DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2007-136 
 
xxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxx   

 

 
 

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 docketed the case on May 25, 2007, upon receipt of 
the completed application, and assigned it to staff member J. Andrews to prepare 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 February 21, 2008, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

 
 
The applicant asked the Board to correct his record by changing his retirement date from 
February 1, 2006, to April 1, 2006, so that he would receive two more months of active duty pay 
and allowances and two fewer months of retirement pay.   
 

The applicant stated that after more than 30 years of service, he did not receive “a fair 
opportunity to retire from the Coast Guard on my desired mandatory retirement date of 1 April 
2006.”1  He alleged that the Coast Guard Personnel Command’s (CGPC’s) Office of Personnel 
Management (OPM-2) pressured him to retire two months earlier than he wanted to so that there 
would be “on-site relief” in the small office in which he worked.  He stated that OPM-2 told him 
and his supervisor, CDR X, that if he requested retirement on a date after February 1, 2006, his 
position would not be filled until the following assignment season, which would have left the 
office with a six to nine month gap between his own departure date and the arrival of whoever 
was assigned to fill the position.  Therefore, he “moved my retirement date up two months” to 
ensure that his relief would arrive prior to his departure.  He “made this decision based on the 
needs of [his small office], because of loyalty to my boss and to my commitment to the office.  
This was not my desire.”  He argued that due to the size of the office, he “had no other choice but 
to move my retirement date to be fair to my boss and the attorneys.”  He stated that he under-
                                                 
1 Article 12.C.6.a. of the Personnel Manual states that the Commandant may retire any CWO with at least 20 years of 
active service upon his or her request.  Article 12.C.6.b.1. states that a CWO “who has at least 30 years of active 
service retires 60 days after he or she completes that service (10 U.S.C. 1305).” 

 

SUMMARY OF THE RECORD 

 
 
 
On January 15, 1975, the applicant enlisted in the Coast Guard.  He advanced to chief 
yeoman  and  was  appointed  a  chief  warrant  officer  (CWO)  on  July  1,  1994,  in  the  personnel 
administration, or “PERS,” specialty.   
 
 
In  a  memorandum  dated  January  6,  2005,  the  applicant  “request[ed]  retirement  on  the 
first day of February 2006.”  His command endorsed the request with a recommendation that it 
be approved.   
 

On  January  21,  2005,  the  Chief  of  the  Separations  Section  at  OPM  recommended 
approval of the applicant’s request, noting that the “[m]andatory retirement for [the applicant] 
would be the first day of the month after he achieves 30 years [and] 60 days [of] service, or in his 
specific case, 1 April 2006.”  On January 28, 2005, the CWO Assignment Officer also recom-
mended approval, noting that the “job will be filled during normal AY05 [assignment year 2005] 
season.    On  January  29,  2005,  the  Chief  of  the  Officer  Assignments  Branch  recommended 
approval of the request. 

 
On January 31, 2005, CGPC approved the requested retirement date of February 1, 2006, 

and issued orders authorizing the applicant’s retirement on February 1, 2006. 
 
 
On February 1, 2006, the applicant was retired as a CWO4 upon completing 30 years and 
18 days of active duty.  His DD 214 indicates that he was retired for “maximum service or time 
in grade” pursuant to Article 12.C.7. of the Personnel Manual. 

stands the dynamics of detailing personnel because he previously served as an Assignment Offi-
cer for chief warrant officers and believes he was unjustly treated. 

VIEWS OF THE COAST GUARD 

 

 
 
On  November  6,  2007,  the  Judge  Advocate  General  of  the  Coast  Guard  submitted  an 
advisory opinion recommending that the Board deny the applicant’s request and arguing that the 
applicant had “not met his burden of proving the existence of an error or injustice by the prepon-
derance of the evidence.”  In so doing, he adopted the facts and analysis in a memorandum pro-
vided by CGPC. 
 
CGPC stated that the CWO Assignment Officer informed the applicant that if he retired 
 
on April 1, 2006, his position “would not be factored into that year’s assignment process and 
would  result  in  a  gapped  billet.”    CGPC  alleged  that  this  decision  regarding  “the  applicant’s 
backfill was motivated by prudent expenditure of resources” and would result in the billet being 
empty for four or five months.  The Assignment Officer also informed the applicant that if he 
retired on February 1, 2006, his relief would be assigned in July 2005 so that there would be a 
seven-month overlap.  CGPC stated that the evidence does not clearly indicate that pressure was 
applied  on  the  applicant  to  retire  two  months  before  the  law  required,  but  it  is  clear  that  the 
applicant agreed to retire on February 1, rather than April 1, 2006, so that there would be a seven-
month  overlap  in  his  billet  instead  of  a  gap.    CGPC  noted  that  the  applicant’s  relief,  another 

CWO, reported to the office to fill his position on July 1, 2005, so there was indeed a seven-
month overlap. 
 
 
CGPC noted that the applicant was not required to submit his letter requesting retirement 
and that, if he had not done so, he would have been retired on April 1, 2006.  CGPC admitted 
that if the applicant had chosen to retire on April 1, 2006, “his coworkers would have endured a 
gap of four to five months, and [he] may have felt guilty or responsible for that gap.”  However, 
CGPC  argued,  it  “is  unreasonable  to  conclude  that  the  Assignment  Officer’s  business  rules 
regarding timing of billet overlaps amounted to pressure to change his retirement date.”  CGPC 
stated  that  the  applicant  was  informed  of  the  Assignment  Officer’s  rules  and  deliberately  and 
voluntarily decided for the good of his office and coworkers to retire on February 1, 2006, so that 
there would be overlap rather than a gap in his billet.  Therefore, CGPC recommended that no 
relief be granted.   
 

In support of these allegations, CGPC submitted copies of several email messages.  On 
December 7, 2004, the CWO Assignment Officer informed the applicant that if he wanted his 
tour of duty to be extended until his retirement date, he needed to get his command’s endorse-
ment  because  someone  else  wanted  the  position  and  the  Assignment Officer needed the com-
mand’s endorsement “to leave you there for the time you have left.” 
 

On December 8, 2004, the CWO Assignment Officer informed the applicant that “[w]ith 
a 1 April retirement date, I cannot provide a replacement until AY06.  We base the assignment 
on the retirement date, not the terminal leave date.  I don’t have any intention of moving you, but 
need an endorsement for all extension requests.” 
 

 

 
 
 

On December 8, 2004, CDR X told CAPT H of OPM-2 that his office had  

a warrant, 5 attorneys, & an admin assistant.  The warrant, [applicant’s name], hits 30 years on 1 
Apr 06.  As a practical matter, he’ll be gone next Christmas w/ [terminal] leave and proceed time.  
He is tour complete in AY05 & has asked to extend in [the office] for the last 4 months of his 
career.  The word he’s getting from the detailer is if he extends, the billet cannot be filled until 
AY06.  With this size of office, I can’t afford to have the billet gapped for 7 months.  An on-site 
relief is also critical since it’s a topic matter his relief is virtually guaranteed to have no experience 
in.  I certainly don’t want to jack him around by fighting his request to extend for 4 months – just 
so I can get the position filled in AY05.  He’s offered to stay on until summer ’06, but the word he 
got was that wasn’t an option for a warrant PERS.  Any ideas? 

On December 8, 2004, CAPT H of OPM-2 replied to CDR X as follows: 

Regret my preliminary answer here would be to avoid filling this position in AY05, if [the appli-
cant] desires to serve his entire 30 years (plus two months) and depart in April of 2006. 
 
This is not all that unusual—many of our dedicated CWOs elect to serve out their full service eli-
gibility.  Some even ask to stick around longer.  We can, and do, accommodate them if they are 
serving in a critical specialty. … It is a bit unfortunate, for the legal program in general, and your 
shop  in  particular,  that  the  PERS  specialty  is  not  among  those  for which we can extend CWOs 
beyond 30. … 
 
With that as a preface … our standard practice is to use February as a “cut-off” date for the current 
assignment season.  Positions vacated in March and later are filled the following assignment sea-
son.    Otherwise,  we  create  situations  where  there  are  significant  (and  costly)  overlaps.    If  we 

assigned an AY-05 relief for [the applicant], you’d have two CWOs filling one position for 6-8 
months … not sound from an AFC-01 stewardship standpoint. 
 
If [the applicant] were willing to reconsider his retirement date and shift it up a couple of months, 
we’d be happy to identify a qualified relief during the current assignment season.  This outcome 
would have a CWO reporting in Summer 2005, affording you the overlap with which you’re con-
cerned.  Please advise. 

 

On December 8, 2004, CDR X replied that he was “not inclined to ask him to move his 
retirement up to accommodate an arbitrary deadline.  He’d like to stick it out till the bitter end & 
after 30 years I think he should be able to leave under his own terms.  So, if we have to take it in 
the shorts, we will.” 

 
On October 12, 2007, the CWO Assignment Officer wrote that she remembers the appli-
cant asking for an off-season assignment to replace him to avoid a gap in the billet.  The Assign-
ment Officer further stated that she informed the applicant  

 
of  the  policy  that  was  in  place  for  providing  replacements  for  retiring  CWOs.    At  that  time, 
[OPM’s] assignment policy was, any unit with a CWO retiring on or before 1 Feb would receive a 
replacement  the  summer  before.    For  any  unit  w/  a  CWO  retiring  …  after  1  Feb  through  the 
remainder  of  that  AY  would  receive  a  replacement  the  following  summer.    This  prevented  the 
overbilleting of CWOs for an extended period of time.  If we had provided replacements the sum-
mer before for any CWO, regardless of the timeframe of when the member retired, we could have 
had an overbillet situation that could have potentially lasted 10 – 12 months placing us in a posi-
tion where the CG might have well over its allotted number of CWOs at any give time. 
 
[The applicant] was fully aware of the reasoning behind this policy.  I explained it to him in detail 
plus he was a CWO detailer before he went to the legal job in HQ, from which he retired.  Actu-
ally, he held the same detailer job I had and as far as I know the policy was in place when he held 
the job.  He, serving in the capacity of liaison between OPM and his office, was given the facts of 
the assignment policy.  I believe we did discuss this on a couple of occasions, [but] there was in no 
way ANY undue pressure put on him to retire early.  [He did not file a complaint about being pres-
sured to retire early.] … It was his decision to go ahead and change his retirement date based on 
the needs of his office.  There is no way I could have forced him to make that particular decision.  I 
had nothing to hold over his head or to offer him to make him change his mind. 

 
 
On October 12, 2007, a lieutenant who worked in the applicant’s office at the time of his 
retirement wrote that he cannot recall being privy to any discussion between the applicant and 
CDR X about the timing of the applicant’s retirement.  The lieutenant stated that he remembers  
 

that there was a relationship between [the applicant’s] retirement date and orders for his relief.  My 
recollection is that the detailers informed him that an April 2006 retirement meant that his relief 
could not be ordered in until the summer of 2006.  I recall that in order for his relief to arrive in the 
summer of 2005, he would have to retire no later than February 2006.  I also recall that [the appli-
cant]  was  concerned  about  leaving  his  billet  vacant,  but I am not aware of any coercion placed 
upon [him] by his detailer. … I am not aware of any coercion placed upon [him] by [CDR X/the 
command]. 

 
 
On October 18, 2007, CDR X forwarded to CGPC the email messages dated December 7 
and 8, 2004, shown above.  He stated that after receiving the response from CAPT H, he asked 
the Chief of Legal Policy & Program Development and the Deputy Judge Advocate General to 

 

 

discuss the problem with the Chief of OPM to see if an exception to the policy could be made, 
but they did not do so.  CDR X further stated that he believes that  
 

the hard and fast “February rule” is a matter of convenience for the detailers so they don’t have to 
make case-by-case determinations.  I’m as much a fan of arbitrary rules as the next person, but it 
was disappointing that no one in the legal program was willing to back [the applicant] up in what 
was, in my view, a modest request.  It was unfortunate [he] was forced to choose between his own 
interests and leaving [the office] shorthanded for 8 months.  In the end, his loyalty to the office and 
to the legal program resulted in him forgoing what he said was his goal when he first entered the 
Coast Guard—serving a full 30 year career.  It’d be great if the [BCMR] could help him out. 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On  November  26,  2007,  the  BCMR  received  the  applicant’s  response  to  the  Coast 
Guard’s advisory opinion.  He stated that the advisory opinion is not factual in that it suggests 
that when he asked to retire on February 1, 2006, he actually wanted to retire on that date.  He 
argued that “[t]o think that a person after 30 years [of] service would retire two months earlier 
than mandatorily required without being pressured is ridiculous. 

 
The applicant stated that CAPT H of OPM-2 pressured him into requesting to retire two 
months earlier than he wanted to and had to.  He alleged that the emails submitted by CGPC 
prove his allegations about the pressure put on him to retire early.  He argued that, after 30 years 
in service, he should have been able to retire when he wanted instead of being “pressured due to 
some  arbitrary  assignment  date  to  make  the  detailer’s  job  easier.”    He  stated  that  almost  all 
retirements are voluntary retirements because very few personnel stay on active duty for 30 years 
and the members who do so should not be treated as if they were voluntarily retiring.  The appli-
cant  argued  that  the  strong  evidence  that  he  was  not  retiring  on  the  date  he  wanted  to  retire 
should be considered sufficient evidence that he was unjustly pressured to retire early.  He stated 
that his loyalty to his office and the work of that office and the pressure applied by CAPT H due 
to assignment considerations deprived him of the opportunity to retire on his desired retirement 
date.  He argued, “[t]his is not the way to treat the few that retire from the Coast Guard with 30 
years of 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 submission, and applicable law: 
 

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

application was timely.   

1. 

 
2. 

Absent  evidence  to  the  contrary,  the  Board  presumes  that  government officials, 
 
including  the  applicant’s  chain  of  command  and  officers  within  OPM,  have  carried  out  their 
duties “correctly, lawfully, and in good faith.”2  To be entitled to relief, the applicant must submit 

                                                 
2 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979).   

3. 

sufficient evidence to overcome this presumption and prove by a preponderance of the evidence 
that his retirement date is either erroneous or unjust.3   
 
 
The record shows that the applicant originally wanted to retire on April 1, 2006—
the last possible date permitted by statute—and would have done so if his office would not have 
been left short-handed for a few months following his departure.  The applicant does not allege 
that the Coast Guard violated any statute, regulation, or policy when it retired him on February 1, 
2006, upon completing more than 30 years of service, and since he actually submitted a request 
for  that  retirement  date,  the  record  does not support a finding of error.  Instead, the applicant 
argues that his retirement date was unjust because (a) he was pressured into requesting a retire-
ment date two months before that mandated by law; and (b) he had served more than 30 years on 
active duty and yet OPM would not make an exception to the assignment policy that would have 
left his office understaffed had he not submitted a request to retire on February 1, 2006. 
 

The assignment policy at issue is apparently not inscribed in any regulation but 
nonetheless firmly enforced.  There is no evidence in the record showing that exceptions have 
been  made  for  other  CWOs  retiring  under  similar  circumstances.    Since  the  applicant  had 
recently served as the CWO Assignment Officer, he  may have known about the policy before 
making  his  inquiries  in  December  2004.    The  policy  provides  that  when  a  CWO  retires  on 
February  1  or  earlier,  CGPC  will  assign  his  relief  during  the  prior  assignment  season  (which 
occurs each summer) so that there will be a few months of overlap; but when a CWO retires after 
February  1, CGPC will not assign relief until the following summer and so the billet remains 
unfilled  for  a  few  months.    The  policy  apparently  ignores  the  amount  of  terminal  leave  the 
incumbent CWO is entitled to take prior to the date of retirement. 
 

The emails in the record support the applicant’s contention that he felt pressured 
into requesting the February 1, 2006, retirement date.  The emails show that he was informed of 
the assignment policy, which would cause his office to be understaffed for a few months if he 
retired on April 1, and was told that no exception to that policy would be made for his billet.  The 
applicant  was  tremendously  loyal  to  the  Coast Guard, his office’s mission, and his colleagues 
and, as a result of his loyalty, submitted a request to retire on February 1 so that his office would 
not be understaffed for a few months following his retirement.  If he had not been so loyal, he 
would have retired on April 1, 2006, despite the fact that his office would be left understaffed for 
a few months because of the Coast Guard’s assignment policy.   

5. 

4. 

 
6. 

The  emails  do  not  show  that  any  member  of  the  Coast  Guard  actually  applied 
improper pressure or verbally coerced the applicant into submitting his retirement request.  The 
emails  do  not  show  that  he  would  personally  suffer  any  negative repercussions if he chose to 
retire on April 1, 2006, and he has not alleged that he expected any such repercussions.  In fact, 
CDR X’s last email dated December 8, 2004, shows that CDR X did not intend to ask the appli-
cant  to  retire  early  for  the  sake  of  his  coworkers  or  their  mission,  and  the  applicant  has  not 
                                                 
3 33 C.F.R. § 52.24(b).  Under 10 U.S.C. § 1552(a), the BCMRs are authorized to correct both errors and injustices 
in applicants’ military records.  In Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976), the Court of Claims held 
that,  the  word  “injustice”  as  used  in  §  1552(a)  means  “treatment  by  military  authorities  that  shocks  the  sense  of 
justice, but is not technically illegal.”  This Board has the authority to determine the existence of injustice on a case-
by-case basis when it is supported by the preponderance of the evidence in the record.  See Decision of the Deputy 
General Counsel in BCMR Docket No. 2002-040. 

alleged that CDR X did so.  Instead, the emails show that OPM informed the applicant and CDR 
X of the policy that would apply in assigning the applicant’s relief depending upon his retirement 
date.  A less loyal member might have ignored the information and retired on April 1, but the 
applicant’s loyalty led him to request retirement February 1.  Although the applicant felt pressure 
to submit a request to retire two months earlier than required by statute because of the conse-
quences of a later retirement date for his office, the Board cannot conclude on this basis that his 
request to retire on February 1 was not voluntary. 

In  emails  dated  December  8,  2004,  and  October  18,  2007,  CDR  X  called  the 
assignment policy arbitrary and stated that it was based on the convenience of the Assignment 
Officers so that they would not have to make judgments on a case-by-case basis.  Both he and the 
applicant  believe  that  an  exception  should  have  been  made  because the applicant was retiring 
after 30 years, instead of 20 or 25 years, so that the applicant would not have to choose between 
his  desired  retirement  date  of  April  1  and  a  date  two  months  earlier  that  would  not  leave  his 
office understaffed for a few months. 

The Board does not believe the assignment policy to be arbitrary just because it 
may ease the Assignment Officer’s workload.  If no firm “cut-off” date were provided and such 
matters were decided on a case-by-case basis, inequities would likely abound given the number 
of Assignment Officers making such decisions, the number of factors involved in the assignment 
process, the number of reasons that affect retirement dates (e.g., should an exception be made for 
a member with 30 years of service but not for one with 25 years who must retire to take care of a 
sick child or parent?), and the variety of billets and office circumstances. 

According to CGPC, moreover, the policy is based in large part on financial pru-
dence.  The Coast Guard has apparently decided that when a CWO retires in the “off-season”—
i.e., not in the summer—the Coast Guard can afford to pay for only a few months of overlap in 
the  CWO’s  billet.    For  example,  when  the  applicant  retired,  the  Coast  Guard  paid  for  seven 
months of overlap since both the applicant and his relief were assigned to the billet from July 1, 
2005,  through  January  31,  2006.    However,  because  of  the extra cost, the Coast Guard is not 
willing  to  pay  for  longer  periods  of  overlap,  such  as  from  July  1,  2005,  to  March  31,  2006.  
CGPC also argued that the amount of overlap in billets must be limited because the more CWOs 
are overlapped, the fewer CWOs there are to fill other critical billets.  In light of these considera-
tions, the Board cannot find that the assignment policy was arbitrarily or unfairly applied to the 
applicant’s billet.   

Although the applicant’s loyalty and dedication should be honored, the fact that he 
retired from the Coast Guard with 30 years of service does not persuade the Board that OPM 
committed  an  injustice  by  not  granting  an exception to its assignment policy so that he could 
avoid having to choose between following his own desire by retiring on April 1 or helping his 
office by retiring on February 1.  OPM’s actions in informing the applicant of the assignment 
policy and in refusing to make an exception for his billet do not constitute either legal error or 
“treatment by military authorities that shocks the sense of justice.”4 

   
7. 

 
8. 

 
9. 

 
10. 

 
11. 

Accordingly, the applicant’s request should be denied. 

                                                 
4 Reale, 208 Ct. Cl. at 1011. 

The application of CWO xxxxxxxxxxxxxxxxxxxxxxxxx, USCG (Retired), for correction 

 
 

 
 

 

ORDER 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Patrick B. Kernan 

 

 
 

 
 Nancy L. Friedman 

 
 
of his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
* This Board member recused himself from the deliberations in this case.  Under 33 C.F.R.  
§ 52.11(b), two members constitute a quorum of the Board. 

(recused*) 
 Donald A. Pedersen