DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-015 
 
xxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxx   

FINAL DECISION 

This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.   The Chair  docketed the case  after receiving  the  applicant’s 
completed application on November 1, 2009, 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  July  29,  2010,  is  approved  and  signed  by  the  three  duly 

 

 

APPLICANT’S REQUEST AND ALLEGATIONS 

The applicant, an aviation survival  technician, second class (AST2), asked the Board to 
correct his record to show that he sold 60 days of leave1 when he signed an indefinite2 reenlist-
ment contract on November 20, 2008.  The applicant stated that when he signed the contract he 
was away from his unit on temporary assigned duty (TAD) and “was not given the chance to sell 
leave.   I was informed my  enlistment  was about to  expire and  I had 24 hours to  get  the paper-
work  done.    I  was  TAD  in  Washington,  D.C.,  at  the  time.    I  had  no  chance  to  think  about  my 
options.”  The applicant stated that he discovered the injustice on October 1, 2009.3 

 

                                                 
1 Under Article 7.A.11.a. of the Personnel Manual, members earn 2.5 days of leave per month of continuous active 
duty.  Under Chapter 10.A.1. of the Pay Manual, each member may sell a maximum of 60 days of accrued, unused 
leave  during  his  military  career.    Leave  may  be  sold  on  any  date  the  member  is  being  separated  from  active  duty 
even if the member is immediately reenlisting on active duty.   

2  Under  Article  1.G.2.a.2. of  the  Personnel  Manual  in  effect  in  2008,  members  with  more  than  10  years  of  active 
duty could not reenlist for a definite term of years and instead had to reenlist indefinitely.  Therefore, a member’s 
indefinite reenlistment was the penultimate occasion upon which a member could sell leave—the ultimate occasion 
being the member’s final discharge or retirement. 

3 Article 7.A.15.a. of the Personnel Manual states that “[e]arned leave may exceed 60 days during a fiscal year, but 
must  be  reduced  to  60  days  on  the  first  day  of  the  next  fiscal  year  except  as  outlined  in  paragraphs  b.  through  d. 
below.  The  amount  so  reduced  is  irrevocably  lost  without  compensation.”    Paragraphs  b.  through  d.  concern 
situations that might prevent members from using leave, such as national emergencies and long deployments at sea.   

 

 

In support of his allegations, the applicant submitted a copy of the reenlistment contract, 
which includes the following  comment in the remarks block on the first  page, which the appli-
cant initialed:  “Selective Reenlistment Bonus (SRB) multiple is 0.0 and is listed in ALCOAST 
286/08.  Member is not selling leave.” 

 

VIEWS OF THE COAST GUARD 

 
On March 30, 2010, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion in which he recommended that the Board grant relief only “if the Board deter-
mines the applicant suffered an injustice based on the circumstances of [his] situation.”  The JAG 
stated  that  the  recommendation  is  based  on  the  particular  circumstances  of  the  applicant’s 
reenlistment “and is not indicative of a shift in policy or a purported change from precedent.” 

 
The JAG stated that it appears that the applicant was notified while  away  from his  unit 
serving  on  TAD  that  his  prior  enlistment  contract  was  expiring  within  24  hours.    Therefore,  it 
appears that he “was not counseled or given the opportunity to weigh his options prior to making 
his decision to enter into his indefinite reenlistment.” 

 
The JAG noted that under ALCOAST 307/08,4 as of September 1, 2008, “members cur-
rently  serving  on  indefinite  reenlistment  contracts  are  authorized  to  enter  into  new  indefinite 
reenlistment contracts for the purpose of selling leave.”  The JAG stated that although the appli-
cant  should  have  asked  to  sell  leave  when  he  reenlisted  on  November  20,  2008,  “based  on  the 
exigent nature in which [he] had to act, it is believable that had [he] the opportunity to discuss 
his options or given more leeway to act, he could have made a more informed decision.” 

 
The JAG submitted with his advisory opinion a memorandum prepared by the Personnel 
Service Center (PSC), which the JAG adopted only in part.  The PSC argued that the applicant’s 
request  should  be  denied  because  his  initials  in  the  remarks  section  show  that  he  knew  that  he 
could sell leave and opted not to do so.  The PSC stated that “[h]ad the applicant been exposed to 
faulty administrative processing, miscounseling on benefits/entitlements, or under undue duress 
to  enter  into  this  contract,  then  an  appropriate  remedy  would  be  recommended.    However,  no 

                                                 
4 ALCOAST 307/08 states the following in pertinent part: 

1.  In order to afford our 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 a 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 (CG-PSC-2045) indicating their 
desire to reenlist and the number of days of leave they desire to sell. 

●   ●   ● 

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)  applies  to  members  who  entered  into  indefinite  reenlistment  contracts  prior  to  1  SEP 
2008. 

 

 

such  evidence  exists  to  justify  any  of  these  reasons  to  not  honor  the  applicant’s  standing  con-
tract.”    The  PSC  argued  that  the  terms  of  the  contract  should  stand  because  the  applicant 
reenlisted after ALCOAST 307/08 went into effect. 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On April 8, 2010, the applicant  responded to  the  views of the Coast  Guard, stating that 
one morning when he was TAD in D.C. to attend an awards ceremony and other events, he was 
at the hotel 
 

preparing to load onto a bus for a full day of events.  I received a call from a YN stationed [at] ISC 
San  Pedro;  he  stated  that  I  had  to  come  down  to  San  Pedro  immediately  to  fill  out  reenlistment 
papers because my enlistment would expire in 24 hours.  I explained to him that I was currently 
TAD  in  Washington,  D.C.  for  the  Secretary  of  Homeland  Security  Awards  and  that  I  couldn’t 
make it down to the ISC.  I also explained to him that [I] was about to load onto a bus in a few 
minutes and that I wouldn’t be available for almost the entire day. 
 
The YN then told me to give him the fax number of the hotel that I was currently staying at and he 
would fax the paperwork.  I was instructed to fill out the paperwork, have someone swear me in 
and then fax the paperwork back to him that evening when I was done with the day’s events.  He 
stated  that  I  needed  to  have  the  paperwork  faxed  back  to him  by  that  evening.    I  was  given  NO 
instruction on how to fill out the paperwork. 
 
After the many events of the day, my wife and I finally got back to the hotel at around 8 p.m.  I 
had  asked  a  Coast  Guard  officer  (I  don’t  remember  his  name)  to  wait  for  me  in  the  lobby  so  I 
could fill out the paperwork and then have him swear me in (I have pictures of the swearing in if 
necessary).  After the swearing in, I faxed the paperwork to the number the YN had given me. 
 
I was given no proper counseling on how to fill out the reenlistment paperwork.  I was also under 
duress during this time because of the scheduling placed upon me and I was very concerned about 
my enlistment expiring. 

 

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  10 U.S.C.  § 1552.  

The application was timely.  

 
2. 

 The  applicant  alleged  that  he  was  not  given  the  chance  to  sell  leave  when  he 
signed an indefinite reenlistment contract on November 20, 2008.  Because he did not sell leave, 
he apparently lost leave at the beginning of the next fiscal year on October 1, 2009.  The Board 
begins  its  analysis  in  every  case  by  presuming  that  the  disputed  information  in  the  applicant’s 
military record is correct as it appears in his record, and the applicant bears the burden of proving 
by a preponderance of the evidence that the disputed information is erroneous or unjust.5  Absent 
                                                 
5 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002, approved by the Deputy 
General Counsel, May 29, 2002) (rejecting the “clear and convincing” evidence standard recommended by the Coast 
Guard and adopting the “preponderance of the evidence” standard for all cases prior to the promulgation of the latter 
standard in 2003 in 33 C.F.R.§ 52.24(b)). 

 

 

evidence to  the contrary, the Board presumes that  Coast  Guard officials and other Government 
employees have carried out their duties “correctly, lawfully, and in good faith.”6 
 

3. 

The  applicant’s  initials  in  the  remarks  section  of  his  reenlistment  contract  show 
that when he reenlisted on November 20, 2008, he knew that no sale of leave was included in the 
contract.  The contract does not show, however, that he knew he was eligible to sell leave or that 
he had a reasonable opportunity to consider whether to sell leave and to have the contract modi-
fied to reflect his desire.  The Board finds the applicant’s account of the events of the day to be 
completely  credible.    In  this  regard,  the  Board  notes  that  the  applicant  personally  received  a 
xxxxxxxxxxxxxx on November 20, 2008.7  In light of the events of the day, the Board finds that 
the applicant did not have a reasonable opportunity on November 20, 2008, to consider whether 
to sell leave. 

 
4. 

The Board is persuaded that the unique circumstances of the applicant’s reenlist-
ment on November 20, 2008, render his failure to sell leave on that date a clear injustice8 in his 
record.  The applicant alleged that if he had had time to consider the matter, he would have sold 
60  days  of  accrued,  unused  leave  on  that  date.    However,  neither  the  applicant  nor  the  Coast 
Guard submitted copies of the applicant’s leave statements.  Therefore, the Board does not know 
for  certain  (a)  whether  the  applicant  actually  had  60  days  of  accrued,  unused  leave  to  sell  on 
November 20, 2008; (b) whether the applicant had ever sold leave before, in which case he could 
not sell 60 days of leave in 2008 because 60 days is the statutory career-long maximum;9 or (c) 
whether correcting his record to show that he sold 60 days of leave in 2008 would, after his leave 
records are adjusted, leave him with a current negative leave balance. 

 
5. 

Accordingly,  the  requested  relief  should  be  granted  provided  that  the  applicant 
actually had accrued, unused leave to sell on November 20, 2008, that the sale of leave does not 
exceed  the  career-long  limit  of  60  days,  and  that  the  sale  of  leave  does  not  leave  the  applicant 
with a current negative leave balance. 
 

  

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 

                                                 
6 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

7 See http://dhsconnect.dhs.gov/org/comp/mgmt/dhshr/emp/Pages/2008Awards.aspx. 

8 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).  
The Board has authority to determine  whether an injustice exists on a  “case-by-case basis.” Docket  No. 2002-040 
(DOT BCMR, Decision of the Deputy General Counsel, Dec. 4, 2002).   

9 Coast Guard Pay Manual, Chapter 10.A.1. 

 

 

The application of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his 

military record is granted as follows: 

ORDER 

 

The Coast Guard shall pay him any amount due as a result of this correction. 

 
The  Coast  Guard  shall  correct  his  indefinite  reenlistment  contract  dated  November  20, 
2008, to show that he sold his accrued, unused leave on that date, provided that the sale of leave 
shall not exceed the 60-day career maximum under Chapter 10.A.1. of the Pay Manual and shall 
not leave him with a current negative leave balance after his leave records are adjusted to reflect 
the sale. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 Robert S. Johnson, Jr. 

 
 Nancy L. Friedman 

 

 
 Lynda K. Pilgrim