N.B.:  The delegate of the Secretary approved this Final Decision on 
Remand on January 22, 1999. 

DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                        BCMR Docket No. 1997-123 
 
 

 

 
 

 

FINAL DECISION ON REMAND 

 
ANDREWS, Attorney Advisor: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 of the United 
States Code.  The original proceeding was commenced upon the BCMR’s receipt of the 
applicant’s application on May 7, 1997.  The Board’s first decision, signed on April 23, 
1998, was reviewed by the Deputy General Counsel, who remanded it to the Board for 
further consideration on August 28, 1998. 
 
This final decision on remand, dated September 11, 1998, is signed by two duly 
 
appointed members who were designated to serve as the Board in this case.  A concur-
ring opinion was issued on September 25, 1998. 
 

RELIEF REQUESTED 

 
 
The applicant, a xxxxxxxxxx in the United States Coast Guard, asked the Board 
to correct his military record to show that he had extended his enlistment in February 
1982 so that he could receive a selective reenlistment bonus (SRB) pursuant to ALDIST 
004/82.  The applicant stated that he did not discover his eligibility for this SRB until 
October  1996,  “when  a  fellow  Chief  informed  [him]  about  his  similar  case  and  sub-
sequent correction and reimbursement.” 
 

APPLICANT’S ALLEGATIONS 

In  his  application  to  the  BCMR,  the  applicant  alleged  that  he  was  never  coun-
seled  about  his  eligibility,  as  an  xxx,  to  receive  an  SRB  with  a  multiple  of  one  under 

ALDIST 004/82.  He alleged that the Coast Guard Air Station in xxxxxxxxxxxx, did not 
publicize  the  fact  that  members  not  at  the  end  of  their  current  enlistments  could 
nonetheless extend their enlistments to receive the bonus.  In his response to the Coast 
Guard’s  advisory  opinion,  the  applicant  alleged  that  he  was  “career  oriented”  and 
“would have extended [his] enlistment for six years to obtain the Zone A SRB.” 

 

SUMMARY OF RECORD 

 
 
The applicant enlisted in the Coast Guard Reserve on July 20, 19xx, for a term of 
six years.  On November 13, 1978, he was discharged in order to reenlist in the Coast 
Guard for a term of four years. His rating and pay grade at the time the ALDISTs dis-
cussed herein were issued were xxx and E-5. 
 
On    October  1,  1981,  the  Commandant  of  the  Coast  Guard  issued  ALDIST 
 
340/81, which allowed members within 30 days of the end of their enlistment periods to 
receive an SRB if they reenlisted or extended their current enlistments for at least three 
years.    The  Zone  A  SRBs  authorized  for  xxxs  who  extended  their  enlistments  or 
reenlisted under ALDIST 340/81 were calculated with a multiple of one.  On January 
12,  1982,  ALDIST  004/82  temporarily  locked  in  the  multiples  issued  under  ALDIST 
340/81 and waived the requirement that members be within 30 days of the end of their 
enlistment periods in order to be eligible to receive the SRB for extending their enlist-
ments.  To take advantage of ALDIST 004/82, members had to extend their enlistments 
before February 15, 1982. 
 
 
The applicant did not extend his enlistment or reenlist during the period when 
ALDIST 004/82 was in effect.  There is nothing in his military record to indicate that he 
was ever counseled about the terms of ALDIST 340/81 or ALDIST 004/82.   
 
 
The applicant remains on active duty with the Coast Guard.  Subsequent to his 
four-year enlistment on November 13, 19xx, the applicant’s military record shows that 
he  either  reenlisted  or  agreed  to  extend  his  enlistment  on the following dates for the 
periods indicated: 
 

November 11, 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  12 months 
October 20, 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 year 
October 15, 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 year 
November 8, 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 year 
September 24, 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 year 
November 2, 1987. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 year 
November 10, 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 years 
November 6, 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 years 
October 17, 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 years 
 

 
On three of the extension forms, the reason for extension was listed as “volun-
tary.”  On one form, the reason listed was “to remain on active duty.”  On another, it 
was “to have obligated service for class ‘C’ school.”  On two others, the reason given 
was “in lieu of reenlistment.”  However, the applicant’s DD Form 214 for November 9, 
1988, the date the applicant was discharged for immediate reenlistment, states that his 
extensions were “at the request and for the convenience of the government.” 
 

VIEWS OF THE COAST GUARD 

On  December  31,  1997,  the  Chief  Counsel  of  the  Coast  Guard  recommended 

 
 
denial of the applicant’s request for relief.   
 

The  Chief  Counsel  urged  the  Board  to  deny  the  applicant’s  request  for lack of 
proof because the applicant had failed to establish a prima facie case by proving that (1) 
the Coast Guard owed him a duty to counsel him regarding his eligibility for an SRB 
under ALDIST 004/82, (2) the Coast Guard did not so counsel him, and (3) had he been 
so counseled, the applicant would have been willing, in 1982, to extend his service from 
1982 through 1988.   

 
Regarding  these  issues,  the  Chief  Counsel  argued  first  that,  under  ALDIST 
004/82, the Coast Guard had no duty to inform potential extendees of their eligibility. 
COMDTINST 7220.13E required the Coast Guard to inform only potential reenlistees, 
and the applicant was not a potential reenlistee in February 1982 because he was not 
within three months of the end of his existing enlistment.  
 

Second, the Chief Counsel argued that, even if the Board were to find that the 
Coast Guard had a duty to counsel the applicant, a lack of memory of counseling is par-
ticularly unreliable after so many years, and the applicant’s statement about his lack of 
memory of counseling should be “insufficient to overcome the strong presumption that 
military officials carried out their duties correctly, lawfully, and in good faith.”    

 
Third,  the  Chief  Counsel  argued  that,  even  if  the  Board  were  to  find  that  the 
Coast Guard had a duty, but failed, to counsel the applicant, the Board could not pre-
sume, based on the member’s word and subsequent years of service, that the applicant 
would have, in fact, chosen to obligate himself to serve through 1988.  The Chief Coun-
sel cited the applicant’s six short-term extensions of his enlistment in the mid 1980s as 
evidence that the applicant had not committed himself to a career in the Coast Guard.  
The Chief Counsel urged the Board to require the applicant “to articulate specific, fact-
based reasons for his conclusion” that he would have extended his enlistment had he 
been counseled about ALDIST 004/82, rather than excepting the applicant’s “specula-
tion”  and “self serving opinion” that he would have extended. 

 

In  addition,  the  Chief  Counsel  argued  that,  even  if  the  Board  found  that  the 
Coast Guard had erred and that the applicant would have extended his service if he had 
been counseled, the Board should still deny relief because, under the Supreme Court’s 
decisions in United States v. Caceres, 440 U.S. 741 (1979), and Cort v. Ash, 422 U.S. 66, 
78  (1975),  violations  of  agency  procedural  regulations  do  not  create  private  rights  of 
action.   
 
Finally,  the  Chief  Counsel  argued  that  Congress  intended  the  SRB  program  to 
 
benefit  the  Coast  Guard  and  the  United  States  by  encouraging  experienced  members 
with  critical  skills  to  extend  their  military  service.    Therefore,  paying  the  applicant 
retroactively  would  be  contrary  both  to  the  statute’s  purpose  (because  it  would  not 
benefit the Coast Guard) and to the fact that applicant did not in fact obligate himself to 
serve for another six years when ALDIST 004/82 was in effect. 
 

APPLICABLE REGULATIONS 

 
SRB Regulations 
 
 
Commandant  Instruction  7220.13E  (Administration  of  the  Reenlistment  Bonus 
Program)  was  released  on  May  4,  1979  and  was  in  effect  when  ALDIST  340/81  and 
ALDIST  004/82  were  distributed.    Section  1.c.(4)  of  Enclosure  (1)  to  the  Instruction 
stated  that  “[e]ntitlement  to  an  SRB  vests  only  on  the  date  the  member  reenlists  or 
makes operative an extension of enlistment . . . .”  Section 1.d.(1) of Enclosure (1) pro-
vided the criteria for SRB eligibility in Zone A.1  It stated the following, in part: 
 

(1)    Zone  A  Eligibility.    [To  be  eligible,  a  member  must  meet  all  of  the 
following criteria:] 
 

(a)  Be serving on active duty in pay grade E-3 or higher in a military 
specialty designated [in the SRB announcement].  
 
(b)  Must have completed at least 21 months of continuous active duty, 
other than active duty for training, but not more than six years of total 
active duty, immediately preceding the date of reenlistment or opera-
tive date of extension of enlistment. . . . 
 

                                                 
1    SRBs  vary  according  to  the  length  of  each  member’s  active  duty  service,  the  length  of  the  period  of 
reenlistment or extension of enlistment, and the need of the Coast Guard for personnel with the member’s 
particular skills.  Coast Guard members who have more than 21 months but less than 6 years of active 
duty  service  are in “Zone A,” while those who have more than 6 but less than 10 years of active duty 
service are in “Zone B.”  At the time ALDIST 340/81 and ALDIST 004/82 were issued, the applicant was 
in Zone A.  Members may not receive more than one bonus per zone. 

 
Section 1.g. of the Enclosure stated that in order to “attain the objectives of the 
SRB  program,  each  potential  reenlistee  who  would  be  eligible  for  [an]  SRB  must  be 
informed of [his or her] eligibility and the monetary benefits of the SRB program.  It is 
expected that the reenlistment interview, held approximately six months before expira-
tion  of  enlistment, will provide the potential reenlistee with complete information on 
SRB.” 
  
ALDIST 340/81 
 
 
ALDIST 340/81, issued on October 2, 1981, changed the existing multiples of the 
SRBs that members could receive to reflect the degree to which the Coast Guard needed 
to retain personnel in each skill rating.  The multiple to be used for calculating SRBs for 
reenlisting or extending members in the xx rating was one. 
 
ALDIST 004/82 
 
 
ALDIST 004/82, issued on January 12, 1982, locked in the multiples used for cal-
culating SRBs under ALDIST 340/81 until February 15, 1982.  Thereafter, the multiples 
were to change to reflect the degree to which the Coast Guard needed to retain person-
nel in each skill rating.  ALDIST 004/82 also suspended the provisions of Article 1-G-83 
of the Personnel Manual (Execution of Agreement to Extend Enlistment) until February 
15, 1982, and therefore allowed members to extend enlistments that were not within 30 
days of termination.   
 
 
stated the following, in part: 
 

Article 1-G-83 of the Coast Guard Personnel Manual (COMDTINST M1000.6A) 

(c)  The extension of enlistment or reenlistment must be at least three 
years and, when combined with prior active duty, must yield a total of 
at least six years of active duty.  [Emphasis in original] 
 
(d)    Has  not  previously  received  a  Zone  A  SRB,  nor  previously 
enlisted,  reenlisted,  or  extended  (extensions  that  have  become  effec-
tive) beyond six years of active duty. . . .  
 

(b)  Generally, an individual should not be permitted to agree to extend 
his/her enlistment until approximately 30 days prior to the date of expira-
tion of the then existing enlistment.  For certain purposes, however, such 
as  qualifying  for  assignment  to  a  service  school,  duty  outside  CONUS, 
assignment  to  active  duty  in  the  case  of  a  Reservist,  or  for  other  duty 
requiring additional obligated service, it is permissible to permit an indi-
vidual  to  agree  to  extend  his/her  enlistment  a  considerable  time  in 
advance.  

FEDERAL COURT CASES CITED 

 
United States v. Caceres, 440 U.S. 741 (1979). 
 

In Caceres, the Supreme Court held that a criminal defendant was not entitled to 
the benefit of the exclusionary rule even though the IRS had violated its own regula-
tions when an IRS agent tape recorded the defendant offering the agent a bribe.  The 
Court reasoned that neither the Constitution nor a federal statute (or even defendant's 
reasonable  reliance  on  IRS  regulations)  required  the  IRS  agent  to  obtain  advance 
approval from his superiors before tape recording the conversation.   

 

 

 

Cort v. Ash, 422 U.S. 66 (1975). 
 

In Cort, the Supreme Court held that a stockholder does not have a private cause 
of action (i.e., stockholder's derivative suit for damages and an injunction) against cor-
porate directors for violating a federal statute prohibiting corporate expenditures in a 
Presidential election campaign.  The Court listed four factors that should be considered 
in determining whether a statute creates a private cause of action and private remedy: 
(a) whether the stockholder was one of the class for whose special benefit the statute 
was  enacted;  (b)  whether  Congress  intended,  implicitly  or  explicitly,  to  create  or  to 
deny such a remedy; (c) whether the private remedy is consistent with the underlying 
purposes of the legislative scheme; and (d) whether the cause of action is traditionally 
relegated to state law and is basically the concern of the states. 

APPLICABLE BCMR DECISIONS 

 
BCMR Docket No. 121-93. 
 
 
In  BCMR  Docket  No.  121-93,  the  applicant  asked  the  Board  to  reconsider  its 
denial of his request (in the final decision in BCMR Docket No. 237-91) to correct his 
military record to show that he had extended his service on February 14, 1982, and was 
therefore due an SRB. Although the Board again denied the requested relief, the Deputy 
General Counsel granted relief, finding in part that  
 
  
because the Coast Guard had presented no evidence as to how the appli-
cant could or should have learned of ALDIST 004/82 any earlier than he claimed, the 
applicant’s  sworn  statement  that  he  learned  of  it  in  1991  would  be  accepted  at  face 
value, especially since “[a]llegations that the first knowledge members have had of the 
provisions of ALDIST 004/82 came from contact with [the ‘C’ school] are common, and 
have often been accepted without challenge in the past”;2  
 
                                                 
2  The Deputy General Counsel cited in support BCMR Docket No. 151-91. 

1. 

3. 

2. 

“Coast Guard regulations require that members be ‘fully advised’ of SRB 

 
opportunities”;3 and  
 
the Board had “commonly afforded relief under similar circumstances in 
 
the past, and . . . reversal of such precedents without a firm basis in the record would be 
clearly unreasonable here.” 
 
BCMR Docket No. 69-97 
 

In BCMR Docket No. 69-97, the applicant had reenlisted on May 2, 1980, for a six-
year term, after completing his first, four-year enlistment.  Subsequently, the applicant 
extended his enlistment three times for periods of two years or less before reenlisting 
for  three  years  on  March  1,  1991,  and  for  another  six  years  on  January  6,  1994.    The 
applicant asked the BCMR to correct his record to show that he had requested an exten-
sion of his enlistment for a period of six years on February 14, 1982, in order to receive a 
Zone B SRB.  He stated that if he had been properly counseled and made aware of the 
provisions of ALDIST 004/82, he “would have taken the necessary steps to secure [a] 
zone ‘B’ bonus.”  There was no documentation in the applicant’s record to indicate that 
he was ever advised of the provisions of ALDIST 004/82 while it was in effect.  
 
The Board recommended that the requested relief be granted.  That recommen-
 
dation was based in part on (1) the applicant’s sworn statement that he had not been 
properly  counseled  about  ALDIST  004/82  when  it  was  in  effect  and  that  he  had  not 
learned of it until 1997; (2) the applicant’s statement that he would have extended his 
enlistment to receive the SRB had he known of the opportunity; (3) the applicant’s pre-
vious enlistments and subsequent years of service, which provided a reasonable basis to 
believe that he would have extended his service obligation had he been properly coun-
seled  about  ALDIST  004/82;  and  (4)  the  Coast  Guard’s  failure  to  reveal  if  and  how 
information about ALDIST 004/82 had been disseminated to the members. 

 
The Deputy General Counsel wrote a concurring decision4 which responded to 
several of the Coast Guard’s arguments that were not mentioned in the Board’s decision 
but are pertinent to the case in hand:   
 

In  response  to  the  argument  that the Coast Guard was only required to 
counsel  potential  reenlistees,  not  potential  extendees,  the  Deputy  General  Counsel 
found that Congress had intended both groups to benefit from the SRB program and 
that the Coast Guard had presented no rational basis for counseling one group but not 
the  other.    She  concluded  that  the  “Coast  Guard  erred  in  drafting  COMDTINST 

1. 

                                                 
3  The Deputy General Counsel cited BCMR Nos. 224-87, 263-87, 268-87, 285-87 for this position. 
4  The Deputy General Counsel’s arguments in this case were very similar to those she made in her con-
curring decision in BCMR Docket No. 54-97. 

7220.13E when it failed to require mandatory counseling for potential extendees . . . .”  
BCMR Docket No. 69-97, Deputy General Counsel’s Concurring Decision, at 3. 

In response to the argument that the applicant’s statements were insuffi-
cient to overcome the presumption of regularity in administrative matters such as coun-
seling, she stated that the applicant’s history of service and his statements concerning 
the  lack  of  proper  counseling  and  what  he  would  have  done  had  he  been  properly 
counseled were sufficient to nullify the presumption in this case.   

The Deputy General Counsel found unpersuasive the argument that the 
applicant’s short extensions show that he was not, in fact, committed to a career in the 
Coast Guard and therefore was not likely to seek a maximum SRB.  She reasoned that 
short extensions for particular purposes, such as enrollment in school or transfer to a 
different station, are made frequently for the convenience of the government and do not 
necessarily reflect a member’s lack of career commitment to the Coast Guard. 

In response to the Coast Guard’s claim that the applicant had no private 
right of action under its regulations, the Deputy General Counsel found that Congress 
had created a private right of action in the SRB statute (37 USC § 308) and the BCMR 
statute (10 USC § 1552). 

 
2. 

 
3. 

 
4. 

 
5. 

 
6. 

In response to the argument that paying SRBs many years after the appli-
cable ALDIST had expired was inconsistent with the purpose of the statute, which was 
to  benefit  the  Coast  Guard,  she  cited  the  decision  in  Larinoff,  which  held  that  “[t]he 
intention  of  Congress  in  enacting  the  [reenlistment  bonus  statute]  was  specifically  to 
promise  to  those  who  extended  their  enlistments  that  a  [reenlistment  bonus]  award 
would be paid to them at the expiration of their original enlistment in return for their 
commitment to lengthen their period of service.”  United States v. Larinoff, 431 U.S. 864, 
878-79 (1977). 

Finally,  the  Deputy  General Counsel cited several “Comptroller General 
cases that authorize government agencies to correct errors of wrongful advice or failure 
to advise when an employee otherwise meets the statutory criteria for obtaining a bene-
fit.”5  BCMR Docket No. 69-97, Deputy General Counsel’s Concurring Decision, at 11. 
 

HISTORY OF THIS CASE 

 
The Board’s first decision in this case was issued on April 23, 1998.  Based on the 
 
applicant’s allegations, his military record, and the views of the Coast Guard presented 
above, the Board made the following findings:  (1) the application was timely; (2) the 
                                                 
5  The Deputy General Counsel cited Matter of Hanley, B-202112, November 16, 1981; Matter of Anthony 
M. Ragunas, 68 Comp. Gen. 97 (1988); and Matter of Dale Ziegler and Joseph Rebo, B-199774, November 
12, 1980. 

Coast Guard had a duty to counsel the applicant concerning his eligibility for an SRB 
under  ALDIST  004/82;  (3)  the  Coast  Guard  erred  by  failing  to  counsel  the  applicant; 
and (4) the applicant’s request should be granted.  The Board ordered that the appli-
cant’s  record  be  corrected  to  show  that  he  had  extended  his  enlistment  for  six  years 
under ALDIST 004/82. 
 
 
On August 28, 1998, the Deputy General Counsel, acting as the Secretary’s dele-
gate, remanded the decision to the Board for further consideration.  The Deputy Gen-
eral Counsel stated that the Board had not addressed some of the Coast Guard’s argu-
ments against granting the applicant’s requested relief.  She asked the Board to address 
each  of  the  Coast  Guard’s  arguments  in  its  decision  on  remand.    She  specifically 
requested  that  the  Board  make  findings  about  the  following  issues:    (1)  whether  the 
Coast  Guard  had  a  duty  to  counsel  the  applicant  on  his  eligibility  for  an  SRB  under 
ALDIST 004/82; (2) whether the applicant has proved that he was not counseled on the 
ALDIST’s provisions; (3) whether failure to counsel creates a private right of action; (4) 
whether  Congress  intended  the  SRB  program  to  benefit  only  the  Coast  Guard  or  to 
benefit  Coast  Guard  members  as  well;  and  (5)  whether  the  applicant  would  have 
extended his enlistment in 1982 if he had been properly counseled. 
 

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 appli-
cable law: 
 

The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10, United States Code. 
 

1. 

2. 

The applicant has made a sworn statement that he discovered the alleged 
error which he has asked the Board to correct in October 1996.  The Coast Guard did not 
present any evidence indicating that the applicant knew or might have learned of his 
eligibility  to  receive  an  SRB  under  ALDIST  004/82  any  earlier  than  the  date  of 
discovery alleged by the applicant.  The Board finds that the application was timely as it 
was filed within three years of the date of discovery of the alleged error. 
 

The SRB statute, 37 USC § 308(a), expressly includes members who “vol-
untarily extend[] [their] enlistment[s]” among those who may be eligible for SRBs.  To 
achieve Congress’s goals for the SRB program, the Coast Guard must inform members 
who are eligible to receive a bonus of their eligibility. In Larinoff, the Supreme Court 
held that “[t]he intention of Congress in enacting the [reenlistment bonus statute] was 
specifically to promise to those who extended their enlistments that [an SRB] would be 
paid to them at the expiration of their original enlistment in return for their commit-

3. 

ment to lengthen their period of service.”  United States v. Larinoff, 431 U.S. 864, 878-79 
(1977).   
 
Thus, the Coast Guard’s argument that it was required to inform only potential 
reenlistees and not potential extendees because its regulation specified only the means 
by which potential reenlistees would be informed of their eligibility must be rejected.  
The  fact  that  the  Coast  Guard  neglected  to  specify  in  its  regulations  how  potential 
extendees should be informed of their eligibility under ALDIST 004/82 does not mean 
potential extendees had less right to be informed than did the potential reenlistees. In 
BCMR Docket No. 69-97, the Deputy General Counsel has held that the Coast Guard 
erred when it failed to require counseling of potential extendees under COMDTINST 
7220.13E.  Moreover, the Deputy General Counsel held in BCMR Docket No. 69-97 that 
the  “Coast  Guard  erred  in  drafting  COMDTINST  7220.13E  when  it  failed  to  require 
mandatory counseling for potential extendees on an equal basis with potential reenlist-
ees.”  BCMR  Docket  No.  69-97,  Deputy  General  Counsel’s  Concurring  Decision,  at  3.  
The Board therefore finds that the Coast Guard did have a duty to counsel the applicant 
about his eligibility under ALDIST 004/82. 
 

The Coast Guard does not dispute that, under ALDIST 004/82, the appli-
cant was eligible to extend his enlistment for up to six years, from the end of his then-
current enlistment in November 1982 to 1988. 

4. 

As the Coast Guard stated, the lack of evidence of counseling in the appli-
cant’s record is not proof that he was never counseled, because the regulations at the 
time did not expressly require members to sign documents stating that they had been 
properly counseled about SRBs.  However, the applicant made a sworn statement on his 
DD Form 149 that he had not been properly counseled about his eligibility for an SRB 
under ALDIST 004/82.6  Although the Coast Guard called the applicant’s memory con-
cerning  an  event  that  might  have  occurred  15  years  in  the  past  unreliable,  the  Board 
finds that most people would recall being offered a large bonus.   

 
Moreover, the Coast Guard has made no statement and submitted no evidence to 
rebut the applicant’s claim that he was not informed of his eligibility for the SRB.  The 
Coast Guard has not presented any evidence that potential extendees were informed of 
the opportunity.  Therefore, the Board finds that the presumption that military officials 
have  carried  out  their  duties correctly is overcome with respect to the Coast Guard’s 
informing  potential  extendees  of  their  eligibility  for  an  SRB  under  ALDIST  004/82.  
With a credible, sworn statement by the applicant and no contrary evidence presented 
by the Coast Guard, the Board finds that the preponderance of the evidence indicates 
that the applicant was not properly counseled in 1982 about his eligibility for an SRB. 

 
5. 

 

                                                 
6  The BCMR application, DD Form 149, contains a warning for applicants regarding the penalties for will-
fully making a false statement or claim, pursuant to 18 USC §§ 287 and 1001.  

 
7. 

The applicant’s series of short-term extensions subsequent to the expira-
tion of his first, four-year enlistment does not necessarily reflect a lack of commitment 
to continue to serve in the Coast Guard.  Short-term  extensions  of  enlistments  are  com-
mon and are made for a variety of reasons, such as personnel specialists’ avoiding the 
extra administrative work and arrangement of medical appointments required to proc-
ess a reenlistment or a member's attending school or being transferred to a new station.  
At least three of the applicant’s one-year extensions were executed for a particular pur-
pose  such  as  to  attend  a  school  or  in  lieu  of  reenlistment.    The  other  three  one-year 
extensions were characterized as “voluntary” or as an extension “to remain on active 
duty.”    The  DD  Form  214  in  the  applicant’s  military  record,  however,  states  that  the 
short  extensions  were  “at  the  request  and  for  the  convenience  of  the  government.”  
None  of  these  purposes  recorded  in  the  applicant’s  military  record  suggests  that  the 
applicant was considering leaving the Coast Guard or did not want to pursue a career 
in the Coast Guard.  

6. 

The  applicant  signed  a  letter  to  supplement  his  application  in  which  he 
swore  that  if  he  had  been  counseled  about  his  eligibility  for  an  SRB  under  ALDIST 
004/82, he would have extended his enlistment for six years to take advantage of the 
opportunity to receive the SRB.  Although the Coast Guard called the applicant’s state-
ment self-serving and speculative, it presented no evidence indicating that in the winter 
of 1982 the applicant was in any way dissatisfied with or had any intention to leave the 
Coast Guard.   

 
The Board also notes that the applicant had no break in service whatsoever dur-
ing this six-year period even though Article 1-G-7A of the Personnel Manual permits a 
three-month break in service with no loss of eligibility for an SRB or loss of time in pay 
grade in rating for advancement.  The lack of any break in service during this period—
as well as the applicant’s approximately 20 years of continuous service to date without 
an SRB—demonstrates his commitment to the Coast Guard. 

  
In short, there are so many reasons why a member might request or be directed 
toward short-term extensions in lieu of reenlistments that the Board will not consider 
such extensions to be proof of a lack of commitment to the Coast Guard without more 
evidence.  

 
 
Finally, the facts in this case are not dissimilar to those in BCMR Docket No. 69-
97, in which the  Deputy General Counsel found that two two-year extensions and one 
ten-month extension did not establish that the applicant would not have extended for 
six years if he had been counseled about ALDIST 004/82.  In support of that finding, the 
Deputy General Counsel looked to the purpose of the extensions and found that each 
one was for a particular purpose and was for the convenience of the Coast Guard.  In 
the Board’s view, the difference between that applicant’s extensions and this applicant’s 

8. 

one-year  extensions  is  not  so  significant  as  to  require  the  Board  to  reach  a  different 
result in this case. 
 

The Coast Guard’s argument that the applicant might have procrastinated 
or hesitated because of his youth and thereby lost the opportunity to receive the bonus 
is not compelling.  Few people would ignore a sure opportunity to receive a bonus if 
they wanted to continue on active duty.  Likewise, the applicant’s youth (he was then 
26  years  old)  has  not  convinced  the  Board  that  he  would  not  have  extended  his 
enlistment for the required period if he had known about ALDIST 004/82.  

The  Coast  Guard’s  argument  that  even  if  the  applicant  had  chosen  to 
extend his service in 1982, the Coast Guard did not have to retain him is true but irrele-
vant  since  it  did  retain  the  applicant  on  active  duty  from  1982  to  1988,  and  there  is 
nothing  in  the  record  to  indicate  that he would not have been retained had he taken 
advantage of ALDIST 004/82.  

In light of the fact that the applicant did make a career in the Coast Guard, 
his sworn statement that he would have extended his enlistment for six years had he 
been properly counseled about ALDIST 004/82, and Findings 6, 7, 8, and 9, above, the 
Board finds that the applicant would have extended for six years had he been properly 
counseled about ALDIST 004/82. 

 
9. 

 
10. 

 
11. 

 
12. 

In regard to whether the applicant has a private cause of action, the Dep-
uty General Counsel has already decided that issue in her concurring opinion in BCMR 
Docket No. 69-97.  In that opinion, she found that Caceres does not support the Coast 
Guard's  position,  because  the  applicant's  claim  to  an  SRB  is  not  based  solely  on  the 
Coast Guard's regulations but on the SRB statute (37 USC § 308) that authorized pay-
ment.    In  Caceres,  there  was  no  underlying  federal  statute  to  support  the  criminal 
defendant's claim of being deprived of a right.   

 
Nor  does  Cort  support  the  Coast  Guard's  position.    All  four  factors  that  the 
Court  stated  should  be  considered  weigh  in  the  applicant’s  favor  here:    (a)  Congress 
specifically  intended  Coast  Guard  members  to  benefit  under  the  SRB  statute;  (b) 
Congress  implicitly  created  a  private  remedy;7  (c)  a  member's  suit  for  a  wrongfully 
withheld  SRB  would  be  consistent  with  the  underlying  legislative  scheme;  and  (d) 
disputes over SRBs are clearly not within the province of the states.   

The Coast Guard stated that Congress intended the SRB program to bene-
fit the Coast Guard and the United States by encouraging experienced members with 
critical skills to extend their service, and that paying the applicant retroactively would 
be contrary both to the statute’s purpose and to the fact that applicant did not in fact 
                                                 
7  Furthermore, the Board finds that the applicant has a private right of action to seek relief from the 
alleged error of the Coast Guard under the BCMR statute (10 USC § 1552). 

extend for six years when ALDIST 004/82 was in effect.  However, the Deputy General 
Counsel has held that Congress intended to benefit experienced members with critical 
skills who would agree to extend their years of service.  In Larinoff, the Supreme Court 
held that “[t]he intention of Congress in enacting the [reenlistment bonus statute] was 
specifically  to  promise  to  those  who  extended  their  enlistments  that  a  [reenlistment 
bonus]  award  would  be  paid to them at the expiration of their original enlistment in 
return  for  their  commitment  to  lengthen  their  period  of  service."  431  U.S.  at  878-79 
(footnote  omitted).    Furthermore,  although  the  applicant  did  not  extend  his  service 
during  the  month  when  ALDIST  004/82  was  in  effect,  he  did  serve  continuously  for 
more than six years after the end of his original four-year enlistment.   
 

13. 

The Coast Guard erred in 1982 by failing to counsel the applicant of his 

eligibility to receive an SRB by extending his enlistment. 
 

14.  Accordingly,  the applicant’s record should be corrected to show that on 
February 14, 1982, he extended his enlistment for six years and thereby became entitled 
to receive a Zone A SRB with a multiple of one.  
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 
 

ORDER 

 

 
 

 
 

 
 

 
 

(see also, concurring opinion below)  
Robert J. Patton, Jr. 

The Coast Guard shall pay the applicant the amount due him as a result of these 

The  application  for  correction  of  the  military  record  of  XXXXXXXX  shall  be 
granted as follows:  The military record shall be corrected to indicate that the applicant 
agreed to extend his enlistment for six years on February 14, 1982, and he thus became 
entitled to receive a Zone A selective reenlistment bonus with a multiple of one.  The 
applicant’s  extensions  and  reenlistments  dated  November  11,  1982,  October  20,  1983, 
October 15, 1984, November 8, 1985, September 24, 1986, and November 2, 1987, will be 
canceled.  These shall be null and void and shall have no effect on his SRB entitlement.  
All other extensions and reenlistments shall remain as they now appear in the record, 
with no break in service shown.    
 
 
corrections to his record. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Concurring Opinion 
 
I.  Purpose 
 
The purpose of this Concurring Opinion is to address more fully the remand of the 
Deputy General Counsel that the BCMR (Board) make findings of fact on the issue of 
whether the applicant would have extended his enlistment for six years and to address 

 

 
Sharon Y. Vaughn 

 

 
 
Betsy L. Wolf 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 

 

 

 

 

 

 

 

 

the U.S. Coast Guard’s arguments on that issue.  I otherwise join in the Majority 
Opinion, including its conclusions.  In view of previous decisions by the Board and 
Deputy General Counsel, the would-have-extended issue is the crucial issue in this 
docket.  The Concurring Opinion is purely to present a more complete rebuttal to Coast 
Guard arguments. 
 
 
II.  Remand of Deputy General Counsel 
 
On August 28, 1998, the Deputy General Counsel remanded this case to the Board “for a 
finding of fact” “on the issue of whether applicant would have extended his enlistment 
contract for six years pursuant to ALDIST 004/82, as he claimed.”  Further, the Deputy 
General Counsel directed the Board to “address fully the arguments raised in the Chief 
Counsel’s December 22, 1997, advisory opinion.”  A full response to the Chief Counsel’s 
arguments, except as to the would-have-extended issue is set forth in the Majority 
Opinion. 
 
 
III.  Coast Guard Advisory Opinion 
 
In the Chief Counsel’s Advisory Opinion of December 22, 1997, it is argued, as relevant 
to this Opinion, (1) that the applicant’s self-serving “opinion” is not substantial 
evidence “on what he would have done fifteen years earlier under different 
circumstances,” (2) that the applicant had only one month in which to decide to extend 
and he might have procrastinated, (3) that the applicant could have decided to wait for 
a higher bonus,  (4) that the most substantial evidence is his one-year extension in 1982, 
(5) that additional one-year enlistment extensions in 1983, 1984, 1985, 1986, and 1987 
demonstrate that the applicant was not inclined to limit his options by agreeing to long 
term extensions, (6) that the Coast Guard did not have to keep the applicant for the full 
six years of extension, (7) that the applicant is not entitled to a presumption that he 
would have extended under ALDIST 004/82 merely because he eventually did serve in 
the Coast Guard during that period,  and (8) that the applicant has not proved by a 
preponderance of the evidence that he would have extended for the maximum period 
under ALDIST 004/82. 
 
 
IV.  Recent Precedent 
 
Subsequent to the Chief Counsel’s Advisory Opinion the Deputy General Counsel 
rendered two concurring decisions on analogous dockets concerning ALDIST 004/82 
and eligibility for a Selective Reenlistment Bonus (SRB).  In those decisions the Deputy 
General Counsel discussed the would-have-extended issue in the particular 

A.  BCMR Docket No. 54-97 

circumstance of those dockets and rejected a number of arguments that the Coast Guard 
sets forth in this docket. 
 
 
 
 
The applicant in BCMR 54-97 enlisted in the Coast Guard for four years in 19xx and 
thereupon reenlisted for three years.  As of January 1982, when ALDIST 004/82 was 
released he had served about half of his extended three year commitment.  The 
applicant claimed that he “surely would have participated in it [SRBs under ALDIST 
004/82].”  In 1983 he reenlisted for three years and in 1986 he reenlisted for three more 
years.  At the time of his application, he had continuously served 22 years in the Coast 
Guard. 
 
The Deputy General Counsel on July 20, 1998, aside from otherwise upholding the 
Board’s decision, rejected the Coast Guard’s arguments on applicant’s assertion that he 
would have reenlisted if he had known.  As to the argument that he might have 
procrastinated beyond the one-month decision period, the Deputy General Counsel 
found it was sufficient time for a reasonable man or woman to decide whether to extend 
enlistment to benefit from an SRB and that the Coast Guard had presented no evidence 
that he could not have decided within the one month.  As to the contention that 
applicant could have decided to wait for a higher bonus, the Deputy General Counsel 
noted that the Coast Guard had not presented any evidence contradicting applicant’s 
statement that he would have taken advantage of the SRB.  As to the claim that the 
Coast Guard might have terminated applicant’s enlistment before the end of the six-
year SRB period, the Deputy General Counsel noted that the Coast Guard had not so 
terminated the applicant’s enlistment and that the Coast Guard had presented no 
evidence that the applicant would have been treated any differently than he had been 
treated if he had extended under ALDIST 004/82.  Finally, the Deputy General Counsel 
rejected the Coast Guard’s argument that the applicant’s pattern of reenlistment for 
three years indicated he was not inclined to obligate himself for long periods of time.  It 
was noted that there were a number of factors that could influence the applicant’s 
decision to extend, that the official explanation for his extension in 1986 for three years 
was “at the request and for the convenience of the Government” and that the more 
persuasive evidence was applicant’s statement on the issue. 
 
 
 
 
The applicant in BCMR 69-97 enlisted in the Coast Guard in 19xx for four years and in 
1980 reenlisted for six years.  In January 1982 he therefore had over four years to serve.  
His reenlistments thereafter were: 1986 two years, 1988 10 months, 1989 2 years, 1991 3 

B.  BCMR Docket No. 69-97 

years, and 1994 6 years.  As of the date of his application to the Board, he had 
continuously served in the Coast Guard for 21 years and 10 months. 
 
The Deputy General Counsel again upheld the Board’s decision to grant his application, 
and in a concurring decision addressed, among other things, the same Coast Guard 
arguments on the would-have-extended issue as were discussed in BCMR Docket No. 
54-97.  The Board had noted that the applicant’s reenlistment in 1976 for an additional 
six years indicated an early dedication  to the Coast Guard and explained that his 
multiple short-term extensions were not uncommon in order to move to a new station 
or assume new duties and were probably for such reasons.   On this issue, the Deputy 
General Counsel noted there were many possible reasons for short term extensions, that 
an explanation for the 1986 and 1988 extensions was “at the request and for the 
convenience of the Government,” and that the applicant’s statement was the more 
persuasive evidence on the issue. 
 
V.  Findings of Fact 
 
1.  Applicant’s Statement.  Applicant’s sworn statement, that he would have extended 
his enlistment if he had been counseled about eligibility under ALDIST 004/82, is 
significant evidence that he would have so extended his enlistment.   
 
The applicant signed a letter to supplement his application in which he stated that if he 
had been counseled about his eligibility for an SRB under ALDIST 004/82, he “would 
have extended [his] enlistment for six years to obtain a Zone A SRB.”  The statement is 
deemed “sworn” inasmuch as it is subject to penalty of prosecution for perjury if 
erroneous. 
 
The Coast Guard labeled the statement “self serving” and “speculative,” implied that 
the statement is not credible fifteen years after the fact, and argued that the statement 
cannot be considered “substantial” evidence.  The Coast Guard cites no authority for its 
arguments, offered no evidence that the applicant was not truthful 15 years ago or 
currently, and offered no evidence that 15 years ago the applicant was in any way 
dissatisfied with or had any intention to leave the Coast Guard.  Fifteen years ago the 
applicant was 26 years old, not a youth.  While the statement is self serving and 
speculative, in the circumstances and in the absence of contrary evidence, the statement 
is significant. 
 
2.  One Month Decision Time.  The applicant would have decided within the one month 
allowed to extend enlistment under ALDIST 004/82.   
 
The Coast Guard speculates that for any number of reasons that applicant might have 
procrastinated beyond the allowed one month in deciding to extend his enlistment 
under ALDIST 004/82.  It presented no evidence to support such speculation as to the 

applicant specifically.  As already noted, the Deputy General Counsel has ruled that one 
month is sufficient time for a reasonable man or woman to decide whether to extend his 
or her enlistment to obtain the benefit of an SRB, which must have been precisely the 
logic of the Coast Guard in issuing ALDIST 004/82 in the initial instance. 
 
3.  Better Bonus.  The applicant would not have passed up ALDIST 004/82 until a better 
bonus was offered. 
 
The Coast Guard speculates, again without offer of evidence, that applicant might have 
refused to have extended under ALDIST 004/82 on the chance that he might have later 
gotten a better bonus. There is no evidence that the applicant had any reason to believe 
that there would be higher multiples in the future and that he was prepared to wait for 
them.  In the absence of such evidence, the more controlling evidence is applicant’s 
statement that he would have taken advantage of the SRB if he had known he was 
eligible. 
 
4.   1982 One-Year Extension.  The applicant’s one-year enlistment extension in 1982, 
without knowledge of ALDIST 004/82, is not the most significant evidence that 
applicant would not have extended his enlistment for six years under ALDIST 004/82. 
 
The Coast Guard argues that the most significant evidence of the applicant’s intentions 
during this period is his reenlistment in 1982 for one year and not for the six years 
authorized by ALDIST 004/82.  Again, the Coast Guard presents no evidence of 
applicant’s 1982 circumstances.  The Coast Guard previously and unsuccessfully made a 
similar argument in BCMR Docket Nos. 54-97 and 69-67. The personnel file notation for 
the applicant’s 1982 extension has the characterization “voluntary.”  The Board and 
Deputy General Counsel have noted that a multiple of circumstances attend to 
decisions on enlistment extensions, such as schooling and location, that are not 
inconsistent with a career decision.  Further, it has been noted, as equally true in this 
docket, that applicant’s DD Form 214 under remarks for extension of service indicate 
“at the request of and for the convenience of the Government.”  In sum, while the one-
year extension is relevant evidence, the more persuasive evidence in the context of this 
docket, is applicant’s statement on the issue. 
 
5.  Multiple Short-Term Extensions.  The applicant’s multiple short-term extensions 
during the early portion of his Coast Guard career, without knowledge of SRB 
opportunities, is not significant evidence that the applicant would not have extended 
his enlistment for six years under ALDIST 004/82. 
 
The Coast Guard argues that the applicant’s six one-year extensions of enlistment from 
1982 to 1987 indicate that he was not inclined to limit his options by obligating service 
far into the future.  Each of these extensions has been reviewed, although the record is 
not robust.  Three extensions were for a particular purpose, such as to attend a school or 

in lieu of reenlistment, and the three others were characterized as “voluntary” or as an 
extension “to remain on active duty.”  The DD Form 214, as already noted, states as to 
all extensions: “at the request of and for the convenience of the government.”  There is 
no evidence that any of the short-term extensions were in the face of offered SRBs, that 
the applicant was considering during this time leaving the Coast Guard, or that he did 
not want to pursue a career in the Coast Guard at any time during these extensions.  
Further, and importantly, there was no interruption in his service during this six-year 
period even though a three-month break in service was allowed without loss of 
eligibility for an SRB or loss in time in pay grade in rating for advancement.   It has been 
noted that there are many reasons influencing a decision to extend enlistment other 
than career choice.  If there is no evidence grappling with those reasons, the more 
persuasive evidence, even with six one-year extensions, is applicant’s statement that he 
would have extended. 
 
6.  Possible Coast Guard Termination. The Coast Guard retained the applicant for six 
years beyond ALDIST 004/82 and presented no evidence to support a finding that he 
would have been discharged in that period if he had extended under ALDIST 004/82. 
 
The Coast Guard makes the point that even if the applicant had extended for six years 
in 1982, the Coast Guard did not have to retain him for six years.  The arguments 
apparently are that because of this possibility,  either (a) the applicant would not have 
extended his enlistment under ALDIST 004/82 or (b) his present statement, that he 
would have enlisted, should not be accepted, or (c) he should not be entitled to the full 
amount of the SRB under ALDIST 004/82.  The arguments are not persuasive. The 
Coast Guard has retained him for the six-year period, and, to quote the Deputy General 
Counsel in Dockets 54-97 and 69-97, “that is a sufficient basis on which to conclude that 
Coast Guard would have retained applicant for six years if he had obligated himself for 
six years under ALDIST 004/82.” In this docket the Coast Guard has presented no 
evidence that if the applicant had extended under ALDIST 004/82 his tenure in the 
Coast Guard would have been different than it was. 
 
7.  Presumption From Career Service.  The applicant’s uninterrupted long-term career 
in the Coast Guard is evidence of career interest in the Coast Guard.  
 
The Coast Guard contends that the applicant is not entitled to a presumption that he 
would have extended under ALDIST 004/82 merely because he eventually did serve in 
the Coast Guard during that period.  At the same time the Coast Guard is arguing that 
the Board should characterize that portion of his career following ALDIST 004/82 as 
“the most significant evidence of Applicant’s intentions.”  Particularly given the 
absence of contemporaneous evidence of the applicant’s circumstances in 1982, his 
career is relevant evidence regarding what he would have done in 1982.  Portions of his 
career have already been discussed, namely his reenlistments from 1982 through 1987. 
It is also relevant that his career reflects almost 20 years of continuous service to date, 

even without an SRB.  This service firmly demonstrates his commitment to the Coast 
Guard.  The Coast Guard has presented no contravening evidence. 
 
8.  Preponderance of Evidence.  The preponderance of evidence establishes that the 
applicant would have, if properly counseled about ALDIST 004/82, extended his 
enlistment for six years to obtain the benefit of the SRB. 
 
As a conclusionary argument, the Coast Guard argues that the preponderance of 
evidence does not support the applicant’s request.  It offers no further argument or 
evidence to support that conclusion beyond those already discussed. 
 
 
 
 
 

_____________________________ 
ROBERT J. PATTON, JR.