DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

______________________________________________________________________________ 
 
Application for Correction 
of Coast Guard Record of:   
 
 
 
______________________________________________________________________________ 

BCMR Docket  
No.  2003-035 

 
 

 
 

 
 

 

 

 

 

 

 

 

FINAL DECISION 

This final decision, dated January 22, 2004, is signed by the three duly appointed 

 
This is a proceeding under the provisions of section 1552 of title 10, United States 
Code.  It was docketed on January 27, 2003, upon the Board's receipt of the applicant's 
complete application for further correction of his military record. 
 
 
members who were designated to serve as the Board in this case. 
 
 
The applicant is currently on active duty, having been recalled from his retired 
status with his consent on October 20, 200x.  The applicant asked the Board to remove 
his failures of selection for promotion to Captain before the calendar year 1998 and 1999 
Captain selection boards.  He further requested reinstatement on active duty retroactive 
active  to  June  30,  2000,  the  date  of  his  involuntary  retirement,  with  back  pay  and 
allowances, subject to appropriate off-sets. He also requested to be given two additional 
opportunities to compete for promotion to Captain, and that if he is selected by either 
board his date of rank be adjusted to that he would have had if he had been selected by 
either the 1998 or 1999 captain selection boards, with back pay and allowances.   
 
Applicant's Allegation 
 
 
The applicant had an earlier BMCR case, Docket No. 55-95 (1995).   On July 21, 
1995, the Board issued a final decision in that case granting the applicant the following 
relief: 
 

The  [applicant's]  military  record  shall  be  corrected  by  (1)  removing  his 
officer evaluation report (OER) for the period from August 4, 1990 to June 
26,  1991,  and  replacing it with a report for continuity purposes only; (2) 
removing his failures of selection for promotion to commander (CDR) by 
the  promotion  year  (PY)  1993,  1994,  and  1995  CDR  selection  boards;  (3) 
allowing  him  to  go  before  the  next  two  CDR  selection  boards  with  a 
corrected record.  If selected by the PY 1996 CDR selection board, his date 

of  rank  should  be  the  date  he  would  have  been  promoted  had  he  been 
selected  by  the  PY  1993  CDR  selection  board  and  he  should  receive  all 
corresponding back pay and allowances subject to any appropriate offsets. 
 
 
The applicant alleged that the Coast Guard failed to implement the Board’s order 
in Docket No. 55-95 by not removing the erroneous OER for the period August 4, 1990 
to June 26, 1991 from his military record. He claimed that the Coast Guard's failure to 
correct  his  record  as  ordered  by  the  BMCR  caused  his  failure  to  be  selected  for 
promotion to Captain by the 1998 and 1999 selection boards.   
 

After  the  Board's  final  decision  in  BCMR  No.  55-95, the applicant was selected 
for  promotion  to  CDR  by  the  PY  (promotion  year) 1996 CDR selection board and his 
CDR date of rank was adjusted retroactively to October 1, 1993.  He stated that because 
of this retroactive date of rank adjustment he soon came to be considered for promotion 
to Captain by the 1998 and 1999 Captain selection boards.  Neither board selected him 
for promotion to Captain and on June 30, 200x, he was involuntarily retired after having 
twice failed to be selected for promotion to Captain.   

 
The applicant was recalled to active duty with his consent, on October 20, 200x.  
However, retired officers who are voluntarily recalled to active duty after having twice 
failed of selection for promotion to the next higher grade are not eligible for promotion.  
Article 5.A.8.a.3., Coast Guard Personnel Manual.  The applicant stated that on January 
14, 2003, he was reviewing his record and discovered that the OER the Board ordered 
removed  from  his  record  in  1995  had  not  been  removed,  despite  his  having  received 
assurances from the Coast Guard in 1995 that it had been removed and replaced with a 
report for continuity purposes only.   

 
The  applicant  asserted  that  he  is entitled to relief in this case as a result of the 
Coast Guard's failure to implement the relief ordered by the Board in No. 55-95, unless 
the  Coast  Guard  can  show  that  he  would  have  been  passed  over  for  Captain  in  any 
event.  He  cited  Engels  v.  United  States,  230  Ct.  Cl.  465,  678  F.  2d  173,  175  (1982)  in 
support of his position.   He argued that the Coast Guard can not show that he would 
not have been promoted in any event because he has a strong record, with no adverse 
character notations, and with much that is favorable. He stated that he would not have 
been  recalled  to  active  duty  from  his  retired  status  if  there  were  any  doubt  as  to  his 
professional and personal strengths.    
 
Pertinent Portions of the Applicant's Military Record 
 
 
The applicant's CDR performance evaluations contained mostly marks of 5s and 
6s (on a scale of 1 to 7, with 7 being the highest). Except for his last observed OER, the 
applicant's other three CDR OERs contained at least one 4.  The OER for the period May 
2, 1996 to January 17, 1997, contained a 4 in human relations.  The OER for the period 
January 18, 1997 to August 2, 1997 contained a 4 in human relations.  The OER for the 

period August 3, 1997 to March 29, 1998, contained three 4s:  one in workplace climate, 
one in evaluations, and one in using resources.  A Coast Guard Commendation Medal 
citation was attached to this OER.  It was awarded to the applicant for his outstanding 
service  while  serving  as  a  Coast  Guard  Liaison  Officer,  Maritime  Defense  Command 
from June 1996 to July 1997.   The OER for the period March 30, 1998 to March 31, 1999 
contained  5s  and  6s,  with  a  Navy  and  Marine  Corps  Commendation  citation  for  the 
applicant's  meritorious  service  as  Coast  Guard  Liaison  Officer  to  the  Staff  of 
Commander, Naval Surface Reserve Force from August 1977 to March 1998.    The OER 
for the period April 1, 1999 to June 30, 2000 was not observed due to the brevity of the 
reporting period caused by the applicant's retirement.  
 

The  reporting  officers'  marks  in  block  12  of  the  CDR  OERs  comparing  the 
applicant with others of the same grade that the reporting officers have known through 
out their careers,1 were 5, 6 & 5, 5, 6. However, the 6 in block 12 on the second CDR 
OER was tempered by the Coast Guard reviewer, who assigned the applicant a 5 in this 
category.  The Coast Guard reviewer was required to prepare a separate block 12 rating 
because neither applicant's supervisor nor reporting officer were Coast Guard officers.   
 
 
Including the erroneous OER, the applicant received 8 LCDR OERs.  On his first 
two  LCDR  OERs  he  received  no  4s.    On  the  removed  OER,  his  third,  he  received 
thirteen 4s, and nine 5s.  On his fourth OER, he received one 4 in human relations, six 
5s, thirteen 6s, and two 7s.  On his fifth and sixth OERs for this grade, there were 5s, 6s, 
and 7s.  On his seventh and eighth OERs for this grade, he received a 4 on each in the 
human  relations  category.  The  applicant's  lieutenant  commander  (LCDR)  comparison 
scale and distributions marks (block 12) 4, 4, 42, 6 & 53, 6, 5, 5, 5. 
 
 
but not the erroneous OER.  
 
 Views of the Coast Guard 

The applicant's paper military record contains the OER for continuity purposes, 

                                                 
1   The block 12 marks range from a low of 1 to a high of 7.  A 1 describes an officer whose performance is 
unsatisfactory; a 2 describes an officer whose performance is marginal; a 3 describes a fair performer; a 4 
described a good performer that should be given tough, challenging assignments; a 5 describes an 
excellent performer who should be given the toughest, most challenging leadership assignments; a 6 
describes an officer who is strongly recommended for accelerated promotion; and a 7 describes the best 
officer of this grade.   
 
2   The Coast Guard stated that the erroneous OER for this period has been removed from the electronic 
file and replaced with a report for continuity purposes only, as directed by the Board in Docket No.  95-
55. 
 
3        Although  the  reporting  officer  gave  the  applicant  a  6  in  block  12  on  this  report,  the  Coast  Guard 
reviewer rated him a 5.  Because the applicant's supervisor and reporting officer were not Coast Guard 
officers, the Coast Guard reviewer was required to rate the applicant on a separate page.   
 

 
 
On  June  24,  2003,  the  Chief  Counsel  recommended  that  the  applicant's  request 
for  relief  be  denied.    He  further  stated  that  he  adopted  the  comments  of  the 
Commander,  Coast  Guard  Personnel  Command  (CGPC)  at  Enclosure  (1)  to  the 
advisory opinion as part of the Coast Guard's advisory opinion.   
 
 
The  Chief  Counsel  stated  that  after  the  Board  ordered  the  applicant's  record 
corrected in 1995, the erroneous OER was removed from his paper record but not from 
the  electronic  record.    He  stated  that  the  1998  selection  board  reviewed  only  paper 
records, but the 1999 selection board used the electronic record system, which contained 
the  OER  that  should  have  been  removed.    (The  Coast  Guard  submitted  an  email 
communication between CGPC and the recorder (CDR CT) for the 1998 selection board 
who  verified  that  that  board  used  paper  military  records  that  year.)    Therefore,  the 
Coast  Guard  asserted  that  the  erroneous  OER  was  not  reviewed  by  the  1998  Captain 
selection because that board used paper records.   
 
 
The Chief Counsel stated the applicant has failed to carry his burden of proving a 
nexus  between  the  alleged  error  and  his  failure  to  be  selected  by  the  1998  and  1999 
Captain selection boards.  The Chief Counsel stated that the test for determining nexus 
was  established  by  the  Court  in  Engels v. United  States, 230 Ct. Cl. 465, 678 F.2d 173 
(1982).  In that case, the Court required that two questions be answered to establish the 
"substantial  connection  or  Nexus"  between  the  error  or  injustice  and  the  applicant's 
failure  of  selection.    First,  was  the  applicant's  record  prejudiced  by  the  errors  in  the 
sense that the record appears worse than it would in the absence of the errors? Second, 
even if there was some such prejudice, is it unlikely that he would have been promoted 
in any event.  In answer to these questions, the Chief Counsel offered the following: 
 

[T]he  applicant  may  be  successful  in  proving  the  first  prong  of  the  test 
with respect to the second (1999) selection board, but not the first (1998) 
board insofar as the first selection board never saw the OER in question.  
Moreover, based on the record evidence, the applicant has not proven that 
second prong [of the Engels test] by a preponderance of the evidence.  In 
enclosure  (1),  CGPC  provides  compelling  rationale,  independent  of  the 
OER in question, why the applicant was not selected for promotion.  

 
 
CGPC  acknowledged  that  it  was  difficult  to  know  with  certainty  whether  a 
connection existed between any one OER and a person's non-selection for promotion, 
particularly  with  the  selection  boards  operating  under  a  law  of  confidentiality.    He 
noted the extreme competitiveness of the Captain selection boards, where even a minor 
deficiency in performance could cause a candidate to be seriously considered for non-
selection.  He stated that the selection opportunity overall in 1999 was 66% of the total 
CDRs  considered  for  promotion.    He  further  stated  that  those  officers  selected  for 
promotion  to  Captain  consistently  received  marks  of  '5",  "6",  and  "7"  in  all  areas  on 

evaluations, had post graduate degrees, and had successfully completed commanding 
officer tours of duty.   
 
CGPC stated that even though the 1998 Captain selection board did not view the 
 
1991 OER in question, they still did not select the applicant for promotion based on his 
record.  CGPC's opinion was that the "applicant's record would not have been strong 
enough to make him a viable candidate for selection at the 1999 Captain selection board 
even if the1991 OER had been removed from his electronically imaged file.  In asserting 
that a nexus does not exist between the expunged OER and the applicant's 1999 failure 
of selection for promotion to Captain, CGPC offered the following: 
 
"NEXUS:    The  1999  Captain  Selection  Board  considered  the  applicant  as  one  of  28 
candidates who were not selected the previous year (1998).  Only seven of these 28 were 
selected  for  promotion  by  the  1999  board  resulting  in  an  opportunity  of  selection  of 
25%.  In order to justify granting relief to the Applicant, his record would have to be 
shown to be at least as good as one of those seven selected even if the 1991 OER had 
been  removed.    A  thorough  review  of  the  seven  officers  selected  above  the  zone  by 
the1999 board revealed the following: 
 

a.  None of the seven selected received a mark of "4" on any dimension of their 
OER as a senior officer (CDR/O5).  However, as a CDR the applicant received a 
1998  OER  containing  marks  of  "4"  in  three  areas  (using  resources,  workplace 
climate, and evaluations).  These marks were a significant blemish on his record 
when compared with the other officers considered for promotion to Captain who 
consistently  received  marks  of  "5",  "6",  and  "7"  in  these  areas.    Receiving  this 
unflattering evaluation as a CDR was particularly damaging considering it was 
his  most  recently  documented  performance  prior  to  the  1999  Captain Selection 
Board.   
 
b.  None of the seven selected had any expressly negative comments written in 
the  comment  block  of  their  OERs.    In  contrast,  the  applicant  received  the 
following comment in block #7(a) from his reporting officer in his 1989 OER, ". . .  
I was disappointed that several projects/duties were not completed (i.e., Annex 
India Update, OPTAR reconciliation) prior to his departure." 
 
c.  None of the seven officers selected had an established pattern of receiving a 
mark as low as "4" in successive OERs.  In fact, none of them received more than 
one mark of "4" on evaluations in the previous five years.  The applicant had a 
string of three consecutive marks of "4" in the area of human relations on his May 
1996,  January  1997,  and  August  1997  OERs.    This  sustained  substandard 
performance relative to the others being considered was very detrimental to the 
applicant's chances of being selected, considering the competitive opportunity of 
selection.   
 

d.    Four  of  the  seven  selected  had  earned  postgraduate  degrees  that  were 
documented in their records.  The applicant had no postgraduate education.   
 
e.  Three of the seven officers selected had previously held commanding officer 
positions.  The applicant had no commanding officer experience." 
 
 
 

  
Additional  Information  Sought  by  Applicant  Prior  to  Responding  to  Advisory 
Opinion4 
 
After  receipt  of  the  Coast  Guard's  advisory  opinion,  the  applicant  filed  a 
 
Freedom  of  Information  Act  (FOIA)  request  seeking  additional  information  from  the 
Coast Guard about the contents of its advisory opinion, as well as requesting the PDRs 
of the seven above-zone officers selected for promotion by the 1999 board. The Coast 
Guard  withheld  the  seven  PDRs  under  an  exemption  to  FOIA.      In  responding  the 
applicant's questions, the Coast Guard offered the following: 
 

2. & 3.  The records presented to the selection boards were not segregated 
between above-zone and in-zone officers. The comparison by CGPC was 
made years after-the-fact in response to the Applicant's BCMR case; and 
the comparison was made solely because those 7 individual were the most 
similarly situated to the Applicant (i.e. above-zone). 
 
4.    We  do  not  know  the  date  [the  applicant's  record]  was  imaged  or  by 
whom.  The software does not track this info. 
 
5.  Out of the 35 CDR's selected within zone 
 

A.  Nine Records could not be pulled (no longer in the Service).  The 
records have [been] forwarded to the National Archives Center. 
 
B.  Three Officers had no Advanced Degrees 

                                                 
4 Prior to submitting his reply to the advisory opinion, the Board requested certain information from the 
Coast Guard about the content of its advisory opinion under the Freedom of Information act (FOIA).  On 
August  19,  2003,  the  Commander  Coast  Guard  Personnel  Command  (CGPC)  answered  all  of  the 
applicant's questions but refused to provide sanitized copies of the 7 PDRs against which it compared the 
applicant's performance in the advisory opinion.    On October 14, 2003, the applicant's FOIA request for 
the  7  PDRs  was  officially  denied.    The  applicant  appealed  the  denial  on  October  20,  2003  requesting 
expedited consideration.  On November 26, 2003, the applicant's request for an expedited review of his 
FOIA  appeal  was  denied.    On  December  5,  03,  the  Board  received  the  applicant's  rely  to  the  advisory 
opinion 
 
 

6. & 7.  Out of 42 CDRs selected [overall by the 1999 board] (7 above zone 
& 35 in Zone) 
 

A.  Nine Records could not be pulled (no longer  in the Service) . . . 
 
B.  Four Officers above zone had 4s on one or more OERs for CDR in 
the  following  categories:    Evaluations,  Human  Relations,  Work-Life 
Sensitivity/Expertise,  Health  &  Well-Being,  Workplace  Environment, 
and Collateral Duties/Administrative Expertise. 
 
C.  Thirteen Officers in zone had 4s on one or more OER for CDR in the 
following  categories:  Evaluations,  Human  Relations,  Work-Life 
Sensitivity/Expertise,  Health  &  Well-Being,  Military  Bearing, 
Workplace  Environment,  and  Collateral  Duties/Administrative 
Expertise. 

 
8.    The  1998  Capt  Board  recorder  (CDR  CT)  verified  that  that  board 
viewed  only  paper  records.    Since  the  1991  OER  was  properly  removed 
from the Applicant's paper record, this board didn’t see it.   
 
9.  The most recent documented performance [for the applicant] prior to 
the 1998 Captain Selection Board . . . was the 1998 OER dated: 1998 March 
29.  The most recent documented performance prior to the 1999 Captain 
Selection . . . was the 1999 OER dated:  1999 March 31. 
 
10.  [Telephone number for 1998 selection board recorder was provided to 
the applicant.] 
 
11.  [The] 1999 [selection board was] the [first] fully electronic board. 
 
12.  [There is] no record of [a selection board] using both [electronic and 
paper records]. 
 
13.    [The  PDR  copy  furnished  to  the  applicant  on  January  14,  2003  was] 
dumped out of the Electronic Record 

 
C.  Nine Officers had not served as Commanding Officers 

 

 
Applicant's Reply to the Views of the Coast Guard 
 
On  December  5,  2003,  the  Board  received  the  applicant's  reply  to  the  advisory 
 
opinion and he disagreed with the Chief Counsel that his case should be denied.  He 
stated that there is no way to know whether the Coast Guard complied with the Board's 

Order in 1998 to remove the subject OER from the applicant's record.  In this regard he 
stated that the Coast Guard offered no evidence of when the applicant's record was put 
into electronic form.  In contrast, he stated that the erroneous OER had remained in his 
record long enough to have been incorporated into the electronic version of his record.  
He argued that because the Coast Guard caused this resulting uncertainty, it must be 
resolved  in  favor  of  the  applicant.    In  support  of  this  contention  he  cited  Day  v. 
Matthews, 530 F.2d 1083, 1086 (D.C. Cir. 1976). 
 
 
The  applicant  argued  that  the  Coast  Guard  has  failed  to  carry  its  burden  of 
proving that the applicant would not have been promoted to Captain in any event.  See 
Frizelle v. Slater, 111 F.3d 172 (D.C. Dir 1997).  He argued that a nexus clear1y exited 
between the OER that was ordered removed and the applicant's failure of selection.  In 
this  regard,  he  noted  that  OERs  play  a  dominant  role  in  the  selection  board  process.  
Moreover, he argued that the erroneous OER had already been found to be prejudicial 
to  the  applicant's  right  to  fair  consideration  for  promotion  in  1995.    He  asserted  "It 
would  be  utterly  arbitrary  and  capricious  to  hold  that  an  OER  that  had  a  promotion 
nexus in 1995 did not have one in 1998 (the first Captain selection board under review 
in this case).   With respect to the Coast Guard's failure to carry its burden, the applicant 
further stated the following: 
 

[T]he  Coast  Guard  argued  that  4s  on  [the  applicant's]  1998  OER  were 
disqualifying  for  promotion.    However,  the  data  revealed  by  the  Coast 
Guard  show  that  17,  or  more  than  one  half,  of  the  33  officers  for  whom 
PDRs were readily available had one or more 4s in their record. . . .  The 
Coast  Guard  could  have  secured  the  records  of  9  officers  who  are  now 
retried.    It  did  not  do  so,  and  that  failure  should  result  in  an  adverse 
inference such that the BCMR would be entitled to conclude that an even 
higher  percentage  of  the  42  officers  had  4s  in  their  PDRs.    By  the  same 
token, the fragmentary data     . . . show that absence of a graduate degree 
or  service  as  a  commanding  officer  is  in  no  way  disqualifying  for 
promotion.  And again, the BCMR would be justified in concluding that 
this would be even clearer had the 9 missing PDRs been considered.  To 
the  extent  .  .  .  that  the  Coast  Guard  theorizes  that  [the  applicant]  was 
passed over because he had not had command, acceptance of that theory 
would  only  exacerbate  the  injustice,  because  the  offending  OER,  by 
remaining  in  [the  applicant's]  record  at  Headquarters,  would  have  been 
influential in reducing his chances of selection for command.  Because the 
OER  remained  in  the  record,  it  would  be  fundamentally  unfair  to  hold 
against [the applicant] adverse personnel decisions that would have been 
influenced by it.   

 
The applicant stated that the Coast Guard's contention that he would have been 
 
passed  over  even  if  the  subject  OER  had  been  removed  from  his  record  because  of  a 
1989 OER (containing an unflattering comment) is fallacious because the applicant had 

been promoted to CDR and selected as executive officer of a high endurance cutter with 
the 1989 OER in his record.  In addition, he argued that the 1989 OER was "older and 
hence more remote and less significant to a selection board than was the 1991 OER." 
 
 
The applicant stated that the comparison of the applicant's PDR with those of the 
7  officers  selected  for  promotion  to  Captain  above  the  zone  is  improper  because  the 
applicant competed against all of the commanders who were eligible for promotion to 
Captain, whether above or in the zone.  The applicant alleged that this "cherry picking" 
of data by the Coast Guard distorts the selection board process rather than duplicates it. 
The applicant stated that although the Coast Guard clarified in a subsequent response 
to the advisory opinion that it did not intend to imply in the advisory opinion that the 
1999 selection board distinguished between CDRs in and above the zone, it has refused 
to  furnish  the  applicant  with  the  sanitized  records  needed  to  support  its  claim.    The 
applicant contended that under these circumstances an adverse inference is warranted.  
"Since that assertion in effect claims that [the applicant] would not have been selected in 
any  event,  the  Coast  Guard  has  the  burden  of  proof  under  Frizelle,  and  its  failure  to 
adduce the needed evidence is fatal to its contention." 
 
 
The applicant stated that contrary to the advisory opinion he did not claim that 
"but for" the inclusion of the OER that had been ordered expunged he would have been 
selected  for  promotion  to  Captain.    He  stated  that  he  was  not  required  to  prove  any 
such allegation, as the burden is on the Coast Guard to prove that he would have been 
passed over in any event.  In conclusion, the applicant argued the following: 
 

The allocation of burdens of proof is a matter of law; we have not altered 
it, and nothing in our submission relieves the Coast Guard of the burden 
the law imposes on it when it claims, in effect, that an error was harmless.   
Additionally,  the  Coast  Guard  maintains  that  the  1998  Board  never  saw 
the OER in question.  But the Coast Guard has offered no evidence on this 
score.  It has offered no evidence as to when that OER was scanned into 
electronic from, nor as to when the hard copy was destroyed.  Indeed, the 
Coast Guard's email response to our questions recites that the service does 
not  know  when  the  hard  copy  was  scanned  or  destroyed  (assuming  it 
was).    Those  evidentiary  gaps,  coupled  with  the  fact  that  the  offending 
document was in his electronic PDR a year later makes the Coast Guard's 
case unprovable and therefore unwinnable.  
 
  
His  attorney  prepared  much  of  the  applicant's  reply  to  the  advisory  opinion.  
However,  the  applicant  also  submitted  a  statement  in  which  he  argues  many  of  the 
points already stressed by his attorney.  He also stated "I refer the BCMR to the fact that 
even  though  the  [erroneous  OER]  was  still  in  my  record  in  the  spring  of  1998,  I  was 
nonetheless selected as Executive Officer (XO) of a High Endurance Cutter."  He argued 
that  the  only  reason  he  would  not  have  been  selected  for  Captain  after  the  XO 
assignment was poor performance, which does not describe his record of performance.   

 

  

SELECTED PROMOTION BOARD REGULATION 

 

Selection  for  promotion  to  Captain  on  active  duty  is  made  on  a  best-qualified 
 
basis.    Article 14-A-1c. of the Personnel Manual states in a best-qualified system the 
selection board is limited to a specific number it may select and makes its selection by 
comparing each officer to all others considered.  
 
 
 

Article 14-A-3.a. speaks to selection criteria.  Specifically it states the following: 

1.    Personnel  boards  recommend  on  either  a  best-qualified  or  fully-
qualified basis as set forth in law and directed in the precept. . . .  [E]ach 
board  develops  its  own  overall  standards  and  selection  criteria.    The 
degree  of  significance  a  board  assigns  to  each  of  the  many  factors  it 
considers may vary according to the grade and type of selection the board 
is  making.    A  board  selecting  officers  for  lieutenant  may  emphasize 
different factors than would a captain Continuation Board. 

Section  14-A-3.b.  lists  the  following  basic  criteria  to  be  applied  by  selection 

 
 
boards:  performance evaluations, professionalism, leadership, and education. 
 
 
Article 14-A-4d. of the Personnel Manual states that “[a]  board must consider an 
officer’s entire record; however, the following is considered most significant portion of 
the record evaluated:  . . .  Captain . . .  seven  years of immediate previous service or all 
service in present grade, whichever is greater.” 
 

 

FINDINGS AND CONCLUSIONS 

1.    The  BCMR  has  jurisdiction  of  this  case  pursuant  to  section  1552  of  title  10, 

 
 
The  BCMR  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's record and submissions, the Coast Guard's submission, the final decision in 
BCMR Docket No. 1995-133, and applicable law: 
 
 
United States Code.  The application was timely. 
 
 
2.  The Coast Guard did not fully implement the relief ordered by the Board in 
BCMR No. 1995-55 because it failed to remove the OER for the period August 4, 1990 to 
June 26, 1991 from the applicant’s electronic military record.  The Board is persuaded 
however  that  the  erroneous  OER  was  removed  from  the  applicant's  paper  military 
record based on the statement from CGPC that it was removed, the fact that CGPC sent 
the applicant a letter dated August 16, 1995, along with a copy of the OER for continuity 
purposes only that was to replace the removed OER, advising him that the correction 
had been made to his PDR on July 24, 1995, and the fact that the current paper record 
contains  only  the  continuity  OER.    Moreover,  the  applicant  was  selected  for  CDR  (a 

lower rank than Captain) immediately after corrective action was ordered in BCMR No. 
95-55,  after  having  failed  for  promotion  to  that  grade  the  previous  three  times.    In 
contrast to the applicant's assertion, the applicant's 1995 selection for promotion to CDR 
suggests  that  his  paper  record  was  corrected  in  1995  prior  to  the  convening  of  that 
board. The Board is further persuaded that the erroneous OER was not in his record in 
1998 because the applicant was selected as XO of a High Endurance cutter in the spring 
of 1998.  The applicant suggests the erroneous OER was in his record in 1998 but never 
offers proof that it was.   
 
 
3.    The  applicant  argued  that  the  Coast  Guard  has  produced  no  proof  that the 
OER was not in his record when it was considered by the 1998 Captain selection board. 
However, it is not the Coast Guard's burden to establish the error; it is the applicant's.  
See Brooks v. United States, 213 Ct. Cl. 115 (1977) where the Court stated that it was the 
plaintiff's burden to show that an OER was not in his selection folder when the selection 
board met and considered his record.  Establishment of the error must occur before a 
determination can be made as to any impact that error may have had on the applicant's 
selection opportunity.   
 
  
4.  The  applicant  has  not  met  his  burden  of  establishing  that  the  1998  Captain 
selection  board  considered  the  erroneous  OER.    He  argued  that  since  the  erroneous 
OER was in his record when he reviewed it in 2003 and the Coast Guard admitted that 
it  was  in  his  electronic  record  in  1999,  it  must  have been in his paper record in 1998.   
The Board is not persuaded by this argument. The paper record provided to the BCMR 
contains only the OER for continuity purposes and not the erroneous OER.  The Board 
presumes  that  the  Coast  Guard  acted  to  correct  the  applicant's  paper  record  in 
accordance with the BCMR order in Docket No. 95-55, as reflected in its August 16, 1995 
letter to the applicant. The applicant never stated whether he reviewed his record prior 
to the 1998 Captain selection board. If he had, he would have certainly discovered the 
erroneous OER if it had been there. The applicant does not address this lack of diligence 
on his part. 
 
 
5.  What happened or how the offending OER ended up in the electronic record, 
the Board will not speculate, except to say that this situation probably happened during 
a period when the Coast Guard was transitioning from paper to electronic records. The 
fact  that  the  erroneous  OER  was  discovered  in  the  electronic  record  in  2003  is 
insufficient to establish by a preponderance of the evidence that the Coast Guard failed 
to remove it from the paper record system that it used in 1998.  In this regard, the Coast 
Guard stated the applicant was given a copy of his electronic record to review in 2003. 
There  is  no  evidence  that  the  applicant  ever  reviewed  the  paper  record.    The  Board 
notes that the Coast Guard stated that the 1998 selection board did not use electronic 
records, and the applicant has not submitted proof otherwise. The ultimate burden of 
persuasion on the issue of nexus between an error and a failure of selection rests with 
the Coast Guard; however, the initial burden of establishing an error or injustice on the 
part of the Coast Guard rests with the applicant.  The applicant has not met his burden 

with  respect  to  the  removal  of  his  failure  before  the  1998  Captain  selection  board 
because he has not established that the erroneous OER was in his paper record when 
that board considered it.   
 
 
6.   The Coast Guard concedes, and the Board finds, that it committed an error by 
failing to remove the erroneous OER from the applicant's electronic record as required 
by  the  BCMR  order  in  Docket  No. 95-55.  The Coast Guard further concedes that the 
erroneous  OER  was  in  the  applicant's  record  when  the  1999  Captain  selection  board 
considered it.  Therefore, the question is whether a nexus existed between the erroneous 
OER  and  the  applicant's  1999  failure  of  selection  for  promotion  to  Captain.  In 
determining  whether  a  nexus  existed  between  the  error  and  the  applicant’s  failure  of 
selection  for  promotion,  the  Board  applies  the  standards  set  out  in  Engels  v.  United 
States, 230 Ct. Cl. 465 (1982).  In Engels, the United States Court of Claims established 
two  "separate  but  interrelated  standards"  to  determine  the  issue  of  nexus.    The 
standards are as follows:  "First, was the claimant's record prejudiced by the errors in 
the  sense  that  the  record  appears  worse  than  it  would  in  the  absence  of  the  errors?  
Second, even if there was some such prejudice, is it unlikely that he would have been 
promoted in any event?”  Id. at 470. 
 
 
8.  With respect to the first prong of the Engels test, the applicant's record would 
look  only  marginally  better  with  the  erroneous  OER  removed  and  replaced  with  a 
report for continuity purposes only.  The Board notes in this regard that the erroneous 
OER  was  not  a  derogatory  report  and  had  no  marks  lower  than  4.  However,  it  had 
more  4s  than  the  two  OERs  immediately  preceding  it  and  the  immediate  subsequent 
OER.      On  each  of  the  two  preceding  OERs,  there  were  no  4s  in  the  performance 
categories,  but  the  applicant  was  given  a  4  in  block  12  on  each  report.    On  the 
immediate subsequent OER to the erroneous OER, the applicant had a 4 in the human 
relations category, but his block 12 mark was a 6 by a non-Coast Guard reporting officer 
and a 5 by the reviewer.  At a glance, the erroneous OER does not seem to make the 
applicant's record appear worse, but if a mark-by-mark comparison is made, the 13 4s 
on the erroneous OER certainly lowered the average overall score for the subject OER 
(4.39) when compared with the average overall score for the two preceding OERs (5.41 
& 5.45) and the subsequent OER (5.52).  As stated above, the applicant's record appears 
marginally better with the erroneous OER removed.   
 
 
9.    Since  we  have  determined  there  is  some  prejudice,  although  marginal,  we 
must determine whether it is unlikely that the applicant would have been promoted in 
any event.  We find that it is unlikely that the applicant would have been promoted in 
any  event.    First,  we  are  persuaded  by  the  Personnel  Manual  itself,  which  states  at 
Article 14.A.4.d. that the seven years of immediate previous  service is considered the 
most  significant  for  an  officer  being  considered  by  the  Captain  selection  board.    The 
applicant  failed  of  selection  in  1999  and  the  reporting  period  for  the  erroneous  OER 
ended on June 26, 1991, falling outside of the seven-year period the Personnel Manual 

considers the most significant. Therefore the erroneous OER should not have carried as 
much weight before the 1999 Captain selection board as the more recent OERs.   
 

10.  On the four CDR OERs considered by the 1999 selection board, the applicant 
received a 4, an average mark, in human relations/workplace environment5 in all but 
the  last  OER.    The  selection  board  may  well  have  had  concerns  about  the  applicant's 
ability to carry out the Commandant's human relations policies.  The human relations 
factor  measures  "the  degree  to  which  this  officer  fulfilled  the  letter  and  spirit  of  the 
Commandant's Human Relations Policy in personal relationships and official actions."  
The  workplace  environment  measures  the  "ability  to value individual differences and 
promote  an  environment  of  involvement,  innovation,  open  communication,  and 
respect."  While the applicant received a 5 in workplace environment on the last OER 
before  the  1999  selection  board,  he  had  not  established  a  trend  of  improving 
performance  in  this  area.  The  Board  notes  that  the  applicant  has  similar  marks  in 
human relations off and on while a LCDR and certainly by the time he was ready for 
consideration for promotion to Captain, he should have gained some mark consistency 
in this area.    

 
11.  Also, of particular note are the 4s the applicant received in the evaluations 
and using resources categories in his next to last OER before the 1999 Captain selection 
board.  In his earlier two CDR OERs the applicant received 6s in using resources and 5s 
in  evaluations.    Therefore  the  lower  marks  on  the  third  CDR  OER  are  evidence  of  a 
decline  in  performance.    Again  while  the  marks  increased  on  the  last  OER  that  was 
considered  by  the  1999  selection  board,  an  improving  trend  of  performance  was  not 
established  by  the  higher  marks  on  this  one  OER.      The  applicant's  overall  average 
marks on his CDR OERs ranged from a 5.50 on the first, a 5.56 on the second, a 5.1 on 
third,  and  a  6.10  on  his  last  OER.    The  Board  finds  however  that  the  applicant's 
performance  record  before  the  1999  Captain  selection  board  was  not  one  of  steady 
improving or consistent performance with or without the erroneous OER. This coupled 
with the fact that the applicant's selection opportunity was already reduced because of 
his failure before the 1998 board, which did not consider the erroneous OER, makes it 
unlikely that the applicant would have been selected for promotion in any event.  As 
CGPC stated, selection for Captain is the most competitive of the selection boards, and 
in  1999  there  was  only  a  66%  selection  opportunity  overall  and  only  a  25%  selection 
opportunity for those above the zone. It appears to the Board that the applicant would 
have needed a consistent and/or improving trend of performance to be competitive for 
promotion to Captain in 1999.   
 

12.    In  light  of  the  above,  the  Board  finds  that  it  is  unlikely  that  the  applicant 
would have been promoted to Captain in any event by the 1999 selection board, with or 
without  the  erroneous  OER  in  his  record.    In  reaching  the  findings  in  this  case,  the 
Board made an independent review of the applicant's military record. 

                                                 
5  The Coast Changed the OER from and the human relations category was removed. 

13.  Accordingly, the applicant is not entitled to relief. 

 
 
 
 

 

ORDER 

The  application  of  XXXXXXXXXXXX,  XXXXXXXXX,  USCG  (Ret.),  for  the 

 

 
 Harold C. Davis, M.D. 

 

 

 

 
 Dorothy J. Ulmer 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

        

 
 Stephen H. Barber 

 

 

 

 
 

 
 

 
 
correction of his military record is denied.