DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 2010-119
Xxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxx
FINAL DECISION
This proceeding was conducted under the provisions of section 1552 of title 10 and sec-
tion 425 of title 14 of the United States Code. The Chair docketed the case upon receiving the
completed application on March 5, 2009, and assigned it to staff member J. Andrews to pre-
pare 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 November 5, 2010, is approved and signed by the three duly
APPLICANT’S REQUEST AND ALLEGATIONS
The applicant, who retired from the Coast Guard Reserve as a master chief fire control
technician on March 13, 2007, asked the Board to correct his retirement date to April 1, 2007.
He alleged that his request to be transferred from the Selected Reserve (SELRES) to the Individ-
ual Ready Reserve (IRR) was unjustly denied just 30 days before his 62nd birthday.
The applicant stated that he completed his SELRES service on his 60th birthday, March
13, 2007, and entered retired status RET-1 on that date with 40 years, 10 months, and 3 days of
creditable service time and 4,491 retirement points. His base pay at the time was based on “over
26 years” of service. However, he alleged, under the National Defense Authorization Act for
Fiscal Year 2007, as of January 1, 2007, members with more than 30 years of service were
allowed to continue to accumulate creditable service for the purpose of military retired pay, and
as of April 1, 2007, the pay table was extended from a top category of “over 26” years of service
to 40 years of service.
The applicant stated that he was forced out of the Reserves because his 60th birthday
occurred on March 13, 2007, just 18 days before the new pay chart went into effect. However,
as of January 1, 2007, when all service up to 40 years became creditable, he was still in the
SELRES. He had no knowledge of the law, and the Coast Guard did not issue ALCOAST
023/07 with information about the upcoming pay raises until January 12, 2007.
The applicant alleged that due to discrepancies in his number of retirement points, he was
not issued a retirement letter until April 16, 2007, and he never knew his retirement pay would
be based on all 40 of his years of creditable service until he received that letter.
On December 16, 2008, the applicant stated, he contacted the Personnel Service Center to
determine whether his retirement date could be changed to April 1, 2007. When he asked if he
could forgo his retirement pay and return to the IRR for a month so that his retirement pay would
be based on the new pay rates that went into effect on April 1, 2007, he was advised to contact
the Office of Reserve Affairs. He noted that the Reserve Policy Manual allows members “to
defer retirement with permission until age 62” and that he could still meet the physical and dental
requirements for active service. However, his request was denied and he was advised to contact
the BCMR.
The applicant alleged that the senior enlisted pay raises were delayed until April 1, 2007,
which unjustly disadvantaged people who retired between January 1, 2007, when the law went
into effect and April 1, 2007, when the pay raises went into effect. He stated that he does not
believe the law was intended to cause this injustice and that if he had known about the law, he
would have requested an 18-day extension.
In support of his allegations, the applicant submitted a copy of a letter he received from
the Personnel Service Center (PSC) dated April 16, 2007, which states the following in pertinent
part:
E-9
40-10-03
4491
$5512.80
.3120
$1719.00
The following information represents the action that has been taken on your Reserve retirement
effective 3/13/07. You will be retired as follows:
Highest grade held (grade retired):
Creditable service time:
Total retirement points:
Base pay for E-9 from 2007 ADPS:
Total multiplier (4491/360 x 0.25 = %):
Retired pay (base pay 5512.80 x .3120):
The applicant also submitted a copy of the letter he sent to the PSC dated December 16,
2008 (three months before his 62nd birthday), regarding these issues. He offered to return to the
IRR for a month so that he could qualify for retired pay based on the new higher pay rates. He
alleged that the PSC “should have contacted the members of the USCGR with more than 40
years of service so that they could have made a decision to extend, if only a few days were
needed, while still in either the selected reserves or IRR.” In response, the PSC advised him that
his retired pay scale was correct because of his 60th birthday falling on March 13, 2007, and that
if he wanted to go into the IRR, he would need to contact the BCMR because the PSC could not
change his retirement date.
In addition, the applicant submitted a similar letter that he sent to the Office of Reserve
Affairs on January 12, 2009. In response, he was advised that the
only course of action available to you would be a BCMR. Upon initial review by this office, it is
our opinion that you would NOT be eligible for increased compensation based on the language in
the NDAA, specifically the effective date of this provision. Once the eligibility period has been
established, a member must be within the determined period of eligibility. One day less and you
are ineligible. Extensions to remain in the active status until age 62 are rarely granted. There
would have to be a demonstrable service need for a unique skill set that could not be provided
elsewhere. Extensions to remain in an active status are never granted solely for the purpose of
earning an entitlement.
It is within your right to pursue the BCMR; however you should note that in order for the BCMR
to find in your favor, the onus will be on you to prove the Coast Guard violated its policy and pro-
cedures or treated you in an inequitable manner. …
VIEWS OF THE COAST GUARD
On July 7, 2010, the Judge Advocate General (JAG) submitted an advisory opinion and
recommended that the Board deny relief. In so doing, he adopted the findings and analysis pro-
vided in a memorandum by the PSC, which noted the following:
The applicant was born on March 13, 1947, and entered military service on May 10,
1966.
On September 15, 1987, the applicant was notified that because he had completed 20
years of satisfactory service, he would be eligible to receive retired pay upon reaching
age 60 on March 13, 2007, and that no retirement credits could be accrued after age 60
unless he was recalled to active duty.
On June 6, 2000, the applicant elected to be transferred to RET-2 status, which is for
members who are eligible to retire but are not yet eligible for retired pay because they are
not yet 60 years old. He had been advised that under a SELRES force strength policy, he
had the option of transferring to RET-2 status, transferring to the IRR and drilling with-
out pay, transferring to the non-drilling active status pool, or being discharged. His
request was approved and on August 1, 2000, he was transferred to RET-2 status. On
August 1, 2000, the pay tables extended to only 26 years of service. The letter informing
him of his transfer to the Retired Reserve states that upon “reaching age 60, you will have
met all requirements for retirement pay. To insure you begin receiving retirement pay
and benefits, write to HRSIC six months prior to your 60th birthday advising this office
of your birth date and current mailing address. Please enclose a copy of this RET-2
transfer letter, retirement point statement HRSIC-4973A (enclosure 3), and an Reserve
Component Survivor Benefit Plan (RCSBP) Option Election Certificate, NAVMC
11221).”
On March 13, 2007, the applicant attained age 60, whereupon his status changed to RET-
1 and he became entitled to retired pay.
The extension of the pay table and new pay raises went into effect on April 1, 2007.
Article 8.C.12.c. of the Reserve Policy Manual (RPM) prohibits the retention of retire-
ment-eligible reservists past age 60 absent a compelling need of the Coast Guard and
approval of the reservist’s request by the Commandant.
Article 8.B.3. of the RPM allows members to defer retirement to age 62, with permission
from the Commandant, only if they are not qualified for retirement.
Therefore, the PSC concluded that the applicant was not entitled to return to service after
his 60th birthday because there was no compelling Service need for it. The PSC recommended
that the Board deny relief.
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On August 11, 2010, the Board received the applicant’s response to the views of the
Coast Guard. He stated that the advisory opinion is silent about the fact that he returned to
drilling at a SELRES unit from August 2004 until his 60th birthday because his billet at ESU
Alameda had remained unfilled between August 2000 and August 2004. Therefore, he received
permission from CG-131 to return to his SELRES billet until 2006, when he requested and
received an extension of the permission to drill up through his 60th birthday. The applicant
stated that the fact that he was authorized to return to drilling after he entered RET-2 status
“shows that exemptions to the Reserve Policy Manual can [be] and are made on a case by case
basis.” Another example of such exemptions, he noted, was referenced in ALCOAST 170/99,
issued on November 5, 1999, which states that “[o]ver the past few years, SELRES participation
waivers have been granted to reservists to exceed the 60-year maximum age limit or the 30-year
total qualifying service limits. These waivers have permitted senior reservists to be overbilleted
while the Coast Guard Reserve was below personnel strength…. C. As of 31 Jan 2000, over age
60 waivers will no longer be approved. D. As of 31 Jan 2000, no further 30-year waiver requests
will be accepted. E. Feb 2000, all personnel age 60 and over will be transferred from SELRES
status or separated as appropriate.” He stated that the Coast Guard should have made an exemp-
tion for him “like they have in the past for other members” so that he could qualify for retirement
pay based on the new pay rates.
The applicant stated that he believes he is the only Coast Guard reservist “who is quali-
fied for this pay reform with the credible service time over 40 years.” He further stated that he
thinks that the Coast Guard’s mandatory retirements under the High Year Tenure rules “will
make it impossible for any active duty Senior Enlisted or Reserve Senior Enlisted to participate
in the pay reform under Public Law 109-364 Section 601(c).” He noted that without the waiver
of a prior rate adjustment scheduled for fiscal year 2007 in § 601(a) of the law, the new reform
could not have gone into effect until 2008.
With regard to the letter about his retirement dated April 16, 2007, the applicant
explained that on March 3, 2007, he had to request correction of a retirement point statement that
had been issued on December 15, 2006, because it contained errors and did not reflect his most
recent service. He submitted a copy of this letter.
APPLICABLE LAW
Public Law 109-364, 120 Stat. 2083, was enacted on October 17, 2006. Section 601,
entitled “Fiscal Year 2007 Increase in Military Basic Pay and Reform of Basic Pay Rates,” states
the following:
(a) WAIVER OF SECTION 1009 ADJUSTMENT.--The adjustment to become effective during
fiscal year 2007 required by section 1009 of title 37, United States Code, in the rates of monthly
basic pay authorized members of the uniformed services shall not be made.
(b) JANUARY 1, 2007, INCREASE IN BASIC PAY.--Effective on January 1, 2007, the rates of
monthly basic pay for members of the uniformed services are increased by 2.2 percent.
(c) REFORM OF BASIC PAY RATES.--Effective on April 1, 2007, the rates of monthly basic
pay for members of the uniformed services within each pay grade (and with years of service com-
puted under section 205 of title 37, United States Code) are as follows:
[Tables omitted except for E-9 rate]
ENLISTED MEMBERS [FN1]
-------------------------------------------------------------------------------
Pay Grade 2 or less Over 2 Over 3 Over 4 Over 6
-------------------------------------------------------------------------------
E-9 [FN2] $0.00 $0.00 $0.00 $0.00 $0.00
--------------------------------------------------------------------
--------------------------------------------------------------------
Over 8 Over 10 Over 12 Over 14 Over 16
--------------------------------------------------------------------
E-9 [FN2] $0.00 $4,110.60 $4,203.90 $4,321.20 $4,459.50
--------------------------------------------------------------------
--------------------------------------------------------------------
Over 18 Over 20 Over 22 Over 24 Over 26
--------------------------------------------------------------------
E-9 [FN2] $4,598.40 $4,821.60 $5,010.30 $5,209.20 $5,512.80
--------------------------------------------------------------------
--------------------------------------------------------------------
Over 28 Over 30 Over 32 Over 34 Over 36
--------------------------------------------------------------------
E-9 [FN2] $5,512.80 $5,788.50 $5,788.50 $6,078.00 $6,078.00
--------------------------------------------------------------------
--------------------------------------------------------------------
Over 38 Over 40
--------------------------------------------------------------------
E-9 [FN2] $6,381.90 $6,381.90
--------------------------------------------------------------------
-------------------------------------------------------------------------------
[footnotes omitted]
ALCOAST 023/07, issued on January 12, 2007, announced the new pay rates effective as
of April 1, 2007, and stated that “[e]ffective 1 JAN 2007, the 75 percent maximum for computa-
tion of military retired pay has been removed for members who retire on or after that date.
Members with service beyond 30 years may continue to accumulate multiplier credit for the pur-
poses of computing military retired pay at the rate of two and one-half percent per year.”
Article 8.C.2.a. of the Reserve Policy Manual (RPM) states that “[w]hen reservists com-
plete at least 20 years of satisfactory federal service and have reached age 60, they are eligible for
transfer to RET-1 status upon request. When transferred to retired with pay status, reservists receive a
Retired Identification Card and are eligible for the same benefits available to active duty retirees.”
Article 8.C.2.b.(1) of the RPM states that members who have satisfied all of the require-
ments for retirement but are not yet 60 years old may enter RET-2 status, which means that they
are “entitled to unlimited commissary, exchange, and morale, welfare, and recreation benefits.
Unless recalled to active duty, RET-2 reservists are not entitled to earn pay and allowances or retire-
ment points, or receive military legal assistance or medical and dental care.”
Article 8.B.3. of the RPM states that at age 60, “[a] member not qualified for retirement
… shall be discharged without board proceedings, unless Commandant (CG-131) approves the
member’s request to defer retirement until age 62.”
Article 8.C.12.c. of the RPM states that “[e]nlisted members who are eligible to receive
retired pay will only be retained in the Ready Reserve beyond age 60 to fulfill compelling needs
of the Coast Guard and upon approval of a member’s written request to COMDT (CG-131), via
the chain of command.”
Article 8.C.4. states that in calculating Reserve retired pay, a reservist’s retired base pay
is “as computed under 10 U.S.C. 1406 or 1407.” Section 1407 concerns members who entered
the Service after September 7, 1980, but § 1406(b)(2) states that, for those who entered the Ser-
vice before that date, a reservist’s “retired pay base is the monthly basic pay, determined at the
rates applicable on the date when retired pay is granted … of the highest grade held satisfactorily
by the person at any time in the armed forces.”
Under Article 8.C.12.a. of the RPM, reservists in receipt of the “20-year letter,” which
the applicant received in 1987, may request transfer to RET-2 status at any time. Under Article
8.C.12.c., “[r]eservists who remain in an active status in the Ready Reserve after becoming
retirement eligible may request to transfer to RET-1 status upon reaching age 60. … Enlisted
members who are eligible to receive retired pay will only be retained in the Ready Reserve
beyond age 60 to fulfill compelling needs of the Coast Guard and upon approval of a member’s
written request to Commandant (CG-131), via the chain of command.”
(HYT) program as follows:
Article 12.G.1. of the Personnel Manual describes the Coast Guard’s “High Year Tenure”
The High Year Tenure policy establishes limits on the amount of time an active duty enlisted
member can remain at each pay grade. It is designed to increase personnel flow, compel members
to advance in their rating, and allow more consistent training and advancement opportunities for
the enlisted workforce. With more balanced, consistent opportunities, the Coast Guard can retain
the most highly motivated members who in turn gain in experience and ensure the Coast Guard
retains its leadership and professional continuity.
Article 12.G.3. states that members in pay grade E-9 attain their “professional growth
point” upon “[t]hirty years’ active military service [and may] reenlist or extend up to but not
beyond 30 years, one month’s active military service….” Article 12.G.5.1. states that “[m]em-
bers can re-enlist or extend only for periods that will expire before one month after their PGP
date. Unless Commander, (CGPC-epm-1) grants a HYT waiver, the HYT policy supersedes
other reenlistment policies or extension opportunities.” Article 12.G.7.1. states that “Command-
er, (CGPC-epm-1) will discharge a member who fails to advance before his or her PGP date.
However, a retirement-eligible member may request retirement.”
FINDINGS AND CONCLUSIONS
The Board makes the following findings and conclusions on the basis of the applicant’s
military record and submissions, the Coast Guard’s submissions, and applicable law:
1.
The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.
The applicant was timely filed.
2.
The applicant alleged that his retirement date of March 13, 2007, his 60th birth-
day, is unjust because it precludes him from having his retirement pay based upon the increased
pay rates that went into effect on April 1, 2007. He alleged that the Coast Guard could have
authorized him to retire on April 1, 2007, instead of March 13, 2007, or could have allowed him
to return to the IRR for a month before his 62nd birthday so that he would qualify for the higher
pay rate. The Board begins its analysis in every case by presuming that the disputed information
in the applicant’s military record is correct as it appears in his record, and the applicant bears the
burden of proving by a preponderance of the evidence that the disputed information is erroneous
or unjust. 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002,
approved by the Deputy General Counsel, May 29, 2002) (rejecting the “clear and convincing”
evidence standard recommended by the Coast Guard and adopting the “preponderance of the evi-
dence” standard for all cases prior to the promulgation of the latter standard in 2003 in 33 C.F.R.
§ 52.24(b)). Absent evidence to the contrary, the Board presumes that Coast Guard officials and
other Government employees have carried out their duties “correctly, lawfully, and in good
faith.” 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.
In Public Law 109-364, Congress authorized new pay rates to go into effect on
April 1, 2007, and extended them from the previously highest category, “over 26,” to a new high
for “over 40.” Although the applicant considers his situation to be one of a kind because he has
more than 40 years of service, there were presumably hundreds of retired military members with
more than 26 years of service who became eligible for retirement pay in the months between the
enactment of the law and April 1, 2007, and who would have benefited greatly if Congress had
made the new pay rates effective earlier or if the Coast Guard and other military services had
granted all of their retiring members extensions to April 1, 2007. Anytime the law changes
entitlements as of a specific date, there are people who are advantaged and disadvantaged by
being subject to the law in effect on one side or the other of that date. In this case, Congress did
not make the new law retroactive, and the Board is not aware that the Coast Guard (or any of the
other military services) has granted extensions to retiring reservists or recalled them for active or
inactive duty just so they could take advantage of the higher pay rates under the new law. There-
fore, the applicant has not shown that he has been treated unjustly in comparison to the other
retirement-eligible reservists who turned age 60 before April 1, 2007, but who would have bene-
fited greatly had they entered RET-1 status after April 1, 2007, because of the extension of the
pay scale under Public Law 109-364.
4.
Under Article 8.C.12.c. of the RPM, Reserve “[e]nlisted members who are eligi-
ble to receive retired pay will only be retained in the Ready Reserve beyond age 60 to fulfill
compelling needs of the Coast Guard and upon approval of a member’s written request to Com-
mandant (CG-131), via the chain of command.” The applicant noted that the Coast Guard some-
times waives the rules. He pointed out that the Coast Guard waived the age limit and its HYT
policy for many reservists in the late 1990s and, when he retired to RET-2 status prior to age 60
and his billet remained unfilled, he was allowed to return to the SELRES to continue drilling in
that billet until age 60. Thus, he received a waiver of the rule under Article 8.C.2.b.(1) of the
RPM that a member in RET-2 status may not earn retirement points unless they are recalled to
active duty. As ALCOAST 170/99 shows, however, the Coast Guard waived the HYT rules and
age limit in the late 1990s because of compelling Service needs. In allowing the applicant to
return to drilling in 2004 after he had elected to enter RET-2 status, the Coast Guard apparently
recognized a need, but it did not authorize him to drill indefinitely and, when he requested an
extension in 2006, authorized him to drill only up to his 60th birthday in March 2007. Therefore,
the preponderance of the evidence shows that when the applicant requested the extension in
2006, the Coast Guard found no compelling Service need that would warrant his retention
beyond age 60.
5.
The applicant noted that his creditable service for retirement purposes was not
properly tallied in 2006 and that he received a letter regarding his points, creditable service, and
retirement pay on April 16, 2007. The Board notes that this letter is dated approximately one
month after the applicant was last authorized to drill for retirement points. The date of the letter
does not persuade the Board that the Coast Guard erred or acted unjustly in refusing to extend his
retirement date to April 1, 2007, or to allow him to transfer to the IRR for a month prior to his
62nd birthday.
6.
The applicant argued that the Coast Guard’s HYT program is unfair because it
could preclude anyone from ever attaining the “over 40” pay rate. The Board finds that the fact
that the HYT program, when enforced, makes it unlikely if not impossible for a member to serve
long enough to attain the “over 40” rate does not prove that the HYT program is erroneous or
unjust given its purposes as described in Article 12.G.1. of the Personnel Manual.
7.
The applicant turned 60 on March 13, 2007, and is therefore entitled to retirement
pay under the law in effect on that date. The Board finds that he has not proved by a
preponderance of the evidence that the Coast Guard committed an error or injustice1 by refusing
either to extend his retirement date to April 1, 2007, or to allow him to return to active or inactive
duty for a month prior to his 62nd birthday to qualify for the pay raises that went into effect on
April 1, 2007, under Public Law 109-364. Therefore, his request should be denied.
ORDER
1 For the purposes of the BCMRs, “‘[i]njustice’, when not also ‘error’, is treatment by the military authorities, that
shocks the sense of justice, but is not technically illegal.” Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976).
The application of xxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCGR, Retired, for correction
Donna M. Bivona
Evan R. Franke
Darren S. Wall
of his military record is denied.
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