DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2006-118 
 
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FINAL DECISION 

 
Author: Ulmer, D. 
 
 
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 Chair docketed the 
case on May 19, 2006, upon receipt of the completed application and military records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  February  15,  2007,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  to  show  that  he 
retired as a YN1 (pay grade E-6), the highest grade he held in the Coast Guard, rather 
than as a YN2 (pay grade E-5).   
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that he satisfactorily performed the duties of a YN1 for 36 
months and should have been retired in that grade.  He stated that Article 12.C.15.e. of 
the Personnel Manual states that "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  [Coast  Guard  Personnel  Command 
(CGPC)]  or  the  Commandant,  as  appropriate,  determines  he  or  she  performed  duty 
satisfactorily, but not lower than his or permanent grade or rate with retired pay of the 
grade  or  rate  at  which  retired."    The  applicant  requested  the  same  relief  and  made  a 
similar allegation in an earlier application, BCMR No. 2005-085, which is discussed later 
in this opinion. 

 

 

BACKGROUND 

The  applicant  enlisted  in  the  Coast  Guard  on  February  5,  1980.    After 
approximately 24 years of active service, the applicant requested voluntary retirement, 
which was approved on December 3, 2004, with an effective date of July 1, 2005. Prior to 
his  scheduled  retirement  date,  the  applicant's  urine  tested  positive  for  cocaine  on 
December 27, 2004.  On January 24, 2005, he was found guilty of illegal use of cocaine at 
a non-judicial punishment ((NJP) also known as captain's mast) under Article 15 of the 
Uniform Code of Military Justice (UCMJ).  The commanding officer (CO) punished the 
applicant by reducing him in rank from YN1 to YN2, fining him $800, and by restricting 
him to the base and assigning him extra duties. 
 

On  January  25,  2005,  the  applicant  requested  to  be  retired  in  lieu  of  being 

discharged by reason of misconduct due to drug abuse.    
 
 
In a February 3, 2005, letter to CGPC, the applicant's CO recommended that the 
applicant be allowed to retire instead of being discharged by reason of misconduct.  He 
also recommended that the applicant be retired in pay grade E-5.  The CO noted that 
the applicant's urine had tested positive for a second time on January 11, 2005 and that 
he anticipated punishing the applicant at NJP for this violation of the UCMJ.   
 
 
The  CO  stated  in  his  letter  to  CGPC  that  for  several  years  the  applicant's 
performance  had  been  far  below  that  expected  of  a  journeyman  petty  officer.  He 
informed CGPC that the applicant had been placed on performance probation on April 
6, 2004 and had failed to show improvement during the first few months of probation.  
The CO stated that the applicant was habitually tardy, failed to communicate with his 
supervisor, and was inept in his rating and lacked good judgment.  The CO also noted 
that  from  1982  through  1992,  the  applicant  had  been  to  NJP  for  disrespect  and 
unauthorized  absences,  and  that  he  had  been  counseled  extensively  on  his  poor 
performance as well as his financial irresponsibility.   The CO concluded his letter to 
CGPC by stating the following: 
 

I recommend that [the applicant] be retired as soon as possible, hopefully no 
later than 1 April 2005 . . . Because of his dismal performance as a YN1/E6, I 
recommend that [the applicant] receive permanent retirement as a YN2/E5.  
He will very likely be discharged as a YN3/E-4 in the wake of his pending 
NJP!    Additionally,  because  of  his  repeated  misconduct,  I  recommend  that 
[the applicant] surrender all uniforms and be given a reenlistment code that 
prevents future military service. 

 
 
On  February  17,  2005,  the  applicant  was  taken  to  NJP  for  his  second  drug 
violation.  The CO ordered the applicant to forfeit $250 per month for two months, to be 

reduced to pay grade E-4, to be restricted for 30 days, and to perform extra duties for 30 
days. 
 
On  February  23,  2005,  Headquarters  Enlisted  Division  personnel  informed  the 
 
applicant that he would be discharged no later than April 1, 2005 and that based upon 
an administrative review of his service record he would be retired in pay grade E-4. On 
March 31, 2005, the applicant was retired in pay grade E-4. 
 

Prior Case (BCMR No. 2005-085) 
 

The Coast Guard retired the applicant in pay grade E-4 (YN3) on March 31, 2005.  
About that same time, the applicant filed an application with the Board arguing that he 
had satisfactorily served in pay grade E-6 and should have been retired in that grade.  
His  application  was  docketed  as  BCMR  No.  2005-085.      The  applicant  alleged  that 
although CGPC convened a rate determination board to determine the highest held, he 
was not notified in writing of the determination board or its decision, as he should have 
been.  He also alleged that he was denied the opportunity to consult with counsel and 
present evidence to the determination board.  He stated that he feels that he is being 
punished twice for the same offenses.   

 
In its advisory opinion in BCMR No. 2005-086, the JAG admitted that the Coast 
Guard did not refer the matter to a special board of officers to review the applicant's 
record  and  make  a  recommendation  to  the  Commandant  on  whether  the  applicant 
should be retired in a higher grade, as required by Article 12.C.15.g.4. of the Personnel 
Manual.  To cure the error, the JAG recommended that the Board grant alternative relief 
to the applicant by returning the record to the Coast Guard and directing it to convene a 
special board of officers, in accordance with Article 12.C.15.g. of the Personnel Manual. 

 
On December 8, 2005, the Board ordered that pursuant to Article 12.C.15.g.4. of 

the Personnel Manual, the Coast Guard shall 

 
convene  a  special  Board  of  officers  to  review  the  applicant's  military 
record  and  to  recommend  to  the  Commandant  whether  the  applicant 
should be retired in the highest grade held while on active service.  The 
Coast  Guard  is  directed  to  provide  the  applicant  with  any  due  process 
rights to which he may be entitled during this administrative process. The 
special board shall be convened within 60 days from the date of this final 
decision.  If the Commandant directs the applicant's retirement in a grade 
higher than YN3/E-4, the Coast Guard shall correct the applicant's record 
in this regard and pay him any sum due as a result of the correction. 

In the Findings and Conclusions, the Board also told the applicant that he could 

 
 
request a further review of his case if he was dissatisfied with the Coast Guard review. 
 
Current Case (BCMR No. 2006-118) 

On  March  22,  2006,  the  Coast  Guard  convened  a  highest  grade  held  board  to 
 
review the applicant's record, as directed in BCMR No. 2005-086.  The three members of 
that  board  voted  unanimously  to  recommend  YN2  as  the  highest  grade  satisfactorily 
held by the applicant.  In support of its decision, the board stated the following: 
 

 

The  board  determined  that  while  a  majority  of  the  time  [the  applicant] 
served as a First Class was satisfactory, pursuant to the provisions of the 
Personnel Manual, Article 12.C.15.g. his overall performance for the entire 
period as an E-6 was not satisfactory.  His performance at pay grade E-6 
was substandard as evidenced by negative CG-3307 entries, performance 
probation,  unsatisfactory  performance  evaluations,  illegal  drug  use,  and 
the  Commanding  Officer's  statement 
[the  applicant's] 
performance in the discharge recommendation. 
 
[The  applicant's]    enlisted  evaluations  and  record  support  that  he 
satisfactorily  served  in  the  grade  of  Yeoman  Second  Class,  E-5.    During 
the 4 year and 10 month period of July 1994 through May 1999, there were 
no performance issues noted and he was subsequently advanced to YN1 
in May 1999.    

regarding 

 
 
The applicant disagreed with the findings of the highest grade held board.  He 
stated that the board noted his negative page 7s, performance probation, unsatisfactory 
evaluations,  and  illegal  drug  use.    The  applicant  argued  that  he  has  already  been 
punished twice for illegal drug use and that the action of the highest grade held board 
is to punish him a third time for the same offense. 
 
 
The applicant argued that he deserved to be retired as an E-6 rather than an E-5.  
He stated that he gave 25 years, 1 month, and 18 days of his life to the Coast Guard and 
he should not be punished for the rest of his life for his illegal drug use.   
 

VIEWS OF THE COAST GUARD 

 
 
On September 27, 2006, the Judge Advocate General (JAG) of the Coast Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  relief.    The  JAG 
asserted that the Coast Guard had complied with the order in BCMR No. 2005-086 and 
with the procedures of Article 12.C.15.g. of the Personnel Manual.  He argued that the 
applicant  has  not  shown  by  a  preponderance  of  the  evidence  that  the  Coast  Guard 
committed an error or injustice in finding that the applicant should be retired in pay 
grade E-5 as the highest grade satisfactorily held while in the Coast Guard.   The JAG 
attached  a  memorandum  from  the  Commander,  Coast  Guard  Personnel  Command 
(CGPC), as part of the advisory opinion. 
 
 
CGPC stated that as required by Article 12.C.15.g.1 of the Personnel Manual, the 
highest grade held board considered the applicant's entire official record.  CGPC further 
stated  that  the  applicant  was  afforded  the  due  process  required  by  the  pertinent 
regulation.  In this regard, the applicant submitted a statement to the board on February 
14,  2006.    CGPC  pointed  out  that  the  board  convened  on  March  22,  2006  and 
recommended that the highest grade held by the applicant was YN2.  The Commandant 

approved this recommendation on April 5, 2006.  CGPC argued that the applicant has 
not  pointed  to  any  error  or  injustice  in  the  processing  of  his  case  before  the  highest 
grade held board.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  September  28,  2006,  a  copy  of  the  Coast  Guard  views  was  mailed  to  the 
applicant  with  30  days  allotted  for  him  to  respond.    The  BCMR  did  not  receive  a 
response from the applicant.   
 
 
 

 

APPLICABLE REGULATION 

Article 12.C.15.g. (Procedure to Certify Highest Grade or Rate on Retirement) of 

the Personnel Manual provides the following, in pertinent part: 
 
"1.  Commander, (CGPC-epm) or (CGPC-opm) 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 satisfactory.   
 
"2.    Service  will  be  considered  satisfactory  and  the  member  will  be  certified  to  the 
highest grade if he or she served on active duty . . . for at least 31 days in a chief warrant 
officer  or  enlisted  grade  and  his  or  her  official  records  indicate  overall  satisfactory 
performance for the entire period served in the higher grade.   
 

  * 

 

* 

 

* 

 

 

 
"4.    If  the  administrative  review  described  in  subparagraph  1.  does  not  result  in  a 
determination  of  satisfactory  service,  the  determination  will  be  referred  to  a  special 
board  of  officers  who  will  review  the  member's  official  records  and  make  its 
recommendation to the Commandant.  The Board acts in an advisory capacity and its 
recommendation  shall  be  considered  as  such.    The  Commandant  makes  the  final 
determination of satisfactory service."   

FINDINGS AND CONCLUSIONS 

 

(Analysis) 

The Board has jurisdiction concerning this matter pursuant to section 1552 of title 
10 of the United States Code, and the application was timely.  Although the applicant 
requested  an  oral  hearing  before  the  Board,  the  Chair,  acting  pursuant  to  33  C.F.R. 
§ 52.51, denied the request and recommended disposition of the case without a hearing.  

The Board concurred in that recommendation finding that sufficient evidence existed in 
the record to decide the applicant's application without a hearing.   

 
The applicant served on active duty in the Coast Guard for over twenty years. 
The  highest  grade  he  held  during  this  period  was  pay  grade  E-6,  to  which  he  was 
advanced in May 1999.  The applicant had requested voluntary retirement, which was 
approved on December 3, 2004, with an effective date of July 1, 2005.   However, prior 
to  the  effective  date  of  his  retirement,  he  committed  two  violations  of  Article  112a 
(wrongful drug use) of UCMJ in December 2004 and January 2005.  He was punished at 
NJP in January for the December drug offense and was reduced one pay grade to E-5. 
He was subsequently punished at a February NJP for the January drug offense and was 
reduced further, to pay grade E-4.  Rather than discharging the applicant as a result of 
the  drug  offenses  and  NJPs,  the  applicant's  CO  recommended  that  he  be  allowed  to 
retire in lieu of discharge. The applicant was retired in March 2005 in pay grade E-4.   

 
In  an  earlier  BCMR  application,  BCMR  No.  2005-086,  the  applicant  challenged 
the determination to retire him in pay grade E-4.  In the advisory opinion for that case, 
the Coast Guard admitted that it had committed an error by not referring the matter to 
a highest-grade determination board as required by Article 12.C.15.g.1. of the Personnel 
Manual.    This  provision  requires  that  a  board  be  convened  to  determine  the  highest 
grade held should an administrative review result in a determination of unsatisfactory 
service. By retiring the applicant in pay grade E-4, CGPC determined that he had not 
served  satisfactorily  in  either  pay  grade  E-6  or  E-5.    Based  on  the  Coast  Guard's 
admission of error, the Board, in BCMR No. 2005-086, directed the Coast Guard to hold 
a highest grade held board in the applicant's case.  The Board informed the applicant 
that  if  he  were  dissatisfied  with  the  outcome  of  that  board,  he  could  reapply  to  the 
BCMR.   

 
On  March  22,  2006,  the  Coast  Guard  convened  a  highest-grade  held  board  as 
directed  by  the  BCMR.    That  board  determined  that  the  highest  grade  in  which  the 
applicant satisfactorily served was pay grade E-5.  This recommendation was approved 
by the Commandant, as required by Article 12.C.15.g.4. of the Personnel Manual.  The 
applicant submitted a new application to the Board, BCMR No. 2006-118, alleging that 
his service in pay grade E-6 was satisfactory and that he should have been retired in 
that grade.  He alleged that by retiring him in a lower grade, he is being punished a 
third time for the same drug offenses.   

 
While  the  applicant  disagrees  with  the  Commandant's  determination  that  the 
highest  grade  in  which  he  satisfactorily  served  was  E-5,  he  did  not  provide  any 
evidence,  other  than  his  own  statement,  that  the  commandant's  determination  was 
erroneous.  Article  12.C.15.g.4.  of  the  Personnel  Manual  gives  the  Commandant  the 
authority  to  make  "the  final  determination  of  satisfactory  service"  after  receiving  the 
recommendation from a highest grade held board.  For a correction to his record, the 

applicant must prove an error or injustice.  He has pointed to no error in this current 
case.   

 
The applicant argued, however, that it is an injustice for the Coast Guard to retire 
him in the lower E-5 grade because he served for over three years satisfactorily in pay 
grade E-6.  An injustice is defined as treatment by military authorities that shocks the 
sense of justice.  See  Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976).    The Board 
finds  no  such  unjust  treatment  in  this  situation.    Article  12.C.15.g.2.  of  the  Personnel 
Manual states that the applicant must have served at least 31 days in the higher grade 
and that his official record indicate overall satisfactory performance for the entire period that 
he served in the higher grade.  In the applicant's situation, as a YN1, he was punished at 
captain's  mast  twice  for  illegal  drug  use.    His  punishment  each  time  included  a 
reduction in rate.  Based on this evidence alone, the Board finds that the Commandant 
was justified in finding that the applicant had not served satisfactorily in pay grade E-6 
for the entire period he held that grade.  The two NJPs coupled with the negative page 7 
entries,  performance  probation,  and  unsatisfactory  performance  evaluations  that  the 
applicant  received  while  serving  in  pay  grade  E-6,  which  were  noted  by  the  highest 
grade  held  board,  fully  support  the  Commandant's  determination  that  the  highest 
grade satisfactorily held by the applicant was E-5.  The applicant offered no evidence, 
except for his own statement, to prove that his performance as an E-6 was other than as 
described by his CO and the highest grade held board.    

 
Accordingly, the Board finds that the applicant has not demonstrated an error or 

injustice in this case and it should be denied.   
  
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
 
 
 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction 

ORDER 

 

 
 
 

 
 
 

 
 
 

 
 
 

of his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 Patrick B. Kernan 

        

 

 

 
 J. Carter Robertson 

 

 

 
 Richard Walter