DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 1999-132 
 
 
   

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This  proceeding  was  conducted  under  the  provisions  of  section  1552  of 
title 10 and section 425 of title 14 of the United States Code.  The BCMR docketed 
the case on July 28, 1999, upon receipt of the applicant’s completed application, 
including his military records.  
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  May  18,  2000,  is  signed  by  the  three  duly 

 

 
 

 

RELIEF REQUESTED 

 
 
The  applicant,  a  xxxxxx  now  retired  from  the  Coast  Guard,  asked  the 
Board to correct his record to show that he was retired upon completion of 20 
years of active duty, instead of retiring under Temporary Retirement Authority 
(TERA) after just 18 years, 8 months, and 17 days of active duty.  In addition, he 
asked to receive all back pay and allowances he would be due as a result of the 
correction. 
  

SUMMARY OF THE RECORD AND THE APPLICANT’S ALLEGATIONS 

The  applicant  alleged  that  his  TERA  retirement  was  unjust;  instead,  he 
should have been retired upon completion of 20 years of active duty, as he had 
been promised. 

 
The applicant enlisted in the Coast Guard on September 14, 197x.  On Feb-
ruary  9,  197x,  he  was  appointed  an  ensign  in  the  Coast  Guard  Reserve.    In 
November  197x,  he  was  promoted  to  the  rank  of  lieutenant  junior  grade  and 

received a permanent commission in the regular Coast Guard.  In July 198x, he 
was promoted to lieutenant.  After being passed over for promotion to the rank 
of lieutenant commander in 198x and 198x, the applicant was slated for discharge 
in June 19xx. 

In  19xx,  however,  the  BCMR  found  that  three  of  the  applicant’s  officer 
evaluation  reports  (OERs),  covering  his  performance  as  the  engineering  officer 
for  the  cutter  xxxx  from  May  28,  198x,  to  May  10,  198x,  were  inaccurate  and 
unjust.  Therefore, the BCMR ordered these OERs removed from his record and 
replaced with OERs marked “For Continuity Purposes Only.”  The BCMR also 
removed his failures of selection so that he could be reconsidered for promotion 
to lieutenant commander.   

 
In  19xx  and  19xx,  the  applicant  again  failed  of  selection  for  promotion.  
The applicant alleged that these failures were caused  by the hole in his record 
created  by  the  continuity  OERs  and  by  his  198x  date  of  rank.    Although  not 
selecting him for promotion, the 199x selection board recommended that he be 
offered a four-year active duty continuation contract.  On September 11, 199x, the 
Commandant sent him a letter containing the following provisions: 

 
1. 
… [U]nder the provisions of Section 283(b) [of 14 U.S.C.], the Secretary 
has approved the recommendation of the Board that you be continued on active 
duty in the grade of lieutenant for a period of 4 years commencing 1 July 1992.  
 
2. 
While you are continued as a lieutenant, you remain eligible for consid-
eration for promotion to lieutenant commander.  Since you will complete more 
than 18 years of active service by the end of the continuation period, you will be 
retained on active duty and retired on the  last day  of the month  in  which  you 
complete twenty years of active service, in accordance with Section 283(a)(4) [of 
14  U.S.C.].    If  you  do  not  desire  to  be  continued,  you  will  be  honorably  dis-
charged with severance pay on 30 June 1992, or you may request discharge at an 
earlier date without loss of benefits. 
 
3. 
…  When making this decision, you should know that two of the officers 
selected  for  promotion  this  year  had  been  previously  continued.    In  addition, 
three officers were selected for their second period of continuation and now will 
have  an  opportunity  to  earn  an  active  duty  retirement.  …    I  am  sure  that  you 
[will] make the choice that enables you to pursue your professional and personal 
goals. 
 
On  October  21,  199x,  the  applicant  accepted  continuation  on  an  active 
duty  contract  in  lieu  of  discharge.    The  “Extension  Election  Form”  he  signed 
included the following terms: 

 
1. 
ant.  I understand that: 
 

I elect to be continued on active duty for a period of 4 years as a lieuten-

Acceptance  of  this  continuation  incurs  an  obligation  to  remain 

While I am on active duty, I remain eligible for consideration for 

a. 

b. 

on active duty for at least 2 years. 
 

promotion to lieutenant commander. 
 

c. 

If  I  am  not  selected  for  promotion  by  a  future  board,  I  will  be 
eligible for further consideration for continuation as a lieutenant as long as I have 
not completed over 18 years of active duty. 
 

If I am not selected for promotion by a future board, and I will 
complete over 18 years of active duty by 30 June 1996, I will be retained until I 
complete  twenty  years  of  active  service.    I  may,  however,  request  to  be  dis-
charged with severance pay. 
 

d. 

e. 

If I am not selected for promotion by a future board, and I will 
complete 20 years of active duty by 30 June 1996, I will be retired on the last day 
of the month in which such service is completed. 
 
In light of these promises and terms, the applicant alleged, he expected to 
be retained on active duty until he could retire with 20 years of service because 
he  would  have  completed  over  18  years  of  service  by  the  time  his  four-year 
active  duty  continuation  contract  expired  on  June  30,  19xx.    Therefore,  he 
accepted continuation and began serving under his four-year contract on July 1, 
19xx.    However,  on  September  13,  19xx,  he  received  a  letter  from  the  Coast 
Guard’s Officer Personnel Division with the following information: 

 
1. 
We  have  recently  been  informed  that  a  section  of  [the  Commandant’s 
letter dated September 11, 199x] regarding your status under the lieutenant con-
tinuation  provisions  of  [14  U.S.C.  §  283]  is  incorrect.    We  had  erroneously 
informed you that if you reached 18 years of service under your current agree-
ment that you would be retained on active duty until the last day of the month in 
which you complete 20 years of active service.  [14 U.S.C. § 283(b)], the statute 
authorizing  the  Coast  Guard  to  continue  lieutenants  who  would  otherwise  be 
discharged under [14 U.S.C. § 283(a)] due to being twice non-selected for lieuten-
ant commander, does not contain any authority to continue officers beyond the 
end of their agreements. 
 
2. 
Your  current  agreement  expires  on  30  June  199x.    The  law  currently 
requires that you be discharged with severance pay[1] at that time unless selected 
for  lieutenant  commander  or  a  subsequent  lieutenant  continuation  board  [sic].  
We are currently pursuing a legislative change to [14 U.S.C. § 283] which would 
provide  for  retention  beyond  18  years,  until  retirement  eligible.    However,  we 
have no certainty that the proposed change will be approved by Congress or that 
it will be approved before your current agreement expires.  We regret the uncer-
tainty that this places you in and are willing to reconsider your obligated service 
under your current agreement if you so desire. 

                                                 
1  The Coast Guard stated that the applicant’s severance pay if he had been discharged on June 
30, 199x, would have been one lump-sum payment of approximately $86,000. 

 
3. 
We apologize for our original error and assure you we are doing every-
thing possible to ensure we can legally retain you on active duty until you are 
eligible for retirement. … 
 
On October 23, 199x, the applicant responded with a letter stating that he 
had  considered  the  Commandant’s  letter  and  the  Extension  Election  Form  a 
binding  agreement.    He  further  stated  that,  because  retirement  traditionally 
“vests” after 18 years of active service, he had no reason to suspect the informa-
tion was wrong, and he had made significant life and career decisions based on 
the expectation of a 20-year service retirement.  The applicant asked that his con-
tinuation contract be extended to permit him to retire with 20 years of service.  
 

 
On January 16, 1996, the Commandant issued ALCOAST 007/96, which 
implemented  TERA.    TERA  permitted  members  with  more  than  15  years  of 
active  duty  service  to  retire.    However,  retirement  pay  was  “reduced  by  1/12 
percent for each month short of 240 months (so years).”2  TERA retirees were to 
receive the same non-pay benefits as regular retirees.  The same day, the Military 
                                                 
2  Normally, retirement pay was calculated at 2.5% of the member’s base pay times the number of 
years served on active duty.  Example:  0.025 x $47,000 x 20 years = $23,500 per year.  Retiring 
with  18  years,  8  months,  and  17  days  of  active  service  under  TERA,  the  same  member  would 
receive approximately $20,870 per year [(0.025 x $47,000 x 18 years) minus 1.33% of that amount 
(1/12 times 16 months)].  The Coast Guard stated that retiring under TERA reduced the appli-
cant’s retirement pay from 50% of his base pay to 44.4%. 

On  November  3,  199x,  the  Coast  Guard  Personnel  Command  (CGPC) 
denied  the  applicant’s  request  for  a  one-year  extension  of  his  contract.    CGPC 
stated  that  active  duty  contracts  could  only  be  extended  by  board  action.    In 
addition, CGPC stated that the proposed legislative remedy had been submitted 
to the Commandant but could be approved by Congress no earlier than Novem-
ber 199x and perhaps as late as December 199x.  CGPC further stated that 

 
we are as concerned as you are with making this situation right.  In addition to 
the  personal  anxiety  being  caused  to  you  and  the  other  officers  affected,  the 
credibility  of  other  officer  accession  programs  could  be  at  stake.    Even  if  the 
requested legislation is not approved in time to resolve your status, we have sev-
eral alternative plans under consideration.  They are all considerably more legal-
ly complicated and at this point it is premature to pursue them further.  We will 
keep you advised of any changes to your status … . 
 
The  applicant  chose  to  continue  serving  under  his  active  duty  contract, 
but he was never selected for promotion to lieutenant commander.  The Coast 
Guard’s legislative change proposal (LCP) to fix its mistake was not enacted in 
199x or 199x.  In the mid 1990s, the Coast Guard began downsizing, and no fur-
ther lieutenant continuation contracts were offered until 199x.   

Personnel  Command  sent  the  applicant  an  e-mail  message  recommending  that 
he apply for early retirement under TERA.  The e-mail stated that “it’s not as we 
promised, i.e., a 20-year retirement, but I’d take the “r” word [retirement] over 
the “d” word [discharge] anytime.  Ongoing discussions will ensue re: undoing 
an  approved  TERA retirement  in  the  event the  LCP  gets  approved  …  more  to 
follow.”  The applicant applied and was approved for a TERA retirement. 

 
On March 26, 199x, the applicant requested to be recalled to active duty 
after his TERA retirement so that he could complete 20 years on active duty.  On 
June 11, 199x, the same officer at the Military Personnel Command who had pre-
viously mentioned “undoing” an approved TERA retirement responded to this 
request by stating that “[a]pproval of a recall request immediately following an 
‘early’ retirement would be a total contradiction to the intent of TERA and would 
constitute an egregious misuse of government funds.” 

 
On May 3, 199x, the Commandant issued the applicant’s retirement orders 
but advised him that, if the LCP was enacted before June 30, 199x, he would be 
allowed to remain on active duty until he had completed 20 years of active serv-
ice.  On June 30, 199x, the applicant was retired under TERA having completed 
18 years, 8 months, and 17 days on active duty.3  The LCP was finally enacted 
four months later, in October 1996.  

 
The  applicant  alleged  that  it  was  an  injustice  for  the  Coast  Guard  to 
renege on its promise to retain him for 20 years, especially since officers of the 
other armed services and officers of the Coast Guard Reserve would have been 
so retained.  The Senate Report on the LCP stated the following: 

 

There are currently 31 Coast Guard lieutenants on active duty under this 
section.  Some of these officers will have served between 18 and 20 years of serv-
ice  by  the  end  of  their  current  continuation  agreements.    At  present,  the  law 
requires  discharge  upon  expiration  of  an  agreement,  unless  an  officer  is  retire-
ment eligible or again continued by board action.  Under similar circumstances, 
officers in other armed services and Coast Guard Reserve officers are retained by 
operation of law.  This section of the reported bill would amend section 283(b), 
conforming  it  to  similar  statutory  provisions  for  other  military  personnel  and 
allowing retention of lieutenants who have attained 18 or more years of service 
until they are eligible for retirement. 
 

S. Rep. No. 104-160, 104th Cong., 1st Sess. (1995), 1996 USCCAN 4255.  

                                                 
3  The Coast Guard stated that in 1996 the applicant was one of four lieutenants serving on con-
tinuation contracts with more than 18 years of active service.  All four were granted retirement 
under TERA.  The Coast Guard alleged that many lieutenants serving on continuation contracts 
with  less  than  18  years  of  active  service  were  denied  TERA  retirements  and  discharged  with 
severance pay. 

 
Therefore,  the    applicant  asked  the  Board  to  correct  his  record  to  show 
that he was retired with 20 years of active service and to order the Coast Guard 
to award him any back pay and allowances due as a result of the correction. 

 

VIEWS OF THE COAST GUARD 

 
 
On February 28, 2000, the Chief Counsel of the Coast Guard submitted an 
advisory opinion in which he recommended that the Board deny the applicant’s 
request for relief.   
 
 
The Chief Counsel stated that the Coast Guard “sincerely regrets the con-
ceded  erroneous  advice  the  Applicant  received  and  the  unfortunate  effects  of 
that  injustice.    However,  there  is  no  legal  basis  to  provide  Applicant  with  the 
relief requested.” 

 
The Chief Counsel argued that the Board should deny relief due to lack of 
jurisdiction.  He alleged that “the Board has no authority to supersede the perti-
nent statute.  This conclusion is fully supported by a long line of case law that 
holds that equitable estoppel cannot negate a statutory requirement.  If it could, 
agents  of  the  Executive  Branch  who  make  statements  concerning  entitlements 
could effectively shift control over financial disbursements away from Congress, 
in contravention of the Appropriations Clause of the Constitution.”  The Chief 
Counsel stated that the following cases support this conclusion:  Utah Power & 
Light v. United States, 243 U.S. 389, 409 (1917); Montilla v. United States, 457 F.2d 
978 (Ct. Cl. 1971); Goldberg v. Weinberger, 546 F.2d 477 (2d Cir. 1976), cert. denied 
sub nom. Goldberg v. Califano, 431 U.S. 937 (1977).  He  further argued that even 
detrimental  reliance  on  misinformation  obtained  from  a  seemingly  authorized 
government agent does not excuse a failure to fulfill the requirements of a stat-
ute.  Goldberg, 546 F.2d at 481. 

 
While acknowledging that the Board has a statutory duty to remove injus-
tices from members’ records, the Chief Counsel argued that no relief is due  in 
this case because the injustice suffered by the applicant does not “shock the sens-
es.”  Sawyer v. United States, 18 Cl. Ct. 860, 868 (1989), rev’d on other grounds, 930 
F.2d  1577  (Fed.  Cir.  1991)  (citing  Reale  v.  United  States,  208  Ct.  Cl.  1010,  1011 
(1976)).  Moreover, the Chief Counsel argued, the Coast Guard did everything in 
its  power  to  try  to  mitigate  the  situation  by  informing  the  applicant  promptly 
upon discovery of the mistaken advice, attempting to enact the LCP prior to the 
end of his continuation contract, and approving the applicant’s retirement under 
TERA.    In  fact,  the  Chief  Counsel  alleged,  because  the  applicant  was  already 
slated for discharge, awarding him a TERA retirement was contrary to the law, 
which  was  intended  to  separate  members  who  were  not  otherwise  slated  for 

separation  for  some  time.    The  Chief  Counsel  further  argued  that  whenever  a 
benefit  is  enacted,  “there  is  always  going  to  be  a  group  of  personnel  who  just 
miss out on the benefits … of new legislation, unless the legislation has retroac-
tive provisions, which this did not.” 

 
Finally, the Chief Counsel argued that the Coast Guard has no authority 
to pay the applicant for 16 months of service he did not perform.  However, he 
stated that “if the Board decided to grant partial relief, the Coast Guard recom-
mends  that  Applicant  be  provided  the  opportunity  to  return  to  active  duty  to 
complete twenty (20) years of active service.”4 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On  February  29,  2000,  the  BCMR  sent  the  applicant  a  copy  of  the  Chief 
Counsel’s advisory opinion and invited him to respond.  On March 13, 2000, the 
applicant responded. 

 
The  applicant  argued  that  because  the  Coast  Guard  admits  that  it  com-
mitted an injustice, he should be granted relief.  He stated that the fact that three 
other lieutenants apparently suffered the same injustice should be immaterial to 
his  case.5    The  applicant  compared  his  case  to  that  of  the  applicant  in  BCMR 
Docket  No.  1999-150  and  argued  that  the  Board  should  grant  relief  in  his  case 
because “the misinformation here came from the Coast Guard and concerned a 
statute administered solely by the Coast Guard.” 

 
The applicant also argued that the Board has (and often exercises) author-
ity to order the Coast Guard to pay any sums due as a result of the correction of 
military  records.    Furthermore,  the  applicant  alleged  that  if  the  Board  granted 
relief by correcting his record to show that he was not retired until after he had 
completed 20 years of active service, he would not be owed any additional sums 
for back pay because during the 14 months from July 1, 199x, to October 1, 199x, 
his private salary and TERA retirement payment exceeded what he would have 
received on active duty. 
 
 
Finally,  in  response  to  the  Chief  Counsel’s  remarks  about  the  applicant 
returning to active duty, the applicant argued that “[m]aking relief contingent on 
[his] returning to active duty at this time is not only unnecessary in light of the 

                                                 
4  The Chief Counsel further stated that if the Board grants full or partial relief in this case, the 
same relief should be granted to the three other lieutenant’s who were in the applicant’s situa-
tion. 
5  The applicant pointed out that if those three lieutenants were also retired under TERA in 199x, 
the BCMR’s three-year statute of limitations has expired on their claims. 

Board’s power to grant constructive credit, but also unfair and wasteful.”  The 
applicant pointed out that the Coast Guard repeatedly refused to permit him to 
continue on active duty to serve 20 full years in 199x when it would have been 
appropriate.  Now, he argued, since he has established a civilian career, return-
ing to active duty for 16 months would be a great hardship.  He also questioned 
whether his returning for 16 months of active duty would be of any benefit to the 
Coast Guard since normal duty tours for marine safety officers last four years. 
  

APPLICABLE STATUTES 

 
 
According to 10 U.S.C. § 1552(a)(1), “[t]he Secretary of a military depart-
ment  may  correct  any  military  record  of  the  Secretary’s  department  when  the 
Secretary considers it necessary to correct an error or remove an injustice.” 
 
 
According  to  10  U.S.C.  §  1552(c),  “[t]he  Secretary  concerned  may  pay, 
from applicable current appropriations, a claim for the loss of pay, allowances, 
compensation, emoluments, or other pecuniary benefits, or for the repayment of 
a  fine  or  forfeiture,  if,  as  a  result  of  correcting  a  record  under  this  section,  the 
amount is found to be due the claimant on account of his or another’s service in 
the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be.” 
 
 
the following provisions: 
 

When the applicant was retired on June 30, 1996, 14 U.S.C. § 283 included 

Sec.  283.  Regular lieutenants; separation for failure of selection for promotion; 
continuation 
 
(a) 
Each officer of the Regular Coast Guard appointed under section 211 of 
this title who is serving in the grade of lieutenant and who has failed of selection 
for promotion to the grade of lieutenant commander for the second time shall: 
 

(1) 

be  honorably  discharged  on  June  30  of  the  promotion  year  in 

which his second failure of selection occurs; or  

(3) 

(2) 

if  he  so  requests,  be  honorably  discharged  at  an  earlier  date 
without  loss  of  benefits  that  would  accrue  if  he  were  discharged  on  that  date 
under clause (1); or  

if, on the date specified for his discharge in this section, he has 
completed  at  least  20  years  of  active  service  or  is  eligible  for  retirement  under 
any law, be retired on that date; or 

(4) 

if,  on  the  date  specified  for  his  discharge  in  clause  (1),  he  has 
completed at least eighteen years of active service, be retained on active duty and 
retired on the last day of the month in which he completes twenty years of active 
service, unless earlier removed under another provision of law. 
 
(b) 
When the needs of the service require, the Secretary may direct a selec-
tion  board,  which  has  been  convened  under  section  251  of  this  title,  to  recom-
mend  for  continuation  on  active  duty  for  terms  of  not  less  than  two  nor  more 

than four years a designated number of officers of the grade of lieutenant who 
would otherwise be discharged or retired under this section.  When so directed, 
the board shall recommend for continuation on active duty those officers under 
consideration who are, in the opinion of the board, best qualified for continua-
tion.  Each officer so recommended may, with the approval of the Secretary, and 
notwithstanding subsection (a), be continued on active duty for the term recom-
mended.  Upon the completion of such a term he shall, unless selected for further 
continuation, be honorably discharged with severance pay computed under sec-
tion 286 of this title, or, if eligible for retirement under any law, be retired. 
 
(c) 
Each officer who has been continued on active duty under subsection (b) 
shall, unless earlier removed from active duty, be retired on the last day of the 
month in which he completes twenty years of active service. 

In  October  1996,  14  U.S.C.  §  283  was  amended  by  deleting  the  last  sen-

 
 
tence of § 283(b) and adding a second paragraph, which states the following: 
 

Upon  the  completion  of  a  term  under  paragraph  (1),  an  officer 

 (2) 

 (b) 
shall, unless selected for further continuation— 
 

(A) 

except  as  provided  in  subparagraph  (B),  be  honorably 

discharged with severance pay computed under section 286 of this title; 

(B) 

in  the  case  of  an  officer  who  has  completed  at  least  18 
years  of  active  service  on  the  date  of  discharge  under  subparagraph  (A),  be 
retained on active duty and retired on the last day of the month in which the offi-
cer  completes  20  years  of  active  service,  unless  earlier  removed  under  another 
provision of law; or 
(C) 

if, on the date specified for the officer’s discharge under 
this section, the officer has completed at least 20 years of active service or is eligi-
ble for retirement under any law, be retired on that date. 

 

FEDERAL CASE LAW 

 
Montilla v. United States, 457 F.2d 978 (Ct. Cl. 1972). 
 
 
Montilla  was  a  World  War  II  veteran  who  served  in  the  Army  Reserve 
after the war.  Because he was negligent in informing the Army of a change of 
address,  he  did  not  learn  for  many  years  that  between  1949  and  1952,  he  had 
been  transferred  to  the  Inactive  Reserve.    In  1952,  he  accepted  an  indefinite 
Active Reserve appointment.  In 1953, Montilla received a letter telling him that 
he had completed 20 years of service creditable in the computation of basic pay 
and that therefore he should inform the Army about whether he wanted to elect 
a certain annuity benefit.  The letter did not state that he had 20 years of service 
creditable in the computation of retirement pay, but Montilla assumed this was 
true.    In  1955,  Montilla  was  notified  that  he  was  to  be  assigned  to  an  Inactive 
Reserve unit.  He was concerned about the effect of this change on his retirement 
eligibility and sought the advice of a Senior Army Advisor.  He alleged that the 

advisor reviewed his record and told him that he did not need to be concerned 
because he had already completed 20 years in the Active Reserve.  Upon reach-
ing the age of 60, Montilla applied for retirement pay, but it was denied because 
he  had  never  completed  20  years  service  in  the  Active  Reserve.    In  1966,  he 
applied to the Army BCMR, which denied relief. 
 
 
The  U.S.  Claims  Court  upheld  the  BCMR’s  decision.    It  concluded  that, 
even if it assumed that Montilla’s allegations concerning his conversation with 
the Army advisor were true, no relief was due.  The Court quoted the following 
passage from Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947):  
 

Whatever the form in which government functions, anyone entering into 
an arrangement with the Government takes the risk of having accurately 
ascertained that he who purports to act for the Government stays within 
the bounds of his authority.  The scope of this authority may be explicitly 
defined by Congress or be limited by delegated legislation, properly exer-
cised through the rulemaking power. . . .  Just as everyone is charged with 
knowledge of the United States Statutes at Large, Congress has provided 
that the appearance of rules and regulations in the Federal Register gives 
legal notice of their contents.  Id. at 384-85. 

 
Goldberg v. Weinberger, 546 F.2d 477 (2d Cir. 1976), cert. denied sub nom.  

Goldberg v. Califano, 431 U.S. 937 (1977). 

 
Goldberg was a widow receiving Social Security survivor’s benefits when 
 
she considered remarrying and sought advice at a local Social Security office on 
how  remarrying  could  affect  her  benefits.    She  was  advised  that  the  benefits 
would be reduced but not stop altogether.  However, because Ms. Goldberg was 
under the age of 60 when she remarried, her survivor’s benefits were stopped. 
 
 
The Second Circuit upheld the Social Security Administration’s refusal to 
pay  the  survivor  benefits.    It  found  that  “[i]t  is  well  established  that  ‘estoppel 
cannot be set up against the Government on the basis of an unauthorized repre-
sentation or act of an officer or employee who is without authority in his indi-
vidual capacity to bind the Government.’” Id. at 481 (citations omitted). 
 
Reale v. United States, 208 Ct. Cl. 949 (1976). 
 
 
Reale was an Air Force captain who was discharged in 1961 for dereliction 
of duty.  In 1969, the court found his discharge to be illegal and void.  Reale was 
awarded  back  pay  and  allowances,  and  the  Air  Force  BCMR,  on  remand,  cor-
rected his record and retired him.  Reale sued to be returned to active duty so 
that he could prove himself. 
 

 
The  court  denied  relief  and  found  that  the  Air  Force  had  committed  no 
errors  in  implementing  the  court’s  1969  decision.    In  the  absence  of  error,  the 
court characterized the BCMR’s role thus: 
 

“Injustice”,  when  not  also  ‘error’,  is  treatment  by  the  military  authorities,  that 
shocks the sense of justice, but is not technically illegal.  Yee v. United States, 206 
Ct.  Cl.  388,  512  F.2d  1383  (1975).  …    When  [servicemembers]  apply  to  Boards 
established  under  10  U.S.C.  §  1552,  for  correction  of  such  “injustice”,  these 
Boards exercise high discretionary functions in the management of the military 
establishment. 

 

PRIOR BCMR DECISION 

 
 
In BCMR Docket No. 1997-194 and its reconsideration, BCMR Docket No. 
1999-105, the applicant was an officer who had worked in the federal civil service 
for many years.  In 198x, he retired from the civil service, began receiving retire-
ment pay from the Civil Service Retirement System (CSRS), and began working 
on an active duty contract for the Coast Guard.  While serving on active duty, he 
applied  to  join the  Senior  Executive  Service  (SES)  and  asked  Coast  Guard  per-
sonnel  specialists  if  his  time  on  active  duty  in  the  Coast  Guard  would  count 
toward his CSRS retirement if he left active duty and returned to civil service in 
the SES.  The Coast Guard personnel specialist said it would but failed to inform 
him that he would have to work in the civil service for at least five years for his 
active  duty  time  to  be  included  in  the  calculation  of  his  CSRS  payment.    The 
applicant was approved for SES service and began working for the Coast Guard 
as a civilian.  However, he was never appointed to an SES position and left the 
civil service after just two years.  Therefore, his time on active duty in the Coast 
Guard  was  not  included  in  the  calculation  of  his  CSRS  retirement  payment.  
Moreover,  while  the  applicant  was  in  the  civil  service  waiting  for  an  SES 
appointment, he did not receive his CSRS payments.  He asked the Board to cor-
rect his record to show that he had remained on active duty in the Coast Guard 
instead of returning to the civil service.  He alleged that if this correction were 
made, the Office of Personnel Management (OPM) would award him the CSRS 
payments he had forgone during his last two years in the civil service. 
 
 
The  Board  calculated  that  the  applicant’s  return  to  the  civil  service  cost 
him between $60,000 and $70,000, mostly in forgone CSRS payments.  However, 
the Board denied the applicant relief.  The Board made the following finding: 
 

In asking a specialist from the Coast Guard Civilian Personnel Branch to deter-
mine  what  effect  such  a  move  would  have  on  his  annuity,  he  was  asking  the 
Coast Guard to interpret OPM regulations for him.  The Supreme Court has held 
that “[w]hatever the form in which government functions, anyone entering into 
an arrangement with the Government takes the risk of having accurately ascer-
tained that he who purports to act for the Government stays within the bounds 

of  his  authority.”    Federal  Crop  Ins.  Corp.  v.  Merrill,  332  U.S.  380,  384  (1947).  
Therefore,  the  Board  finds  that  the  Coast  Guard’s  error  in  interpreting  OPM’s 
CSRS regulations did not  constitute  such an injustice as would justify granting 
the requested relief.” 

 

The applicant applied for and was granted reconsideration based on the 
recent decision in Tippett v. United States, 185 F.3d 1250 (Fed. Cir. 1999).  How-
ever, the Board again denied relief in its final decision in BCMR Docket No. 1999-
150.    The  Board  found  that  the  Coast  Guard  “should  not  be  held  liable  for  its 
employees’  unsuccessful  attempts  to  explain  another  agency’s  rules,  and  the 
applicant should not have relied on such second-hand advice.” 

 

 
3. 

FINDINGS AND CONCLUSIONS 

1. 

 
 
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  Chief  Counsel  of  the  Coast  Guard  argued  that  the  BCMR 
should deny relief for lack of jurisdiction because “the Board has no authority to 
supersede  the  pertinent  statute.”    The  Coast  Guard’s  argument  about  proper 
application of the statute raises a question of what relief the Board is authorized 
to  order,  not  of  the  Board’s  jurisdiction.    The  applicant  alleged  that  the  TERA 
retirement  shown  in  his  record,  in  lieu  of  a  20-year  retirement,  constitutes  an 
injustice.  The BCMR statute expressly authorizes the Board to “remove an injus-
tice” from a military record.  10 U.S.C. § 1552(a)(1).  Therefore, the Board finds 
that it does have jurisdiction over this case.  The application was timely. 
 

2. 

In 199x, the Coast Guard incorrectly promised the applicant that, if 
he accepted a four-year active duty continuation contract, he would be able to 
remain on active duty until he could retire with 20 years of active service.  This 
promise was based on a misreading of 14 U.S.C. § 283(a)(4) and (b).  When the 
Coast  Guard  discovered  the  mistake  two  years  later,  it  offered  to  release  the 
applicant from his contract, which had already been in effect for 14 months.  The 
Coast  Guard  also  informed  him  that  if  he  stayed  on,  new  legislation  might  be 
enacted in time to enable him to remain on active duty for 20 full years.   

When the applicant protested the apparent change in the terms of 
his  continuation  contract,  the  Coast  Guard  told  him  that  the  LCP  “could  be 
approved  by  Congress  no  earlier  than  November  199x  and  perhaps  as  late  as 
December 199x.”  Even the latter date would have been well in time to permit the 
applicant to remain on active duty for 20 years.  The Coast Guard also told the 
applicant that if the new legislation were not enacted in time, there were “several 
alternative plans under consideration” to “resolve” his problem.  In light of this 

news,  the  applicant  chose  to  continue  serving  under  his  contract,  though  on 
notice that his 20-year retirement was in jeopardy.  

Congress did not enact the Coast Guard’s LCP until after the appli-
cant  had  left  the  Service,  and  none  of  the  Coast  Guard’s  “alternative  plans” 
resolved  the  problem.    However,  the  Coast  Guard  permitted  the  applicant  to 
retire under TERA, which gave him a retirement payment for 18 years, 8 months, 
and 17 days of service that is 88.8% of the retirement payment he would have 
received had he been permitted to complete 20 years of service.6 

If  the  Coast  Guard  had  not  misinformed  the  applicant  about  the 
law, he might have left active duty to launch a civilian career in 199x.  Moreover, 
if the Coast Guard had not been overly optimistic about the possibility that Con-
gress would act, he might have chosen to seek a release from the contract and 
launched  his  civilian  career.    Nevertheless,  under  the  law,  the  Coast  Guard 
committed  no  error  by  not  retaining  the  applicant  until  he  had  completed  20 
years of active duty. 

 
4. 

 
5. 

  
6. 

 
7. 

The  government  is  not  estopped  from  repudiating  the  wrong 
advice of its agents, in this case Coast Guard officers.  Goldberg v. Weinberger, 546 
F.2d 477, 481 (2d Cir. 1976), cert. denied sub nom. Goldberg v. Califano, 431 U.S. 937 
(1977); Montilla v. United States, 457 F.2d 978, 987 (Ct. Cl. 1972).  The BCMR has 
“an abiding moral sanction to determine insofar as possible, the true nature of an 
alleged injustice and to take steps to grant thorough and fitting relief.”  Cadding-
ton  v.  United  States,  178  F.  Supp.  604,  607  (Ct.  Cl.  1959).    Therefore,  the  Board 
must determine whether the Coast Guard, in wrongly advising the applicant, has 
committed  such  an  injustice  as  to  warrant  the  Board’s  exercise  of  its  “abiding 
moral sanction” to remove injustices in military records.  

The Board finds that the Coast Guard’s treatment of the applicant 
was significantly mitigated by his retirement under TERA.  The difference in his 
resulting retirement pay—88.8 percent of what he would have received for per-
forming  93.5  percent of  the  active  duty time—must  be  compared  against  what 
would  have  happened  had  the  Coast  Guard  not  misinformed  him—discharge 
with severance pay either on June 30, 199x (if he had declined the continuation 
contract) or on June 30, 199x (if he had accepted the contract).  It is unknowable 
what opportunities in civilian employment the applicant missed during the two 
years he had no reason to suspect his 20-year retirement was in jeopardy.  Never-
theless,  in  light  of  these  facts,  the  Board  finds  that  the  Coast  Guard’s  actions, 
though misinformed and unwise, did not constitute an injustice.  After all, absent 
                                                 
6  The Board notes that 18 years, 8 months, and 17 days constitutes approximately 93.5% of 20 
years. 

the Coast Guard’s misinformed and unwise actions, the applicant may very well 
have been in a worse position with respect to federal retirement pay.   

In accordance with Sawyer v. United States, 18 Cl. Ct. 860, 868 (1989), 
rev’d on other grounds, 930 F.2d 1577 (Fed. Cir. 1991), and Reale v. United States, 208 
Ct. Cl. 1010, 1011 (1976), the Board should deny relief because the Coast Guard 
did not violate 14 U.S.C. § 283 and because the injustice suffered by the applicant 
does  not  “shock  the  sense  of  justice.”    The  Deputy  General  Counsel  has  ruled 
that in the absence of legal error, an applicant’s treatment by military authorities 
must  “shock  the  sense  of  justice”  to  justify  correction  by  the  Board.    BCMR 
Docket No. 346-89.   The Board finds that any injustice suffered by the applicant 
in receiving a TERA retirement rather than a 20-year retirement does not “shock 
the sense of justice” so as to require correction by the Board. 

 
8. 

 
9. 

Accordingly, the applicant’s request for relief should be denied. 

 

 

ORDER 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Barbara Betsock 

 

 

 
Sharon Y. Vaughn 

 

 

 
 
Betsy L. Wolf 

 

 

 

 

 

 

 

 

 

The  application  for  correction  of  the  military  record  of  XXXXXXXXX, 

USCG, is hereby denied.