DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2002-077 
 
xxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxx   

 

 
 

FINAL DECISION 

 
ANDREWS, Deputy Chair: 
 
 
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 
March  29,  2002,  upon  receipt  of  the  applicant’s  completed  application,  including  his 
military records.  
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated February 4, 2003, is signed by the three duly appointed 

RELIEF REQUESTED 

 
 
The  applicant  asked  the  Board  to  correct  his  record  to  show  that  he  enlisted 
under the Delayed Entry Program (DEP) no later than September 7, 1980, rather than on 
October  21,  1980.    The  correction  would  cause  his  retirement  pay  to  be  calculated  in 
accordance with the law in effect prior to the enactment of  Public Law 96-342,  which 
established the “High-3” system, under which retirement pay is based upon the average 
of a member’s base pay during the three years prior to his retirement.  He also asked the 
Board  to  recommend  to  the  Coast  Guard  that  it  ensure  that  all  prospective  recruits 
receive accurate information about their full benefits and entitlements upon retirement. 
 

SUMMARY OF THE RECORD AND THE APPLICANT’S ALLEGATIONS 

 

The applicant enlisted in the Coast Guard Reserve under the DEP on October 21, 
1980.  His DEP contract states that in March 1981, he would enlist in the regular Coast 
Guard for four years.  On March 9, 1981, he enlisted in the regular Coast Guard.  There 

Final Decision in BCMR Docket No. 2002-077                                                                  p. 2 

is no information about how retirement pay is calculated in the contracts he signed.  He 
has served on continuous active duty since that date. 

 
On September 8, 1980, the President signed Public Law 96-342, the Department 
of  Defense  Authorization  Act  of  1981,  which  altered  the  method  of  computing  retire-
ment  pay  for  members  first  entering  the  armed  services  on  or  after  its  date  of 
enactment.  The law provided that anyone “who first became a member of a uniformed 
service on or after the date of the enactment” and later becomes entitled to retirement 
pay shall have that pay calculated under the High-3 system, rather than the 50 percent 
of  base  pay  system  in  effect  for  members  whose  military  obligation  began  prior  to 
September  8,  1980.    10  U.S.C.  § 1407.    According  to  volume  126  of  the  Congressional 
Record (1980), the bill was passed by the House of Representatives on May 21, 1980, and 
by the Senate on July 2, 1980.  On August 26, 1980, the House and Senate agreed to a 
conference report.  

 
The applicant alleged that he was never informed of the “High-3” system before 
it went into effect.  He alleged that, between the time he began the enlistment process 
by  undergoing  a  physical  evaluation  in  May  1980  and  the  day  “High-3”  went  into 
effect,  the  Coast  Guard  “had  more  than  ample  opportunity  to  notify  [him]  that  the 
terms and benefits of career enlistment … were changing … and failed to do so.”  He 
stated  that  he  remembers  having  several  discussions  with  his  recruiter  prior  to  May 
1980 about the benefits of joining the Coast Guard, including how retirement benefits 
were  calculated  under  the  previous  system,  and  that  his  recruiter  never  mentioned 
“High-3.”  He alleged that he agreed to begin the enlistment process only because he 
was induced by the benefits outlined by the recruiter.  In addition, he alleged that if he 
had  been  informed  of  the  new  law,  he  would  have  signed  his  DEP  contract  before  it 
went  into  effect.    He  argued  that  the  Coast  Guard  unfairly  prevented  him  and  many 
other similarly situated members from making an informed decision by denying them 
information about the pending law in 1980.  

 
The applicant also argued that, in his case, an express, binding contract actually 
existed between him and the Coast Guard on July 7, 1980, prior to the effective date of 
the new law.  He argued that because his enlistment medical was approved in May 1980 
and his police record checks were completed on July 7, 1980, all of the six elements of a 
contract were in place on July 7, 1980: the Coast Guard’s offer if he were found qualified 
for enlistment; his acceptance by meeting the qualifications; mutual assent on the terms 
and obligations his recruiter described; capacity in that he was of sound mind and legal 
age; consideration in the benefits and obligations exchanged; and legality in an express 
contract.  He also argued that, although the oral agreement made between him and his 
recruiter  is  parole  evidence,  it  should  not  be  ignored  when  an  unfair  decision  would 
result from its exclusion.  Moreover, he argued, exceptions to the rule excluding parole 
evidence are commonly made when contracts are determined to be incomplete, ambi-

Final Decision in BCMR Docket No. 2002-077                                                                  p. 3 

guous,  erroneous,  void,  voidable,  modified,  rescinded,  or  based  on  conditions  prece-
dent, past practices, or usual commercial practices. 

 
The applicant also pointed out that when a recruit is enlisted today, he must sign 
a  DD  form  4/1,  which  informs  the  recruit  that  the  laws  and  regulations  may  change 
without  notice.    However,  in  1980,  Coast  Guard  recruits  were  not  provided  this 
information.    He  argued  that  nothing  in  the  contracts  he  signed  relieved  the  Coast 
Guard of the duty to inform him of changes to the law and regulations. 

 
Furthermore, the applicant argued that the DEP  contract he signed on October 
21, 1980 is invalid because there was no “mutual assent,” since, unbeknownst to him, 
the terms of the contract changed when the new law went into effect.   

 

Final Decision in BCMR Docket No. 2002-077                                                                  p. 4 

VIEWS OF THE COAST GUARD 

 
 
On  September  4,  2002,  the  Chief  Counsel  of  the  Coast  Guard  submitted  an 
advisory  opinion  in  which  he  recommended  that  the  Board  deny  the  applicant’s 
request.   
 
 
The Chief Counsel stated that this case is virtually identical to BCMR Docket No. 
2000-117, in which the Board denied an applicant’s request to change his date of enroll-
ment in the DEP to before September 8, 1980, because it found that the Coast Guard had 
no legal duty “to counsel civilian applicants who are considering enlistment on pending 
legislative changes that may affect retirement benefits.”  The Chief Counsel stated that 
no statute or regulation required the Coast Guard to counsel potential recruits about the 
pending  law.    He  also  argued  that  no  injustice  was  committed  in  this  case  because 
“there is no evidence indicating that the Applicant’s recruiter knew of the impending 
legislative change, yet unfairly concealed that information from the Applicant.”  He also 
stated  that  there  is  no  evidence  that  the  applicant’s  recruiter  made  any  express  or 
implied promise about the benefits he would receive if he remained in the service and 
was  retired,  and  he  argued  that  the  doctrine  of  laches  should  bar  the  applicant’s 
request.    In  addition,  he  pointed  out  that  prior  to  September  8,  1980,  there  was  no 
certainty that the legislation would be enacted. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On September 8, 2002, the BCMR sent the applicant a copy of the Chief Counsel’s 
advisory opinion and invited him to respond within 15 days.  The applicant requested 
and was granted an extension and responded on November 14, 2002. 

 
The  applicant  alleged  that  his  application  is  not  untimely  because  he  did  not 
begin to suspect the existence of an error until “the middle of 2000” and he applied to 
the  Board  within  three  years  of  that  date.    Moreover,  he  pointed  out  that  in  BCMR 
Docket No. 2000-117, the Board found that the application was timely because the appli-
cant had remained on active duty since 1980. 

 
The  applicant  stated  that  his  recruiter  discussed  retirement  benefits  with  him 
early in 1980 and had delegated authority to swear in recruits.  He argued that any 19 
year old recruit would believe that someone with authority to swear him in “would be 
of sufficient knowledge to counsel prospective Coast Guard members on all aspects of 
the Coast Guard including base pay and retirement pay.”  He pointed out that none of 
the  documents  he  signed  mentioned  that  either  his  base  pay  or  retirement  pay  could 
change  without  his  knowledge  because  the  Coast  Guard  did  not  use  DD  Forms  4/1 
through 4/4 in 1980, as the other services did.  Moreover, he stated, his recruiter (whose 
name,  address,  and  telephone  number  he  provided)  recently  told  him  that  he  cannot 
remember hearing about the new law prior to its enactment. 

Final Decision in BCMR Docket No. 2002-077                                                                  p. 5 

 

The applicant alleged that, although he cannot provide the details of the discus-
sion he had with his recruiter, he does remember discussing retirement benefits, and the 
Board  should  consider  that  anyone  considering  future  employment  is  likely  to  ask 
about  retirement  and  make  decisions  based  on  what  he  is  told  by  a  recruiter.    He 
alleged  that  failing  to  inform  a  recruit  about  changes  subsequent  to  such  discussions 
violates “the principles of moral justice and ethical fairness.” 

 
The  applicant  alleged  that  the  doctrine  of  laches  should  not  apply  to  his  case 
under an “ignorance of party rights” exception because, until recently, he did not know 
that there was an error in his record, that he could get a complete copy of his record 
from the Coast Guard, or that he could get his record corrected by the BCMR. 

 

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 appli-
cable law: 
 

1. 

The Board has jurisdiction over this matter pursuant to 10 U.S.C. § 1552.  

Under Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 1994), the application was timely. 
 

2. 

The  applicant  alleged  that,  prior  to  September  8,  1980,  the  Coast  Guard 
had  a  duty  to  counsel  him  and  other  potential  recruits  about  the  pending  legislation 
that would alter the calculation of retirement benefits if passed by Congress and signed 
by the President.  He alleged that, had he been counseled about the pending legislation, 
he would have enlisted under the DEP prior to September 8, 1980, the day the President 
signed the law, instead of on October 21, 1980. 

 
3. 

 The applicant cited no law or regulation that required the Coast Guard in 
the  spring  and  summer  of  1980  to  advise  potential  recruits  about  the  possible  future 
enactment of Public Law 96-342, and the Board knows of none.  Moreover, he submitted 
no  evidence  to  support  his  allegation  that,  if  he  had  known  about  the  pending  legis-
lation, he would have enlisted prior to September 8, 1980.   

 
4. 

The applicant argued that his retirement should be calculated in accord-
ance with the law in effect on July 7, 1980, because, he alleged, that is when a binding 
contract existed between him and the Coast Guard.  The applicant has mistakenly tried 
to apply the rules of private contract law to his military obligation, which is determined 
by statute.  The mere fact that both the Coast Guard and the applicant had completed 
major preliminary steps to facilitate his enlistment prior to September 8, 1980, did not 
create an enforceable contract between them prior to October 21, 1980.  

 

Final Decision in BCMR Docket No. 2002-077                                                                  p. 6 

5. 

Therefore,  the  Board  finds  that  the  applicant  has  not  proved  by  a  pre-
ponderance  of  the  evidence  that  the  Coast  Guard  committed  any  error  in  failing  to 
counsel  him  about  pending  legislation  or  in  determining  that  he  first  entered  a  uni-
formed service on October 21, 1980, six weeks after Public Law 96-342 was enacted. 

  
6. 

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 (citing 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 finds that the failure of the 
Coast Guard to inform the applicant and other civilians undergoing recruitment in 1980 
of a possible future change in the law that might diminish their retirement benefits if 
they  should  complete  a  20-year  military  career  does  not  shock  the  Board’s  sense  of 
justice.  The fact that laws change cannot have been unknown to the applicant, a high 
school graduate.  Even if, as the applicant alleged, his recruiter described the 50-percent 
system for retirement pay to him and he was induced to enlist in the Coast Guard on 
October 21, 1980, because of this and other benefits, the erroneous advice of government 
agents is not binding on the Government. 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); Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-
85 (1947). 

 
7. 

 Accordingly, the applicant’s request should be denied. 

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

Final Decision in BCMR Docket No. 2002-077                                                                  p. 7 

 

 

ORDER 

 

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

record is denied. 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

 
 
 Terence W. Carlson 

 

 

 
 Charles Medalen 

 

 

 
 Karen L. Petronis