DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2002-122 
 
Xxxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxxxx 

 

 
 

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 
June 24, 2002, upon receipt of the completed application.  
 
 
ed members who were designated to serve as the Board in this case. 
 

This final decision, dated February 27, 2003, is signed by the three duly appoint-

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  correct  his  record  so  that  his  retirement  pay 
would be calculated in accordance the 50-percent system established for members who 
first enlisted before September 8, 1980, rather the “High-3” system in effect for members 
who first enlisted on or after September 8, 1980.  The applicant  enlisted on September 9, 
1980.   
 
 
The  applicant  alleged  that  he  was  improperly  counseled  about  the  retirement 
plan since his recruiter did not tell him that if he enlisted a week, or even two days, ear-
lier, his retirement pay would be significantly affected.  He alleged that he had intended 
to make a career in the Coast Guard and would have done anything necessary to enlist 
earlier if he had known of the change.  He alleged that it was very unjust and unethical 
for the law to change the day before he enlisted without notice to him.  He alleged that 
only the “handful” of members who enlisted “on or about 8 or 9 September, 1980,” like 
himself were unjustly affected by the change in the law. 
 

 
The  applicant  further  alleged  that  he  filled  out  all  the  paperwork  necessary  to 
enlist weeks before September 9th, “[b]ut I did not actually get sworn in until the morn-
ing  of  the  9th  of  September,  the  same  day  that  I  flew  to  Alameda  from  Chicago!    I 
remember bringing in the paperwork to the recruiters’ office on the 9th of September 
and they made me fill it out again before I was sworn in so it would be dated on the 
same day.”  Moreover, the applicant alleged, during his extensive pre-enlistment com-
munications with his recruiter, at no time did the recruiter tell him that he could have 
enlisted  in  the  Reserve  under  the  Delayed  Entry  Program  (DEP)  before  reporting  for 
basic training on September 9th, in which case his retirement pay would have been cal-
culated under the 50-percent system.   
 

SUMMARY OF THE RECORD 

 

The applicant applied to enlist in the Coast Guard on June 25, 1980.  Thereafter, 
he  signed  documents  allowing  the  service  to  perform  a  background  check,  and  he 
underwent a pre-enlistment physical examination.  

 
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.  

 
On September 9, 1980, the applicant enlisted in the regular Coast Guard.  There is 
no information about how retirement pay is calculated in the contracts he signed.  He 
has served on continuous active duty since that date. 

 

VIEWS OF THE COAST GUARD 

On October 28, 2002, the Chief Counsel of the Coast Guard 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 cer-
tainty that the legislation would be enacted. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

The BCMR sent the applicant a copy of the Chief Counsel’s advisory opinion and 
invited him to respond.  The applicant responded on October 4, 2002.  He alleged that 
his case should not be compared to that of the applicant in BCMR Docket No. 2000-117 
because he enlisted just two days late, whereas that applicant enlisted 50 days late.  He 
stated that he understands that  his recruiter was not legally obligated to counsel him 
about the pending law but argued that he should have been given the opportunity to 
enlist early under the DEP or enlist before the date he had to report for basic training.  
He also argued that the doctrine of laches should not apply to his case because he was 
not provided information about his retirement until he had qualified by completing 20 
years of military service. 

 

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  argued  that,  prior  to  September  8,  1980,  the  Coast  Guard 
should have offered him the opportunity to enlist in the Reserve under the DEP so that 
his retirement pay would be based on 50 percent of his base pay.  However, he cited no 
law  or  regulation  that  required  his  recruiter  to  offer  him  a  DEP  enlistment,  and  the 
Board knows of none.  Moreover, apart from the potential increase in retirement pay 20 
years hence, he submitted no evidence to support his allegation that, if he had known 
about the pending legislation, he would have enlisted prior to September 8, 1980. 

 
3. 

 No law or regulation 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.  Moreover, there was no way, prior to September 8, 1980, for the Coast Guard to 
know whether or what day the President would sign the legislation. 

 
4. 

 Therefore, the Board finds that the applicant has not proved by a prepon-
derance of the evidence that the Coast Guard committed any error in failing to counsel 
him about the pending legislation or to enlist him prior to September 8, 1980.  

 
5. 

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 jus-
tify 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)).    Although  the  applicant  argued  that  the 
injustice caused by the immediate effectiveness of Public Law 96-342 would affect only 
the  “handful”  of  members  who  enlisted  on  September  8  and  9,  1980,  as  indicated  in 
BCMR  Docket  Nos.  2000-117  and  2002-077,  many  members  who  enlisted  in  the  days, 
weeks, and months after September 8, 1980, and ultimately served for at least 20 years 
may now regret that they did not have the foresight—or were not counseled by a fore-
sighted recruiter—to enlist before September 8, 1980.  The Board is not persuaded that 
the decision of Congress and the President to change the calculation of military mem-
bers’ retirement benefits without providing prior notice to all potential recruits was so 
unjust  as  to  shock  the  sense  of  justice.    Nor  is  the  Board  persuaded  that  the  Coast 
Guard’s failure to enlist the applicant prior to September 8, 1980, or to inform him of the 
possible  future  change  in  the  law  that  might  diminish  his  retirement  benefits  if  he 
should complete a 20-year military career shocks the sense of justice. 

 
6. 
  

 

Accordingly, the applicant’s request should be denied. 

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 

 

ORDER 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of 

his military record is denied. 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 

 
 

 
 

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

 
 
 John A. Kern 

 

 
 James G. Parks 

 

 

 
 Coleman R. Sachs