pay and 
allowances he received up to May 22, 2007.   

 
3. 

 
4. 

 
5. 

 
6. 

 

If the applicant had left active duty on November 24, 2006, following his two fail-
ures  of  selection  for  promotion,  under  14  U.S.C.  §  286(b)  as  then  in  effect,  he  would  have 
received about ten months’ worth of basic pay—or $37,743.00—as severance pay.  Instead, the 
applicant worked on active duty for another six months, earning six months of basic pay, housing 
or housing allowance, medical care, etc., and was discharged without entitlement to severance or 
separation pay because he had only (exactly) five years of active duty on May 22, 2007. 

The  applicant  alleged  that  LCDR  B,  who  was  Chief  of  the  Officer  Separations 
Section at CGPC, told him in October 2006 that he would receive severance or separation pay if 
he left active duty on May 22, 2007.  LCDR B, however, has stated that he was very familiar 
with the provisions of the new law  in October  2006 and counseled officers accordingly when 
they called.  LCDR B does not remember speaking to the applicant but does not deny having 
done so.  Taken together, these statements indicate that someone was confused during the alleged 
conversation between LCDR B and the applicant.  Perhaps LCDR B misunderstood how much 
active  duty  the  applicant  had  completed,5  or  perhaps  the  applicant  misunderstood  LCDR  B’s 
counsel.  The Board cannot conclude from the evidence of record that the applicant has proved 
that  LCDR  B negligently  or  erroneously counseled him about his entitlement to separation or 
severance pay under the new law. 

The  applicant  has  proved  by  a  preponderance  of  the  evidence  that  the  Coast 
Guard has long delayed revising its regulations to conform to the statute.  As the act was passed 
on November 25, 2002, and did not take effect until November 25, 2006, the Coast Guard had 
four years to correct the Personnel Manual and Pay Manual so that officers would understand 
their  entitlement  to  severance  or  separation  pay  before  and  after  November  25,  2006.    In 
addition, in failing to mention the new six-year  active duty  requirement, CGPC’s “Frequently 
Asked Questions Regarding Officer Separations” publication is incomplete. 

                                                 
5 The Board notes that it is possible for a lieutenant junior grade to have had six years of continuous active duty and 
so be eligible for separation pay under the new law at 14 U.S.C. § 286(b).  For example, the officer may be prior 
enlisted, may have transferred from another military service, or may have been considered for promotion late due to 
administrative errors.  

7. 

According to ALCGPERSCOM 087/06, the applicant is one of twelve lieutenants 
junior grade who failed of selection for promotion to lieutenant for a second time in 2006 and so 
were required to be discharged from active duty on or before June 30, 2007.  As the lieutenant 
selection  board  convened  on  September  25,  2006,  and  the  results  were  not  published  until 
November 1, 2006, with the issuance of ALCGPERSCOM 087/06, it is unlikely that any of the 
twelve officers left active duty before their entitlement to severance pay expired on November 
25, 2006 (assuming all twelve had less than six years of continuous active duty by June 30, 2007, 
which may not be the case).  Processing separation requests and processing officers for separa-
tion takes time.  The Board notes that, although the applicant submitted his letter requesting an 
early separation date on November 8, 2006, CGPC did not approve it and issue his separation 
orders until December 29, 2006.  When an officer requests early discharge, CGPC must deter-
mine that his billet can be timely filled or that his early departure without a replacement will not 
unduly  stress  others  at  his  unit.    Therefore,  even  though  the  applicant’s  command  stated  in  a 
recent  email  that,  if  the  applicant  had  asked  to  be  discharged  before  November  25,  2006,  he 
“would have done everything that [he] could  have done to accommodate your desired separation 
date to maximize your entitlements under the new laws,” the Board is not persuaded that such a 
fast separation would have been possible. 

Although the Coast Guard has inexplicably long delayed incorporating the new 
law about separation pay—which went into effect on November 25, 2006—into the Personnel 
Manual and Pay Manual, the Board finds that the applicant has not proved by a preponderance of 
the evidence that he was denied severance pay because of an error or injustice6 committed by the 
Coast Guard. 

Accordingly, the applicant’s request should be denied. 

[ORDER AND SIGNATURES APPEAR ON THE NEXT PAGE] 

 
8. 

 
9. 
 
 
 

 

                                                 
6 Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976) (finding that for purposes of the BCMRs under 10 U.S.C. 
§ 1552,  “injustice”  is  “treatment  by  military  authorities  that  shocks  the  sense  of  justice,  but  is  not  technically 
illegal”); see Decision of the Deputy General Counsel in BCMR Docket No. 2002-040. 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Philip B. Busch 

 

 
 
 Adrian Sevier 

 

 
 George A. Weller 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

his military record is denied.