DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-050 
 
XXXXXXXXXXXXXX 
XXXXXXXXXXXXXX   

 

 
 

FINAL DECISION 

 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.  The Chair, D. Ulmer, docketed the application on December 
19, 2006, upon receipt of the completed application, and subsequently prepared the decision for 
the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  August  30,  2007,  is  approved  and  signed  by  the  three  duly 

APPLICANT'S REQUEST 

 
 
The applicant asked the Board to correct his record to show that he retired with 25 years 
of  service  rather  than  with  22  years  and  that  he  retired  on  October  31,  2002,  rather  than  on 
October 31, 1999.  He requested back pay and allowances.   The applicant relies on the Board’s 
decision in Docket No. 2000-035 to support his request for three years of additional active duty 
credit. 
 

 
BCMR Docket No. 2000-035 (Prior Case) 
 

BACKGROUND 

On December 2, 1999, the applicant, then a storekeeper first class (SK1; pay grade E-6), 
filed  an  application  with  the  Board,  which  was  docketed  as  Docket  No.  2000-035.    In  that 
application,  he  asked  the  Board  to  correct  his  record  “by  advancing  him  to  chief  storekeeper 
(SKC; pay grade E-7) and by restoring the money that he was required to forfeit from his pay as 
a result of non-judicial punishment [NJP] on April 19, 1999.”1  The applicant voluntarily retired 
on November 1, 1999 and did not seek a return to active duty. 
 
                                                 
1    The  Coast  Guard  had  returned  money  forfeited  by  the  applicant  as  a  result  of  setting  aside  the  non-judicial 
punishment prior to the issuance of the Board’s decision in Docket No. 2000-035. 

As  stated  above,  on  April  19,  1999,  the  applicant,  then  a  member  of  the  Coast  Guard 
Headquarters Support Command, was punished at captain’s mast for sending three e-mails "of an 
obscene  and  inappropriate  nature,  specifically  pornographic  material"  in  violation  of  Coast 
Guard regulations. 
 

The applicant’s punishment included a forfeiture of pay in the amount of $1086.00 and a 
letter of reprimand that was given to the applicant by the executive officer (XO), Coast Guard 
Headquarters Staff.  The applicant submitted a rebuttal to the letter of reprimand, dated April 21, 
1999.  Also, on April 23, 1999, he appealed the NJP on the following grounds:  "1) Unofficial 
use of e-mail is prevalent within the Coast Guard.  The repercussions for Coast Guard military 
and civilian personnel are inconsistent.  2) The [NJP] awarded was disproportionate to [his] acts 
of bad judgment."  

 
On May 11, 1999, the applicant requested to retire because of the Coast Guard's high year 
tenure policy (HYT)2 (he was near the maximum years allowed for service as an E-6 without 
advancement),  because  of  the  approaching  end  of  his  enlistment  on  July  27,  1999,  and  his 
inability to reenlist without a waiver, and because of his inability to compete for advancement for 
24 months after receipt of the NJP.  The applicant's retirement request was approved, with an 
effective date of November 1, 1999.  The applicant took terminal leave prior to the effective date 
for his retirement.  

  
On October 28, 1999, the NJP appeal authority set aside the NJP and restored all rights, 
privileges and property which the applicant held prior to the imposition of NJP.  On October 29, 
1999, the applicant's supervisor recommended the applicant for promotion to chief petty officer.  
On November 1, 1999, the applicant's retirement became official.   

 
The applicant argued in Docket  No. 2000-035 that in addition to the unfairness of the 
punishment, the NJP jeopardized his advancement to chief petty officer (he was number 27 on 
the  advancement  list)  and  his  special  assignment  to  Recruiting  Office  Nashville  (Recruiter  in 
Charge). 
 
The Coast Guard recommended that the Board deny relief to the applicant in Docket No. 
2000-035.  The Chief Counsel argued that the applicant had already received appropriate relief 
when  his  NJP  was  set  aside.    The  Chief  Counsel  stated  that  contrary  to  the  applicant’s 
allegations, there was no indication his appeal was unfairly delayed.  The Coast Guard offered 
the  applicant  the  opportunity  to  return  to  active  duty,  which  he  declined.    The  Chief  Counsel 
stated  that  the  applicant's  request  for  retroactive  advancement  to  chief  petty  officer  and 
retirement would be inappropriate and would violate Coast Guard regulations that required the 
applicant to serve two additional  years on active duty if  advanced to chief petty officer.  The 
Chief Counsel noted the applicant’s comment in his retirement letter that “whatever the outcome 
of my appeal, I have decided to retire from the Coast Guard.”    

 

                                                 
2   The Coast Guard’s then high year tenure policy established the maximum time in service for each enlisted pay 
grade  called  professional  growth  points.    For  an  E-6,  22  years  was  the  maximum  time  allowed.    However,  the 
regulation permitted members to request waivers of this policy.  See Chapter 12.G.1. of the Personnel Manual.  

The Commander, Coast Guard Personnel Command (CGPC) issued a memorandum that 
was a part of the advisory opinion.  He stated that the applicant’s name was removed from the 
advancement list on May 25, 1999 as a result of the applicant’s request for retirement.  CGPC 
further stated that even  if the applicant had not  submitted a retirement letter, his name would 
have been removed due to the NJP.   CGPC also stated that if the applicant had not submitted his 
request  to  retire  and  had  no  NJP,  he  would  have  been  advanced  to  SKC/E-7,  assuming  he 
remained  fully  qualified  and  eligible  for  advancement,  prior  to  April  19,  1999,  through 
September 1, 1999.    
 
 
The  applicant  responded  to  the  advisory  opinion  and  stated  that  he  believed  that  he 
should be advanced to E-7.  The applicant also stated that he did wish to return to active duty and 
he did not ask to be credited with any additional active duty.   
 
 
On November 9, 2000, the Board issued the final decision in Docket No. 2000-035.  It 
was approved by the Secretary’s Delegate on November 18, 2000.  A copy of the final decision 
was mailed to the applicant on December 21, 2000.  The Board made the following pertinent 
findings in Docket No. 2000-035: 

 
3.  Any alleged error with respect to the legality of the punishment, either because 
of a procedural violation or the lack of proper delegated authority by the officer 
imposing NJP has been rendered moot by the setting aside of the NJP on October 
28, 1999.  The Board notes, however, that the applicant acknowledged  sending 
the e-mails, the Coast Guard determined that there was unequal treatment in the 
manner  in  which  it  handled  these  cases,  particularly  the  applicant's,    and  that 
confusion  existed  about  the  NJP  authority's  delegation  to  impose  NJP  on  the 
applicant.  
 
4.    The  NJP  appeal  authority,  in  setting  aside  the  NJP,  did  not  state  on  what 
ground it was set aside, but the Board presumes it was set aside because it was 
found  to  have  been  a  clear  injustice.    Section  6.d.,  Part  V,  of  the  Manual  for 
Courts-martial states that "[t]he power to set aside punishments and restore rights, 
privileges, and property affected by the executed portion of a punishment should 
ordinarily  be  exercised  when  the  authority  considering  the  case,  believes  that, 
under  all  circumstances  of  the  case,  the  punishment  has  resulted  in  clear 
injustice." This finding is consistent with that of the Chief Counsel who states that 
it  was  set  aside  because  it  was  inconsistent  with  punishment  imposed  in  other 
cases. 
 
5.  The setting aside of the NJP should restore the applicant's rights, privileges, 
and  property  that  were  affected  by  the  punishment  that  was  set  aside.    Section 
6.d., Part V, Manual for Courts-Martial.  The Military Justice Manual states that it 
wipes the slate clean.  Article 1-E-9.e., Military Justice Manual. 
  
6.  Even though the applicant promptly appealed the NJP, he was still faced with 
the issue of high year tenure.  In addition, there was no guarantee that he would 
prevail  on  the  appeal  or  how  long  the  process  would  take,  so  he  took  terminal 

 

leave,  found  other  employment,  and  relocated  with  his  family  to  Georgia.  The 
applicant asserts, and the high year tenure regulation appears to support him, that 
if  he  had  not  requested  retirement  and  he  reached  his  maximum  professional 
growth  point,  he  could  have  been  discharged.    The  applicant  believes  that  a 
discharge would have resulted in the loss of retired pay.  The applicant, without 
being advanced, could only remain in the Coast Guard as an E-6 for a total of 22 
years.    Therefore,  his  professional  growth  point  would  have  occurred  on 
December  9,  1999.    Complicating  the  issue  even  more  was  the  fact  that  the 
applicant's  enlistment  expired  July  27,  1999,  although  it  was  extended  for  4 
months.  Pursuant to Article 12-G-5 of the Personnel Manual, reenlistments are 
not  permitted  beyond  an  applicant's  professional  growth  point,  except  with  a 
waiver from the Commandant.   Facing high year tenure and with an NJP in his 
record it was unlikely that the applicant would have received a waiver to reenlist. 
An  NJP  appeal  does  not  stay  the  punishment  imposed.    Section  7.d.,  Part  V, 
Manual for Courts-Martial. The Coast Guard did not disagree with the applicant's 
understanding  on  the  impact  the  HYT  policy  would  have  on  his  retirement 
eligibility, if he had remained on active duty and his appeal had been denied. 

7.  The applicant argues, contrary to the Chief Counsel, that all rights, privileges, 
and property were not restored to him after the NJP was set aside; however, he 
agrees that the forfeiture has been returned to him. He does not want to return to 
active duty, but he does want to be advanced to SKC retroactive to September 1, 
1999.  The Chief Counsel asserts that the applicant has received all the relief to 
which he is entitled by virtue of the setting aside of the NJP and by virtue of the 
Coast  Guard's  offer  to  restore  him  to  active  duty  and  advance  him  to  E-7  on 
condition  that  he  obligate  himself  for  an  additional  two  years  of  service,  and 
accept a duty assignment based on the needs of the Service.   

 

8.  The applicant complained that prior to the NJP he was on the advancement list 
and would have advanced on September 1, 1999 to SKC and that he would have 
begun a special  assignment to the Recruiting  Office in Nashville in May  1999.  
After  receiving  NJP,  his  orders  to  recruiting  duty  were  canceled  and  his  name, 
although  removed  from  the  advancement  list  as  a  result  of  his  May  1999 
retirement  request,  would  have  been  removed  as  a  result  of  the  NJP  had  no 
retirement request been submitted.  The offer of the Coast Guard to return him to 
active duty with no commitment to a particular duty assignment, according to the 
applicant, is not restoring him to the rights, privileges, and property he had prior 
to  the  NJP.    Moreover,  he  had  just  recently  relocated  to  the  Atlanta  area  and 
began civilian employment there.   
 
9.    The  Board  must  determine  whether  the  applicant  suffers  from  an  injustice 
created by and resulting from the imposition of the unfair NJP or whether, as the 
Chief  Counsel  asserted,  he  has  received  the  relief  to  which  he  is  entitled.    The 
Chief Counsel blames the applicant, in part, for this situation: first, because the 
applicant  submitted  a  retirement  request;  and  second,  because  the  applicant  did 
not accept their terms for a return to active duty. 

   

 

10.    The  Board  is  persuaded  that  the  applicant  acted  reasonably  in  requesting 
retirement in light of the Coast Guard's policy with respect to HYT. Weighing the 
equities  in  this  case,  the  Board  finds  that  the  applicant  was  punished  unfairly, 
which placed him in a position of having to deal with the issue of high year tenure 
and possible loss of retirement.  The applicant should not be punished further by 
not  being  advanced  to  SKC.    The  Board  is  not  persuaded  that  the  applicant's 
refusal  to  accept  the  Coast  Guard's  offer  to  return  to  active  duty  and  then  be 
advanced  to  E-7,  but  accept  an  assignment  based  on  the  needs  of  the  Service, 
should . . . defeat his request to be advanced.  The Board notes that this offer is 
not  consistent  with  the  applicant's  position  prior  to  the  NJP,  in  which  he  had 
orders  to  recruiting  in  Nashville,  TN.    The  applicant  stated  that  he  would  have 
accepted orders to the recruiting office in Atlanta, Georgia, but the Coast Guard 
claimed that there were no open billets there, although the applicant claims there 
was a billet available in Atlanta at the time.  Even if there were no billets in the 
Atlanta  Recruiting  Office,  there  is  nothing  in  the  record  that  indicates  that  the 
Coast Guard attempted to work out any other assignment with the applicant, but 
left  him  only  with  the  option  of  returning  to  active  duty  in  an  SKC  billet 
anywhere in the world.   The Board is not persuaded, under the circumstances, 
that  the  Coast  Guard  made  a  good  faith  effort  to  work  out  an  acceptable 
arrangement with the applicant for a return to active duty.   
 
11.  The applicant appealed the NJP on April 23, 1999, and did not get a final 
resolution  until  October  28,  1999.    (A  service  member  is  given  only  5  days  to 
appeal an NJP.)  However, the letter did not reach the applicant until November 6, 
1999.  During this period, the applicant made continual inquiries as to the status 
of  the  appeal  and  why  it  was  taking  so  long  to  render  a  final  decision  on  the 
appeal, especially after he had been told in May 1999 that the appeal would be set 
aside. The Board finds that the applicant's actions were reasonable, particularly in 
light of the fact that he  had a family to support and there was no guarantee he 
would prevail on the appeal.  The Coast Guard did not wait for the outcome of the 
appeal  before  canceling  the  applicant's  recruiting  assignment  and  designating 
other personnel to fill it. 
 
12.    The  applicant's  acts  to  protect  his  retirement  and  take  care  of  his  family, 
under the particular circumstances of this case, coupled with the dilemma caused 
by the length of the Coast Guard review of the NJP appeal, are not unreasonable.  
Neither  does  the  Board  find  the  applicant's  refusal  of  the  Coast  Guard's  half-
hearted offer to return to active duty unreasonable.  The Board is persuaded that 
the applicant has suffered an injustice and finds that justice demands that he be 
granted  the  relief  requested.  More  of  an  effort  should  have  been  made  by  the 
Coast Guard to find a reasonable assignment for the applicant.  

13.  The Coast Guard has stated that to advance the applicant without returning 
him to active duty for a minimum period of two years is contrary to regulation.  
However,  this  regulation  does  not  divest  the  Commandant  of  the  ability  to 

 

separate  (or  retire)  a  member  for  good  and  sufficient  reasons  or  if  such  a 
separation  is  in  the  Coast  Guard's  best  interest.    Article  12-B-12.a.16  &  17, 
Personnel Manual.   

14.  Accordingly, the Board finds that the applicant's record can be corrected to 
show that he obligated himself for two years of duty on September 1, 1999 and 
that he was also advanced to pay  grade E-7 that same day.  The record can be 
further  corrected  to  show  that  at  the  direction  of  the  Commandant,  with  the 
consent of the applicant, he was retired on October 31, 1999 at pay grade E-7. 

After  making  the  above  pertinent  findings  and  conclusions,  the  Board  entered  the 

 
 
following Order in Docket No. 2000-035: 
 

The application of [the applicant] USCG (Ret.) for the correction of his military 
record is granted.  His record shall be corrected to show that he was advanced to 
pay grade E-7 on September 1, 1999, and that he retired on October 31, 1999, as 
an E-7.  The applicant's advancement to E-7 shall be effective for all purposes, 
including pay and allowances.   

 

BCMR DOCKET NO. 2007-050 (CURRENT APPLICATION) 

 

 
  In support of his request for three years of additional active duty, the applicant  argued 
that the Board in Docket No. 2005-035 found that he acted reasonably in requesting retirement in 
light  of  the  Coast  Guard’s  policy  of  high  year  tenure;  that  he  was  punished  unfairly,  which 
placed  him  in  a  position  of  having  to  deal  with issues  of  high  year  tenure  and  a  total  loss  of 
retirement; and that the Board was not persuaded that the Coast Guard made a good faith effort 
to work out an acceptable arrangement for him to return to active duty.  The applicant further 
argued that he should be credited with the three years of service that he intended to serve if the 
1999 NJP had not occurred. The applicant submitted an Assignment Data Sheet dated October 
29, 1998, showing that his career intention was to extend/reenlist for three years in 1999.  He 
further  argued  that  the  Board  already  ordered  that  his  record  be  corrected  to  show  that  he 
obligated himself for two years of service in Finding 14. of the Final Decision in Docket No. 
2000-035 and that the Coast Guard failed to correct his record in this regard.   
 
 
The applicant claimed that he did not discover the alleged error until October 31, 2006.  
He stated that it is in the interest of justice to consider his application and waive the three year 
statute of limitations if the application is untimely because “[t]he Board found that my record 
could be corrected to show that I obligated myself for two years.”  He further stated that Docket 
No. 2000-175 supports his request for relief.3   In that case the  Board ordered that applicant’s 
                                                 
3  In 2000-175, the applicant was not seeking advancement to a higher grade.  He asked the Board to correct his 
retirement date to show that he retired with thirty years of service rather than with twenty-eight.  Earlier the Coast 
Guard  had  miscalculated  the  applicant’s  active  duty  base  date  by  seven  months  which  was  administratively 
corrected  to  December  1,  1997.    The  applicant  argued  in  Docket  No.  2000-175  that  because  the  Coast  Guard 
suspended its high year tenure (HYT) in the summer of 1997, if the miscalculation had not occurred, he would have 
been able to continue  serving until  he had completed thirty  years of active duty. Under the  ALDIST suspending 
HYT for certain rates, members who would have been required to retire between October 1 and December 31, 1997 
could apply for two year waivers.  Commanding officers were to counsel members on the opportunity to remain on 

record corrected as follows:  “The separation date shown on his DD 214 shall be November 30, 
1999 instead of November 30, 1997, so that he shall be deemed retired as of December 1, 1999. 
The Coast Guard shall pay the applicant any sums, such as back pay, allowances, retirement pay 
he may be owed as a result of this correction.”  
 

VIEWS OF THE COAST GUARD IN CURRENT APPLICATION                     

  

On  May  10,  2007,  the  Board  received  an  advisory  opinion  from  the  Judge  Advocate 
 
General (JAG), recommending that the Board deny the applicant's request for relief because the 
application is untimely and because it lacks merit.  In this regard, the JAG offered the following 
analysis: 
 

a.  The  application  isn’t  timely  and  the  applicant  fails  to  adequately  justify  the 
delay.  An application for correction of a record must be filed within three years 
after  the  applicant  discovered  or  should  have  discovered  the  alleged  error.  33 
C.F.R. § 52.22.  The BCMR issued its final decision in [Docket No. 2000-035] on 
November  9,  2000.    The  Coast  Guard  implemented  the  relief  ordered  by  the 
Board  in  January  2001.[4]    This  application  requesting  additional  relief  on  the 
same  basis  as  his  1999  application  comes  more  than  five  years  after  the  Coast 
Guard  corrected  the  applicant’s  record.    This  application  should  be  denied  for 
timeliness. 
 
b. The applicant has failed to meet his burden of showing that he is entitled to 
have his retirement recalculated to be based on 25 years of active duty at the 2005 
pay scale.  He points to no provision in the law or language of the BCMR’s final 
decision in his 1999 case that would permit him to receive active duty credit for a 
period of time for which he did not serve.  Title 10 USC § 1401a prohibits re-
computation of a retired member’s basic pay to reflect an increase in basic pay 
unless otherwise specifically provided for by law.  See 10 USC §1401a.[5] 
 
c.  The  applicant  relies  upon  the  BCMR’s  language  [in]  the  2000-035  Final 
Decision to support his claim.  The applicant points particularly to the language 

                                                                                                                                                             
active duty.  The JAG recommended correcting the applicant’s record to show that he retired on December 1, 1999.  
Although the JAG did not find Coast Guard had committed an error, he stated that it was clear from the record that 
the applicant “never had actual notice of the HYT waiver policy implemented in March 1997.”  The JAG further 
stated that the applicant in Docket No. 2000-175 would have most assuredly applied for such a waiver if he had been 
informed of the HYT amendment and probably would have received the waiver. 
   
4   In a letter to the applicant dated January 8, 2001, the Commanding Officer of the Coast Guard Human Resources 
Service & Information Center informed the applicant that he was retired in pay grade E-7, that his service time for 
retirement (multiplier) was 21 years, 8 months, and 21 days, and that service time for pay (pay scale) was 22 years, 4 
months,  and  15  days.      A  note  at  the  end  of  the  letter  stated  “a  partial  payment  of  $2,593.17  for  the  period  1 
November  1999  through  31  December  2000  has  been  processed  .  .  .  This  represents  a  total  underpayment  of 
$3,601.62 less federal income tax of $1,008.45.  Your retirement rank has been changed from SK1/E6 to SKC/E7.”  
5   Section 1401(a)(a) of title 10 of the United States Code states that “Unless otherwise specifically provided by 
law, the retired pay of a member or former member of an armed force may not be recomputed to reflect any increase 
in the rates of basic pay for members of the armed forces.” 

that the record could be corrected to show that he obligated himself for two years 
of service.  This argument is without merit.  The Board’s purpose of stating that 
the  Coast  Guard  could  correct  the  applicant’s  record  to  show  that  he  obligated 
himself  for  two  years  of  service  was  to  comply  with  [the  Personnel  Manual 
Chapter]  5.C.25.e.1.  and  then  separate  him  under  [chapter]  12-B-12a.  16  &  17 
was to refute the Coast Guard’s argument at the time that it could not advance the 
applicant under the regulations.  It was not a mandate that the Coast Guard change 
the record to show that he obligated himself for additional service.  In effect the 
Board’s decision was that the Coast Guard should waive this requirement in the 
applicant’s  case.    The  Coast  Guard  corrected  the  applicant’s  DD-214  in 
accordance  with  the  Order  .  .  .  of  the  Final  Decision.    The  Coast  Guard  also 
corrected  the  applicant’s  retirement  pay  to  reflect  the  change  in  pay  grade 
retroactive to his retirement date as required by the Board’s final decision . . . 
 
d.  While  the  BCMR  in  its  2000  decision  felt  that  applicant’s  case  warranted 
granting relief, there is nothing in that decision to suggest that applicant should 
receive  additional  years  of  service  credit  for  the  purposes  of  increasing  his 
retirement pay.  Pursuant to 10 USC § 1405, the years of service for the purposes 
of determining retirement pay is comput[ed] by adding the total years of service.    
The applicant’s total years of service have been calculated under this statute and 
there is no other provision to recalculate that number based on years of service he 
would have obligated himself for.   

 

APPLICANT'S REPONSE TO THE VIEWS OF THE COAST GUARD  

FOR THE CURRENT APPLICATION  

 
 
On May 18, 2007, the Board received the applicant’s initial response to the views of the 
Coast Guard.  On May 30, 2007, the Board received an additional response from the applicant.  
He  disagreed  that  his  application  was  untimely  and  argued  that  the  issue  is  moot  because  the 
Chair determined that his claim that the Coast Guard had not properly implemented the Board’s 
Order in Docket No. 2000-035 should be treated as a new case.  
 

In the event that his application is determined to be untimely, the applicant argued that 
any untimeliness should be excused.  In this regard, the applicant stated that in July 2002, water 
damage destroyed records that he kept in his home, including his copy of the final decision in 
Docket  No.  2000-035.    He  stated  that  he  searched,  without  success,  for  a  copy  of  the  final 
decision on the BCMR website.  He then called the BCMR to inquire why that final decision was 
not available for review and copying.   He stated that in November 2006, he again searched the 
Board’s website for Docket No. 2000-035 and found that it was still not available.  He stated that 
he then called the BCMR and requested that a copy of the decision be mailed to him. 
 
 
The  applicant  disagreed  with  the  Coast  Guard  that  it  had  properly  interpreted  and 
implemented the Board’s order in Docket No. 2000-035.  In this regard, the applicant stated that 
the Coast Guard has attempted to interpret the Board’s intent but should have sought clarity of 
the Board’s intent pursuant to 33 CFR § 52.73.  This provision states:  “If the intent or import of 
the final decision is not clear to the Coast Guard or if the Coast Guard believes that executing all 

of part of the order in the final decision is beyond the Coast Guard’s authority, the final decision 
shall be returned to the Board for clarification or technical amendment.”   
 

 In arguing that the Board’s final decision in Docket No. 2000-035 directed that he be 
granted two years of additional active duty, the applicant pointed to the following:  1. The Coast 
Guard argued in the prior advisory opinion (in Docket No. 2000-035) that advancing me to E-7 
without returning me to active duty for a minimum two year period was contrary to regulation. 
That Article 5.C.25.e. of the Personnel Manual stated that upon effecting the advancement to pay 
grade E-7, personnel incur two years of obligated service.  3.  The Board found that 5.C.25.e. did 
not divest the Commandant of the ability to separate or retire a member for good and sufficient 
reason.  See article 12-B-12.a.16 &17. 
 
 
The  applicant  further  argued  that  the  Order  in  Docket  No.  2000-035  stated  that  his 
advancement to E-7 shall be effective for all purposes including pay and allowances.  He also 
stated  that  the  Board  found  that  his  record  should  “be  corrected  to  show  that  I  obligated  two 
years of duty on September 1, 1999, in order to be advanced to pay grade E-7.”6  Therefore he 
argued that his retirement multiplier must reflect the two years allegedly awarded to him by the 
Board and that the Coast Guard failed to grant him the two years of active duty credit.   
 
 
The applicant alleged that had the Coast Guard not caused him to retire to avoid HYT, he 
would have continued his career and points to his 1998 Assignment Data form that shows he had 
intended to enlist/extend or three  years  at the end of his then current enlistment in 1999.  He 
argued as a result of the Coast Guard’s alleged error he was deprived of at least two years of 
active duty.  He stated that he was required to express this three year commitment to execute 
permanent  change  of  station  orders  to  Recruiting  Office  Nashville  no  later  than  October  31, 
1999.  (According to Docket No. 2000-035, these orders were cancelled after the NJP.) 
 
 
The  applicant  also  asserted  that  the  Coast  Guard’s  advisory  opinion  in  the  current 
application should not be considered because it was not submitted within the 135 days allotted to 
the Coast Guard for submission of an advisory opinion under 33 C.F.R. § 52.42.    
 

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant's 

 
 
submissions and military record, the Coast Guard’s submission, and applicable law: 
 

1.    The  Board  has  jurisdiction  of  this  case  pursuant  to  section  1552  of title  10  United 

States Code.    

 
2.  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 concurs in that recommendation. 
 

                                                 
6   Actually, the Board stated in Finding 14. of Docket No. 2000-035 that the applicant’s record “can be corrected to 
show that he obligated himself for two years.” (Emphasis added.) 

3.      The  Chair  docketed  this  application  as  a  new  case  because  it  raised  an  issue  not 
considered  by  the  Board  in  the  previous  application,  Docket  No.  2000-035.    In  that  case,  the 
applicant did not ask for any additional active duty credit and the Board decided only the issue of 
whether he should have been advanced to chief storekeeper (SKC; pay grade E-7).  In granting 
relief  with  respect  to  the  advancement  issue,  the  Board  issued  the  following  order:    “The 
application of [the applicant] USCG (Ret.) for the correction of his military record is granted.  
His record shall be corrected to show that he was advanced to pay grade E-7 on September 1, 
1999, and that he retired on October 31, 1999, as an E-7.  The applicant's advancement to E-7 
shall be effective for all purposes, including pay and allowances.”   

 
4.    In the current case, the applicant claims that he is entitled to credit for the three years 
of active duty that he intended to serve if the 1999 NJP had not occurred based on the Board’s 
findings in Docket No. 2000-035.  Two of the three years of credit requested are based on the 
applicant’s contention that the Board already directed such relief in Docket No. 2000-035 when 
it stated that his record  could be corrected to show that he obligated himself for two  years of 
active  duty.    However,  a  finding  that  a  record  can  be  corrected  to  show  a  member  obligated 
service does not prove that the Board intended to grant actual or constructive service credit, and 
there  is  nothing  in  the  Board’s  order  directing  such  relief.      The  applicant  claims  that  he  is 
entitled to active duty credit despite the fact that he did not request such credit in Docket No. 
2000-035 and despite the fact that he voluntarily retired from active duty effective November 1, 
1999.  The issue of additional active duty credit was not before the Board in Docket No. 2000-
035 and is a new issue before this Board.  The attempt by the applicant to couch his request in 
terms of the Coast Guard’s failure to properly implement the Board’s order in Docket No. 2000-
035 does not change the substance of his request.  Therefore, the Chair was correct in docketing 
this matter as a new case.   
 
 
5.  The applicant’s current request for additional active duty credit is not timely.  To be 
timely, an application for correction must be filed within three years of the date the alleged error 
or injustice was, or should have been, discovered.  See 10 U.S.C. § 1552; 33 CFR § 52.22.  Since 
the applicant bases his request for relief on the Board’s final decision in Docket No. 2000-035, 
which was issued on November 18, 2000, and a copy was mailed to the applicant on December 
21, 2000, he should have filed his current application on or before December 21, 2003.  
  
 
6.   The applicant asserted that he  did not discover the alleged error until October 31, 
2006.      However,  the  applicant  should  have  discovered  the  alleged  error  sooner  because  the 
Board issued the final decision in Docket No. 2000-035 on November 18, 2000, a copy of which 
was mailed to the applicant on December 21, 2000.  The applicant knew or should have known 
that he had not received constructive service credit from that point.  Moreover, the Coast Guard 
implemented  the  Board’s  order  in  Docket  No.  2000-035  in  January  2001  and  informed  the 
applicant by letter dated January 8, 2001 that his retired pay was based on 22 years, 4 months, 
and  15  days  of  active  service.    Therefore,  the  applicant  certainly  should  have  known  in  early 
2001 that his retired pay was based on approximately 22 years of active duty and not 25 years as 
he now claims it should have been.   
 

7.  The applicant asserted that his delay in filing his application is excusable because his 
copy of the final decision in Docket No. 2000-035 was destroyed in a flood of his home in July 

2002.  However, he provided no evidence to support this allegation.  He further alleged that his 
delay is excusable because the Board failed to post his decision to its reading room website.  He 
stated that  he searched the BCMR website after the alleged flood and discovered that a copy of 
the  final  decision  in  Docket  No.  2000-035  had  not  been  posted,  after  which  he  contacted  the 
BCMR and inquired about the failure of the Board to post a copy of the final decision.  He stated 
that he searched the website again in November 2006 and the decision still had not been posted, 
at which point he contacted the BCMR and a copy of it was sent to him.  The Board concedes 
that a copy of the final decision in Docket No. 2000-035 is not posted to the BCMR website.  
However, the Board is not persuaded that this fact should excuse the applicant’s failure to file 
timely.  He does not deny that he received the Board’s final decision in December 2000; nor does 
he deny that he was aware of the Board’s order at that time.  In addition, the Board finds that the 
applicant could have obtained another copy of the final decision in his case at any time from the 
Board,  as  he  did  in  2006.    The  applicant  did  not  file  an  application  with  the  Board  until 
November 3, 2006, approximately three years beyond the statute of limitations.  The Board finds 
nothing in the applicant’s explanation to justify his delay in not bringing this application within 
the time period allotted by law. 
 
 
8.  The Board may excuse the failure to file timely if it finds that it is in the interest of 
justice to do so.  In making such a determination, the Board should consider, in addition to the 
reasons for the delay, the likelihood of success on the merits of the claim.  See Allen v. Card, 799 
F.  Supp.  158,  164  (D.D.C.  1992);  Dickson  v.  Secretary  of  Defense,  68  F.3d  1396  (D.C.  Cir. 
1995). 
 

9.    The Board has conducted a review of the merits of the application and finds, for the 
reasons discussed below, that the applicant is not likely to prevail.  The applicant is seeking three 
years of additional active duty credit and erroneously argues that the final decision in Docket No. 
2000-035 already directed the correction of his record to show two years of active duty credit 
subsequent  to  November  1,  1999,  even  though  he  had  voluntarily  retired  on  that  date.      The 
applicant’s request is for constructive active duty credit for the period from November 1, 1999 to 
October 31, 2002.  Constructive service is a doctrine under which military personnel who have 
been  illegally  or  improperly  separated  from  service  are  deemed  to  have  continued  in  active 
service until their legal separation.  See Anderson v. United States, 59 Fed. Ct. 451 (2004).  The 
Court further stated in Anderson 454, n.7 (citing Adkins v. United States, 68 F.3d 1317, 1326-27 
(Fed. Cir. 1995)), “‘Constructive service’ in the military is a necessary predicate for back pay, 
and constructive service only occurs if a discharge or separation is voided.”  (Emphasis added.)   
To  restate,  in  Docket  No.  2000-035,  the  Board  never  addressed  the  issue  of  whether  the 
applicant’s retirement from the Coast Guard was illegal or improper and should be voided, and 
the applicant never raised the issue or requested additional active duty credit.   

 
10.  Further, there is no language in the Board’s Order in Docket No. 2000-0357 directing 
the  Coast  Guard  to  correct  the  applicant’s  record  to  show  that  he  served  on  active  duty  after 
                                                 
7   That Order reads:  “The application of [the applicant] USCG (Ret.) for the correction of his military record is 
granted.  His record shall be corrected to show that he was advanced to pay grade E-7 on September 1, 1999, and 
that  he  retired  on  October  31,  1999,  as  an  E-7.    The  applicant's  advancement  to  E-7  shall  be  effective  for  all 
purposes, including pay and allowances.”   
 

October  31,  1999.    The  Board  is  well  aware  of  how  to  correct  a  record  to  grant  constructive 
service credit if it intends to do so.8  There is no language in the Board’s Order in Docket No. 
2000-035  that  would  lead  any  reasonable  person  to  conclude  that  the  Board  had  granted  the 
applicant additional active duty credit beyond that which he earned through his actual service. 
The sentence, “The applicant's advancement to E-7 shall be effective for all purposes, including 
pay and allowances” ensured only that the applicant would receive any pay and allowances to 
which he was entitled at the higher pay grade.   
 

11.  In support of his argument that he is entitled to three years of constructive active duty 
credit  even  though  he  was  in  a  retired  status  during  the  period  under  review,  the  applicant 
selectively  chooses  certain  of  the  Board’s  statements  from  the  findings  and  conclusions  in 
Docket No. 2000-035, such as: the applicant acted reasonably in requesting retirement in light of 
the Coast Guard’s policy of high year tenure;  the applicant was punished unfairly, which placed 
him  in  a  position  of  having  to  deal  with  issues  of  high  year  tenure  and  possible  total  loss  of 
retirement;  and  the  Coast  Guard  failed  to  make  a  good  faith  effort  toward  working  out  an 
acceptable arrangement to return the applicant to active duty.  However, after reading all of the 
Board’s findings in Docket No. 2000-035, the Board is firmly convinced that the prior Board 
concluded that because of the unjustness of the NJP and because of the long delay in processing 
the  appeal,  the  applicant  had  suffered  an  injustice  that  negatively  impacted  his  advancement 
opportunity.  The findings made by the Board were in support of its conclusion that under the 
circumstances of the applicant’s case, it was an injustice not to advance him to E-7, which was 
the only issue before the Board in Docket No. 2000-035.   The Coast Guard objected to granting 
the applicant’s request for advancement arguing that Article 5.C.25.e.1. of the Personnel Manual 
states that “Personnel advancing to pay grade E-7 . . . will be required to remain on active duty 
for two years from the effective date of their advancement to the new grade.”  The applicant had 
not met this requirement, having retired effective November 1, 1999. 

 
12.    In  light  of  Article  5.C.25.e.1.  of  the  Personnel  Manual  and  the  Coast  Guard’s 
objection to advancing the applicant, the issue in Docket No. 2000-035 became how to correct 
the record without offending the regulation.  According to Finding 13. in Docket No. 2000-035,  
the Board found the answer in Article 12-B-12.a.16 & 17 of the Personnel Manual, which gave 
the Commandant the authority to separate (or retire) a member for good and sufficient reasons or 
if  such  separation  is  in  the  Coast  Guard’s  best  interest.    Therefore,  the  Board  relied  on  this 
provision to advance and immediately retire the applicant.   Findings 13. and 14. in Docket No. 
2000-0359 were included in the final decision to provide guidance to the Coast Guard on how the 
                                                 
8   See Docket No. 2005-148 (directing that the applicant’s record be corrected to show “that he was not released 
from active duty on January 10, 2003, but that he continued on active duty, without a break in service from October 
29, 2001 until retired by reason of physical disability on February 10, 2005.”); Docket No. 2006-070 (correcting the 
applicant’s  record  to  show  that  he  was  never  discharged  from  active  duty  and  that  his  commission  was  never 
revoked.    He  shall  receive  back  pay  and  allowances,  subject  to  appropriate  off-sets.);  and  Docket  No.  2004-141 
(correcting the applicant’s record to show that he was retired on May 1, 2003, rather than October 1, 2002.   The 
applicant shall receive back pay and allowances subject to appropriate off-sets.)  
 
9   Docket No. 2000-035 Findings 13. and 14 are as follows: 

 

13.  The Coast Guard has stated that to advance the applicant without returning him to active duty for 
a minimum period of two years is contrary to regulation.  However, this regulation does not divest the 

applicant’s record could be corrected without offending the regulation.   This guidance was not 
made  a  part  of  the  Board’s  Order  and  its  absence  from  the  Order  is  evidence  that  the  Board 
intended only to advance the applicant to pay grade E-7.  Moreover, constructive service credit 
would  not  have  been  appropriate  in  Docket  No.  2000-035  because  it  would  have  covered  a 
period  of  future  service  through  2002.    The  Board  rendered  the  final  decision  in  2000.    The 
Board  is  not  aware  that  it  has  ever  granted  constructive  credit  covering  a  future  period  of 
possible active duty.  If the applicant wanted credit for this future period he would have been 
required to return to active duty and serve it.    
 

13.  The applicant further argued that his 1998 assignment data sheet, which indicated his 
intent to extend or reenlist for three years at the end of his then current enlistment in July 1999, 
and his PCS orders to Nashville, are proof that he would not have retired had it not been for the 
NJP and its potential of placing him in jeopardy of the Coast Guard’s HYT policy.   Although 
the  applicant’s  assignment  data  sheet  shows  that  in  October  1998  he  intended  to  reenlist  or 
extend  his  enlistment  in  1999,  it  is  not  proof  that  his  retirement  was  illegal,  involuntary,  or 
improper.  He has offered no evidence that he was forced or required to retire as a result of the 
NJP  or  even  the  HYT  policy.    While  imposition  of  the  NJP  and  the  HYT  policy  may  have 
created  future  obstacles  in  the  applicant’s  career,  he  has  not  established  that  the  Coast  Guard 
required  him  to  submit  a  retirement  request.    Docket  No.  2000-035  notes  on  page  6.  the 
applicant’s statement that he had been granted a four month enlistment extension.  The applicant 
has not presented any evidence that further extensions would not have been granted if he had 
requested them and wanted to remain on active duty, particularly if more time was needed to 
complete the NJP appeals process.   The Board recognized the negative impact the NJP had on 
the applicant’s advancement opportunity in granting his request for advancement in Docket No. 
2000-035, but the Board never found that his retirement was involuntary.  In addition, the Board 
notes that despite the applicant’s arguments to the contrary, the evidence of record is that he did 
not  want  to  remain  on  active  duty.    In  this  regard,  he  wrote  in  his  retirement  request  that 
“whatever the outcome of my appeal, I have decided to retire from the Coast Guard.”  Further, 
the Board notes that the applicant declined the opportunity to return to active duty when he was 
offered reinstatement by the Coast Guard.  He relies on the Board’s findings in Docket No. 2000-
035  (see  finding  11.,  supra)  as  corroboration  for  his  claim  that  he  should  have  constructive 
credit.    Again,  the  findings  by  the  Board  in  Docket  No.  2000-035  are  not  proof  that  the 
applicant’s retirement was illegal or improper, but they were made to show the unjustness of not 
advancing the applicant to E-7 under that set of circumstances.  The applicant’s choice to request 
retirement rather than to wait for the outcome of his NJP appeal does not render his retirement 
involuntary.  Finally, the Board notes that the applicant did not request reinstatement to active 
duty in his prior application, Docket No. 2000-035, and in fact expressed his desire not to return 
to active duty.  See Docket No. 2005-035, p. 7.  Accordingly, the applicant is not entitled active 
duty credit.  “To gain the benefit of the constructive service doctrine, the applicant must show 
                                                                                                                                                             

Commandant of the ability to separate (or retire) a member for good and sufficient reasons or if such a 
separation is in the Coast Guard's best interest.  Article 12-B-12.a.16 & 17, Personnel Manual.   

14.  Accordingly, the Board finds that the applicant's record can be corrected to show that he obligated 
himself for two years of duty on September 1, 1999 and that he was also advanced to pay grade E-7 
that same day.  The record can be further corrected to show that at the direction of the Commandant, 
with the consent of the applicant, he was retired on October 31, 1999 at pay grade E-7. 

 

  

 

that  he  was  ready,  willing,  and  able  to  resume  his  military  duties.”    Anderson,  at  458.    The 
applicant’s expressed desire not to return to active duty, on more than one occasion, forecloses 
any grant of constructive service credit by the Board.      
 

14.  The applicant argued that Docket No. 2000-175 supports his request for active duty 
credit.    However,  that  applicant  came  to  the  Board  seeking  constructive  credit  due  to  his 
erroneous  involuntary  retirement  by  the  Coast  Guard.    That  applicant  demonstrated  that  the 
Coast Guard committed an error in his record that led directly and immediately to his mandatory 
retirement, and if that error had not occurred he would have served on active duty for 30 years 
rather  than  being  involuntarily  retired  with  28  years  of  active  duty.    In  the  instant  case,  the 
applicant chose to retire and was not forced to do so, as was the applicant in Docket No. 2000-
175.    While  the  Board  in  Docket  No.  2000-035  may  have  considered,  understood,  and  found 
reasonable the applicant’s retirement request and his decline of an offer to return to active duty, 
it never found his retirement to be involuntary and neither does this Board.    

 
15.  The applicant complained that the Coast Guard did not submit its advisory within 
135 days as called for in the regulation.  The fact that the Coast Guard was a few days late in 
submitting its advisory opinion did not prejudice the applicant.  He was given the full 30 days to 
respond to the advisory as required by regulation, and he could have been granted additional time 
if he had requested it.   

 
16.  Contrary to the applicant’s suggestion, the Coast Guard was only required to seek 
clarification  of  the  final  decision  in  Docket  No.  2000-035  if  the  intent or  import  of  that  final 
decision was not clear to the Service.  See 33 C.F.R. § 52.73.  Apparently, the Coast Guard was 
satisfied  that  it  understood  the  Board’s  order  since  it  made  no  request  for  clarification  or  a 
technical  amendment.    The  Coast  Guard  is  not  required  to  seek  clarification  whenever  an 
applicant  belatedly  decides  to  seek  additional  relief.    In  this  regard,  the  Board  notes  that  the 
applicant  was  satisfied  with  the  manner  in  which  the  Coast  Guard  implemented  the  Board’s 
Order in Docket No 2000-035 for approximately five years.  The applicant waited until 2006 to 
begin complaining about the implementation of that Order.   

   
17.    Accordingly,  the  Board  finds  that  the  application  should  be  denied  because  it  is 

 
untimely and because it lacks merit.   
 
.    
 
 

 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

The  application  of  XXXXXXXXXXX,  USCG  (Retired),  for  correction  of  his  military 

ORDER 

 
 

 
 
record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 
 
 

 
 

 
 

 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 

 
 Francis H. Esposito 

 

 

 
 Nancy L. Friedman 

 

 

 
 
 Darren S. Wall