DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2000-045 
 
  
   

 

 
 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
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 applica-
tion  was  filed  on  December  21,  1999,  and  docketed  on  January  7,  2000,  upon 
receipt of the applicant’s military records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  October  12,  2000,  is  signed  by  the  three  duly 

RELIEF REQUESTED 

 
 
 The applicant, a xxxxxxxxx, who retired from the Coast Guard on June 30, 
1999, asked the Board to correct his record to show that he was retired in pay 
grade E-7, rather than E-6. 
 

APPLICANT’S ALLEGATIONS 

 
 
 The applicant alleged that he submitted a letter requesting retirement on 
April  6,  1998.    On  May  15,  1998,  he  alleged,  he  signed  a  pretrial  agreement 
regarding  a  charge  against  him  for  larceny  of  property  worth  approximately 
$26.00.  He alleged that he signed the agreement “with the understanding that 
[he] would retire at the highest grade held,” which was pay grade E-7.  He also 
alleged that both the trial judge and the Convening Authority for his summary 
court-martial told him that he would retire as an E-7.   
 

The applicant alleged that the Coast Guard revised the pertinent regula-
tion on September 14, 1998, and that, because of the revision, when he was finally 

retired on xxxxx 1999, he was retired at pay grade E-6, rather than at the highest 
grade he had held, E-7.  The applicant alleged that this was  unjust because he 
had agreed to retire with the understanding that his retirement pay grade would 
be E-7.  He argued that he should have been “grandfathered” under the previous 
regulation and retired as an E-7. 

 

SUMMARY OF THE RECORD 

 
 
The  applicant  enlisted  in  the  Coast  Guard  on  xxxxxxx.    During  his  20 
years on active duty, he performed over 9 years of sea service, serving on 5 dif-
ferent cutters and an icebreaker.  He advanced steadily from seaman recruit (E-1) 
to xxxxxxxxx E-7). 
 
On July 13, 1997, the applicant was charged with larceny by his command 
 
at the Marine Safety Office in xxxxxxx, in the xxxxxxxx Coast Guard District.  The 
case was referred to a special court-martial. 
 
 
On March 2, 1998, the Vice-Commandant of the Coast Guard ordered an 
immediate  amendment  to  Article  12.C.15.e.  of  the  Personnel  Manual.    The 
amendment provided that, when a member has been reduced in grade by court-
martial,  he  can  be  retired  in  a  pay  grade  no  higher  than  that to which  he  was 
reduced by court-martial unless he is advanced subsequent to the court-martial 
and prior to his retirement. 
 
 
retire on xxxxxxxx, upon completion of 20 years of active duty. 
 
 
approved by the Convening Authority. 
 
On  July  8,  1998,  at  a  summary  court-martial,  the  applicant  received  a 
 
$200.00 fine and a suspended sentence of reduction in rate to E-6.  On July 10, 
1998,  the  Convening  Authority  cancelled  the  suspension,  thereby  reducing  the 
applicant’s rate to E-6. 
 
 
On  September  14,  1998,  Article  12.C.15.e.  of  the  Personnel  Manual  was 
amended by Change 29.  The amendments in Change 29 included the provisions 
in the Vice-Commandant’s memorandum dated March 2, 1998. 
 
 
the Coast Guard Personnel Command (CGPC). 
 

On  May  15,  1998,  the  applicant  signed  a  pretrial  agreement,  which  was 

On April 6, 1998, the applicant submitted a letter requesting permission to 

On February 3, 1999, the applicant’s retirement request was approved by 

In support of his allegations, the applicant submitted copies of several e-
mail messages dated April 5 and 6, 1999.  One message from a senior chief petty 
officer, inquiring on the applicant’s behalf, states that when he signed the pre-
trial agreement, he thought he would retire as an E-7 and that this was also the 
understanding of the judge and the Convening Authority.  In response, the office 
of the Master Chief Petty Officer of the Coast Guard sent a message stating that 
the applicant’s only recourse would be to file an application with the BCMR and 
that “[t]he only thing that could help his cause would be a statement from the 
Judge  and  Convening  Authority  acknowledging  that  such  an  agreement  was 
reached.”  The applicant also submitted e-mails indicating that at one time, the 
Coast  Guard  considered  not  applying  the  new  regulation  to  members  who 
requested retirement prior to September 14, 1998. 
 
 
having completed 20 years of active service. 
 

On xxxxxxxx, the applicant was honorably retired in pay grade E-6 after 

VIEWS OF THE COAST GUARD 

 
 
On  August  4,  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 lack of merit and lack of proof. 
 
 
The  Chief  Counsel  stated  that  the  applicant is  mistaken  in  thinking  that 
the new regulation concerning pay grade upon retirement went into effect when 
Change  29  to  the  Personnel  Manual  was  issued  on  September  14,  1998.    He 
alleged that the amendment was effective immediately, on March 2, 1998, prior 
to  the  applicant’s  April  6,  1998,  request  for  retirement;  May  15,  1998,  pretrial 
agreement; and xxxxxxx, retirement.  Moreover, the Chief Counsel alleged, the 
applicant  has  not  proved  that  the  Vice  Commandant  committed  any  error  or 
injustice when he made his March 2, 1998, amendment to the regulations effec-
tive immediately. 
 
 
The Chief Counsel further argued that, absent strong evidence to the con-
trary, the Board must presume that Coast Guard officials carried out their duties 
correctly, lawfully, and in good faith when they advised the applicant about his 
entitlements and retirement.  Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 
1990); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979).  The pretrial agree-
ment, he alleged, is silent on the matter of the pay grade in which the applicant 
would retire.  In addition, he alleged, the applicant has not proved that there was 
any  understanding  between  him  and  the  Convening  Authority  concerning  his 
pay  grade  upon  retirement.    Therefore,  the  Chief  Counsel  argued,  he  has  not 
proved  that  any  Coast  Guard  official  promised  him  or  advised  him  that  he 
would retire at pay grade E-7.  Even if the applicant was erroneously assured of 

being retired at the higher pay grade, he argued, “such action would have been 
ultra vires, as [the Convening Authority] had not authority to overcome a lawful 
regulation then in effect.” 
 
 
The Chief Counsel also argued that the applicant has not proved that he 
would have been retired as an E-7 even if the regulation had not been amended.  
The old regulation allowed a member to retire in the highest grade in which he 
had  served  satisfactorily.    Thus,  the  Chief  Counsel  alleged,  the  applicant’s  lar-
ceny might have prevented him from being retired in pay grade E-7 even if the 
regulation had not been amended. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On August 7, 2000, the BCMR sent the applicant a copy of the Chief Coun-
 
sel’s advisory opinion and invited him to respond within 15 days.  On August 22, 
2000, the applicant filed a timely response.   
 
 
The  applicant  alleged  that  on  July  10,  1998,  the  Convening  Authority, 
Captain X., summoned him just one hour prior to that officer’s retirement cere-
mony.  He alleged that Captain X. “explained that he felt obligated to impose the 
reduction because the fine was minimal so the reduction in rate was warranted 
but it would only effect me for the next eleven months until I retired myself at 
which time I would regain my highest rank held for pay purposes.”  The appli-
cant  argued  that  his  punishment  should  have  been  only  what  the  Convening 
Authority intended—eleven months at the reduced pay grade—and should not 
have been increased to a much greater punishment—retirement in the reduced 
pay grade—than Captain X. ever intended.  The applicant alleged that if he had 
known the new rule prior to his retirement, he would have remained on active 
duty another year to retake the examination for promotion to BMC to ensure his 
retirement as an E-7.   
 

The applicant further alleged that his career path in the Coast Guard was 
very arduous compared to those of most other rates and members.  He alleged 
that  he  continued  to  serve  even  though  to  remain  on  active  duty,  he  had  to 
appeal a decision to retire him for medical reasons in 1982.  He alleged that the 
Department of Veterans’ Affairs has awarded him a 50 percent disability rating 
for  the  injuries  he  suffered  while  on  active  duty  and  his  retirement  income  is 
very important due to his disability. 

 

SUBSEQUENT PROCEEDINGS 

 
 
On August 31, 2000, the BCMR wrote to the applicant to inform him that, 
although he had referred the Board to persons whom, he alleged, had erroneous-

ly advised him about his pay grade upon retirement, the Board has no authority 
to investigate the matter on his behalf.  The BCMR told the applicant that if he 
intended  to  seek  and submit  affidavits  from  such  persons,  he  must  inform  the 
Board  within  15  days.    In  addition,  he  was  advised  that  under  33  C.F.R. 
§ 52.61(c), if he submitted late evidence, the Board might not meet the 10-month 
deadline prescribed by 14 U.S.C. § 425.  The BCMR received no response from 
the applicant. 
 

APPLICABLE LAWS 

Prior to March 2, 1998, Article 12.C.15.e. of the Personnel Manual read as 

 
 
follows: 
 

 

Any enlisted member who is retired under any provision of Title 14 U.S. 
Code, shall be retired from active service with the highest grade or rate 
held while on active duty in which, as determined by the Commandant, 
as appropriate, performance of duty was satisfactory, but not lower than 
his/her  permanent  grade  or  rate,  with  retired  pay  of  the  grade  or  rate 
with which retired (14 U.S.C. 362). 

 
 
Commander of the xxxxxxx Coast Guard District: 

On March 2, 1998, the Vice Commandant sent the following letter to the 

1. 
This is in response to [your letter dated November 4, 1997], in which you 
requested that the Personnel Manual, [Article 12.C.15.e.], be amended for cases 
involving retiring enlisted members who have been reduced in grade as a result 
of a court-martial.  After review and consultation with the Chief Counsel’s staff, I 
concur with and approve your recommendation.  The court-martial adjudication 
process is expected and presumed to consider the member’s performance during 
the sentencing phase.  However, if the member’s grade changes subsequent to a 
court-martial, the member may retire at the new grade. 
 
2. 
Although this change will be reflected in a future change to [the Person-
nel Manual], I have notified the Coast Guard Personnel Command to implement 
this change immediately. 
 
3. 
You  also  requested  Chief  Counsel  determine  what  the  government  is 
required  to  pay  an  enlisted  member  who  is  retired  at  a  grade  lower  than  the 
highest grade held.  Coast Guard retirement pay is currently based on the grade 
at which the member is retired.  In these cases, unless subsequently advanced or 
further  reduced,  the  member’s  retirement  pay  would  be  based  on  the  grade  to 
which he/she was reduced by the court-martial. 

 

On September 14, 1998, Change 29 of the Personnel Manual was issued, 

amending Article 12.C.15.e. to read as follows: 
 

Any enlisted member who retires under any provision of 14 U.S.C. retires 
from active service with the highest grade or rate he or she held while on 

active duty in which, as Commander (CGPC-epm-1) or the Commandant, 
as  appropriate,  determines  he  or  she  performed  duty  satisfactorily,  but 
not lower than his or her permanent grade or rate with retired pay of the 
grade or rate at which retired (14 U.S.C. 362). 
 
In cases where a member has been reduced in grade by a court-martial, 
the highest grade to which the member has been reduced by the court-
martial,  unless  the  member  subsequently  advances  or is  again  reduced. 
… 

 

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 sec-

 
3. 

 
4. 

tion 1552 of title 10 of the United States Code.  The application was timely. 
 

2. 

When  the  applicant  submitted  his  request  for  retirement  and 
signed his pretrial agreement, the regulatory amendment that would prevent his 
retirement  as  an  E-7  (unless  he  stayed  on  active  duty  and  was  subsequently 
advanced back to the higher pay grade) was already in effect under the terms of 
the Vice Commandant’s letter dated March 2, 1998.  

The  applicant  alleged  that  he  was  erroneously  advised  that  he 
would be retired as an E-7 even if he were reduced to E-6 by the summary court-
martial.    He  also  alleged  that  the  new  regulation  caused  him  to  be  punished 
much more severely than was ever intended by the Convening Authority.   

A  voluntary  retirement  may  be  rendered  involuntary  if  it  results 
from deception or erroneous advice.  See Tippett v. United States, 185 F.3d 1250, 
1255  (Fed.  Cir.  1999)  (holding  that  “[a]n  otherwise  voluntary  resignation  or 
request for discharge is rendered involuntary if it … results from misrepresenta-
tion or deception on the part of government officers”); Covington v. Department of 
Health  and  Human  Servs.,  750  F.2d  937,  942  (Fed.  Cir.  1984)  (holding  that  “mis-
leading  information  can  be  negligently  or  even  innocently  provided;  if  the 
employee materially relies on the misinformation to his detriment, his retirement 
is  considered  involuntary”);  and  Scharf  v.  Department  of  the  Air  Force,  710  F.2d 
1572,  1574-75  (Fed.  Cir.  1983)  (holding  that  “[a]n  employee  is  not  required  to 
show an intent to deceive on the part of the agency in order for his retirement to 
be held involuntary.  Rather, it is sufficient if the employee shows that a reason-
able person would have been misled by the agency’s statements”).  At the same 
time,  the  government  is  not  bound  by  the  erroneous  advice  of  its  agents.    See 

Montilla v. United States, 457 F.2d 978 (Ct. Cl. 1972) (holding that the plaintiff was 
not  entitled  to  retirement  benefits  even  though  several  years  earlier,  he  had 
received a letter from the Army informing him that he had performed a sufficient 
number of years of service to qualify for retirement benefits when he had not, in 
fact, performed enough years of service); and Federal Crop Ins. Corp. v. Merrill, 332 
U.S.  380  (1947)  (holding  that  “[w]hatever  the  form  in  which  government  func-
tions, 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 extent to which the amendment to Article 12.C.15.e. of the Per-
sonnel  Manual  was  publicized  is  unclear.    The  Vice  Commandant’s  letter  of 
March 2, 1998, indicates only that the information went to the Commander of the 
xxxxxxx  District  and  the  Personnel  Command  and  does  not  indicate  that 
information about the amendment was given to any other command, although 
the amendment greatly increased the potential punitive effect of a court-martial 
sentence of reduction in rate.  

The applicant has presented no evidence substantiating his claims. 
Although  he  was  encouraged  by  the  Master  Chief  Petty  Officer  of  the  Coast 
Guard and by the Board to provide statements supporting his claims of errone-
ous advice, he failed to do so.  The April 1999 e-mail messages that he submitted 
discuss  his  allegations  but  do  not  prove  that  he  was  misadvised.    Nor  has  he 
proved  that  the  Convening  Authority  was  unaware  of  the  new  regulation  and 
would not have cancelled the suspension of his reduction in rank if he had been 
aware.  Thus, he has not proved that the Coast Guard committed any error or 
injustice when it retired him at pay grade E-6. 

Accordingly, the applicant’s request should be denied.  

 
5. 

 
6. 

 
7. 

 
 

The application of XXXXXXXXXXXX, USCG, for correction of his military 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Nancy Lynn Friedman 

 

 

 

 
Robert H. Joost 

 

 

 
Karen L. Petronis 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

record is hereby denied.