DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2002-157 
 
Xxxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
ANDREWS, Deputy Chair: 
 
 
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 BCMR received the 
application  on  July  25,  2002,  and  docketed  it  on  August  12,  2002,  upon  receipt  of  the 
applicant’s military records. 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  19,  2003,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The applicant asked the Board to correct his record to show that he was retired 
on August 1, 1999, as an E-7 rather than an E-6.  He also asked the Board to award him 
the back pay he would be due as a result of the correction. 
 
 
The applicant stated that he was advanced to E-7 in June 1991 and “served hon-
orably in that grade for several years.”  However, he was reduced in rank to E-6 fol-
lowing a court-martial in 1999.  The determination that E-6 was the highest rate he had 
held  satisfactorily  was  made  by  the  Commander  of  the  Coast  Guard  Personnel  Com-
mand  (CGPC)  and  not  by the  Secretary  as, he  alleged,  is  required  by  14  U.S.C.  § 362.  
Therefore, he argued, that determination was made without authority. 
 
 
The  applicant  alleged  that  because  14  U.S.C.  § 362  provides  that  the  Secretary 
determines what grade an enlisted member should be retired in, Article 12.C.15.e. of the 
Personnel  Manual,  which  allows  the  Commander  of  CGPC  to  make  such  determina-
tions, is in conflict with the statute.  He also alleged that the Secretary is not allowed to 

delegate his authority under the statute and that there is “no evidence that the Secretary 
promulgated the Coast Guard Personnel Manual or had it issued under his authority.” 
 

SUMMARY OF THE RECORD 

 
 
On  June  22,  1970,  the  applicant  enlisted  in  the  Coast  Guard.    He  became  an 
electronics technician (ET) and was advanced to the rank of chief petty officer (E-7) on 
June 1, 1991.   
 

The  applicant  received  his  first  Achievement  Medal  for  his  work  as  Executive 
Petty Officer and Senior Technical Officer at a LORAN Station from April 1991 to July 
1992.  The citation states that he “overcame personnel and experience shortcomings and 
led  his  unit  to  perform  above  the  99.7  percent  usable  time  expected  of  an  isolated 
LORAN Station.  He spearheaded self-help projects to restore the Station’s two Boston 
Whaler  small  boats  and  engines,  enhancing  morale  and  saving  nearly  $15,000  in  con-
tract  labor  costs.  …    [He]  demonstrated  exceptional  concern  for  the  morale  and  well-
being of his crew. … [His] dedication, judgment, and devotion to duty are most heartily 
commended and are in keeping with the highest traditions of the United States Coast 
Guard.” 

 
The applicant received a second Achievement Medal for his work as Officer in 
Charge of another LORAN Station from July 1992 to June 1996.  The citation states that 
he  “made  substantial  capital  improvements  to  the  station  buildings  and  grounds.  
Using  excess  property  materials,  [he]  and  his  crew  constructed  a  garage  and  storage 
building that earned the praise of Civil Engineering Unit … .  Installation of plumbing 
and  electricity  in  an  old  transmitter  building  allowed  for  bathrooms,  a  kitchen  and 
badly  needed  office  space  for  under  $15,000  dollars.  …  [He]  identified  several  safety 
problems.  He prevented injuries to station personnel … .  His foresight in obtaining a 
backpack fire extinguisher enabled station personnel to successfully fight a brush fire 
during the renovation.  Throughout this project, the station maintained 100 percent of 
its transmitter capability.  [His] hard work and dedication resulted in three operational 
awards for signal reliability. …” 

 
In April and May 1999, the applicant, who was serving as Officer in Charge of a 
LORAN station, was charged with 57 specifications of violating Articles 92 (willful or 
negligent dereliction of duty), 107 (making a false official statement), 121 (larceny), and 
134 (false swearing) of the Uniform Code of Military Justice (UCMJ).  At a special court-
martial held on May 18 and 19, 1999, the applicant pled guilty to 45 of the specifications 
for  dereliction  of  duty  and  wrongful  appropriation  (a  lesser  included  offense  to  lar-
ceny).   The  charges to which he pled  not guilty were withdrawn.  The applicant was 
found guilty of most of the charges to which he pled guilty.  The judge stated that the 
maximum  sentence  that  he  could  set  was  a  bad  conduct  discharge,  six  months’  con-
finement, forfeiture of two-thirds pay for six months, and reduction to pay grade E-1.  
The  judge  sentenced  the  applicant  to  reduction  to  pay grade  E-5, forfeiture  of  $7,000, 
confinement for 56 days, and hard labor without confinement for 3 months.  However, 
on July 21, 1999, after the applicant asked for clemency based on the financial hardship 

that  the  reduction  in  pay  grade  would  cause  his  family,  the  convening  authority 
approved “only so much of the sentence as provides for confinement for 56 days and a 
reduction to pay grade E-6.”  The fine and hard labor were disapproved. 
 

On August 1, 1999, the applicant was honorably retired from the Coast Guard. 
 

VIEWS OF THE COAST GUARD 

On January 24, 2003, the Chief Counsel of the Coast Guard recommended that 

 
 
the Board deny the applicant’s request for lack of merit. 
 
 
The  Chief  Counsel  stated  that  the  Secretary  of  Transportation  “delegated  the 
authority to take personnel actions, such as the determination of highest grade held, on 
his  behalf  to  the  Commandant  of  the  Coast  Guard  under  49  C.F.R.  § 1.45(a)(1).    The 
Commandant,  in  turn,  delegated  his  authority  to  the  Coast  Guard  Personnel  Com-
mand.”  He stated that these delegations are authorized under 49 U.S.C. § 322. 
 
 
The  Chief  Counsel  argued  that  the  regulations  in  effect  when  the  applicant 
retired “did not permit him to be retired at a higher grade than that to which he was 
reduced at his court-martial.”  Under Article 12.C.15. of the Personnel Manual, he stat-
ed, the highest grade of a member who has been court-martialed “shall not be higher 
than that to which the member has been reduced unless he or she subsequently advanc-
es.”  Therefore, he argued, the applicant was properly retired as an E-6. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  February  3,  2003,  the  BCMR  sent  the  applicant  a  copy  of  the  views  of  the 
Coast Guard invited him to respond within 15 days.  The applicant requested and was 
granted an extension and responded on February 21, 2003. 
 
The applicant asked the Board to consider whether Article 12.C.15.e.2. of the Per-
 
sonnel  Manual  “has  removed  the  discretion  from  the  Commandant  to  determine  the 
highest grade the enlisted member served under 14 U.S.C. and transferred it to the con-
vening authority who approves the results of the enlisted member’s court-martial.” 
 

APPLICABLE LAW 

 
 
Title 14 U.S.C. § 362 states that “[a]ny enlisted member who is retired under any 
provision of section 353, 354, 355, or 357 of this title shall be retired from active service 
with  highest  grade  held  by  him  while  on  active  duty  in  which,  as  determined  by  the 
Secretary, his performance of duty was satisfactory, but not lower than his permanent 
grade or rating.” 
 

Title 49 U.S.C. § 322, titled “General Powers,” provides the following: 

 

(a)  The Secretary of Transportation may prescribe regulations to carry out the duties and 
powers  of  the  Secretary.  An  officer  of  the  Department  of  Transportation  may  prescribe 
regulations to carry out the duties and powers of the officer. 
  
(b)    The  Secretary  may  delegate,  and  authorize  successive  delegations  of,  duties  and 
powers  of  the  Secretary  to  an  officer  or  employee  of  the  Department.  An  officer  of  the 
Department may delegate, and authorize successive delegations of, duties and powers of 
the  officer  to  another  officer  or  employee  of  the  Department.  However,  the  duties  and 
powers  specified  in  sections  103(c)(1),  104(c)(1),  and  106(g)(1)  of  this  title  may  not  be 
delegated to an officer or employee outside the Administration concerned. 

 
 
Title  49  C.F.R.  § 1.45(a)  states  that  “[e]xcept  as  prescribed  by  the  Secretary  of 
Transportation,  each  Administrator  is  authorized  to:  (1)  Exercise  the  authority  of  the 
Secretary over and with respect to any personnel within their respective organizations.” 
 
 
 

Article 12.C.15.e. of the Personnel Manual provides as follows: 

1.  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). 
 
2.  In cases where a  member has been reduced in grade by a court-martial, the  highest 
grade satisfactorily held shall be no higher than the grade to which the member has been 
reduced  by  the  court-martial,  unless  the  member  subsequently  advances  or  is  again 
reduced.  Where a member subsequently advances or is again reduced following a reduc-
tion by a court-martial, the highest grade satisfactorily held shall be no higher than the 
pay grade to which the member advanced or was reduced to following the court-martial. 

 
 
Article 12.C.15.g. of the Personnel Manual states that “Commander (CGPC-epm) 
…  will  administratively  review  the  record  of  each  individual  scheduled  to  retire  to 
determine the highest grade or rate in which his or her Coast Guard service is satisfac-
tory.” 
 

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: 
 
 
10 U.S.C. § 1552.  The application was timely. 
 

The Board has jurisdiction over this matter pursuant to the provisions of 

1. 

2. 

Title  49  U.S.C.  § 322(b)  clearly  authorizes  the  Secretary  to  delegate  his 
duties  under  14  U.S.C.  § 362  to  the  Commandant,  and  it  clearly  authorizes  the  Com-
mandant  to  delegate his  duties  under  the  statute to  the  Commander  of CGPC  or  any 
other officer. 

 
3. 

4. 

7. 

5. 

 
In  49  C.F.R.  § 1.45(a),  the  Secretary  clearly  delegated  his  authority  with 
respect to such personnel matters as that at issue in this case to the Commandant, as the 
Administrator of the Coast Guard.  Article 12.C.15.g. of the Personnel Manual indicates 
that  the  Commandant  has  delegated  his  duties  with  respect  to  the  determination  for 
retirement purposes of the highest grade that an enlisted member has satisfactorily held 
to the Commander of CGPC. 
 
 
The applicant has not proved that under 14 U.S.C. § 362 and laws of dele-
gation, the determination of his grade upon retirement could only be made by the Sec-
retary himself. 
 
 
Under Article 12.C.15.e. of the Personnel Manual, “where a member [such 
as the applicant] has been reduced in grade by a court-martial, the highest grade satis-
factorily held shall be no higher than the grade to which the member has been reduced 
by the court-martial, unless the member subsequently advances  or is again reduced.”  
The record indicates that the applicant was reduced in rate to E-6 by a court-martial and 
was not advanced to E-7 before his retirement.  The Board concludes that the applicant 
was properly retired as an E-6 in accordance with Article 12.C.15.e. 
 
 
The applicant asked the Board to consider whether Article 12.C.15.e.2. of 
the  Personnel  Manual  has  removed  the  Commandant’s  discretion  to  determine  the 
highest grade a member served under satisfactorily and transferred it to the convening 
authority of the member’s court-martial.  Although the convening authority of a court-
martial may approve or mitigate a reduction in grade ordered by court-martial, the sec-
ond sentence of that Article shows that the convening authority does not make the final 
determination of the member’s grade upon retirement.  While the convening authority 
determines  the  member’s  sentence,  Article  12.C.15.g.  of  the  Personnel  Manual  clearly 
provides  that  the  Commander  of  CGPC  determines  the  member’s  grade  upon  retire-
ment. 
 
 
Under Article 12.C.15.e.2. of the Personnel Manual, the Commandant has 
established a long-standing, firm rule that leaves the Commander of CGPC with no dis-
cretion to consider the quality and duration of a member’s service in a higher pay grade 
once  the  member  has  been  reduced  in  grade  by  a  court-martial  and  the  sentence  has 
been approved by the convening authority, unless the member has been subsequently 
advanced.  The applicant has not proved that the Commandant has abused his discre-
tion in establishing this rule.   
 

6. 

8. 

Although  the  applicant  has  not  proved  that the  Coast  Guard  committed 
an error in determining his grade upon retirement, the question remains  whether the 
rules, though properly applied, have caused an injustice to the applicant that requires 
correction.  10 U.S.C. § 1552(a).  In BCMR Docket No. 2002-040, the delegate of the Sec-
retary held that “[t]he Coast Guard has committed an injustice against one of its mem-
bers when the Coast Guard’s action, or lack thereof, shocks one’s sense of justice.  Reale 
v. United States, 208 Ct. Cl. 1010, 1011 (1976).  The BCMR has the authority to decide on 
a case-by-case basis if the Coast Guard has committed an error or injustice.” 
 

9. 

The record indicates that the applicant provided excellent service as an E-
7 from 1991 until he committed the crimes for which he was court-martialed and that he 
received two Achievement Awards during that period.  Nevertheless, the Board finds 
that his being retired as an E-6 instead of an E-7 as a result of his crimes and sentence by 
court-martial does not shock the Board’s sense of justice. 

 
10.  Accordingly, the applicant’s request should be denied. 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
 
 
 
 
 
 

 

The application of retired xxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction 

ORDER 

 

 
 

 
 

 
 

        

 
 
 Margot Bester 

 

 

 
 
 Patricia V. Kingcade 

 

 

 
 Dorothy J. Ulmer 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

of his military record is denied.