DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-161 
 
XXXXXXXXXXXXX 
XXXXXXXXXXXXX 
   

 

 

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  application  upon 
receipt  of  the  applicant’s  completed  application  and  military  records  on  May  23,  2009,  and 
subsequently prepared the final decision 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  January  28,  2010,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant asked the Board to correct his record so that he is entitled to the difference 
in pay for selling 48.5 days of leave as an E-6 in 2004 and the amount he would have received if 
he had sold that leave as an E-7 in 2009.  According to the applicant,+ the difference amounts to 
$2,153.88.   
 

The applicant alleged that he was required to sell leave when he entered into an indefinite 
reenlistment contract in 2004 because the policy at that time was that the indefinite reenlistment 
would be the last opportunity for a member to sell leave.   He stated that he did not want to sell 
leave  at  that  time;  rather,  he  wanted  to  wait  and  sell  the  leave  at  the  E-7  rate  closer  to  his 
retirement date.  He stated that the Coast Guard recently issued ALCOAST 307/08, which allows 
members who entered into indefinite reenlistments prior to September 1. 2008, to cancel them 
and enter into new indefinite reenlistments for the purpose of selling leave.  He argued that this 
option was not available to him and thinks it is unjust that he was required to sell leave in 2004. 

 
The applicant submitted a copy of his reenlistment contract dated April 5, 2004, which 
shows an indefinite term of enlistment.  It also shows that the “member is selling 48.5 days of 
regular leave.”   

 
ALCOAST  307/08,  with  an  effective  date  of  September  1,  2008,  provided  for  the 

following in pertinent part: 

 

1.    In  order  to  afford  members  serving  on  indefinite  reenlistment  contracts  the 
opportunity to sell leave prior to separation or retirement, the following change is 
effective  immediately  and  will  be  reflected  in  future  change  to  the  [Personnel 
Manual]. 
 

2.    Effective  1  September  2008,  members  who  are  currently  serving  on  an 
indefinite  reenlistment  contract  are  authorized  to  enter  into  a  new  indefinite 
reenlistment, one time,  during a  career for the  purpose of selling leave.  Those 
members who desire to enter into a new indefinite contract should contact their 
unit YN and submit a career intentions worksheet . . . indicating their desire to 
reenlist and the number of days of leave they desire to sell.   

  * 

* 

* 

4.    The  statutory  limit  of  selling  a  maximum  of  60  days  leave  during  a  career 
remains in effect.  

5.    It  is  important  for  members  to  understand  that  if  they  were  already  in  an 
indefinite reenlistment, and cancel that contract to sell leave, they will return to an 
indefinite reenlistment . . . 
 
6.  Effective 1 Sep 2008, members who have 10 or more years of active service 
will be allowed to reenlist for periods of three  years, four  years, five  years, six 
years or for an indefinite period up to their 30-year active duty anniversary date.  
Members  reenlisting  for  an  indefinite  period  on  or  after  1  Sep  2008  cannot 
reenlist again later in their career for the purpose of selling leave.  Paragraph 2 
above only applies to member who entered into indefinite reenlistment contracts 
prior to 1 Sep 2008. 

 

 

 

 

VIEWS OF THE COAST GUARD 

 
 
On  September  30,  2009,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted a memorandum adopting the comments provided by Commander, Personnel Service 
Center (PSC), as the Coast Guard’s advisory opinion.  PSC did not recommend relief.  In this 
regard, PSC stated that ALCOAST 307/08 that became effective on September 1, 2008 did not 
contain any provision for retroactive entitlements.  PSC further stated the following in pertinent 
part: 
 

The  Coast  Guard’s  policy  at  the  time  of  the  time  of  the  applicant’s  indefinite 
reenlistment was, by virtue of an indefinite reenlistment, to provide members the 
opportunity to sell leave upon entering into a reenlistment contract at either time 
of retirement or separation, as per [ALCOAST 307/08].  Thus the applicant was 
not required to sell leave.  The applicant could have waited to sell his leave upon 
retirement or separation from the Coast Guard but made a conscious decision to 
sell leave in conjunction with his reenlistment based upon policy at the time.  The 
applicant had not been advanced to the higher pay grade of E-7, and, if accruing 

 

On  October  8,  2009,  the  BCMR  received  the  applicant’s  response  to  the  views  of  the 

 
 
Coast Guard.  He disagreed with them and stated the following: 
 

entitlements  at  the  highest  grade/rate  possible  were  the  intent  of  the  applicant, 
conserving his leave balance to be sold in conjunction with retirement/separation 
could have been an appropriate course of action.  
 
Subsequent  policy  changes  (i.e.  ALCOAST  307/08)  that  do  not  provide  for  a 
retroactive  provision  cannot  be  arbitrarily  applied  to  previously  executed 
contracts. 
 
A  review  of  the  administrative  processing  regarding  pay  and  entitlement  to 
applicant  was  performed  by  PPC  Topeka. 
  Applicant  was  found  to  be 
compensated  properly  for  the  48.5  days  of  regular  leave  sold  at  time  of 
reenlistment.   

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

When I first joined the Coast Guard there was no indefinite enlistment policy.  My 
plan  to  be  prudent  and  receive  maximum  benefits  for  my  service  was  to  sell  a 
total of 60 days leave at the highest possible pay grade four years prior to retiring, 
then retire with 60 days terminal leave.  My plan would have allowed me to sell 
the 45.5 days accumulated leave four years prior to my retirement and have plenty 
of time to gain the 60 days of terminal leave for retirement.  I was in pay grade E-
6 when I entered the indefinite reenlistment at my ten years of service and knew I 
would  be  in  a  higher  pay  grade  with  higher  longevity  pay  four  years  prior  to 
retiring.   
 
In addition to changing  the indefinite  enlistment policy  regarding selling leave; 
the new policy also changes the enlistment periods available for members over 10 
years of service allowing members now to enlist for periods of 3, 4, 5, and six 
years of for an indefinite period . . .   When I was required to enter an indefinite 
enlistment I was not afforded the opportunity to enter any other contract period 
and  that  policy  stated  that  would  be  the  last  opportunity  to  sell  leave  during  a 
career until retirement or separation. 
 
I suggest the error or injustice to my contract is based on the initial policy error 
and injustice.  The Coast Guard recognized the initial policy error and injustice 
and changed to allow the selling of leave during an indefinite enlistment and also 
changed  to  allow  any  one  over  10  years  of  service  to  enter  into  an  enlistment 
contract for 3, 4, 5, or 6 years.  I contend that the second policy is also in error 
and unjust by not allowing the same opportunities to those members that entered 
into an indefinite enlistment under the first policy.   I see a great injustice in the 
Coast Guard’s first indefinite enlistment policy and I am one of the few that were 
impacted by selling leave and having my plans changed by a policy that was later 
changed again.    

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant's 

 
 
military record and submissions, the Coast Guard's submissions, and applicable law: 
 

1.  The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

 

of the United States Code.  The application was timely.    

 
2.  A change to the Personnel Manual in May 2001 required personnel with 10 or more 
years of active service to reenlist for an indefinite term up to 30  years of active service.  See 
Article 1.G..2.a. of the Personnel Manual.  When the applicant’s enlistment expired in 2004 he 
was required to reenlist for an indefinite term, as he stated in his application.  At the time of his 
discharge  and  reenlistment  in  2004,  the  applicant  sold  48.5  days  of  leave  back  to  the 
Government,  in  accordance  with  Article  7.A.20.a.  of  the  Personnel  Manual.    This  provision 
states: 

 
Each  member  on  active  duty  .  .  .  is  entitled  to  a  lump  sum  leave  payment  for 
unused earned leave accrued to his or her credit on date of discharge, separation 
from  active  duty,  or  the  date  preceding  the  effective  date  of  the  first  extension 
regardless of duration, to a maximum career total of 60 days.  A combination of 
cash settlement and carryover of unused leave is permissible in addition to any 
leave accumulated due to service in hostile fire pay area.   
 
3.  The allegation that Coast Guard policy in 2004 eliminated additional opportunities to 
sell  leave  for  members  entering  into  indefinite  reenlistments  is  not  accurate.    Under  the 
circumstances  that  existed  in  2004  and  until  September  1,  2008,  when  the  new  policy  was 
implemented, an indefinite reenlistment would be a member’s last opportunity to sell leave until 
the member’s discharge, separation, or retirement from the Coast Guard.  Under Article 7.A.20.a. 
of  the  Personnel  Manual,  an  active  duty  member  could  sell  leave  on  the  date  of  discharge  or 
separation from active duty up to a maximum career total of 60 days.  Therefore, the applicant 
was not required to sell leave upon his indefinite reenlistment but could have carried it over into 
his new indefinite reenlistment and sold it upon his retirement, when he would have been in a 
higher pay grade.  The change in Coast Guard policy in 2001 requiring indefinite reenlistments 
for members with more than 10 years of service did not deny the applicant the opportunity to sell 
leave; it may have limited the frequency with which he could do so.  Prior to 2001, members 
reenlisted for 3, 4, 5, or 6 years, and at the end of the enlistment, leave could be sold as long as 
the  60-day  career  maximum  was  not  exceeded.    In  contrast,  because  there  was  no  need  for 
reenlistments  under  indefinite  enlistment  policy,  leave  could  only  be  sold  upon  discharge  and 
execution  of  the  indefinite  reenlistment  contract  or  when  the  member  was  permanently 
discharged or retired.  While the applicant argued it was Coast Guard policy that he was required 
to  sell  leave,  he  puts  forth  no  evidence  of  such  policy.    Instead  it  appears  that  the  applicant 
mistakenly believed that his indefinite reenlistment in 2004 would be his last opportunity to sell 
leave.  That mistaken belief was not caused by the Coast Guard because the policy with respect 
to selling leave was explained in the Personnel Manual as well as the Pay Manual in 2004. 
 

4.  The Coast Guard modified the reenlistment policy again in 2008 to allow members 
currently serving on indefinite reenlistments contract executed prior to September 1, 2008, a one- 
time opportunity to cancel such contracts and enter into new indefinite reenlistment contracts for 
the purpose of selling leave.  The applicant argues this policy is unjust because he sold leave in 
2004 while in a lower pay grade.  However, as mentioned above, neither the policy in 2004 nor 
the current policy requires any member to sell leave. It merely allows the opportunity do so.  The 
applicant chose to sell leave in 2004 at the E-6 pay grade and received the appropriate payment 
at that time.  As the Coast Guard advisory stated, while the ALCOAST allows those in indefinite 
reenlistments a one-time opportunity to sell leave prior to separation or retirement, it does not 
authorize the Coast Guard to make adjustments or otherwise recalculate leave payments already 
executed prior to September 1, 2008.  If the applicant is able to sell additional days of leave, the 
current policy does not prevent him from doing so, as long as he does not exceed the maximum 
statutory limit of 60 days.   

 
5.    The  applicant  asserts  that  it  was  erroneous  and  unjust  for  the  Coast  Guard  to 
 
implement the indefinite reenlistment policy in 2001 and that the current policy is also unjust 
because it allows members with 10 years or more of service a choice of reenlisting for 3, 4, 5, 6 
or an indefinite period, which was not available to the applicant when he reenlisted in 2004.  The 
Board  finds  that  the  Commandant  in  issuing  the  various ALCOASTs  exercised  his  authority 
under 14 U.S.C. § 632 to issue rules, orders, and instructions, not inconsistent with law, relating 
to  the  organization,  internal  administration,  and  personnel  of  the  Coast  Guard.    The 
Commandant’s authority to modify the Personnel Manual and to do so through the issuance of 
ALCOASTS was upheld in Vierrether v. United States, 27 Fed. Cl. 357 (1992), aff’d 6 F.3d 786 
(Fed Cir. 1993), cert. denied 114 S. Ct. 1537 (1994) (upholding the authority of the Commandant 
to suspend for few months the hearing requirement for members who had more than eight years 
of service and were not recommended for retention to facilitate a reduction in force policy.)   The 
applicant has not established an error with respect to the actions of the Coast Guard; nor has he 
shown that he has suffered an injustice.  For the purposes of the BCMRs, “‘[i]njustice’, when not 
also ‘error’, is treatment by the military authorities, that shocks the sense of justice, but is not 
technically  illegal.”  Reale  v.  United  States,  208  Ct.  Cl.  1010,  1011  (1976).    Nothing  in  the 
treatment of the applicant in this situation shocks the Board’s sense of justice.  The applicant was 
properly paid for 48.5 days of leave in 2004 and if he has additional leave days he wishes to sell 
(not  to  exceed  a  career  total  of  60),  he  can  do  so  under  the  current  policy  by  cancelling  his 
indefinite reenlistment and entering into a new indefinite reenlistment for the purpose of selling 
leave.   
  
 
record, and his request for relief should be denied.  
 
 
 

5.   Accordingly,  the  applicant  has  failed  to  prove  an  error  or  injustice  in  his  military 

[ORDER AND SIGNATURES APPEAR ON FOLLOWING PAGE] 

 
 
 

ORDER 

The application of XXXXXXXXXXXXX, USCG, for correction of his military record is 

 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 

 
 
 Robert S. Johnson, Jr. 

 

 

 
 Randall J. Kaplan 

 

 

 

 

 
 
 Thomas H. Van Horn 
  

 

 

 

        

 

 

 

 

 

 
 

 
 

denied.