DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-076 
Xxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxx 
   

 

 
 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section  1552  of 
title 10 and section 425 of title 14 of the United States Code.  The application was dock-
eted on March 9, 2004, upon the BCMR’s receipt of the application. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  December  29,  2004,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
The applicant asked the Board to correct his military record to show that he was 
 
selected for promotion to commander (CDR) by the inactive duty promotion list (IDPL) 
CDR selection board that met in 2003 and to backdate his date of rank to what it would 
have  been  had  he  been  selected  for  promotion  by  that  board,  instead  of  by the  IDPL 
CDR selection board that met in August 2004.    
 
 
The applicant alleged that in 2003, he should have had the option of being con-
sidered for promotion by the IDPL CDR selection board.  Instead, he was required to 
compete for promotion on the active duty promotion list (ADPL).  He alleged that this 
requirement placed him at a great disadvantage because Reserve officers are unlikely to 
be selected for promotion when they have to compete with regular officers.  
 
 
The applicant stated that in 2003 he was serving on extended active duty (EAD).  
He alleged that other Reserve officers’ EAD contracts included the following language, 
which was unfairly and for unknown reasons left out of his own EAD contract: 
 

If you desire to compete on the IDPL vice ADPL, you may submit a written request to 
Commander,  Coast  Guard  Personnel  Command,  to  be  released  from  EAD  during  the 
time frame that both the ADPL and IDPL boards meet.  Your request must be received no 
later  than  01  May  of  the  promotion  year  in  which  you  will  be  considered.    After  both 
boards adjourn, you will resume your EAD contract. 

 
 
The applicant pointed out that on the IDPL, his signal number was 306, and the 
Reserve officers whose signal numbers were 305 and 307 both got to compete on the 
IDPL  in  2003  and  were  both  selected  for  promotion.    He  submitted  copies  of  Coast 
Guard bulletins confirming this information. 
 
 
In support of his allegation, the applicant also submitted an email message from 
LCDR S, chief of the Reserve Officer Management division of the Coast Guard Person-
nel Command (CGPC).  LCDR S stated in the email on February 12, 2004, that “[y]ou 
should be afforded the opportunity to compete on the IDPL.  The information on how 
to effect this should have been included in your recall to active duty orders paragraph 
7.a.”  He also  submitted a copy of another Reserve officer’s active duty orders, para-
graph 7.a. of which contains the same language as that in the block quotation above. 
 

SUMMARY OF APPLICABLE MILITARY RECORDS 

 
 
On March 28, 2002, the applicant, a LCDR in the Reserve, received assignment 
orders recalling him to active duty.  At the time, he had more than 12 years of prior 
active  service  in  the  regular  Coast  Guard  and  more  than  13  years  of  service  in  the 
Reserve.  Paragraph 6 of the orders reads as follows: 
 

This recall transfers you from the inactive duty promotion list (IDPL) to the active duty 
promotion list (ADPL).  You will be placed in zone on the ADPL according to your date 
of rank.  During the period of this recall, you are expected to be in zone for promotion to 
commander in July 2002.  If selected for promotion under a best-qualified criterion on the 
ADPL, you will be offered the opportunity to integrate and remain on active duty as a 
permanent  regular  officer.    If  you  do  not  desire  to  integrate  you  will  be  released  from 
active duty (RELAD) at the completion of your contract.  If not selected for promotion, 
you  would carry the  non-selection status to the IDPL.  Because you exceed the  criteria 
specified in article 1.B.2. of [the Personnel Manual], you are ineligible to apply for a con-
tract  extension  via  the  Reserve  Extension  Board.    However,  you  may  apply  for  a 
waiver—which will be considered solely on the prevailing service need. 

 
 
On  April  3,  2002,  the  applicant  signed  a  two-year  extended  active  duty  (EAD) 
contract.   Because of a smaller than expected zone size, he did not fall in the zone for 
promotion to CDR in July 2002, contrary to the indication in his orders.  However, in 
July  2003,  the  applicant  was  considered  for  promotion  by  the  ADPL  CDR  selection 
board.  He was not selected or promotion.  In 2004, the applicant was released from his 
EAD early and competed for promotion to CDR on the IDPL.  He was selected for pro-
motion and then returned to EAD. 
 

 

VIEWS OF THE COAST GUARD 

 
 
On May 28, 2004, the Judge Advocate General (TJAG) of the Coast Guard recom-
mended  that  the  Board  deny  the  requested  relief.    In  so  doing,  TJAG  “adopt[ed]  the 
facts and analysis” provided by CGPC, which he attached to his advisory opinion. 
 
 
CGPC stated that in January 2002, the applicant requested an EAD contract.  His 
request  was  approved.    CGPC  stated  that  he  was  recalled  to  active  duty  under  the 
authority  of  10  U.S.C.  §§ 12311  and  12312.    CGPC  also  stated  that  14  U.S.C.  § 41a. 
“requires  that  a  reserve  officer  on  an  active  duty  agreement  shall  be  placed  on  the 
ADPL in accordance with his grade and seniority.”  Therefore, CGPC stated, the appli-
cant’s orders properly stated that he would be placed on the ADPL. 
 
CGPC  stated  that  in  June  2002,  another  officer  on  an  EAD  asked  CGPC  if  he 
 
could break his contract so that he could compete on the IDPL instead of the ADPL.  His 
request was approved, and he resumed EAD after both the IDPL and ADPL CDR selec-
tion boards adjourned.1  In July 2002, three months after the applicant signed his EAD 
contract, CGPC “started to incorporate new verbiage in all EAD orders indicating that 
an officer may submit a written request to be released from EAD during the timeframe 
that both the ADPL and IDPL boards meet for the purpose of competing on the IDPL.”2  
CGPC stated that over the last few years, “several requests to terminate contracts early 
to compete on the IDPL have been approved.  However, many reserve officers want to 
compete  on  the  ADPL  since  selection  by  an  ADPL  ‘best  qualified’  board  allows  a 
reserve officer to integrate as a regular, permanent officer.”  CGPC stated that the appli-
cant could have requested to compete on the IDPL but did not do so. 
 
 
CGPC noted that in signing his EAD in April 2002, the applicant was guaranteed 
to  remain  on  active  duty  until  he  could  secure  an  active  duty  retirement  at  age  53 
because in October 2002, he “attained 18 years of credible active service … while on his 
EAD contract.  That guaranteed that he could not be involuntarily separated from active 
duty, unless the Secretary approve[d] the release, until he became eligible for an active 
duty retirement after completing 20 years of credible active service.”  CGPC alleged that 
                                                 
1 The BCMR staff asked TJAG under what legal authority this officer was released early from his EAD 
contract just to compete on the IDPL.  TJAG cited Article 12.A.7. of the Personnel Manual, which provides 
that  “Commander,  (CGPC-opm)  will  approve  a  request  for  release  to  inactive  duty  (RELAD)  or  early 
release from a Reserve officer who has not fulfilled his or her active duty obligation only under the con-
ditions listed below.  Reserve officers serving  under an active duty agreement  normally must complete 
the period of active duty specified by the agreement. … 2. When the needs of the Service clearly would be 
served by approving the request.”  
2 The BCMR staff asked TJAG how this opportunity to compete on the IDPL under Article 12.A.7. was 
adverstised to Reserve officers on EAD prior to July 2002.  TJAG responded only by stating that it was 
included  in  EAD  contracts  beginning  in  July  2002.   TJAG  did  not  explain  how  a  Reserve  officer  could 
know prior to July 2002 that a request to break an EAD contract to increase one’s chance of promotion 
might be deemed to clearly serve the needs of the Service, as required under Article 12.A.7. 

 

if the applicant had sought to end his EAD in order to compete on the IDPL, “he could 
have risked losing this guarantee and, consequently, would have to wait until age 60 
before receiving reserve retirement pay.” 
 
 
Moreover, CGPC stated that when the applicant became “in zone” for promotion 
to CDR in 2003, he sent an email to CGPC in which he wrote that he looked forward to 
competing on the ADPL CDR selection board in August 2003 and that “[o]nly after he 
was not selected for promotion did he express a desire to compete on the IDPL.”  CGPC 
noted that the applicant would be able to compete on the IDPL in 2004 as an “above 
zone” candidate.  CGPC submitted copies of an email conversation, dated July 22, 2003, 
between Lieutenant T, the chief of the Promotions Section for officers at CGPC, and the 
applicant.    Lieutenant  T  began  the  exchange  by  sending  the  applicant  the  following 
email message: 
 

We are preparing for the ADPL and IDPL boards.  We sent you a contract recalling you 
to EAD, but we  never received a copy of that contract up here for your Headquarters’ 
record.  Please fax a copy of your contract to [number omitted].  As of right now, you are 
scheduled to be seen by the ADPL.  Please either verify this or let me know otherwise. 

On the same day, the applicant responded to Lieutenant T as follows: 

I dropped a copy of the signed contract off in CGPC on 03 April 2002.  I will fax a copy to 
your ASAP. 
 
I look forward to competing on ADPL board meeting 04 August. 

 
 
TJAG argued that the “evidence offered by Applicant is insufficient to overcome 
the presumption of regularity afforded the Coast Guard.”  TJAG noted that the appli-
cant “was treated in accordance with standard policy” and that he “was content with 
competing on the ADPL” until he failed of selection.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  June  7,  2004,  the  applicant  responded,  disagreeing  with  the  Coast  Guard’s 
recommendation and objecting to the suggestion that he manipulated the situation.  The 
applicant  stated  that  he  was  only  content  to  compete  on  the  ADPL  because  he  was 
advised that it was a legal requirement.  He alleged that he was never advised of the 
option  to  compete  on  the  IDPL  until  after  he  failed  of  selection  on  the  ADPL.    He 
argued that this important option should not have been limited to those “in the know” 
but should have been publicized to all Reserve officers on EAD.  He alleged that, if he 
had been advised of the option to compete on the IDPL, he would have taken it despite 
the “risk” to his retirement date alleged by CGPC. 
 

 
 
 

 

 
The applicant alleged that his point of contact on all EAD issues was Lieutenant 
T at CGPC and that “[i]n July 2003 when I asked about the upcoming [CDR] promotion 
boards, he stated that I had no option but to compete on the ADPL board.”  He stated 
that only later, after being told this, did he tell Lieutenant T that he was looking forward 
to competing on the ADPL. 
 
 
The applicant stated that he would compete on the IDPL in 2004 but is able to do 
so only because he has become aware of the option informally.  He alleged that CGPC 
had yet to publicize the option for Reserve officers on EAD to break their contracts and 
compete on the IDPL.  
 
 
On August 23, 2004, the applicant notified the Board that he has been selected for 
promotion  by  the  IDPL  CDR  selection  board  that  convened  on  August  2,  2004.    He 
asked the Board backdate his date of rank to July 1, 2004, which is the date he would 
have been promoted to CDR if he had been selected for promotion in 2003.  
 

APPLICABLE LAW 

 

 
 

 

Under 14 U.S.C. § 41a(d), which concerns the ADPL, “[a] Reserve officer, other 
than one excluded by subsection (a), shall, when he enters on active duty, be placed on 
the active duty promotion list in accordance with his grade and seniority.  The position 
of such a Reserve officer among other officers of the Coast Guard on active duty who 
have the same date of rank shall be determined by the Secretary.” 

 
Under 14 U.S.C. § 728(a), which concerns the promotion of Reserve officers on 
the IDPL, a “Reserve officer on active duty, other than for training, duty on a board, or 
duty of a limited or temporary nature if assigned to active duty from an inactive duty 
status, shall not be eligible for consideration for promotion under this subchapter [14 
U.S.C. §§ 720 et seq.]; but shall be considered for promotion under chapter 11 of this title 
[14 U.S.C. §§ 211 et seq.].” 

 
Article 5.A.1.c. of the Personnel Manual states that, “[p]ursuant to 14 U.S.C. 728, 
Reserve  officers  serving  on  extended  active  duty  agreements  under  10  U.S.C.  12301 
shall be considered for promotion by the appropriate ADPL selection board.” 

 
Chapter 7.A.3.b. of the Reserve Policy Manual states that a “Reserve officer on 
active duty, other than for training, duty on a board, or duty of a limited or temporary 
nature  (i.e.  ADSW,  involuntary  recall  or  ADHC),  if  assigned  to  active  duty  from  an 
inactive duty status, shall not be eligible for consideration for promotion on the IDPL 
(14 U.S.C. 728(a)).” 

 
Chapter 3.B.7.b. of the Reserve Policy Manual provides that  

Once  a  reservist  commences  duty,  that  duty  is  no  longer  voluntary.    A  reservist  who 
needs to leave active duty before the planned termination date due to unavoidable con-
flict must obtain approval for any changes from the appropriate supervisor.  Should an 
unavoidable  conflict  occur,  possible  solutions  include  amending  the  orders  to  become 
non-consecutive or terminating the orders and rescheduling the remaining duty under a 
new set of orders.  Requests for amendments or early termination of orders shall be sub-
mitted immediately to the servicing ISC (pf). 

Chapter 3.B.7.c. of the Reserve Policy Manual states that “[c]onditions for early 
termination of EAD or RPA contracts can be found in Chapter 12, Personnel Manual, 
COMDTINST M1000.6 (series).”  

 
Article 12.A.7. of the Personnel Manual 12.A.7., titled “Releasing Reserve Officers 

to Inactive Duty,” states that  

 
Commander, (CGPC-opm) will approve a request for release to inactive duty (RELAD) 
or early release from a Reserve officer who has not fulfilled his or her active duty obliga-
tion only under the conditions listed below. Reserve officers serving under an active duty 
agreement normally must complete the period of active duty specified by the agreement. 
 

1.  When  a  specific  program  for  early  releases  applicable  to  all  Reserve  officers 

within a group has been approved. 

2.  When  the  needs  of  the  Service  clearly  would  be  served  by  approving  the 

3. When a hardship of extreme degree exists which the officer’s early release can 

 

 

 

request. 

alleviate. 

1. 

 
2. 

FINDINGS AND CONCLUSIONS 

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

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 

§ 1552.  The application was timely. 

3. 

The applicant requested an oral hearing before the Board.  The Chair, act-
ing pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition of 
the case without a hearing.  The Board concurs in that recommendation. 
 
 
The applicant alleged that his consideration by the ADPL CDR selection 
board in 2003 was in error and that his EAD contract should have contained language 
allowing  him  to  compete  on  the  IDPL.    However,  the  record  indicates  that  he  was 
placed  on  the  ADPL  and  competed  for  promotion  there  in  accordance  with  statute,3 
                                                 
3 14 U.S.C. §§ 41a and 728. 

4. 

6. 

5. 

regulation,4  and  the  terms  of  his  contract.    Although  in  July  2002,  the  Coast  Guard 
began including language in EAD contracts to notify reservists of the potential oppor-
tunity  to  compete  on  the  IDPL  by  requesting  release  from  EAD,  in  light  of  the  clear 
requirements of the law, the Board finds that the Coast Guard did not err in placing the 
applicant on the ADPL and having his record considered by the ADPL CDR selection 
board. 
 
 
The Board, however, is not limited to correcting legal errors in members’ 
records,  but  may  also  remove  injustices.    “Injustice”  is  “treatment  by  the  military 
authorities that shocks the sense of justice, but is not technically illegal.”5  The BCMR 
has “an abiding moral sanction to determine insofar as possible, the true nature of an 
alleged injustice and to take steps to grant thorough and fitting relief.”6  
 
The  applicant  has  proved  that  he  and,  presumably,  many  other Reserve 
 
officers on EAD have been treated significantly differently from those who have signed 
their EAD contracts since July 2002 and from at least one Reserve officer who, like the 
applicant,  signed  his  EAD  contract  before  July  2002.7    In  essence,  these  other  officers 
were  all  informed  by  the  Coast  Guard  that  CGPC  had  determined  that  allowing  a 
Reserve officer to break his EAD contract to give him a better chance for promotion (by 
competing on the IDPL) “clearly” serves the needs of the Service and is therefore per-
missible under Article 12.A.7. of the Personnel Manual.  Previously, CGPC had required 
Reserve  officers  on  EAD  to  compete  for  promotion  on  the  ADPL  in  accordance  with 
statute  and  regulation.    However,  in  June  2002,  CGPC  apparently  reinterpreted  the 
needs  of  the  Service  without  amending  Article  12.A.7.  or  otherwise  advertising  this 
change  of  policy.    Therefore,  just  as  the  applicant  alleged,  in  the  summer  of  2003,  a 
Reserve officer who had been on EAD for at least one year had to be especially “in the 
know”  to  take  advantage  of  CGPC’s  new  interpretation  of  the  needs  of  the  Service 
under Article 12.A.7.  
 
 
By  informing  certain  Reserve  officers  of  the  chance  to  break  their  EAD 
contracts in accordance with the new interpretation of Article 12.A.7. and compete for 
promotion on the IDPL, while leaving others in the dark, the Coast Guard in essence 
created a secret access to another, presumably easier “playing field”8 (the IDPL).  The 
                                                 
4 Coast Guard Personnel Manual, Article 5.A.1.c.  
5 See Reale v. United States, 208 Ct. Cl. 1010,1011 (1976); Decision of the Deputy General Counsel, BCMR 
Docket No. 2001-043. 
6 Caddington v. United States, 178 F. Supp. 604, 607 (Ct. Cl. 1959). 
7 In his memorandum on the case, Commander, CGPC, stated that in June 2002, another officer on EAD 
asked CGPC if he could break his contract so that he could compete on the IDPL instead of the ADPL.  
His request was approved, and he resumed EAD after both the IDPL and ADPL CDR selection boards 
adjourned. 
8 Berkley v. United States, 287 F.3d 1076, 1089 (Fed. Cir. 2002); Baker v. United States, 127 F.3d 1081, 1086 
(Fed.  Cir.  1987)  (noting  the  importance  of  creating  a  “level  playing  field”  for  officers  competing  for 

  

 

7. 

Board finds that CGPC’s actions in this regard were negligent of the trust and spirit of 
fair play that are vital to the military promotion system.  The Board recognizes that as 
the  needs  of  the  Service  change,  interpretations  of  regulations  such  as  Article  12.A.7. 
may change.  However, the Board finds that CGPC’s apparent actions in changing this 
significant policy without informing all Reserve officers on EAD who were eligible to 
take  advantage  of  it  constitute  “treatment  by  the  military  authorities  that  shocks  the 
sense of justice, but is not technically illegal.”9 
 
 
 In light of this apparent injustice, the applicant asked the Board to remove 
his failure of selection in 2003 and backdate his date of rank to what it would have been 
had he been selected for promotion by the IDPL CDR selection board that met in 2003.  
However,  the  applicant  neither  alleged  nor  proved  that  if  he  had  been  permitted  to 
break his EAD contract to compete on the IDPL in 2003, he would have been selected 
for promotion by that board.  Under Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 
1982),  the  Board  must  apply  “two  separate  but  interrelated  standards”  before  it  can 
remove the applicant’s failure of selection and backdate his date of promotion.  First, 
the Board must determine, as it has determined in this case, that the applicant’s “record 
has  been  prejudiced  by  errors.”    Second,  the  Board  must  determine  whether,  despite 
that prejudice, it is “unlikely that he would have been promoted in any event.”  The 
Engels court held that in such a case, the applicant “must make a prima facie case” that 
he  would  have  been  promoted  absent  the  prejudicial  error,  “but  the  end-burden  of 
ultimate  persuasion  lies  with  [the  Coast  Guard]  to  show  the  improbability  of  [the 
applicant’s] selection even if his record were untainted.”  Id. at 177.  The record now 
before  the  Board  is  silent  as  to  this  second  standard.    Given  the  silence  of  both  the 
applicant and the Coast Guard on this aspect of the case, the Board is unable to reach a 
conclusion. 
 
 
 Accordingly, the applicant’s request for correction should be denied but 
without prejudice.   If  he reapplies to the Board for the same relief and addresses the 
issues identified in finding 7 above, the Board will grant further consideration. 
 

8. 

                                                                                                                                                             
promotion). 
9 See Reale at 1011 (1976); Decision of the Deputy General Counsel, BCMR Docket No. 2001-043. 

 

The  application  of  xxxxxxxxxxxxxxxxx,  USCGR,  for  correction  of  his  military 

ORDER 

 

 

 

 

 

 

 

 

 

 

 
 Jordan S. Fried 

 

 

 
 Richard Walter 

 

 

 
 Suzanne L. Wilson 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
record is denied without prejudice.