DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 211-130 
 
XXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXX 

 

 

 
 

FINAL DECISION 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section  425  of  title  14  of  the  United  States  Code.    The  Chair  docketed  the  application  upon 
receipt  of  the  applicant’s  completed  application  on  March  23  2011,  and  subsequently  prepared 
the final decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  March  20,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
 The applicant, a retired master chief electronics technician (ETCM; pay grade E-9) asked 
the Board to correct his record by reinstating him on active duty or by retiring him with 30 years 
of  active  service  at  his  current  pay  grade.   The  applicant  was  involuntarily  retired  from  active 
duty on December 1, 2011 with approximately 22 years of active service as a result of selection 
for such retirement by a Career Retention Screening Panel (CRSP).   
 

Prior to enlisting in the Coast Guard in 1992, the applicant had served in the Army and 
Army  Reserve  for  approximately  4½  years.      After  enlisting  in  the  Coast  Guard,  the  applicant 
advanced  to  pay  grade  E-8  and  was  subsequently  commissioned  a  chief  warrant  officer,  pay 
grade W-2 (CWO2) on September XXXXXXXXX.  However, the applicant encountered some 
difficulty while serving as a warrant officer for which he received a punitive letter of reprimand 
on  XXXXXXXXX    for  his  “reproachable  manner  by  engaging  in  excessive  drinking  with  his 
subordinates;  conduct  that  was  a  violation  of  station  regulations  and  which  undermined  [the 
applicant’s]  authority  as  XXXXXXXXXXXX  to  enforce  standards  of  behavior.”    The  letter  of 
reprimand also noted that the applicant  had received non-judicial punishment for being derelict 
in  the  performance  of  his  duties  in  violation  of  Article  92  of  the  Uniform  Code  of  Military 
Justice  (UCMJ),  and  for  fraternizing  with  enlisted  personnel  in  violation  of  Article  134  of  the 
UCMJ.   
 

 

 

The  applicant  received  a  special  OER  to  document  the  NJP  and  his  XXXXXXXXXX 
 
permanent  relief  of  duty  XXXXXXX.    The  applicant  stated  that  after  review  by  a  board  of 
officers,  his  warrant  officer  commission  was  revoked  and  he  was  discharged  from  the  Coast 
Guard  in  XXXXXX.    However,  his  request  for  permission  to  reenlist  in  pay  grade  E-8  was 
granted  and  he  reenlisted  in  the  Coast  Guard  on  XXXXXXXXXX.    The  applicant  stated  that 
after  his  reenlistment,  he  earned  his  CO’s  recommendation  for  advancement  and  in  2010  and 
2011 and placed above the cut at XXXXXXXX on the ETCM 2011 advancement list.  He was 
selected  for  involuntary  retirement  by  the  CRSP  panel  that  convened  on  September  27,  2010.   
He  appealed  his  involuntary  retirement  on  November  16,  2010.    His  appealed  was  denied  on 
January 19, 2011.   
 

ALLEGATIONS 

 

The  applicant  alleged  that  the  CRSP  decision  to  involuntarily  retire  him  was  unjust 
because  it  constituted  administrative  double  jeopardy,  because  it  was  a  breach  of  his  contract, 
and because it used 14 U.S.C. § 3571 improperly.  
 
With regard to administrative double jeopardy, the applicant explained that the CRSP used 
 
the  same  adverse  information  to  involuntarily  retire  him  that  the  board  of  officers  had  already 
used to revoke his CWO commission and to discharge him from the Coast Guard in XXXX.  The 
adverse information consisted of the NJP, the LOR, the special OER noting the applicant’s relief 
as  XXxx,  and  an  alcohol  incident  letter.        According  to  the  applicant,  the  panel’s  decision  to 
select  him  for  involuntary  retirement  could  only  have  been  based  on  the  adverse  performance 
documentation  because  there  was  no  other  negative  information  in  his  record.    The  applicant 
stated  that  his  enlisted  performance  prior  and  subsequent  to  his  warrant  officer  service  was 
impeccable.  
  

With  regard  to  the  contract  violation  issue,  the  applicant  argued  that  he  has  upheld  the 
terms of his recent enlistment contract but the Coast Guard has not.   The applicant reenlisted for 
an  indefinite  period  in  XXXX,  which  allowed  him  to  remain  in  the  service  for  up  to  30  years.  
He stated that he does not know whether his involuntary retirement was due to the needs of the 
service or due to his performance.   

 

                                                 
1      The  pertinent  provisions  of  14  U.S.C.  §  357  are:    “(a)  Enlisted  Personnel  Boards  shall  be  convened  as  the 
Commandant  may  prescribe  to  review  the  records  of  enlisted  members  who  have  twenty  or  more  years  of  active 
military service.  (b) Enlisted members who have twenty or more years of active military service may be considered 
by the Commandant for involuntary retirement and may be retired on recommendation of a Board—(1)  because the 
member’s  performance  is  below  the  standards  the  Commandant  prescribes;  or  (2)  because  of  professional 
dereliction.  (c)  An enlisted member under review by the Board shall be—(1) notified in writing of the reasons the 
member  is  being  considered  for  involuntary  retirement;  (2)  allowed  sixty  days  from  the  date  on  which  counsel  is 
provided  .  .  .  to  submit  any  matter  in  rebuttal.    (3)  provided  counsel  .  .  .  to  help  prepare  the  rebuttal  .  .  .  and  to 
represent  the  member  before  the  Board  .  .  .    (4)    Allowed  full  access  to  and  be  furnished  with  copies  of  records 
relevant to the consideration  for involuntary retirement prior to submission of the rebuttal . . . and (5)  allowed to 
appear before the Board and present witnesses or other documentation related to the review.” 

Subsection (j) states that  “When the Secretary orders a reduction in force, enlisted personnel  may be involuntarily 
separated from the service without the Board’s action.”     

 

 

 

With regard to the legality of the CRSP, the applicant argued that the Secretary violated 
 
the spirit and intent of 14 U.S.C. § 357(j) by using it as a workforce shaping tool to enhance the 
opportunity  for  advancement  of  junior  personnel  by  involuntarily  retiring  members  with  more 
than  20  years  of  service  without  the  board  action  required  by  14  U.S.C.  §  357(b)-(i).  The 
applicant  pointed  out  that  14  U.S.C.  §  357(j)  states  “When  the  Secretary  orders  a  reduction  in 
force,  enlisted  personnel  may  be  involuntarily  separated  from  the  service  without  the  [enlisted 
personnel board’s] action.”    
 

The  applicant  stated  that  the  Secretary  approved  a  Coast  Guard  memorandum  that 
authorized  involuntary  retirements  without  board  action,  but  she  did  not  order  a  reduction  in 
force.  According to the applicant, the memorandum approved by the Secretary on behalf of the 
Coast Guard states that “the [CRSP] is required to address high retention and its adverse impact 
on workforce flow.”    The applicant also stated:  
 

Of the 1181 candidates, 377 were selected for involuntary retirement; however at 
the end of 2011, the Coast Guard workforce numbers will remain the same. . . .  In 
fact  the  Coast  Guard  boasts  that  over  1000  advancements  will  result  from  this 
measure.  The [CRSP’s] precept . . .  states that there is no quota for the number 
of personnel selected for involuntary retirement; further confirming that this was 
not  a  reduction  in  force  but  a  cost  effective  means  to  conduct  a  panel.    The 
Secretary  .  .  .    provided  authorization  for  involuntary  retirements  without  Board 
action, yet the Coast Guard proceeded with a performance-based panel, clearly as 
a means to circumvent the law.   Unfortunately for those affected by the panel’s 
decisions,  conducting  a  panel  in  such  a  manner  did  not  afford  each  of  the  1181 
candidates due rights or process.   

 
 
The applicant stated that although convening a board in accordance with 14 U.S.C. § 357 
(a)-(i)  would  have  been  costly,  it  would  have  afforded  each  candidate  certain  rights  that  they 
were denied with the CRSP.  Members undergoing an enlisted personnel board would have been    
 

  notified  in  writing  of  the  reasons  the  member  is  being  considered  for  involuntary 

retirement; 

  allowed 60 days from the date on which counsel is provided to submit a rebuttal;  

  provided  with  counsel  to  assist  in  preparing  the  rebuttal  and  to  represent  the  member 

before the board; 

  allowed  full  access  to  and  be  furnished  with  copies  of  records  relevant  to  the 

consideration for involuntary retirement prior to submission of the rebuttal; and 

  allowed to appear before the board and present witnesses or other documentation related 

to the review.   

 

 

 

 

 

 

 

The  applicant  stated  that  the  only  due  process  provided  by  the  CRSP  to  candidates  was  15 
days  to  appeal  an  adverse  decision  of  the  CRSP  and  the  basis  of  the  appeal  was  limited  to 
material error, newly discovered evidence, or the presence of improper documents in the record. 
 

The applicant argued that the Coast Guard already has workforce management tools in place 
such as High Year Tenure (HYT) and  enlisted personnel boards under 14 U.S.C. § 357 (b).  The 
applicant argued that adhering to the HYT policy would have achieved similar results at the E-5 
and E-6 level and possibly the E-7 level.  The applicant stated that using the HYT policy would 
have provided long term effects  whereas using the CRSP was only  a temporary measure.  The 
applicant concluded his statement with the following:  
 

Beyond the unlawful use of 14 U.S.C. 357 by conducting the CRSP in the manner 
that they did; which was unjust to an additional 376 Coast Guardsman, the Coast 
Guard  further  disregarded  my  rights  of  double  jeopardy  and  which  resulted  in  a 
breach of contract.  Furthermore, the panel did not adhere to their own precept or 
goals.    I have shown my value to  the organization and ability to  advance within 
the  organization,  which  will  in  turn  allow  others  to  advance.    My  retirement  as 
senior chief petty officer or advancement to master chief petty officer will afford 
the  same  members  the  opportunity  to  advance  in  their  respective  pay  grades 
regardless.   

 

BACKGROUND FOR THE CRSP 

 
ALCOAST 165/102 
 
 
MILITARY MANAGEMENT.”  It stated the following in pertinent part:   
 

On April 1, 2010, the Coast Guard issued ALCOAST 165/10 entitled “ACTIVE DUTY 

Within our active duty workforce, we continue to experience historically high 
retention levels in both our officer and enlisted ranks.  Currently we have more 
active duty enlisted members and officers than funded billets.  Looking ahead to 
fiscal year (FY) 2011, the president’s budget for the Coast Guard projects billet 
losses that will exacerbate this overage in our active duty workforce.  A military 
workforce requires flows at all levels to ensure career progression for our people.  
Absent normal separation rates at all levels, opportunities for advancement and 
promotion become significantly reduced, thus increasing time-in-grade at every 
level.   
 
Over the past six months, the Coast Guard has implemented several initiatives to 
reduce  the  impacts  of  high  retention,  including  eliminating  all  selective  re-
enlistment  bonuses  (SRB),  waiving  up  to  12  months  time-in-grade  requirements 
for  retirements,  and  reducing  accessions  to  TRACEN  Cape  May  to  their  lowest 
level  on  record.    Officer  accessions  have  also  been  reduced.    Even  with  this 
careful  management,  the  active  duty  workforce  still  remains  above  our  funded 

                                                 
2    An  ALCOAST is a directive  from the  Commandant, the Vice-Commandant, or the  Chief of Staff of the Coast 
Guard.   

 

 

level.  This situation, coupled with the planned military billet reductions proposed 
in  the  President’s  FY  2011  budget  necessitates  the  use  of  additional  workforce 
management tools. (Emphasis added.)  
 

  # 

# 
 

# 

To  manage  the  enlisted  workforce:    CG–PSC-EPM  will  consider  waiving 
obligated service requirements based on needs of the service.  
  
The President’s FY 2011 budget proposal has not yet been approved by Congress 
.  .  .  we  must  prepare  now  to  match  the  number  of  people  in  our  active  duty 
workforce to the number of funded billets.  To help mitigate the impact  of these 
overages,  we  will:    [Insource]  work  presently  conducted  by  contractors  [and] 
Market transition . . .  to the Reserve.   
 

 # 

# 

# 

 
If the above measures are unable to align body to billet levels  . . . We will use a 
performance-based retention panel to align the enlisted work force.   

 
ALCOAST 333/10 
 
 
June 25, 2010, the Coast Guard issued ALCOAST 333/10  that suspended the voluntary 
separation  programs  due  mainly  to  Deep  Water  Horizon.    The  ALCOAST  also  noted  the 
following: 
 

[Through voluntary separation programs for both enlisted and officers], to date we 
have processed over 700 officer and enlisted member requests from all levels of 
the service. 
 
[The voluntary separation] initiative has met our desired goals and provided some 
relief to our personnel strength.  There is still some concern due to our continued 
high  retention  that  other  workforce  shaping  initiatives  may  be  needed  to  ensure 
we  have  the  vibrant  and  healthy  workforce  for  the  long  term,  including  normal 
accessions and advancement opportunities.  

 
ALCOAST 408/10 
 
 
pertinent part: 
 

The Coast Guard issued ALCOAST 408/10 on August 5, 2010.  It stated the following in 

Over  the  course  of  the  last  two  years  the  entire  military  workforce  has 
experienced  record  high  retention  that  has  decreased  accessions,  reduced  A-
school  quotas,  and  significantly  slowed  down  advancements/promotions.    To 
ensure  viability  and  growth  potential,  we  must  take  steps  to  ensure  that  we 
maintain workforce flow and advancement opportunities.   
 

 

 

  Given  our  high  retention  rates, 

Similar  workforce  shaping  tools  similar  to  those  of  officers  do  not  exist  for  the 
enlisted  workforce. 
inconsistency 
compromises  our  ability  to  maintain  a  healthy  advancement  flow.    .  .  .  It  is 
necessary to  implement  an additional  workforce tool.  Our goal  is  to ensure that 
the Coast Guard has vibrant and healthy enlisted workforce for the long term, one 
with consistent accession levels and steady advancement opportunities.   
 
To  meet  this  goal,  we  are  planning  to  hold  a  career  retention  screening  panel 
(CRSP) for enlisted personnel who [who are retirement eligible].   

this 

 
Commandant’s Request for Coast Guard Active Duty Enlisted Career Retention Screening 
Panel (CRSP) 
 

In  an  August  13,  2010  memorandum,  the  Commandant  requested  approval  from  the 
Secretary  to  conduct  an  active  duty  enlisted  CRSP  in  the  fall  of  2010  to  address  high  enlisted 
retention and its adverse impact on the workforce flow.  The Coast Guard stated that 14 U.S.C. § 
357 (j) and 10 U.S.C. § 11693 gave the Secretary the authority to order the CRSP and that “[p]er 
Title  14  U.S.  Code,  Section  3357(j),  the  Secretary  of  Homeland  Security  must  provide 
authorization  for  involuntary  retirements  without  board  action.  “    (Emphasis  added.)      The 
memorandum further stated the following: 
 

The  Coast  Guard  has  taken  steps  to  resolve  the  retention  problem.    We  have 
reduced our accessions to the lowest level in our records.  We temporarily waived 
obligated  service  requirements  to  allow  voluntary  separations.    However,  the 
majority (91%) of over 700 recent voluntary separations were from junior enlisted 
ranks,  and  not  our  more  senior  workforce.    If  allowed  to  continue,  this  trend, 
along  with  our  reduced  accessions,  will  result  in  an  imbalance  in  the  enlisted 
workforce’s experience level for many years to come.   
 
The  panel  will  review  approximately  1600  records,  including  the  records  of  all 
first  class  petty  officers  and  below  with  twenty  or  more  years  of  service  and  all 
chief  petty  officers  and  above  with  twenty  or  more  years  of  service  and  three 
years  or  more  time  in  grade.    Because  the  panel  will  only  review  those  with 
twenty  or  more  years  of  service,  every  one  reviewed  will  be  retirement  eligible.  
Members  asked  to  involuntary  retire  will  still  be  entitled  to  full  retirement 
benefits. 
 
Your  endorsement  of  this  memo  will  provide  the  Coast  Guard  with  the  legal 
authority required to conduct this panel.   

 

The Secretary approved the Commandant’s request to hold a CRSP to select members for 

retention.   
 

                                                 
3  Section 1169 of title 10 of the United States Code states that “no regular enlisted member of an armed force may 
be  discharged  before  his  term  of  service  expires,  except—(1)  as  prescribed  by  the  Secretary  concerned;  (2)  by 
sentence of a general or special court-martial; or (3) as otherwise provided by law.” 

 

 

ALCGENL 140/10 
 

ALCGENL 140/10 announced to enlisted personnel the implementation of the CRSP and that 
it  was  scheduled  to  convene  in  the  fall  at  PSC  to  assess  the  continued  service  of  retirement 
eligible personnel who meet the following criteria: 
 

A.   All retirement eligible E6 and below with 20 or more years of active military service as 

of 1 September 2010. 

B.  All  retirement  eligible  E-7  and  above  with  20  or  more  years  of  active  military  service 

who have three or more years time in grade as of 1 September 2010.   

 

Section  12.B.  stated  that  personnel  selected  for  involuntary  retirement  can  appeal  the 
decision  based  only  on  material  error,  newly  discovered  evidence,  or  the  presence  of  improper 
documents in the member’s personnel file. 
 

Section  12.F.  stated  that  personnel  may  request  a  waiver  extending  beyond  1  December 

2011, waivers were to be considered based on service need and approval by PSC-EPM.   
 
ALCOAST 464/10  
 

ALCOAST  464/10  issued  on  September  21,  2010  announced  further  guidance  with 
regard to the CRSP and noted that it would be held on September 27, 2010 and that it would be 
performance  based.        In  this  regard,  the  ALCOAST  provided  the  following  guidance,  in 
pertinent part: 
 

4.    Documented  misconduct  and  substandard  or  marginal  performance  are  the 
primary  reasons  CRSP  eligible  candidates  will  be  considered  for  involuntarily 
retirement . . .  The focus will be performance within the last five years, or since 
the  members  advancement  to  their  current  grade  .  .  .  whichever  timeframe  is 
longer . . .  The factors listed below will indicate to  the panel  that an individual 
may not meet the performance requirements for continuation . . . . 

 

A.   Substandard performance of duty to include receipt of a not recommended 

for advancement based on an unsatisfactory conduct mark or declining 
performance with the same approving official in the rating chain. 
B.   Receipt of an enlisted evaluation report with a minimum average 

characteristic marks of 3.5 or below. 

C.  Moral or professional dereliction, such as relief for cause. 
D.  Failure to meet service norms or regulations concerning alcohol use and 

body fat standards. 

E.  Documented misconduct involving violation of the UCMJ, e.g., non-

judicial punishment, or conviction by military court-martial/conviction by a 
civilian court.  

F.  Other documented adverse information clearly indicating the CRSP 

candidates’ continuation may be inconsistent with national security interests 

 

 

 

or may otherwise not be in the best interest of the Coast Guard, such as 
losing one’s security clearance. 

G.  Financial irresponsibility, such as failure to pay just debts or a pattern of 

government credit card delinquency, including revocation of the 
government credit card due to misuse or failure to pay outstanding balance.  

H.  Performance probation 
I.  Failure to demonstrate upward mobility by not qualifying or participating in 

the service wide examination.    

The pertinent ALCOAST stated that the panel may consider the above factors along with 
the entire official military personal data record to select candidates for the continuation.  While 
the  list  of  factors  is  not  all  inclusive,  it  provides  the  performance  indicators  the  panel  will 
consider to select those CRSP candidates for involuntary retirement.   
 

The  CRSP  met  on  September  27,  2010  and  selected  377  members  for  involuntary 
retirement out  of 1,181  candidate  records considered.   The  applicant  was one of those selected 
for  involuntary  retirement.    The  results  of  the  panel  were  subsequently  approved  by  the 
Commandant.   

 

 

VIEWS OF THE COAST GUARD 

On September 9, 2011, the Judge Advocate General (JAG) submitted an advisory opinion 
in  which  he  recommended  that  the  Board  deny  relief.    The  JAG  argued  that  the  CRSP  was 
properly  convened  and  duly  composed  in  accordance  with  Coast  Guard  policy  and  law.    The 
JAG  stated  that  on  September  21,  2010,  the  Secretary  approved  the  Commandant’s  request  to 
hold  a  CRSP  in  accordance  with  14  U.S.C.  §  357(j)  and  10  U.S.C.  §  1169  to  address  high 
retention and its adverse impact on the Coast Guard workforce flow.   
 
 
The  JAG  stated  that  the  CRSP  convened  on  September  27,  2010,  and  considered  the 
records  of  1,181  members  for  involuntary  retirement,  including  the  applicant’s  record.    Three 
hundred  seventy-seven  enlisted  members  were  selected  for  involuntary  retirement.    The  CRSP 
recommendations were reviewed and approved by the Commandant.   
 

The  JAG  asserted  that  the  applicant  has  failed  to  substantiate  an  error  or  injustice 
regarding  the  CRSP  recommendation  for  his  involuntary  retirement  from  the  Coast  Guard  and 
has therefore failed to meet his burden of proof.  The JAG stated that the applicant’s argument 
that  the  CRSP  recommendations  are  unlawful  and  should  be  overturned  is  without  merit.    The 
JAG stated that the applicant’s assertions are speculative at best and fail to show that the Coast 
Guard violated policy or law regarding the CRSP processes.  The JAG noted that the applicant 
was afforded an additional level of due process by submitting an appeal on November 16, 2010, 
which was denied.   

 
 
The  JAG  attached  comments  from  the  Commander,  Personnel  Service  Center  (PSC)  to 
the advisory  opinion.   PSC argued that  10  U.S.C. § 1169  authorized the Secretary  to  prescribe 
how an  enlisted member may be “discharged before his  term of service  expires” and that 14  § 
357(j)  permits  Coast  Guard  enlisted  personnel  to  be  involuntarily  retired  from  the  service 

 

 

without  an  individual  hearing  before  a  board  when  the  Secretary  orders  a  reduction  in  force.  
(Emphasis added.)  PSC further stated: 
 

identify  retirement  eligible  enlisted  personnel  for 

Because the Coast Guard has recently experienced historically high retention rates 
for senior enlisted personnel, on September 21, 2010, the Secretary of Homeland 
Security  exercised  her  authority  under  both  10  U.S.C.  §  1169  and  14  U.S.C.  § 
357(j)  to  direct  the  Coast  Guard  to  conduct  an  active  duty  enlisted  CRSP  to 
efficiently 
involuntary 
retirement.   
 
By identifying senior, retirement eligible personnel, and directing their separation 
from  the  Service,  the  Secretary  and  the  Coast  Guard  acted  to  accelerate 
advancement  of  junior  members  by  returning  advancement  and  “A”  School 
opportunities  to  adequate  levels  and  by  reinvigorating  accession  of  recruits  into 
the Coast  Guard.  The CRSP considered the records of 1,181 retirement eligible 
members for potential involuntary retirement including the applicant . . .   

 

With  regard  to  the  applicant’s  “administrative  double  jeopardy”  argument,  the  Coast 
Guard  stated  that  the  applicant’s  view  that  since  one  administrative  action  was  taken  based  on 
information properly documented in his record no additional actions could be taken based on that 
same  information  is  wrong.    In  this  regard,  PSC  pointed  to  the  paragraph  5  of  the  guidance 
provided to the CRSP, which states in pertinent part: 
 

Just  as  you  must  consider  positive  performance,  you  must  consider  incidents  of 
misconduct  and  substandard  performance  documented  in  a  CRSP  candidate’s 
official  Military  Personnel  Data  Record  (PDR)  when  determining  those  CRSP 
candidates to be recommended for continuation.  For those CRSP candidates who 
are recommended for continuation and who have received disciplinary action, or 
whose  privileged  information  record  contains  matter  relating  to  conduct  or 
performance of duty that occurred within the past five years or since active duty 
advancement to their current pay grade .. . . whichever is longer . . . must be fully 
disclosed  when  the  slates  are  briefed  for  recommendation  .  .  .  prior  to  the  final 
panel decision.   (Emphasis added to quote.) 

 
 
PSC noted that the applicant did not allege that the information contained in his PDR was 
inaccurate or improperly placed in his record.  Therefore, the applicant he has not shown that the 
information was improperly considered.   
 

APPLICANT’S REPLY TO THE ADVISORY OPINION 

 
On January 27, 2012, the Board received the applicant’s reply to the views of the Coast 
 
Guard.  The applicant disagreed with the advisory opinion’s conclusion that he had not submitted 
evidence that the Coast Guard committed an error or injustice.   
 
 
The applicant’s major contention is that the Secretary of Homeland Security violated the 
intent  of  14  U.S.C.  §  357(j)  by  using  the  law  as  a  workforce  shaping  tool  to  screen  and 

 

 

involuntarily  retire  members  with  20  or  more  years  of  service  for  the  stated  goal  of  enhancing 
junior enlisted advancement instead directing involuntary retirements due to a reduction in force.   
The applicant points out that 14 U.S.C. § 357(j) states “When the Secretary orders a reduction in 
force,  enlisted  personnel  may  be  involuntarily  separated  from  the  service  without  the  [enlisted 
personnel board’s] action.”    
 
 
The applicant stated that the advisory opinion’s statement that the Secretary enacted the 
CSRP in order to “accelerate advancement of junior enlisted members by returning advancement 
and “A” school opportunities to adequate levels and by reinvigorating accession of recruits into 
the Coast Guard” is an admission that the Secretary did not approve the CRSP to implement an 
order  for  a  “reduction  in  force,”  as  required  by  14  U.S.C.  §  357(j).      He  argued  that  since  the 
Secretary used 14 U.S.C. § 357(j) as a workforce shaping tool, he should have been afforded the 
due process as outlined in 14 U.S.C. § 357 (b), (c), and (f).   
 
The applicant asserted that a workforce reduction is intended to reduce the overall level 
 
of personnel in the service and is not to be used as a management tool to increase advancement 
opportunities  for  enlisted  personnel.    The  applicant  asserted  that  at  the  time  the  Coast  Guard 
conducted the CRSP there was an increase in overall manning levels from 34,540 at the end of 
2010 to 35,207 at the end of 2011.  Therefore he asserted that there was no reduction in force.   
 
 
The  applicant  reasserted  his  argument  that  he  has  been  the  victim  of  administrative 
double  jeopardy.    He  stated  again  that  it  appears  that  the  only  reason  that  he  was  selected  for 
involuntary retirement was because of the incident that occurred when he was a warrant officer.  
He  stated  that  he  has  paid  for  that  transgression  by  losing  his  CWO  commission  and  that  that 
information  should  not  be  used  against  him  a  second  time.    He  stated  that  the  Coast  Guard 
allowed him to reenlist as an E-8 on XXXXXXXX.  He stated that he was advanced to master 
chief  petty  officer  (E-9  (highest  enlisted  pay  grade))  on  XXXXXXXXXX.    (He  was 
involuntarily  retired  on  XXXXXXXXX).    He  argued  that  the  Coast  Guard’s  actions  are 
contradictory.    On  the  one  hand  the  CRSP  found  that  he  did  not  meet  the  performance 
requirements to continue to serve, and on the other hand, the Coast Guard found that he met the 
performance requirements to be advanced to E-9.   
 
 
violated its contract with him.  In this regard, the applicant stated the following: 
 

The applicant stated that the advisory opinion failed to address whether the Coast Guard 

Pursuant  to  the  Coast  Guard  Personnel  Manual  .  .  .  1.G.6  states,  “a  member 
entering an indefinite contract is authorized to serve on active duty up to the last 
day  of  the  month  that  he  or  she  completed  30  years  of  active  service.”    On 
XXXXXXX,  I  signed  an  indefinite  reenlistment  contract  and  my  performance 
from  this  point  has  been  superb  as  evidenced  by  my  selection  to  E-9.    My 
obligations  of  my  indefinite  reenlistment  contract  have  been  met  and  the  Coast 
Guard is violating their end of the agreement with selection of the CRSP and not 
providing me with my due process rights under 14 U.S.C. § 357 (b) (c) and (f).   

FINDINGS AND CONCLUSIONS 

 

 

 

 

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

1.  The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

military record and submissions, the Coast Guard's submission and applicable law: 
 
 
of the United States Code.   The application was timely. 
 
 
2.  On August 13, 2010, citing 10 U.S.C. § 1169 and 14 U.S.C. § 357(j), the Commandant 
requested  the  Secretary’s  approval  for  the  Coast  Guard  to  conduct  a  CRSP  to  address  enlisted 
high  retention  and  its  adverse  impact  on  workforce  flow  by  reviewing  the  records  of 
approximately  1,600  retirement-eligible  enlisted  members  and  by  involuntarily  retiring  those 
selected  for  retirement  because  the  voluntary  separation  program  did  not  reduce  the  senior 
enlisted workforce sufficiently to meet service need.   
 
 
Section 1169 of title 10 of the United States Code states that “no regular enlisted member 
of  an  armed  force  may  be  discharged  before  his  term  of  service  expires,  except—(1)  as 
prescribed by the Secretary concerned;  (2) by sentence of a general or special court-martial; or 
(3) as otherwise provided by law.”   
 
Section 357(j) of title 14 of the United States Code states, “When the Secretary orders a 
 
reduction in force, enlisted personnel may be involuntarily separated from the service without the 
Board’s actions.”   
 
 
3.   The  applicant  argued  that  his  selection  for  involuntary  retirement  by  the  CRSP  was 
erroneous  and  unjust  because  the  review  subjected  him  to  administrative  double  jeopardy, 
because  his  involuntary  retirement  was  a  breach  of  his  enlistment  contract,  and  because  the 
CRSP was convened in violation 14 U.S.C. § 357(j).   
 

4.    The  applicant’s  allegation  that  the  CRSP  was  convened  in  violation  of  14  U.S.C. 
357(j) is by far the most serious and the Board will address it first.  In this regard, the applicant 
argued  that  his  involuntary  retirement  under  14  U.S.C.  §  357(j)  was  a  violation  of  that  statute 
because the Secretary never ordered a reduction in force, which was a necessary condition for the 
Coast Guard to involuntary retire members without affording them hearings that included the due 
process rights articulated in 14 U.S.C. § 357 (b), (c), and (f).   The applicant further asserted that 
the Coast Guard used 14 U.S.C. § 357(j) as a workforce management tool to involuntarily retire 
members so that junior enlisted personnel could have advancement opportunities. 

 
5.    The  advisory  opinion  argued  that  10  U.S.C.  §  1169  authorizes  the  Secretary  to 
prescribe how an enlisted member may be discharged before his term of service expires and that 
14  U.S.C.  §  357(j)  permits  Coast  Guard  enlisted  personnel  to  be  involuntarily  retired  from  the 
service  without  receiving  an  individual  hearing  before  an  enlisted  personnel  board  when  the 
Secretary  orders  a  reduction  in  force.    The  advisory  opinion  further  argued  that  the  Secretary 
exercised her authority under both 10 U.S.C.  § 1169 and 14 U.S.C. § 357(j) on September 21, 
2010,  by  directing  the  Coast  Guard  to  conduct  an  active  duty  enlisted  CRSP  to  identify 
retirement eligible enlisted personnel for involuntary retirement “to accelerate the advancement 
of junior enlisted members by returning advancement and “A” school opportunities to adequate 
levels and by reinvigorating accession of recruits into the Coast Guard.”   

 

 

 
6.    Therefore,  the  question  before  this  Board  is  whether  the  Secretary’s  approval  of  the 
Coast Guard’s request for a CRSP to address high retention and its adverse impact on workforce 
flow  by  involuntarily  retiring  some  enlisted  members  was,  in  fact,  a  reduction  in  force  order.   
The statute does not define reduction in force.   The Secretary of Transportation citing  FDIC v. 
Meyer,  114  S.  Ct.  996  (1994)  stated  in  BCMR  No.  167-94  that  when  there  is  no  statutory 
definition  for  a  particular  term,  it  should  be  defined  in  accordance  with  its  ordinary  or  natural 
meaning.    A  RIF  (reduction  in  force)  is  the  reduction  in  staff  of  a  government  organization, 
especially for budgetary reasons.  See The Random House Dictionary of the English Language, 
the  Unabridged  Edition,  p.  1232.    However,  a  reduction  in  force  can  occur  for  other  than 
budgetary reasons.  In Rahlf, Stelter & Johnson v. Mo-Tech Corp., Inc., 642 F.3d 633, 638 (8th 
Cir. 2010), the court recognized as legitimate Mo-Tech’s reduction in force “because of shifting 
(and  reduced)  customer  needs  as  well  as  concerns  about  continued  profitability.”  Also  in 
Williams v. Emco Maier Corporation, 212 F. Supp 2d 780, 784 (D.OH 2002), citing Barnes v. 
GenCorp  Inc.,  896  F.2d  1457  (6th  Cir  1990),  the  court  stated  “a  reduction  in  force  situation 
occurs  when  business  considerations  cause  an  employer  to  eliminate  one  or  more  positions 
within  the  company.”    Although  neither  the  Coast  Guard  nor  the  Secretary  used  the  words 
“reduction in force” the Board finds that at the time the Secretary authorized the use of the CRSP 
to select enlisted members E-6 and above with 20 or more years of active duty for involuntarily 
retirement, the Coast Guard was undergoing a reduction in force situation.   

 
7.    The  Board  is  persuaded  that  the  Coast  Guard  was  undergoing  a  reduction  in  force 
based on the issuance of a series of ALCOASTs that began with ALCOAST 165/10 on April 1, 
2010.    In  ALCOAST  165/10,  the  Commandant  acknowledged  that  the  Coast  Guard  had  more 
personnel than it had funded billets and that the President’s budget for FY 2011 projected billet 
losses  that  would  exacerbate  the  situation,  and  therefore,  it  was  necessary  to  implement 
workforce  management  tools.      The  Commandant’s  plan  to  alleviate  the  overage  of  personnel 
was  first  to  use  voluntary  measures  to  get  people  to  leave  the  service,  but  if  the  voluntary 
management tools failed to resolve the problem, a performance-based retention panel (the CRSP) 
to align the enlisted workforce would be implemented.    In ALCOAST 333/10, issued on June 
25,  2010,  the  Commandant  stated  that  voluntary  separation  measures  were  suspended  due  to 
Deep  Water  Horizon,  and  that  although  the  “[voluntary  separation  program]  initiative  has  met 
our  desired  goals  and  provided  some  relief  to  our  personnel  strength,  other  workforce  shaping 
initiatives  may  be  needed  to  ensure  we  have  the  vibrant  and  healthy  workforce  for  the  long 
term.”  On August 5, 2010, in ALCOAST 408/10, the Commandant announced that the service 
was still experiencing high retention in its enlisted ranks that inhibited the Coast Guard ability to 
maintain  a  healthy  advancement  flow  for  the  long  term.    To  alleviate  that  problem,  the 
Commandant announced that that it intended to hold a CRSP for members who were retirement 
eligible  (20  or  more  years  of  service).    On  August  13,  2010,  the  Coast  Guard  requested  the 
Secretary’s  approval  under  10  U.S.C.  §  1169  and  14  U.S.C.  §  357(j)  to  conduct  a  CRSP  that 
would  lead  to  the  involuntary  retirement  of  members  selected  for  retirement.    The  Board 
interprets  the  Coast  Guard’s  announcement  in  ALCOAST  165/10  that  it  needed  to  reduce  its 
numbers because it had more personnel than funded billets and was anticipating a cut in funding 
for billets in the FY 2011 budget to be a reduction in force decision. 4  The Coast Guard’s plan to 
                                                 
4  The  ALCOAST  also  noted  the  Coast  Guard’s  problem  with  workforce  flow  and  stated  “A  military  workforce 
requires flows at all levels to ensure career progression for our people.  Absent normal separation rates at all levels, 

 

 

reduce its forces included voluntary as well as involuntary measures.  The Coast Guard notified 
members that a CRSP would be convened to align the enlisted workforce if voluntary discharge 
programs were not effective.    

 
 Although the Coast Guard was able to reduce its numbers through voluntary separations, 
that  program  did  not  reduce  the  senior  enlisted  ranks  to  a  number  that  allowed  for  workforce 
flow and for future stability of the Coast Guard.  The Commandant described this as a problem 
that “will result in an imbalance in the workforce’s experience level for many years to come, if 
not  corrected.”    The  CRSP  and  the  involuntary  retirement  of  those  selected  for  retirement 
allowed the Coast Guard to realign its force as part of it overall plan to reduce its numbers and 
effectively manage its personnel.   The board is not aware of any law or regulation that states that 
a reduction in force cannot include a reshaping of the workforce during a reduction in force or a 
reshaping  of  the  workforce  after  a  reduction  in  force  occurs.    In  light  of  the  above,  the  Board 
finds  that  the  Coast  Guard’s  use  of  14  U.S.C.  §  357(j)  was  proper  because  it  obtained  the 
necessary approval  for that portion of the Coast  Guard’s  reduction in  force plan that  called  for 
the  involuntary  retirement  of  certain  members  with  20  or  more  years  of  service  without  board 
action.    
 

8.      With  regard  to  the  allegation  of  administrative  double  jeopardy,  the  applicant  has 
presented no authority which states that only one administrative action may be taken based upon 
properly  documented  adverse  material  in  the  service  record.      Once  good  or  negative 
performance is properly placed in a service record, it is there for each succeeding board or entity 
to review as necessary.  The Board notes that the applicant does not argue that any of his positive 
performance  information  should  be  disregarded.    Moreover,  the  applicant  was  not  treated  any 
differently  than  other  members  of  the  Coast  Guard  who  had  adverse  material  in  their  records.  
Double jeopardy refers to protection from a second criminal prosecution for the same crime.  The 
CRSP was not a criminal proceeding and the applicant’s selection for involuntary retirement was 
not  a  punishment.      The  applicant’s  selection  for  involuntary  retirement  was  an  administrative 
measure  based  on  the  needs  of  the  service.        The  Board  is  not  persuaded  by  the  applicant’s 
administrative jeopardy argument.    
 

9.   The applicant’s claim that he is entitled to relief because the Coast Guard violated his 
contract is not persuasive.  In Giglio v. United States, 17 Cl. Ct. 160, 166 (1989), the court stated 
that  “[i]t  is  established  .  .    .  that  enlisted  personnel  in  the  military  service  do  not  have  a 
contractual  right  to  remain  in  the  services  until  the  expiration  of  their  enlistment  terms.”    
However, that court, citing Waller v. United States, 198 Ct. Cl. 908, 913 (1972),  recognized that 
“an  administrative  discharge  issued  to  an  enlisted  person  prior  to  expiration  of  his  or  her 
enlistment  term  is  void,  if  it  exceeds  applicable  statutory  authority,  or  ignores  pertinent 
procedural regulations, or violates minimum concepts of basic fairness.”  Giglio at 166.  None of 
which is present in the applicant’s situation.   

 
10.  The applicant argued that there was no reduction in force because by the end of FY 
2011  there  were  more  individuals  in  the  Coast  Guard  than  at  the  end  of  FY  2010.    The  Court 
                                                                                                                                                             
opportunities for advancement and promotion become significantly reduced, thus increasing time-in-grade at every 
level.”   
 

 

 

stated in Williams v. Emco Maier Corporation at 785, that the fact that a company employs more 
people  than  it  did  when  the  reduction  in  force  began  does  not  mean  that  the  company  did  not 
engage  in  a  reduction  in  force.    The  court  further  stated  that  “a  company  facing  financial 
hardships may wish to eliminate certain positions in an effort to alleviate those difficulties, while 
still adding other positions in an effort to improve the company’s operations.”  Id.  The fact that 
the Coast Guard may have had more personnel at the end of FY 2011 than at the end of FY 2010 
does not  prove that  there was not  a  reduction in  force. The  applicant  has produced insufficient 
evidence  that  any  increase  in  the  Coast  Guard’s  active  duty  personnel  during  the  reduction  in 
force was for other than improving the Coast Guard’s operations and long term stability.     

 
11.  The applicant alleged that there were other workforce shaping tools  available to the 
Coast  Guard  other  than  involuntary  retirements.    However,  apparently  the  Coast  Guard 
determined  that  a  CRSP  to  select  members  for  involuntary  retirement  met  the  needs  of  the 
Service  at  that  particular  time.    The  fact  that  the  Coast  Guard  chose  one  method  over  another 
does not prove that the method used was in error or unjust.   

 
12.    Accordingly, the applicant has failed to prove an error or injustice with regard to his 

involuntary retirement and the application should be denied.      
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
 

 

 
 
 

 

 

 

 

ORDER 

 

The  application  of  XXXXXXXXXXXXXXXXXXXX  for  correction  of  his  military 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Paul B. Oman 

 

 

 

 
Jeffrey E. VanOverbeke 

 

 

 

 
 Dorothy J. Ulmer 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

record is denied.