DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 1998-116 
 
  
   

 

 
 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
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.  It was com-
menced upon the BCMR’s receipt of the applicant’s first application on July 17, 
1998.  That application was originally docketed as BCMR Docket No. 1998-094.  
On September 17, 1998, the applicant submitted another application to the BCMR 
requesting  the  same  relief  based  on  different  grounds.    In  light  of  the  Board’s 
rules  regarding  new  evidence  and  reconsideration  (33  C.F.R.  §§  52.61(c)  and 
52.67), the Chairman consolidated the two applications under BCMR Docket No. 
1998-116. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  10,  1999,  is  signed  by  the  three  duly 

RELIEF REQUESTED 

 
 
The applicant, a xxxxxxxxx, asked the Board to correct his military record 
by promoting him to xxxxxxx because the Coast Guard refused to promote him 
in  accordance  with  the  terms  of  the  Board’s  order  in  the  applicant’s  previous 
case, BCMR Docket No. 193-94.1   
 

Specifically, the applicant asked that his record be corrected to show that 
he was promoted to xxxxxxx on February 1, 199x, (or, in the alternative, July 1, 
199x), with a date of  rank of July 1, 199x.   He also asked that all of his officer 
                                                 
1  The applicant has also filed suit against the Commandant of the Coast Guard in federal court, 
where he seeks the same relief. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx  

evaluation reports (OERs) since February 1, 199x (or July 1, 199x), showing his 
rank as xxxxxx be removed.  Furthermore, if he is separated from active duty at 
the  time  of  this  Final  Decision,  the  applicant  asked  that  he  be  offered  an 
opportunity to return to active duty and to be placed on the active duty promo-
tion list in the position that would result from a date of rank of July 1, 199x.  He 
also asked that “his consideration by any [xxxxx] selection board be delayed until 
he receives one additional regularly scheduled OER.”  In addition, he asked the 
Board to award him all back pay, allowances, and leave due as a result of these 
changes. 
 

HISTORY OF BCMR DOCKET NO. 193-94 

 
 
In BCMR Docket No. 193-94, the applicant asked the Board to remove cer-
tain  comments  attached  to  one of  his  OERs,  as  well  as  his  reply  to  those  com-
ments.  He also asked the Board to remove his failures of selection for promotion 
and to backdate his promotion should he be chosen by the next selection board.   
 

The applicant alleged that the xxxxxxxxx of the xxxxxxxx had improperly 
made himself a member of the applicant’s rating chain and, as such, had attached 
a page of comments to the OER in which he stated that the applicant had been 
involved  in  an  inappropriate  relationship  with  a  xxxxxxxx.    At  the  time,  the 
xxxxxxx had opened an investigation into the alleged affair, but the investigation 
was  not  complete.    The  applicant  submitted  a  reply  to  that  OER  in  which  he 
denied  having  “any  inappropriate  relationship  with  any  xxxxxx.”    The  appli-
cant’s  supervisor  and  reporting  officer  submitted  endorsements  to  the  reply 
indicating  that  they  had  no  knowledge  of  the  alleged  affair.    During  the 
investigation, the xxxxxx signed a sworn statement denying the alleged inappro-
priate  relationship.    After  the  investigation,  the  command  determined  that  the 
evidence provided in the report was insufficient to justify punitive legal action.  
 
The  Board  recommended  granting  the  requested  relief.    It  found  that 
 
Coast  Guard  regulations  prohibited  OER  comments  concerning  disputed  facts 
that were the subject of an ongoing investigation.  The Deputy General Counsel 
approved the Board’s recommended decision.  The following order was issued in 
Docket No. 193-94 on November 8, 1995: 
 

The application to correct the military record of [the applicant] is granted.  The 
comments of the Reviewer and the applicant’s reply to those comments shall be 
deleted from the disputed OER.  The applicant’s failures of selection for promo-
tion to xxxxxx shall be removed.  The block on the OER that indicates that com-
ments from the Reviewer are attached shall be changed to one that indicates that 
no such comments are attached. 
 
The  applicant  shall  be  given  the  opportunity  to  be  considered  by  the  next  two 
xxxxxxx Selection Boards.  If selected by the first such Board, he shall be given 

the  date  of  rank  he  would  have  received  had  he  been  selected  in  199x,  and  he 
shall  be  given  applicable  back  pay  and  allowances.    If  he  wishes,  he  shall  be 
given the opportunity to compete to be on the Command Afloat List. 

 

APPLICANT’S ALLEGATIONS 

 
 
The  applicant  alleged  that  the  Coast  Guard  refused  to  comply  with  the 
Board’s order in Docket No. 193-94 by promoting him after he was selected for 
promotion in xxxx 199x by the first xxxxx selection board to meet after his record 
was corrected.  The applicant alleged that the Coast Guard should have placed 
his  name  on  the  199x  xxxxxx  promotion  list  and  promoted  him  at  the  first 
opportunity after his promotion was confirmed by the President and the Senate.2  
Then,  he  alleged,  his  promotion  should  have  been  backdated  to  July 1,  199x, 
which  is  the  date  of  rank  he  would  have  had  if  he  had  been  selected  for  pro-
motion in 199x. 
 
 
Instead,  the  applicant  alleged,  the  Coast  Guard  placed  him  third  on  the 
199x  xxxxxx  promotion  list  and  refused  to  promote  him  on  February  1,  199x, 
when the first vacancies arose after the list was confirmed by the President and 
the Senate on January 31, 199x.  When the applicant protested to the Coast Guard 
Personnel Command (CGPC), he was told that he would be promoted on July 1, 
199x, along with others on the 199x promotion list.  CGPC stated that 14 U.S.C. 
§ 271(b) prevented the Coast Guard from promoting him prior to those on earlier 
promotion  lists.    The  applicant  alleged  that  this  statute  does  not  apply  to  him 
“because it mandates assignment of a date of rank by precedence on the promo-
tion list, which is contrary to the order of the CGBCMR.” 
 

In  his  second  application  to  the  BCMR,  the  applicant  alleged  that  the 
Coast Guard refused to promote him as promised on July 1, 199x.  On May 21, 
199x, he was warned that his promotion would be delayed pursuant to Article 
5.A.13.f. of the Personnel Manual (COMDTINST M1000.6A) because he was the 
subject of a pending investigation into allegations of sexual harassment made by 
a female junior officer.  However, he alleged, that investigation was concluded 
on  June  23,  199x,  prior  to  his  promised  date  of  promotion,  and  none  of  the 
charges against him were substantiated.   

 
The  applicant  alleged  that,  under  United  States  v.  MacDonald,  456  U.S.  1 
(1982), the investigation was no longer “pending” on July 1, 199x.  Therefore, the 
Coast  Guard  violated  statutes  and  its  own  regulations  when  it  refused  to  pro-
mote him on that date.  The applicant also argued that a Special Board of Officers 
                                                 
2   The number of xxxxx in the Coast Guard is limited by statute.  14 U.S.C. § 42.  Therefore, the 
Coast  Guard  promotes  xxxxxxx  off  the  lists  confirmed  by  the  President  and  the  Senate  as 
vacancies occur.  

that met a year later, in June 199x, to consider removing him permanently from 
the xxxxx promotion list could not be considered “pending” on July 1, 199x.  The 
applicant cited another case involving a Coast Guard officer, Law v. United States, 
11  F.3d  1061  (Fed.  Cir.  1993),  for  the  proposition  that  a  Special  Board  only 
becomes “pending” on the date that it is approved by Coast Guard Headquar-
ters.  The applicant alleged that his commanding officer did not request a Special 
Board until September 12, 199x, and that the request was not approved until May 
199x.  Furthermore, if the Special Board was the true reason for the delay of his 
promotion, the Coast Guard violated Article 5.A.13.f. by not giving him timely 
notice  of  it.    Therefore,  the  applicant  alleged,  because  neither  the  investigation 
nor the Special Board of Officers was “pending” on July 1, 199x, he should have 
been promoted on that date. 
 

VIEWS OF THE COAST GUARD 

 
 
On April 20, 1999, the Chief Counsel of the Coast Guard issued an advi-
sory  opinion  recommending  that  the  Board  deny  the  applicant’s  request  for 
promotion to xxxxx.  The Chief Counsel alleged that, contrary to the applicant’s 
allegations,  the  Coast  Guard  had  “acted  in  conformance  with  statute  and  the 
CGBCMR’s prior order.” 
 
 
The  Chief  Counsel  described  the  facts  of  this  case  as  follows:    After  the 
applicant had been selected for promotion, he was placed on the 199x xxxxxxxx 
promotion  list  and  frocked3  when  that  list  was  confirmed  by  the  Senate  on 
January  31,  199x.    Soon  thereafter,  however,  he  “was  suspected  of  sexual  har-
assment of a female officer and obstruction of justice.”  His commanding officer 
(CO)  notified  him  that  he  was  forwarding  a  recommendation  to the  Comman-
dant that his promotion be delayed pending a formal investigation of the allega-
tions.  Upon  receiving  the  report  of  the  investigation  on  June  23,  199x,  the  CO 
opened an informal investigation into the applicant’s alleged misuse of govern-
ment telephones for the alleged harassment.  The report of this informal investi-
gation was closed on July 31, 199x.   
 

According to the Chief Counsel, on August 25, 199x, the applicant refused 
to accept nonjudicial punishment (NJP) proceedings as a result of the two inves-
tigations.  His CO could have but did not initiate a court-martial.  Instead, the 
CO asked CGPC to review the applicant’s eligibility for promotion and consider 
separating him for cause.  The CO also initiated a special OER to document the 
applicant’s alleged abuse of government telephones.  The special OER was com-
pleted on December 18, 199x.  On February 19, 199x, the applicant submitted a 
reply to the special OER.  However, the Chief Counsel alleged, the reply had to 
be rejected because it “failed to meet quality review standards.”  The applicant 
did not submit a revised reply when invited to do so. 
 

As a result of the CO’s recommendation, CGPC decided to convene a Spe-
cial Board of Officers pursuant to 14 U.S.C. § 272(a) to consider the applicant’s 
eligibility for promotion.  CGPC decided to wait to convene the board until after 
the special OER was finished so that the record before the Special Board would 
be complete.  On May 12, 199x, the applicant was informed of the pending board 
and allowed to submit evidence on his own behalf.  On June 16, 199x, the Special 
Board met and recommended to the Secretary of Transportation that the appli-
cant’s name be removed from the 199x promotion list.  On June 30, 199x, the Sec-

                                                 
3   When an officer is “frocked,” he is not yet promoted but may wear the uniform and perform 
the  office  of  the  higher  rank.    However,  he  is  evaluated  and  paid  at  the  lower  rank.    Article 
5.A.14., Personnel Manual. 

retary approved the findings of the Special Board and removed the applicant’s 
name  from  the  promotion  list.    The  applicant  was  thereafter  passed  over  for 
promotion by the 199x xxxx selection board.  He is therefore required to retire on 
June 30, 199x. 
 
 
The Chief Counsel stated that 14 U.S.C. § 271(b) prohibits the promotion 
of officers off a promotion list until all officers on previous promotion lists have 
been  promoted.    Therefore,  the  Coast  Guard  could  not  promote  the  applicant 
until July 1, 199x, when all previous promotion lists were exhausted and vacan-
cies arose allowing officers to be promoted off the 199x list.  The Chief Counsel 
argued that the Board’s order in BCMR Docket No. 193-94 could not override the 
statute.  Furthermore, the Coast Guard’s actions in placing the applicant on the 
199x  promotion  list  and  waiting  until  July  1,  199x,  to  promote  him  were  not 
inconsistent with the Board’s order.  If the applicant had been promoted on July 
1, 199x, his promotion would have been backdated to July 1, 199x, and he would 
have received back pay and allowances. 
 
 
The Chief Counsel alleged that, although the applicant had been selected 
for  promotion,  he  nevertheless  had  to  remain  eligible  for  promotion  and  be 
authorized to fill a vacancy before the Board’s contingent order concerning his 
promotion could be fulfilled.  The Chief Counsel argued that the Board’s author-
ity  to  correct  records  “does  not  eliminate  the  authority  of  the  Coast  Guard  to 
remove persons from the selection list when misconduct or lack of qualification 
becomes evident.”  The Chief Counsel argued that “[n]o selectee is entitled to an 
appointment merely by being selected by a Service Selection Board. . . .  [C]ontin-
ued satisfactory performance is necessary during the period between the officer’s 
selection and the subsequent promotion . . . .” 14 U.S.C. § 272.  The Board’s order, 
he argued, does not preempt the application of other statutes.  Furthermore, he 
stated,  the  order  “did  not  contemplate  future  misconduct  by  Applicant  and  it 
does not shield him from appropriate action.” 
 
 
The Chief Counsel argued that 14 U.S.C. § 271(f), which authorizes delay-
ing  the  promotion  of  an  officer  who  is  “under  investigation  or  against  whom 
proceedings of a court-martial or a board of officers are pending,” is not the sole 
authority  for  the  Coast  Guard’s  actions  against  the  applicant.    He  cited  Law  v. 
United States, 26 Cl. Ct. 382 (1992), aff’d, 11 F.3d 1061 (1993), for the proposition 
that an officer whose promotion is delayed under 14 U.S.C. § 271(f), may also be 
removed from the promotion list under § 272(a).  He also cited clauses 1 and 2 of 
section 2 of article II of the Constitution and 14 U.S.C. § 271(b).  He argued that 
the President’s constitutional power to appoint and promote officers inherently 
includes the authority not to promote officers.  He stated that this authority has 
been  delegated  to  the  Coast  Guard.    49  C.F.R.  § 1.45(a)(1).    Furthermore,  he 
pointed out that Article 5.A.13.f.(1) of the Personnel Manual does not state that 

pending actions are the only basis for delaying promotions; it merely states that 
pending actions are included among other proper bases. 
 
The Chief Counsel also rebutted the applicant’s argument that he should 
 
have  been  promoted  on  July  1,  199x,  because  the  investigation  was  closed  on 
June 23, 199x, and the Special Board had not yet been authorized.  “Coast Guard 
authorities are simply not required to take instantaneous action once an investi-
gation is completed. . . .  Common sense and actual practice require that a con-
vening  authority  take  a  reasonable  time  to  read  the  investigation  before  exer-
cising  discretion  and  taking  action  on  the  results  and  recommendations  of  an 
investigation.”    The  Chief  Counsel  alleged  that  the  report  of  the  investigation 
noted several “pending” issues, such as alleged false statements and misuse of 
government property by the applicant.  The fact that the CO chose to take admin-
istrative action, rather than criminal, “did not in any way absolve Applicant of 
his  misconduct.”    Furthermore,  the  Chief  Counsel  argued,  under  14  U.S.C. 
§ 272(a), the Coast Guard had authority to delay the applicant’s promotion even 
if there was no investigation pending, and 14 U.S.C. § 271(f) permits a delay of 
up to one year. 
 
 
Finally,  the  Chief  Counsel  argued  that  under  33  C.F.R.  § 52.61(c),  the 
applicant  had  waived  his  right  to  a  final  decision  within  10  months,  under  14 
U.S.C. § 425, by submitting the second application on September 17, 1998.  
 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
 
On April 21, 1999, the Chairman sent the applicant a copy of the views of 
the Coast Guard and invited him to respond within 15 days.  After being granted 
an extension, the applicant responded to the views of the Coast Guard on May 
17, 1999.   
 

The applicant stated that two investigations had failed to substantiate the 
allegations against him.  He argued that the third investigation, ordered in July 
199x by the applicant’s CO, “merely reinterpreted the evidence rejected . . . in the 
second  investigation,”  and  also  failed  to  prove  any  misconduct  on  his  part.  
Therefore, he argued, “[t]here was no proven misconduct in this case.”   
 
 
The applicant argued that, because he would have been selected for pro-
motion in 199x if the Coast Guard had not included the reviewer’s impermissible 
comments  in  his  OER,  “every  minute  that  [the  applicant]  was  deprived  of  his 
promotion was a further punishment and injustice to him.”  Therefore, he should 
have been promoted at the first opportunity:  February 1, 199x. 
 

 
The  applicant  also  argued  that  14  U.S.C.  §  271(b)  requires  officers  to 
receive dates of rank based on their order on the promotion lists.  Because the 
Board’s  order required  the  applicant  to  have  a  date of  rank  of  July  1,  199x,  he 
alleged,  he  should  have  been  placed  on  the  199x  promotion  list  as  soon  as  his 
name  was  confirmed  by  the  Senate  on  January  31,  199x.    Then,  he  could  have 
been promoted on February 1, 199x, without violating the statute.  The applicant 
argued that there is no statutory authority for a selectee on the 199x promotion 
list to have a date of rank of July 1, 199x.  Therefore, the Board’s order required 
the Coast Guard to place the applicant on the 199x promotion list. 
 
 
The  applicant  alleged  that  14  U.S.C.  §  271(f)  limits  the  Coast  Guard’s 
authority to delay promotions from confirmed lists to the duration of a pending 
investigation  or  board  of  officers.    He  argued  that  the  Coast  Guard  cannot 
expand this authority by regulation in Article 5.A.13.f. of the Personnel Manual.  
The  applicant  also  alleged  that  the  Coast  Guard  “has  existing  procedures  to 
delay promotions which comply with the statute” but did not use any of them.  
He stated that 14 U.S.C. § 272(a) permits the President to remove a selectee from 
a  promotion  list  but  not  to  delay  a  promotion  from  the  list.    Furthermore,  the 
applicant  argued,  there  were  no  “pending  issues”  after  the  close  of  the  formal 
investigation on June 23, 199x, because he made no statement at all during the 
first  investigation  into  the  alleged  inappropriate  relationship  and  because  the 
false statement allegation against the applicant was never pursued. 
 
The applicant also contended that his CO’s decision to remove him from 
 
the  promotion  list  rather  than  try  him  at  court-martial  was  no  favor  to  him 
because he was punished even though the CO knew the allegations could not be 
proven. 
 
 
Finally,  the  applicant  stated  that  he  had  not  waived  the  10-month  time 
limit  by  submitting  his  second  application.    He  argued  that  his  application  on  
September 17, 1998, constituted the filing of a separate case rather than the sub-
mission of further evidence in the case filed on July 17, 1998. 
 

SUMMARY OF THE RECORD 

 
 
The applicant received his commission as an ensign on May 24, 19xx.  He 
was promoted to xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.  From 
July 24, 198x, to July 27, 199x, he served as an xxxx at the xxxxxxxxxxxxxx.  From 
July 28, 199x, to July 14, 199x, he served as the assistant chief of the xxxxx Branch 
for xxxxx.  Since then, he has served as the xxxx of the Coast Guard xxxxxxxxx.  
After his record was corrected in accordance with BCMR Docket No. 193-94, he 
was selected for promotion to xxxxxx in 199x and placed on the 199x promotion 

list.  On January 31, 199x, the 199x promotion list was confirmed by the President 
and the Senate.  The applicant was then frocked as a xxxxxx. 
 
On  February  14,  199x,  Coast  Guard  Investigations  issued  a  Notice  of 
 
Investigation concerning allegations of sexual harassment by the applicant.  The 
notice  states  that  a  former  xxxx of  the  applicant  alleged  that  he  had  been  tele-
phonically  harassing  her  since  she  attempted  to  end  all  contact  between  them.  
The allegations arose when the xxxx was questioned concerning two anonymous 
letters  that  were  received  by  her  command.    The  letters  described  her  in 
disparaging terms.  She stated that she believed the applicant wrote them. 
 

The  report  concluded  that  the  applicant  was  guilty  of  failing  to  obey 
orders, larceny, wrongful appropriation, and false pretenses.  It also concluded 
that  there  were  aggravating  circumstances  that  weighed  against  the  applicant.  
The investigator recommended that all but the false pretense charge be dropped 
and that the applicant be taken to mast (NJP) on the false pretense charge.  How-

On May 13, 199x, the applicant’s CO sent a letter to CGPC requesting that 
the  applicant’s  promotion  be  delayed,  because  of  accusations  of  sexual  harass-
ment and obstruction of justice, “until these matters are resolved.”  On May 21, 
199x, CGPC informed the applicant that, based on the information in the CO’s 
letter, his promotion was being withheld in accordance with Article 5.A.13. of the 
Personnel Manual.  The letter stated, “You will be advised of our intent to initiate 
administrative action if deemed necessary.” 

 
 
On June 23, 199x, Coast Guard Investigations issued a Report of Investi-
gation  concerning  the  allegations  of  sexual harassment.    The  report  stated  that 
the investigation had failed to prove that the applicant had sent the letters, but it 
concluded that he was a “likely suspect.”  The investigation also stated that the 
applicant and the student “may have provided false statements to [investigators] 
during  an  investigation  into  their  inappropriate  relationship  when  she  was  a 
xxxxx at the xxxxxx.”  The report stated that the investigation was closed. 
 
 
On  July  31,  199x,  the  applicant’s  CO  received  a  report  of  an  informal 
investigation he had initiated after receiving the Report of Investigation on June 
23, 199x.  The informal investigation concerned the applicant’s alleged misuse of 
government telephones and email.  The report stated that between July 1, 199x, 
and January 31, 199x, the applicant had placed 408 long-distance phone calls to 
his former xxxxxx personal phone number.  The frequency varied from just one 
call per day to as many as 18 calls per day.  The applicant was also found to have 
called another female junior officer long-distance up to 6 times per day during 
January 199x.  Both recipients of the applicant’s calls confirmed that the calls did 
not concern official business.   
 

ever, on August 25, 199x, the applicant signed an “Acknowledgment and Elec-
tion”  form  stating  that,  after  consulting  with  his  private  attorney,  he  chose  to 
refuse NJP proceedings. 
 
 
On September 12, 199x, the applicant’s CO wrote to CGPC requesting that 
the applicant’s record be reviewed to determine his fitness for promotion and to 
consider whether he should be separated from the Service.  The CO stated that 
both  the  formal  and  informal  investigations  into  the  applicant’s  conduct  were 
complete.  He concluded that the investigations provided sufficient evidence to 
prove  the  allegations  “by  a  preponderance  of  the  available  evidence,”  but  not 
“beyond a reasonable doubt.” 
 
 
On  December  18,  199x,  the  applicant’s  rating  chain  completed  a  special 
OER to document his misuse of government telephones.  All of the marks in the 
OER are “not observed” except for a mark of 4 (out of 7) for Using Resources and 
marks of 3 for Judgment and Responsibility.  The comments state that, although 
the  applicant’s  “overall  performance  in  ‘using  resources’  has  been  far  beyond 
that of a typically effective CG officer,” the mark of 4 was assigned because of 
“misuse of the FTS telephone system.” 
 
 
On May 1, 199x, the applicant sent a letter to CGPC protesting his failure 
to be promoted in accordance with the BCMR’s order in Docket No. 193-94.  On 
May  12,  199x,  CGPC  responded,  stating  that  14  U.S.C.  §  271(b)  and  the  subse-
quent delay had prohibited the applicant’s  promotion and that the matter was 
still under review.  On May 12, 199x, CGPC also informed the applicant that a 
Special Board of Officers would meet to consider his removal from the promo-
tion list based on the special OER, the results of the formal investigation, and his 
CO’s letter dated September 12, 199x. 
 

On June 16 and 17, 199x, a Special Board of three Coast Guard xxxxxx met 
to consider the applicant’s removal from the promotion list.  After reviewing the 
record and the applicant’s submissions, the board voted unanimously to recom-
mend removing the applicant from the promotion list based on the “appearance” 
of  two  inappropriate  relationships,  adultery,  and  improper  use  of  government 
telephones.    On  June  29,  199x,  the  Commandant  endorsed  the  Special  Board’s 
recommendation  that  the  applicant  be  removed  from  the  promotion  list.    On 
June  30,  199x,  the  Secretary  of  Transportation  signed  an  order  removing  the 
applicant’s name from the promotion list. 
 

APPLICABLE LAWS 

 
Statutes 
 

(a)  When the report of a board convened to recommend officers for 
promotion has been approved by the President, the Secretary shall place 
the  names  of  all  officers  selected  and  approved  on  a  list  of  selectees  in 
order of their seniority on the active duty promotion list. 
 
(b) 
Officers on the list of selectees may be promoted by appointment 
in  the  next  higher  grade  to  fill  vacancies  in  the  authorized  active  duty 
strength of the grade as determined under section 42 of this title after offi-
cers on any previous list of selectees for that grade have been promoted.  
Officers shall be promoted in the order that their names appear on the list 
of selectees.  The date of rank of an officer promoted under this subsec-
tion shall be the date of his appointment in that grade. 

•   •   • 

(f) 
The promotion of an officer who is under investigation or against 
whom proceedings of a court-martial or a board of officers are pending 
may  be  delayed  without  prejudice  by  the  Secretary  until  completion  of 
the  investigation  or  proceedings.    However,  unless  the  Secretary  deter-
mines that a further delay is necessary in the public interest, a promotion 
may not be delayed under this subsection for more than one year after the 
date the officer would otherwise have been promoted.  An officer whose 
promotion is delayed under this subsection and who is subsequently pro-
moted  shall  be  given  the  date  of  rank  and  position  on  the  active  duty 
promotion list in the grade to which promoted that he would have held 
had his promotion not been so delayed.  [This authority has been dele-
gated to the Commandant.  49 C.F.R. § 1.45] 

 

 
The  BCMR’s  authorizing  statute  states  that  “[e]xcept  when  procured  by 
fraud, a correction under this section is final and conclusive on all officers of the 
United States.”  10 U.S.C. § 1552(a)(4). 
 
 
 

Title 14 U.S.C. § 271 states the following: 

Title 14 U.S.C. § 272 states as follows: 
 
(a) 
selectees established under section 271 of this title. 

The President may remove the name of any officer from a list of 

•   •   • 

(c) 
An officer whose name is removed from a list under subsection (a) 
or (b) continues to be eligible for consideration for promotion. . . .  How-
ever, if the officer is not selected by the next selection board or if his name 
is again removed from the list of selectees, he shall be considered for all 
purposes as having twice failed of selection for promotion. 
 
Title 14 U.S.C. § 285 requires that any officer who has failed of selection to 
xxxxxx twice and who has completed at least 20 years of active service be retired 
on the June 30th following his second failure of selection. 

 
Coast Guard Regulations 
 

Article 5.A.13.f. of the Personnel Manual provides the following: 
 
(1) 
It is the responsibility of each officer in the chain of command or 
Commandant (G-P) to withhold a promotion of officers if there is knowl-
edge that they have disqualified themselves after being placed on a pro-
motion list.  Disqualification, as used herein, is deemed to be any circum-
stance which cast [sic] doubt on the moral or professional qualifications 
of  the  officer  concerned.    This  includes  pending  action  by  a  board  of 
officers, courts-martial, or investigative proceedings. (14 U.S. Code 217f) 
 
(2) 
A  complete  report  of  the  circumstances  shall  be  forwarded  to 
Commandant (G-PO) recommending removal of the selectee’s name from 
the  promotion  list  under  article  5-A-4g.  .  .  .    The  selectee  shall  be  fur-
nished a copy of the report . . . . 

•   •   • 

(4) 
The Commandant shall refer the case to a board of officers to rec-
ommend whether or not removal of the selectee’s name from the promo-
tion list shall be recommended to the President. . . . 
 

APPLICABLE DECISIONS 

 
Law v. United States, 11 F.3d 1061 (Fed. Cir. 1993). 
 
In  Law  v.  United  States,  11  F.3d  1061  (Fed.  Cir.  1993),  the  plaintiff  was  a 
 
Coast Guard officer whose name appeared in the 107th position on a promotion 
list.  The list was nominated by the President and confirmed by the Senate in Jan-
uary  1989.    In  May  1990,  before  a  vacancy  had  occurred  for  the  plaintiff,  the 
Commandant directed that his promotion be withheld and that a board of offi-
cers should meet to consider removing his name from the promotion list because 
of crude behavior and sexual harassment that had been documented in an OER.  
A vacancy that the plaintiff would otherwise have filled occurred on June 1, 1990.  
On  June  11,  1990,  a  Special  Board  met  and  recommended  that  his  name  be 
removed from the promotion list.  The Secretary of Transportation removed the 
plaintiff’s name from the list in March 1991.  The plaintiff applied to the BCMR 
for relief, but his application was denied. 
 
 
Among other allegations, the plaintiff argued that the delay of his promo-
tion on June 1, 1990, was improper because the Special Board had not yet met 
and therefore was not “pending.”  The court rejected this argument and deter-
mined  that  the  board  could  be  considered  “pending”  from  the  date  it  was 
directed by the Commandant.  The court also found that the Secretary’s removal 

of the plaintiff’s name from the promotion list within one year was valid because 
“the  Secretary  of  Transportation  could  act  for  the  President  without  a  specific 
delegation of the removal power of § 272(a).”  Id. at 1066. 
 
United States v. MacDonald, 456 U.S. 1 (1982). 
 

In  United  States  v.  MacDonald,  456  U.S.  1  (1982),  the  defendant  was  an 
Army physician who was charged by military authorities in May 1970 with the 
murder  of  his  wife  and  children.    The  Army  dismissed  the  charges  in  October 
1970 but continued to investigate the murders after the defendant was honorably 
discharged  in  December  1970.    The  Army  presented  the  Department  of  Justice 
with  reports  of  its  further  investigations  in  June  1972,  November  1972,  and 
August  1973.    In  August  1974,  the  Justice  Department  convened  a  grand  jury, 
which  indicted  the  defendant  for  the  murders  in  January  1975.    The  applicant 
was convicted.  He appealed on the grounds that his Sixth Amendment right to a 
speedy trial had been violated by the length of time that passed between the date 
he was first charged by the Army (May 1970) and the date he was indicted by the 
civilian grand jury (January 1975). 

 
The Fourth Circuit overturned the conviction on the grounds that the de-
fendant’s Sixth Amendment right to a speedy trial had been violated.  However, 
the Supreme Court reversed, holding that the time between the Army’s dismissal 
of  the  charges  and  the  civilian  indictment  did  not  count  as  time  during  which 
criminal charges were “pending” against the defendant.  The Court noted that 
the primary purpose of the Sixth Amendment right was to limit the amount of 
time an accused could be incarcerated prior to trial, which was not an issue in the 
case.  The Court also noted that neither the Army nor the Justice Department had 
acted in bad faith in the timing of the dismissal and indictment and that much of 
the delay had been caused by the defendant’s own legal maneuvering.  In a brief 
concurrence, Justice Stevens noted that “the interest in allowing the Government 
to proceed cautiously and deliberately before making a final decision to prose-
cute for such a serious offense is of decisive importance . . . .”  Id. at 11. 
 

FINDINGS AND CONCLUSIONS 

 
 
The Board makes the following findings and conclusions on the basis of 
the applicant's military record and submissions, the Coast Guard's submissions, 
and applicable law: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to sec-

tion 1552 of title 10 of the United States Code.  The application was timely. 
 

2. 

3. 

The  applicant  requested  an  oral  hearing  before  the  Board.    The 
Chairman, acting pursuant to 33 C.F.R. § 52.31, denied the request and recom-
mended  disposition  of  the  case  without  a  hearing.    The  Board  concurs  in  that 
recommendation. 
 

The applicant alleged that the Coast Guard failed to comply with 
the Board’s order  in BCMR Docket No. 193-94 by not placing his name on the 
199x  promotion  list  and  by  not  promoting  him  on  February  1,  199x,  when  the 
first  vacancy  for  a xxxxx  arose  after the  199x  promotion  list  was confirmed  on 
January  1,  199x.    However,  the  Board’s  order  in  Docket  No.  193-94  did  not 
require the Coast Guard to place the applicant on the 199x promotion list or to 
promote him off the 199x list out of order.  It merely required that, if the appli-
cant  was  selected  for  promotion  by  the  next  board,  then  upon  promotion,  his 
date of rank would be changed to July 1, 199x. 

The  applicant  argued  that  14  U.S.C.  §  271(b)  required  the  Coast 
Guard, when complying with the Board’s order, to place his name on the 199x 
promotion list and promote him at the first opportunity.  The third sentence of 14 
U.S.C.  § 271(b)  states  that  the  date  an  officer  is  appointed  shall  be  his  date  of 
rank.  In its order in BCMR Docket No. 193-94, the Board exercised its authority 
to  remove  injustice  under  10  U.S.C.  § 1552  by  prescribing  a  date  of  rank  other 
than the date of the applicant’s appointment.   

The first sentence of 14 U.S.C. § 271(b) prohibits the Coast Guard 
from promoting an officer off a newly confirmed list of selectees before the offi-
cers on previously confirmed lists have been promoted.  The Board’s order did 
not  require  the  Coast  Guard  to  ignore  the  first  sentence  of  the  statute  by  pro-
moting the applicant before officers on previously confirmed lists had been pro-
moted.  Therefore, the Coast Guard did not err by placing the applicant on the 
199x promotion list or by not promoting him ahead of officers on previously con-
firmed promotion lists. 

 
4. 

 
5. 

 
6. 

 
7. 

In the alternative, the applicant alleged that 14 U.S.C. § 271(b) did 
not  apply  to  him  because  it  would  give  the  applicant  a  date  of  rank  different 
from that mandated by the Board’s order.  The fact that the Board ordered the 
Coast Guard to assign the applicant, if promoted, a date of rank other than that 
prescribed by the statute does not mean that the rest of the statute did not apply 
to  him  or  that  the  Coast  Guard  could  or  should  have  ignored  other  statutory 
requirements when complying with the Board’s order. 

The order in BCMR Docket No. 193-94 assumed that there would 
be  no  further  allegations  against  or  investigations  of  the  applicant.    The  Board 
cannot provide for every contingency in its orders.  The Coast Guard did not err 

by delaying the promotion of and failing to promote the applicant in accordance 
with the Board’s order when further allegations against him arose after he was 
selected for promotion. 

The applicant also alleged that the Coast Guard erred by not pro-
moting him on July 1, 199x, because the investigation into his alleged misconduct 
was closed the week before, and a board of officers to consider his removal from 
the promotion list had not yet been approved.  Under 14 U.S.C. § 271(f), the “pro-
motion of an officer who is under investigation or against whom proceedings of 
. . . a board of officers are pending may be delayed without prejudice by the Sec-
retary until completion of the investigation or proceedings.”  Although the first 
investigator  reported  that  he  had  closed  his  formal  investigation  of  the  allega-
tions  on  June  23,  199x,  that  does  not  mean  that  the  applicant’s  command  had 
“completed”  its  investigation  within  the  meaning  of  14 U.S.C.  § 271(f).    The 
applicant’s  CO  initiated  a  further  investigation  and  took  administrative  action 
after he determined that court-martial was not a viable option and the applicant 
refused NJP proceedings.  Therefore, the Coast Guard did not err by failing to 
promote the applicant on July 1, 199x. 

 
8. 

 
9. 

Article  5.A.13.f.(1)  of  the  Personnel  Manual  permits  the  Coast 
Guard to delay or withhold a promotion whenever “any circumstance . . . cast[s] 
doubt on the moral or professional qualifications of the officer concerned.”  The 
applicant  alleged  that  this  regulation  did  not  comply  with  the  limits  on  delay 
Congress set forth in 14 U.S.C. § 271(f).  However, 14 U.S.C. § 272(a) empowers 
the  President  to  remove  officers  from  promotion  lists.    This  statute  inherently 
authorizes the President (or his delegee, the Commandant, 49 C.F.R. § 1.45(a)(1)) 
to delay an officer’s promotion when, as in the applicant’s case, serious allega-
tions  arise  and  the officer’s  removal  from  a promotion  list  must  be  considered 
carefully.  The language challenged by the applicant in Article 5.A.13.f.(1) con-
stitutes a reasonable guideline for implementing the authority conferred under 
14 U.S.C. § 272(a).  The allegations and the findings of the investigations into the 
applicant’s conduct met the conditions of Article 5.A.13.f.(1) and therefore justi-
fied the delay of the applicant’s promotion while his CO and CGPC took steps 
leading to his removal. 

 
10. 

The applicant argued, in effect, that under the first sentence of 14 
U.S.C.  §  271(f),  the  Coast  Guard  would  have  to  authorize  a  board  of  officers 
immediately upon the termination of an investigation in order to justify not pro-
moting an officer whose promotion had been delayed pending an investigation.  
This interpretation is unreasonable.  As Justice Stevens noted in his concurrence 
in United States v. MacDonald, 456 U.S. 1 (1982), “the interest in allowing the Gov-
ernment to proceed cautiously and deliberately before making a final decision to 
prosecute for such a serious offense is of decisive importance . . . .”  Id. at 11.  The 

Board does not think that 14 U.S.C. § 271(f) requires the Coast Guard, upon com-
pletion of an investigation, to make an instantaneous decision about whether to 
initiate proceedings to consider an officer’s removal from a promotion list.   

 
11. 

The statute must be read as a whole.  After providing for the delay 
of a promotion pending the completion of an investigation or board of officers, 
14 U.S.C. § 271(f) states that “unless the Secretary determines that a further delay 
is necessary in the public interest, a promotion may not be delayed under this 
subsection for more than one year after the date the officer would otherwise have 
been  promoted.”    This  language  indicates  that  due  process  required  the  Coast 
Guard either to promote a confirmed selectee or to remove the selectee’s name 
from the promotion list within one year of the date the officer would otherwise 
have  been  promoted.    Absent  the  delay,  the  applicant  would  have  been  pro-
moted on July 1, 199x.  His name was removed from the promotion list within 
one year, on June 30, 199x.  Therefore, the Coast Guard did not commit error or 
injustice by delaying the applicant’s promotion and failing to promote him prior 
to removing his name from the promotion list on June 30, 199x. 

 
12. 

 
13. 

The applicant alleged that the Coast Guard violated Article 5.A.13.f. 
of the Personnel Manual by not providing him with notice of the reason for the 
delay  of  his  promotion  once  the  investigation  was  complete.    However,  the 
notice the applicant received in May 199x, stating that, because of the allegations 
of  misconduct,  his  promotion  would  be  delayed  “until  these  matters  are 
resolved” met the requirements of Article 5.A.13.f.   

The applicant has not proved by a preponderance of the evidence 
that  the  Coast  Guard  committed  error  or  injustice  by  placing  him  on  the  199x 
promotion list; by planning to promote him in accordance with the order man-
dated  in  14  U.S.C.  §  271(b);  by  delaying  his  promotion  while  investigating  the 
allegations of misconduct and taking appropriate administrative action in light 
of the findings of the investigations; or by removing his name from the promo-
tion list. 
 
14.  Accordingly, the applicant’s request should be denied.  

 
 
 

 
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

ORDER 

 

 

The  application  for  correction  of  the  military  record  of  XXXXXXXX, 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
John A. Kern 

 

 

 
Karen L. Petronis 

 

 

 
Coleman R. Sachs 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

USCG, is hereby denied.