DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2004-040 
 
Xxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
ANDREWS, Deputy Chair: 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
 
425 of title 14 of the United States Code.  It was docketed on December 22, 2003, upon 
the BCMR’s receipt of the applicant’s request for correction. 
 
 
members who were designated to serve as the Board in this case. 

This final decision, dated August 19, 2004, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

 

The applicant, who was still a yeoman first class (YN1) when he submitted his 
application, asked the Board to return his name to the 2003 advancement list for chief 
yeoman (YNC); to backdate his date of advancement from February 1, 2004, to June 1, 
2003,  the  date  he  would  have  been  advanced  had  his  commanding  officer  (CO)  not 
removed his name from the list; and to remove from his military record a form CG 3307 
(“page  7”),  dated  February  12,  2003,  which  contains  negative  criticism  of  his  job  per-
formance.  
 

The  applicant  alleged  that  his  name  was  unfairly  removed  from  the  YNC 
advancement  list  after  he  received  a  mediocre  Enlisted  Performance  Evaluation  Form 
(EPEF) for the evaluation period from June 1 to November 30, 2002, and was not rec-
ommended  for  advancement  on  the  EPEF  by  his  rating chain.1   The applicant stated 
that  upon  completing  the  Service-Wide  Examination  (SWE)  for  YNC  in  May  2002,  he 

                                                 
1    Enlisted  members  are  evaluated  by  a  rating  chain,  which  consists  of  a  supervisor,  who  recommends 
evaluation marks; a marking official, who assigns the marks; and an approving official, who approves the 
EPEF.    All  three  members  of  the  rating  chain  also  indicate  on  the  EPEF  whether  they  recommend  the 
member for advancement to the next pay grade.  A member cannot be advanced if his rating chain does 
not recommend it.  Personnel Manual, Article 10-B-4.d. 

was number x on the 2003 YNC advancement list.  In anticipation of his advancement, 
he applied for several YNC positions in October and November 2002, and these were 
endorsed by his command.  Moreover, he applied for appointment to chief warrant offi-
cer on December 4, 2002, and this application was also endorsed by his command.   

 
The applicant alleged that during the evaluation period, he was never told that 
he was not recommended for advancement to YNC.  He alleged that because he had a 
new supervisor who had arrived in July 2002, he was expecting his marks to be a bit 
lower than those that he had previously received.  He alleged that although he received 
some lower marks, they were still above average and not so poor as to justify his rating 
chain’s  decision  not  to  recommend  him  for  advancement  or  his  removal  from  the 
advancement list. 

 
The applicant alleged that he did not know anything was wrong until the third 
week of January 2003, when he asked his supervisor about the preparation of his EPEF.  
She took him to the office of a CWO4 and handed him the EPEF.  When he saw that he 
had  been  not  recommended  for  advancement,  he  asked  for  a  “request  and  complaint 
mast” with the CO, a captain, but the CO refused to alter his recommendation and had 
his name removed from the 2003 YNC advancement list. 

 
The applicant stated that on February 12, 2003, his supervisor counseled him and 
gave  him  the  negative  page  7.    She  told  him  that  “to  earn  her  recommendation  [he] 
would have to take and admit responsibility for PSU xxx overpayment.”  In response, 
he  began  a  daily  work  journal  for  her  in  which  he  reported  everything  he  did  and 
signed a statement regarding the overpayment.  In the statement, he wrote that, when 
the orders for PSU xxx to be deployed to Bahrain were being prepared in March 2002, 
YN1  C,  who  was  the  auditor/supervisor  for  the  PSU,  asked  the  applicant  about  the 
unit’s entitlements.  The applicant “agreed with him [about] FSA and Imminent Danger 
Pay, but was unsure of the COLA.”  After looking at a section of the JFTR that YN1 C 
showed him, he was still uncertain, advised YN1 C to consult HRSIC or G-WPM, and 
gave YN1 C appropriate telephone numbers.  The applicant further wrote that when in 
June 2002, he received an email from the unit about the COLA, he responded “based on 
[YN1C’s]  email  to  [YN1  H’s]  email  on  6  Jun  02.”    He  stated  that  he  never  personally 
researched  the  matter  of  the  COLA  in  the  JFTR  except  for  looking  at  the  one  section 
with YN1 C and that, “[a]t the time, I was busy dealing with the [release from active 
duty] of over a hundred reserve personnel” at a unit.  He further stated that two YN2s 
“approved  the  documents  to  start  OUTCONUS  COLA”  for  PSU  xxx  and  that  “[t]hey 
must have been directed because I personally know that they would not have done so 
on their own and I really don’t think [YN1 C] would have done so either.”  On Decem-
ber  19,  2002,  one  of  the  YN2s  told  him  that  “the  research  was  done  up  front  in  the 
PERSRU and [YN1 C] had also talked with [YN1 W], who was acting supervisor of the 
PERSRU.”  The applicant wrote that he was very surprised that the matter was handled 
at  the  PERSRU  level  and  that  clarification  from  HRSIC  or  G-WPM  had  not  been 
requested because such clarification had previously been sought when a question about 
flight pay arose.  He stated that it is his habit to seek clarification from HRSIC and that, 

if  he  had  been  the  auditor  for  PSU  xxx,  he  “would  have  sent  an  email  to  HRSIC  the 
same way [he] did with the flight pay [issue].”  Finally, he stated that he did not agree 
with the wording of the page 7 he received on December 18, 2002, but signed it simply 
because he had sent an email concerning the COLA without researching the issue. 

 
The applicant alleged that, at the end of February 2003, his supervisor told him 
that  she  would  recommend  to  the  CO  that  he  recommend  the  applicant  for advance-
ment again so that the applicant could take the SWE in May 2003.  He submitted a copy 
of the EPEF that shows that his CO’s advancement recommendation was changed in the 
database to “recommended.” 

SUMMARY OF THE RECORDS 

 

 

 
On  January  31,  1989,  the  applicant  enlisted  in  the  Coast  Guard  as  a  seaman, 
based on his prior service in the Army.  In 1990, he advanced to YN3; in 1993, to YN2; 
and in 1997, to YN1.  Throughout the 1990s, he earned primarily marks of 6 in the vari-
ous performance categories on his EPEFs,2 with a few marks of 4, 5, or 7, and he was 
always recommended for advancement by his rating chain.   
 
 
From  June  6,  1994,  to  March  31,  1998,  the  applicant  served  as  an  auditor  at  an 
Integrated Support Center (ISC).  He received his second Achievement Medal for this 
work,  and  the  citation indicates that he had become “an expert in the area of reserve 
pay  and  personnel  entitlements.”    From  April  1,  1998,  to  May  14,  2000,  the  applicant 
served on a cutter and received his third Achievement Medal for that work. 
 
 
On  May  15,  2000,  the  applicant  was  assigned  to  serve  as  the  Supervisor  of  the 
PERSRU  at  the  same  ISC.    On  his first EPEF as the Supervisor of the PERSRU, dated 
November 30, 2000, he received one mark of 7, fourteen marks of 6, five marks of 5, and 
two marks of 4 in the performance categories and was recommended for advancement.  
On his EPEF dated May 31, 2001, he received two marks of 7, eighteen marks of 6, one 
mark of 5, and one mark of 4 and was recommended for advancement.  On his EPEF 
dated  November  30,  2001,  he received three marks of 7, eleven marks of 6, and eight 
marks of 5 and was recommended for advancement.  On his EPEF dated May 31, 2002, 
he received three marks of 7, fourteen marks of 6, four marks of 5, and one mark of 4 
and was recommended for advancement.  Following the SWE in May 2002, the appli-
cant’s name was number x on the 2003 YNC advancement list.  
 

On  August  1,  2002,  the  applicant  received  a fourth Achievement Medal for his 
service at the ISC through March 2002.  The citation indicates that the award was based 
primarily  on  his  performance  after  September  11,  2001,  as  “the  key  player  in  the 
PERSRU as it faced a dramatic increase in workload with the involuntary call up of over 
700 reservists.”  It notes that he supervised 23 active and reserve personnel and com-

                                                 
2  Enlisted members are marked on a scale of 1 to 7 (7 being best) in various categories of performance.  

mends him for his demeanor and dedication to the well being of his staff during a diffi-
cult time. 
 
 
On December 18, 2002, the Executive Officer of the ISC entered a page 7 with the 
following information in the applicant’s record, which the applicant signed in acknowl-
edgement. 

 
Member  counseled  this  date  in  regards  to  the  overpayment  in  excess  of  $169,000.00  of 
OCONUS COLA to 53 members of Port Security Unit xxx, who were deployed overseas 
in support of xxxxxxxxxxxxxxxxxx. 
 
Due  to  your  inattention  to  details,  and  failure  to  fully  research  all  applicable  rules  and 
regulations  governing  the  eligibility  and  payment  of  a  station  allowance  that  you  were 
not familiar with, you placed these members in a severe financial hardship. 
 
On  at  least  two  separate  occasions,  members  of  PSU  xxx  questioned  their  eligibility  to 
OCONUS COLA.  Time and again, they were told that they were entitled to this money.  
According  to  emails  that  were  sent  from  ISC  xxxxxxxx  PERSRU  to  PSU  xxx’s  admin-
istrative personnel, your decision to pay these members OCONUS COLA was based on 
quarters and messing availability at their deployed location. 
 
Your  interpretation  of  the  Joint  Federal  Travel  Regulations  (JFTR)  was  incorrect.    Your 
failure to seek additional guidance and confirmation of your interpretations of the JFTR 
from either [the] Human Resource Service and Information Center (HRSIC) or Comman-
dant (G-WPM-2) was an exercise in bad judgment. 
 
You are directed to take stock of your actions, and to insure that this type of negligence is 
not repeated. 

 

On  the  applicant’s  EPEF  for  the  period  from  June  1  to  November  30,  2002,  he 
received three marks of 6, ten marks of 5, nine marks of 4 and was not recommended 
for advancement.  The Approving Official for this EPEF was his CO, and on January 23, 
2003,  the  CO  instructed  HRSIC  to  remove  the  applicant’s  name  from  the  2003  YNC 
advancement list because he had not been recommended for advancement on the EPEF.  
On January 30, 2003, the CO entered a page 7 in the applicant’s record with the follow-
ing statement: 
 

Based  on  your  most  recent  evaluation,  your  recommendation  and  nomination  for 
advancement  and  participation  in  the  May  2003  service  wide  competition  for  YNC  are 
withdrawn at this time. …  Specifically, you fell short in holding personnel under your 
direct supervision accountable for their actions and in taking a sincere interest in the wel-
fare of your people. 
 
It appeared that you took a “hands off” approach to the daily management of your sec-
tion.  This led several of your subordinates to approach your fellow YN1 concerning dif-
ficulties  they  were  experiencing  in  both  their  personal  and  professional  lives.    Because 
empowerment must be coupled with two way accountability to be an effective leadership 
tool, you must make yourself available to your personnel and take a personal interest in 
their overall well being. 
 

Another area of concern was your reluctance to step forward, admit your mistakes and 
take corrective action.  This became especially apparent during the unfortunate PSU xxx 
overpayment situation. 
 
However,  since  you  were  counseled  on  your most recent set of marks, your supervisor 
has informed me that you are making progress in these critical leadership areas. … 
 
Per  our  discussion  of  28  Jan  03,  if  you  proceed  on  the  positive  path  outlined  by  your 
supervisor,  I  am  confident  that  you  can  earn  both  her  and  my  recommendation  for 
advancement to Chief Petty Officer. 

 
 
On  February  12,  2003,  the  applicant  signed  the  above  page  7,  acknowledging 
receipt of counseling.  On March 13, 2003, his CO sent HRSIC a message changing his 
recommendation regarding advancement from “not recommended” to “recommended” 
based  on  the  applicant’s  “significant  improvements  in  his  overall  leadership  capabili-
ties.  He has taken a personal interest in the overall welfare of his subordinates, and has 
displayed the inherent traits required of a prospective chief petty officer.”  The appli-
cant was allowed to take the SWE in May 2003. 
 

On  May  22,  2003,  the  Commandant  issued  ALCGENL  064/03,  which  indicates 
that the applicant would have been advanced to YNC on June 1, 2003, if his name had 
not been removed from the 2003 YNC advancement list.  

 
On the applicant’s EPEF dated May 31, 2003, he received two marks of 7, sixteen 
marks  of  6,  two  marks  of  5,  and  two  marks  of  4,  and  he  was  recommended  for 
advancement.  On June 15, 2003, he was transferred from the ISC to another unit. 

 
On  July  17,  2003,  the  applicant’s  name  appeared  in  xx  place  on  the  2004  YNC 
advancement  list.    On  January  28,  2004,  the  Commandant  issued  ALCGENL  009/04, 
which authorized the applicant’s advancement to YNC as of February 1, 2004. 
 

VIEWS OF THE COAST GUARD 

 
On April 19, 2004, the Judge Advocate General (TJAG) of the Coast Guard sub-
 
mitted an advisory opinion recommending that the Board deny the applicant’s request.   
 
TJAG  argued  that  the  Board  should  deny  relief  because  the  applicant  failed  to 
 
exhaust his administrative remedies by appealing the EPEF marks or by filing a com-
plaint under Article 138.  “Applicant is estopped from alleging error or injustice regard-
ing his disputed [EPEF] where he has failed to perfect an appeal of those marks or his 
commanding  officer’s  recommendation  regarding  advancement.”    TJAG  argued  that 
the applicant “made a conscious decision not to appeal his marks.”  TJAG argued that 
by reviewing the application of a member who has failed to appeal his EPEF marks or 
his  CO’s  recommendation  against  promotion,  “the  Board  would  effectively eviscerate 
the regulatory scheme implemented by Article 10” of the Personnel Manual.  Accord-
ingly,  in  the  absence  of  a  completed  appeal,  it  is  submitted  that the Board is without 
proper  jurisdiction  to  consider  this  application  where  Applicant  has  failed  to  exhaust 

‘all  effective  administrative  remedies  afforded  under  existing  law  or  regulations.’  33 
C.F.R. § 52.13(b).  At any rate, because of the appeal procedures established by regula-
tion,  in  determining  whether  it  is  a  record  correction  ‘necessary’  under  10  U.S.C. 
§ 1552(a)  to  correct  an  error  or  injustice,  the  Board  should  deem  any  issue  not  raised 
through this process to be waived, absent proof of compelling circumstances that pre-
vented Applicant from raising such issues within the service’s EPEF appeal system.” 
 
Regarding the merits of the case, TJAG argued that the applicant “has failed to 
 
provide any evidence to substantiate his claim that his marks were inappropriate,” and 
that  his  request  must  be  denied  because  his  different  opinion  of  his  performance  “is 
insufficient  as  a  matter  of  law  to  overcome  the  strong  presumption  of  regularity 
afforded her [sic] military superiors.”  Arens v. United States, 969 F.2d 1034, 1037 (1992); 
Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979). 
 

TJAG based his recommendation in part on a memorandum on the case prepared 
by the Coast Guard Personnel Command (CGPC).  CGPC argued that the applicant has 
not  proved  that  his  CO  or  the  Coast  Guard  committed  any  error  or  injustice  in 
withdrawing  his  recommendation  for  advancement,  in  removing  his  name  from  the 
2003 YNC advancement list, or in not reinstating him on that advancement list.  CGPC 
alleged that the record shows that the applicant’s CO “exercised proper authority and 
discretion” in deciding not to recommend the applicant for advancement on the EPEF.  
CGPC stated that the applicant’s argument about the marks on the EPEF not supporting 
his CO’s decision is not evidence of error or injustice because a CO’s recommendation 
for advancement is not based on EPEF marks alone.  Moreover, CGPC alleged that the 
applicant’s  “assigned  marks  [on  the  disputed  EPEF]  are  not  incongruous  with  the 
commanding officer’s decision not to recommend him for advancement.” 
 
 
CGPC  stated  that  under Article 5.C.25. of the Personnel Manual, the CO could 
have withheld his recommendation for a definite period instead of removing the appli-
cant’s name permanently from the advancement list, “[b]ut in light of the Applicant’s 
serious performance lapses, his request to remove the Applicant from the advancement 
list was reasonable and not an abuse of his authority.”  CGPC alleged that the applicant 
was properly counseled and did not pursue an Article 138 complaint against the CO. 
 
 
CGPC stated that when the CO changed his recommendation on March 13, 2003, 
he  “could  have  specifically  requested  that  his original ‘not recommended’ determina-
tion be changed retroactive to November 30, 2002 …, but he clearly did not intend to do 
this.  The wording of [the CO’s March 13, 2003] request clearly indicates that it was the 
command’s intent to establish the Applicant’s eligibility to take the upcoming May 2003 
SWE, not to reinstate his name on the July 2002 advancement list.”  CGPC stated that to 
make  the  applicant  eligible  for  the  May  2003  SWE,  the  CO’s  recommendation  in  the 
electronic version of the EPEF was changed to “recommended,” but this did not mean 
that the recommendation was retroactive or that the applicant was reinstated back on 
the 2003 YNC advancement list. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On April 23, 2004, the BCMR sent copies of the Judge Advocate General’s advi-
sory  opinion  and  CGPC’s  memorandum  to  the  applicant  and  invited  him  to  respond 
within 30 days.  No response was received. 

 

RELEVANT REGULATIONS 

 

 
The  BCMR’s  rule  at  33  C.F.R.  § 52.13  provides  that  “[n]o  application  shall  be 
considered  by the Board until the applicant has exhausted all effective administrative 
remedies  afforded  under  existing  law  or  regulations,  and  such  legal  remedies  as  the 
Board may determine are practical, appropriate, and available to the applicant.” 
 

Article  10.B.  of  the  Personnel  Manual  governs  the  evaluation  of  enlisted  mem-
bers.  Article 10.B.7.1. provides that a rating chain’s recommendation for advancement 
must consider both past performance and “the member’s potential to perform satisfac-
torily  the  duties and responsibilities of the next higher pay grade, qualities of leader-
ship,  and  adherence  to  the  Service’s  core  values.    Each  rating  chain  member  must 
address this independent section every time they complete an employee review.”  Arti-
cle  10.B.7.3.  states  that  if the Approving Official of an EPEF does not recommend the 
member for advancement, he or she “must ensure that the member is properly coun-
seled  on  the  steps  necessary  to  earn  a  recommendation  and  prepare  supporting 
remarks.”    Article  10.B.7.4.  provides  that  the  “Approving  Official’s  decision  on  the 
advancement  recommendation  is  final  and  may  not  be  appealed.    However,  if  the 
Approving Official learns new information and decides to change the recommendation, 
they should follow the procedures in Article 10.B.11.b.” 
 

Under Article 10.B.10. of the Personnel Manual, a member may appeal his EPEF 
marks  first  by  requesting  an  audience  with  his  rating  chain  to  discuss  the  marks and 
then,  if  the  problem  is  not  resolved  satisfactorily,  by  submitting  within  15  days  of 
receipt of the EPEF a written appeal, which is forwarded to the Appeal Authority.  The 
Approving Official must ensure that the member is aware of his right to appeal “under 
this Article.”  Article 10.B.10.a.3. provides that the “recommendation for advancement 
portion on the EPEF is not appealable.”  No mention is made of UCMJ Article 138. 
 

Article 5.C.4.e.4. of the Personnel Manual provides the following: 

The commanding officer’s recommendation for advancement is the most important eligi-
bility  requirement  in  the  Coast  Guard  advancement  system.    A  recommendation  for 
advancement shall be based on the individual’s qualities of leadership, personal integrity, 
adherence  to  core  values,  and  his  or  her  potential  to  perform  in  the  next  higher  pay 
grade.  Although minimum performance factors have been prescribed to maintain overall 
consistency  for  participation  in  the  SWE,  the  commanding  officer  shall  be  personally 
satisfied that the member’s overall performance in each factor has been sufficiently strong 
to earn the recommendation. 

 

 

Article 5.C.31.f. of the Personnel Manual provides the following with respect to 

 
“Removal from Eligibility List”: 
 

An individual’s name may be removed by Commander, CGPC as a result of disciplinary 
action, or for other good and sufficient reasons, whereby the individual is no longer con-
sidered qualified for the advancement for which previously recommended.  Command-
ing  officers  shall  withhold  any  advancement  under  such  circumstances  and  advise 
Commander, CGPC of their intentions relative to removal from the list.  A commanding 
officer may also direct that the individual not be removed from an eligibility list but that 
the  advancement  [be]  withheld  for  a  definite  period.    [See]  Article  5.C.25.    Individuals 
who have their names removed from an eligibility list must be recommended and qualify 
again through a subsequent SWE competition. 

 
 
ing: 
 

 

Article  5.C.25.d.,  entitled  “Cancellation  of  Advancement,”  provides  the  follow-

If at any time prior to effecting an advancement, a commanding officer wishes to with-
draw his or her recommendation because an individual has failed to remain eligible and 
it appears that eligibility will not be attained prior to expiration of the current eligibility 
list,  the  commanding  officer  shall  advise  [HRSIC]  …  to  remove  the  individual’s  name 
from  the  eligibility  list.  … The only review of the commanding officer’s decision under 
Articles 5.C.25.c. or d. would be a complaint under Article 138, UCMJ. 

Article 14.B.5. of the Personnel Manual states that “Congress established UCMJ 
Article 138 as a means for a military member to seek redress of alleged ‘wrongs’ com-
mitted  by  the  member's  commanding  officer.    A  ‘wrong’  can  include  an  allegedly 
improper personnel record entry.”   
 

Article 7.A. of the Military Justice Manual states that a member whose command-
ing officer refuses to reject a wrong may file a complaint with the responsible Officer 
Exercising General Court-Martial jurisdiction over the complainant [OEGCMJ].  Article 
7.A.4.a. provides that a complaint under Article 138 “must be submitted to a superior 
commissioned officer within 90 days of the date of discovery of the alleged wrong, and 
the complainant must have requested in writing redress from his or her commanding 
officer and have been refused. …  The OEGCMJ may waive the 90-day time limit and 
the requirement for written request for redress and denial thereof for good cause and 
action on the complaint by the OEGCMJ constitutes such waiver.” 
 

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 submission, and appli-
cable law: 
 
TJAG alleged that the applicant’s failure to exhaust certain administrative 
 
remedies  left  the  Board  without  jurisdiction  over  his  request.    TJAG  offered  no 
authority to support his position, except for his interpretation of the Board's rule at 33 
C.F.R.  § 52.13(b),  which  states  that  “[n]o  application  shall be considered by the Board 

1. 

2. 

until  the  applicant  has  exhausted  all  effective  administrative  remedies  afforded  under 
existing  law  or  regulations,  and  such  legal  remedies  as  the  Board  may  determine  are 
practical,  appropriate  and  available  to  the  applicant.”    (Emphasis  added.)    In  Avocados 
Plus  v.  Veneman,  370  F.3d  1243,  1248  (D.C.C.  2004),  the  court  stated  “[w]hile  the 
existence  of  an  administrative  remedy  automatically  triggers  a  non-jurisdictional 
exhaustion inquiry, jurisdictional exhaustion requires much more.  In order to mandate 
exhaustion, a statute must contain ‘”sweeping and direct” statutory language indicating 
that  there  is  no  federal  jurisdiction  prior  to  exhaustion.’”3    The  Board's  rule  does  not 
contain such “sweeping and direct” statutory language divesting it of jurisdiction due 
to a failure to exhaust administrative remedies.  Therefore, the Board finds that even if 
the  applicant  did  not  exhaust  an  effective  administrative  remedy,  the  Board  still  has 
jurisdiction  over  his  case  under  10  U.S.C.  § 1552.    In  addition,  the  application  was 
timely. 
 
TJAG  argued  that  the  Board  should  dismiss  this  case  or  deny  relief 
 
because the applicant did not appeal his EPEF marks.  However, the applicant has not 
alleged that his EPEF numerical marks are erroneous; he has only alleged that the lack 
of recommendation for advancement was erroneous.  Articles 10.B.7.4. and 10.B.10.a.3. 
of  the  Personnel  Manual  both  state  that  an  Approving  Official’s  decision  on  the 
advancement recommendation may not be appealed; only the numerical marks may be 
appealed.    Therefore,  the  provisions  for  appealing  EPEF  numerical  marks  in  Article 
10.B.10. do not constitute an administrative remedy for the alleged error that the appli-
cant has asked the Board to correct. 
 
TJAG  argued  that  the  Board  should  dismiss  this  case  or  deny  relief 
 
because the applicant did not file a UCMJ Article 138 charge against his CO.  However, 
both Articles 10.B.7.4. and 10.B.10.a.3. of the Personnel Manual expressly state that an 
Approving  Official’s  decision  on  the  advancement  recommendation  may  not  be 
appealed.  Article 10.B.10. required the CO to ensure that the applicant was aware of his 
right to appeal “under this Article,” but Article 10.B. makes no mention of the option of 
filing an Article 138 charge and the only right to appeal provided therein is the right to 
appeal  the  numerical  performance  marks,  not  the  advancement  recommendation.  
Therefore, the Coast Guard is essentially arguing that it can tell enlisted members that 
an  Approving  Official’s  decision  on  the  advancement  recommendation  is  not  appeal-
able, and if the members believe it and look no further, they lose the right to seek relief 
from this Board.  The Board strongly rejects this argument. 
 
4. 
Articles  5.C.25.d.  and  14.B.5.  of  the  Personnel  Manual  indicate  that  if  a  CO 
removes  his  recommendation  for  advancement,  a  member  can  try  to  get  the  decision 
reversed by filing an Article 138 charge within 90 days of the CO’s decision, in accor-
dance with Article 7.A. of the Military Justice Manual.  Many more than 90 days have 
passed since the applicant’s CO withdrew his recommendation for advancement.  The 

3. 

                                                 
3 Avocados Plus v. Veneman, 370 F.3d 1243, 1248 (D.C.C. 2004) (citing Weinberger v. Salfi, 422 U.S. 749, 757 
(1975)). 

5. 

Board's policy is that exhaustion of administrative remedies has occurred in situations 
where  a  remedy  existed  but  is  no  longer  available  or  practical.  The Board's policy is 
consistent with its rule at 33 C.F.R. § 52.13(b) and with congressional intent.  The Board 
believes such blanket denial of applications, as suggested by TJAG, would be a violation 
of  its  responsibility  under  10  U.S.C.  §  1552.    The  Board  notes  that  the  only  limitation 
Congress  placed  on  filing  an  application  with  the  BCMR  is  the  three-year  statute  of 
limitations,  and  even  allowed  that  to  be  waived  in  the  interest  of  justice.    Moreover, 
since at least 1994, the courts have held that the three-year statute of limitations does 
not  begin  to  run  until  a  member  is  discharged  from  active  duty,4  and  Congress  has 
done nothing to contradict that interpretation during the intervening decade.  Can an 
agency  completely  divest  an  active  duty  or  former  service  member  of  review  by  the 
BCMR when Congress did not do so?  We think not.  As the Supreme Court stated in 
McCarthy  v.  Madigan,  503  U.S.  140,  144  (1992),  “Of  ‘paramount  importance'  to  any 
exhaustion inquiry is congressional intent.”5 
 
 
Finally, the Board notes that Coast Guard officers are not required to file 
Article 138 charges against their COs before seeking relief from this Board about a non-
recommendation  for  advancement  in  an  officer  evaluation  form  (OER).    The  Coast 
Guard has written the Personnel Manual such that an Article 138 charge is not even an 
effective administrative remedy for an erroneous recommendation on an OER; only the 
Personnel  Records  Review  Board  and  this  Board  can  remove  a  derogatory  comment 
from  an  OER.    It  would  be  significantly  inequitable  for  the  Board  to  require  enlisted 
members to have filed Article 138 charges against their COs while officers are exempt 
from such an onerous requirement.  
 
 
In light of the above considerations, the Board finds that the applicant has 
exhausted all practical and effective administrative remedies now available to him.  The 
Board will therefore consider his case on the merits. 
 
 
Absent evidence to the contrary, the Board presumes that the applicant’s 
rating officials acted correctly, lawfully, and in good faith in making their evaluations.6 
The applicant’s own opinion that his performance was not sufficiently poor to merit his 
CO’s action is insufficient to overcome this presumption.   
 
 
The applicant argued that his rating chain’s endorsements of his applica-
tions  for  YNC  positions  during  October  and  November  of  the  evaluation  period  are 
contrary to the removal of the recommendation for performance.  However, the page 7 
that the applicant received on December 18, 2002, shows that his command discovered 
significantly  unsatisfactory  performance  that  occurred  at  least  in  part  during  the  per-

8. 

6. 

7. 

                                                 
4 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that section 205 of the Soldiers’ and Sailors’ 
Civil Relief Act of 1940 “tolls the BCMR’s limitations period during a servicemember’s period of active 
duty”). 
5 McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (citing Patsy v. Board of Regents of Florida, 457 U.S. 496, 501 
(1982)). 
6 Arens v. United States, 969 F.2d 1034, 1037 (1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979). 

formance period.  The rating chain’s endorsements do not persuade the Board that the 
applicant’s CO erred in preparing the disputed EPEF with a mark of “not recommend-
ed”  or  in  asking HRSIC to remove his name from the advancement list on March 13, 
2003. 
 
 
The  applicant  argued  that  the  numerical  marks  he  received  on  the  dis-
puted EPEF are reasonably good and therefore inconsistent with his CO’s decision not 
to recommend him for advancement.  However, under Article 10.B.7.1. of the Personnel 
Manual, a recommendation for advancement is based not only on a member’s perform-
ance,  as  reflected  in  his  EPEF  marks,  but  also  on  “the  member’s  potential  to  perform 
satisfactorily the duties and responsibilities of the next higher pay grade.”  The page 7 
that  the  applicant  acknowledged  on  February  12,  2003,  shows  that  his  CO  had  signi-
ficant concerns about his performance and accountability and properly counseled him 
about how he could regain the CO’s recommendation for advancement.  The applicant 
has submitted no evidence to show that the page 7 is erroneous or that his CO abused 
his discretion in deciding to remove his recommendation for advancement. 
 
 
 
 
 
 
 

 Accordingly, the applicant’s request should be denied. 

10. 

9. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 
 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

ORDER 

 
 
military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Terry E. Bathen 

 

 

 
 Dorothy J. Ulmer 

 

 
 

 
 

 
 

 
 

 

 
 
 Molly McConville Weber