DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-043 
 
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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 Chair docketed the 
case on January 3, 2004, upon receipt of the applicant’s application and military records.   
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  September  22,  2005,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
The applicant asked the Board to correct his record to show that he was promot-
 
ed from lieutenant commander (LCDR; O-4) to commander (CDR; O-5) on July 1, 2004, 
and  to  restore  his  previous  signal  number.    The  applicant  was  not  promoted  in  2004 
because the CDR selection board that met in August 2003 did not select him.  At that 
time,  an  approved  voluntary  retirement  request  was  in  his  record.    The  Coast  Guard 
canceled the planned retirement in October 2003 at the applicant’s request.  The CDR 
selection board that convened in August 2004 selected the applicant for promotion. 
 

The applicant alleged that the CDR selection board did not select him in August 
2003  only  because  he  had  requested  retirement,  and  in  accordance  with  policy,  the 
Coast Guard Personnel Command (CGPC) revealed his approved retirement request to 
the selection board.  He alleged that this policy is unjust as it causes the selection board 
to fail to select for promotion officers based on their pending retirement rather than on 
their performance and other personal qualifications. 

 

The applicant stated that when he first requested retirement, he included in his 
letter language stating that he understood that if his request were approved, he would 
not be eligible to compete for promotion in August 2003.  However, in response to his 
letter, someone at CGPC called and asked him to rewrite it because “the Coast Guard 
was required to provide all officers still on active duty with an equal opportunity for 
selection  and  could  not  exclude  an  officer  merely  because  [he]  had  requested  early 
retirement.”  Therefore, the applicant resubmitted his request for retirement without the 
sentence about not being eligible for promotion, and his request was approved.   

 
The  applicant  stated  that  “the  guidance  for  retirement  letters  now  requires  an 
acknowledgment  that  the  approved  retirement  would  be  presented  to  the  board.”  
However,  his  letter  requesting  retirement  was  approved  even  though  it  contained  no 
such  acknowledgment.    He  alleged  that  “[b]ased  on  the  phone  conversation  between 
myself  and  CGPC,  I  believed  I  was  going  before  the  [selection]  board  with  an  equal 
opportunity for selection.” 

 
The applicant alleged that although the Coast Guard made the regulatory change 
in  Change  35  to  the  Personnel  Manual,  which  was  signed  in  March  2002,  the  change 
was not available in “the field.”  He alleged that his unit had not received Change 35 
either electronically or in paper form when he submitted his revised retirement request 
in December 2002.  He alleged that since neither Group xxxxx nor District xxxxx, which 
reviewed his letter, disapproved it based on the lack of the sentence acknowledging that 
the selection board would learn of his approved retirement, he believes that Change 35 
“was not active at the time [he] requested retirement.” 

 
The  applicant  alleged  that  although  the  deliberations  of  selection  boards  are 
secret, it is clear that he was passed over for promotion because of his pending retire-
ment because his military record is exemplary and neither he nor his supervisor could 
find any other logical reason for the failure of selection.  The applicant alleged that even 
the assignment officer had placed him in an O-5 billet based on the expectation that he 
would be selected for CDR by the next board.   

 
The  applicant  argued  that  the  Coast  Guard’s  policy  of  showing  the  selection 
board approved retirement letters destroys one’s chances for promotion.  He stated that 
he contacted all twenty of the officers with approved retirements competing for promo-
tion  during  the  subsequent  selection  board,  and  all  twenty  failed  of  selection.    The 
applicant argued that “[i]f the boards are to provide every officer with an equal oppor-
tunity  for  advancement,  then  the  practice  of  including  the  approved  request  is  an 
error.”  He alleged that he was told that CGPC adopted the policy of showing approved 
retirement letters to selection boards “for the explicit purpose of reducing the incidence 
of  officers  with  approved  retirements  being  selected  for  promotion.”    He  argued  that 
although under the precepts, selection boards have the discretion to develop criteria for 
selecting  officers  to  promote  selection  boards  “must  confine  themselves  to  the  best-

qualified selection criteria based on performance, professionalism, leadership, and edu-
cation”—not on a candidate’s intention to retire. 

 
The  applicant  also  alleged  that  one  of  those  twenty  officers  with  an  approved 
retirement request told him that he had submitted his retirement request not because he 
wanted  to  retire  but  because  he  anticipated  failing  of  selection  for  a  second  time  and 
wanted to leave the service voluntarily rather than involuntarily, due to failure of selec-
tion.    This  officer  also  told  him  that  someone  at  CGPC  had  offered  to  remove  the 
approved retirement request from his record before the selection board to enhance his 
opportunity for selection.  The applicant argued that such “preferential treatment fur-
ther demonstrates the influence a retirement letter has on the [selection] board and the 
unfair applicability of the process. … If removal of the information is made for one, it 
should have been removed for all.” 

 
The applicant argued  that the new policy in also unjust because it deprives an 
officer of a genuine selection opportunity.  He stated that under the old policy (wherein 
selection boards did not even consider officers with approved retirement requests), an 
officer  who  missed  a  selection  board  because  of  an  approved  retirement  request  and 
who subsequently withdrew his retirement request could be considered for promotion 
by the following two selection boards and would lose only one year of seniority.  How-
ever,  under  the  new  policy,  an  officer  with  an  approved  retirement  request  fails  of 
selection  and  so  receives  only  one  more  selection  opportunity  if  he  subsequently 
decides to withdraw his retirement request. 

 
The applicant stated that the Coast Guard justifies the new policy by saying that 
the service “needs officers selected for promotion to fill critical billets.  While I would 
like to believe this is the case, the fact is, promotions lag well behind selection and the 
Coast Guard could reduce the number of officers waiting over 12 months from selection 
to  promotion  if  they  allowed  the  boards  to  select  the  best-qualified  officers  without 
influence based on retirement intention.” 
 

SUMMARY OF THE APPLICANT’S MILITARY RECORD 

 

The  applicant  enlisted  in  the  Coast  Guard  in  1978.    He  became  a  boatswain’s 
mate and advanced to first class petty officer.  In May 1988, after attending Officer Can-
didate School, he received his commission as an ensign.  He was promoted to lieutenant 
junior  grade  in  November  1989;  to  lieutenant  in  November  1992;  and  to  lieutenant 
commander in December 1998. 

 
On December 1, 2002, while serving as the captain of a cutter, the applicant sub-
mitted to CGPC a request to retire on December 1, 2003.1  He stated that he had “always 

                                                 
1  The applicant submitted a copy of this letter. 

wanted to retire from a ship, and to go out as the Commanding Officer would capstone 
a great career.”  His request also stated, “I understand that if approved I am ineligible to 
compete in the August 2003 CDR selection board.”  According to both the applicant and 
CGPC, CGPC promptly informed the applicant that as a LCDR on active duty, the CDR 
selection  board  would  consider  him  for  promotion  despite  the  approved  retirement 
request.    No  copy  of  a  revised  retirement  letter  appears  in  the  record.    According  to 
CGPC  and  the  applicant,  his  request  for  retirement  was  approved  on  December  30, 
2002. 

 
The CDR selection board that met in August 2003 considered the applicant for 
promotion as an “in the zone” candidate but did not select him although his perform-
ance evaluations were consistently excellent.  The precept for the selection board stated 
that the board members were required to “without prejudice or partiality, and having in 
view both the special fitness of officers and the efficiency of the Coast Guard,” select the 
157  best  qualified  officers  from  191  LCDRs  who  were  “in  the  zone”  for  promotion  to 
CDR  (having  never  been  considered  before)  and  108  LCDRs  who  were  “above  the 
zone” (having failed once of selection and having one more chance).2  The precept also 
directed the board members to consider Articles 5.A. and 14.A. of the Personnel Manual 
and the Commandant’s Guidance to [Promotion Year] 2004 Officer Selection Boards in 
developing  their  criteria  for  selecting  officers  for  promotion.    The  list  of  personnel 
records to be reviewed by the selection board included “voluntary separation orders.” 

 
In October 2003, after CGPC published the results of the August 2003 selection 
board, the applicant asked to have his approved December 1, 2003, retirement canceled.  
On October 8, 2003, CGPC canceled his retirement.  Thereafter, the CDR selection board 
that met in August 2004 selected the applicant for promotion. 

 
On August 27, 2004, the applicant wrote to CGPC asking for promotion as of July 
1,  2004,  based  on  the  inclusion  of  his  approved  retirement  in  the  records  before  the 
selection board in August 2003.  He argued that informing the selection board of those 
whose retirements had been approved constituted administrative error as it caused the 
selection board not to select those who had proven themselves to be best qualified for 
promotion but who had requested retirement.  On September 3, 2004, CGPC denied his 
request.  CGPC explained the denial as follows: 

 
Per [COMDTINST 1410.1], all voluntary separation requests are provided 
to [active duty] selection boards.  There is no standing policy or law that 
prohibits promotion boards from selecting for promotion individuals with 
separation requests.  Each board makes their own determination, and the 
unique criteria they set within the guidelines of law, regulations, and pre-
cepts do not constitute administrative error.  Individuals in the past have 

                                                 
2  The precept also permitted the selection of up to 11 LCDRs who were “below the zone.” 

been selected for promotion [who] have pending separation requests.  The 
exact reason for your nonselection is known only by the board member-
ship.    The  only  inference  that  can  be  made  by  your  failing  selection  for 
promotion  was  that  in  the  opinion  of  the  board,  you  were  not  among 
those best qualified for promotion. 

 

VIEWS OF THE COAST GUARD 

 

On April 25, 2005, the Judge Advocate General (JAG) of the Coast Guard submit-
ted an advisory opinion recommending that the Board deny the applicant’s request for 
lack of merit.  The JAG attached and adopted as part of his recommendation a memo-
randum on the case prepared by CGPC. 

 
CGPC  stated  that  the  applicant  submitted  a  request  on  December  1,  2002,  to 
retire voluntarily on December 1, 2003.  Because of the sentence in his letter stating that 
he would be ineligible to compete for promotion in August 2003, the Chief of Officer 
Separations  contacted  the  applicant  and  told  him  that,  “separation  request  notwith-
standing, he would be considered for selection” to CDR in August 2003.  On December 
30, 2002, CGPC stated, the applicant’s request for retirement on December 1, 2003, was 
approved  and  the  approved  requirement  request  was  included  among  the  personnel 
records shown to the selection board in accordance with COMDTINST 1410.1. 

 
CGPC stated that in accordance with COMDTINST 1410.1, dated May 23, 2000, 
voluntary  separation orders,  such  as  an  approved  retirement  request,  are  available  to 
selection  boards,  whereas  mandatory  separation  orders  are  not.    Therefore,  CGPC 
included the applicant’s approved request for voluntary retirement among the records 
available to the selection board.  CGPC further stated that because the deliberations and 
proceedings  of  a  selection  board  are  confidential  and  the  boards  establish  their  own 
criteria for selection, only the selection board members “know the exact reason for the 
Applicant’s non-selection.” 

 
The  JAG  argued  that  the  applicant  “was  treated  in  accordance  with  standard 
policy. … Voluntary resignation requests are part of the numerous documents that are 
provided to the promotion board.  As the Coast guard committed no error and worked 
no injustice, [the applicant’s] request should be denied.” 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On May 19, 2005, the applicant responded to the views of the Coast Guard.  He 
strongly  objected  to  the  JAG’s  recommendation  and  stated  that  the  issue  “is  not  that 
they  (the  Coast  Guard)  did  anything  wrong  or  illegal,  but  rather  that  the  policy  is 
flawed.”    The  applicant  argued  that  the  “number  of  authorized  promotions  is  estab-
lished based on authorized strength, so many otherwise well deserving individuals will 

fail to select for promotion due to the [statutory] authorized strength restriction.  It is 
my position that placing the approved retirement requests in the folder for considera-
tion plays to the character of the selection board by making it easier for them to select 
officers not to promote based on their desire to retire.”  He alleged that the “inclusion of 
the approved retirement requests predisposes the boards to fail to select an officer for 
promotion.” 
 
 
The applicant further argued that the policy creates injustice when officers later 
withdraw  their requests  for  retirement  or  retire  but  are  recalled to  active  duty.   They 
have essentially missed one of their two chances for selection for promotion because the 
selection  board  has  failed  to  select  them  due  to  the  approved  retirement  requests  in 
their records. 
 
The  applicant  argued  that  all  officers  on  active  duty,  whether  they  are  retiring 
 
soon  or  not,  should  have  an  equal  opportunity  for  promotion  and  that  revealing 
approved  retirement  requests  to  the  selection  boards  prevents  this.    He  argued  that 
allowing retiring officers to be selected for promotion by hiding this information from 
the selection boards “will not unduly injure the officer corps, as many officers are cur-
rently waiting well over a year from the time of selection to the time of promotion.” 
 

APPLICABLE LAW 

 
Under 14 U.S.C. § 251, the Secretary may convene selection boards of senior offi-
 
cers  to  select  officers  to  recommend  for  promotion.3    Selection  board  members  must 
swear to perform their duties “without prejudice or partiality, and having in view both 
the special fitness of officers and the efficiency of the Coast Guard.” Id. at § 254.  The 
Secretary determines the number of officers to be promoted by adding the number of 
vacancies  existing  at  that  grade  in  the  officer  corps  to  the  number  of  new  vacancies 
estimated to arise in that grade during the following year and subtracting the number 
of officers who have already been selected but not yet promoted to that grade.  § 255.   
 

Before convening a selection board, the Secretary establishes a “promotion zone” 
of officers who have not yet been considered for promotion.  §§ 256, 257.  The number 
of candidates “in the zone” is based upon the needs of the service, the estimated num-
ber of future vacancies, and “the extent to which current terms of service in that grade 
conform to a desirable career promotion pattern.”  § 256.  “Except when his name is on 
a list of selectees, each officer who becomes eligible for consideration for promotion to 
the next higher grade remains eligible so long as he (1) continues on active duty; and (2) 
is not promoted to that grade.” § 257(d).   
 

                                                 
3  The Secretary has delegated his duties under 14 U.S.C. §§ 251 et seq. to the Commandant. 

The Secretary must supply the selection board with the names and records of all 
eligible  officers  and  the  number  of  officers  to  be  selected.  § 258.    Any  officer  recom-
mended for promotion must be deemed “best qualified” for promotion by at least two-
thirds of the members of a board of six or more members. § 259.  Except to issue a report 
listing the selectees, “the proceedings of a selection board shall not be disclosed to any 
person not a member of the board.” § 261(d).  After the President approves the selec-
tees, they are “promoted by appointment in the next higher grade to fill vacancies in the 
authorized active duty strength of the grade as determined under section 42 of this title 
after officers on any previous list of selectees for that grade have been promoted.” § 271.   

 
Under  14  U.S.C.  § 285,  any  lieutenant  commander  who  fails  to  be  selected  for 
promotion a second time shall be retired if he has at least twenty years of service or, if 
not, retained on active duty and retired on the last day of the month in which he com-
pletes twenty years of active service. 
 

Under  Article  14.A.3.a.  of  the  Personnel  Manual,  each  selection  board  must 
develop  its  own  standards  and  promotion  criteria  to  select  the  best-qualified  candi-
dates.  Article 14.A.1.b. states that the “criteria published here are furnished to boards 
solely to guide and do not limit the scope of authority vested in them.”  Article 14.A.3.b. 
of the Personnel Manual provides the following “basic criteria” a selection board should 
use, in addition to the more specific criteria they adopt:  performance evaluations, pro-
fessionalism, leadership, and education.  Article 14.A.6.b. states that in comparing can-
didates  for  promotion,  selection  boards  compare  officers’  “past  performance,  their 
capacity  to  undertake  successfully  tasks  of  progressively  greater  difficulty  involving 
broader responsibilities, their capability and inclination to study for further professional 
growth,  and  their  potential  to  perform  creditably  those  duties  to  which  these  officers 
might be assigned in the next higher grade.”   

 
COMDTINST  1410.1,  concerning  “Coast  Guard  Active  Duty  Officer  Promotion 
Boards,” was signed on May 23, 2000, and includes language almost identical to that in 
the Personnel Manual.  It also lists the personnel records to be reviewed by board mem-
bers, including “voluntary separation orders.” 

 
Article  5.A.8.a.1.  of  the  Personnel  Manual  provides  that  “[e]xcept  in  extraordinary 
circumstances such as wartime recall or urgent Service need, retired officers recalled to active 
duty  normally  are  not  eligible  for  promotion  to  the  next  higher  grade,  an  exclusion  the  recall 
order will note.”  Article 5.A.8.a.3. states that a retired officer “who at retirement had once or 
twice  failed  selection  for  promotion  to  the  next  higher  grade  is  not  eligible  for  promotion  if 
recalled to active duty.” 

 
Article 12.C.9. of the Personnel Manual was revised in March 2002 pursuant to 
Change 35.  Article 12.C.9.a.1. now provides that prior to requesting a voluntary retire-

ment  from  CGPC,  which  may  grant  or  deny  such  requests  based  on  the  needs  of  the 
Service, an officer must meet the following  requirements:   

 
a. Must complete two years time in grade by the date of retirement. (A scheduled promo-
tion will not be effected if an officer has an approved voluntary retirement on file at the 
time their name would otherwise appear on the respective Officer Promotion Authoriza-
tion Listing (OPAL) unless the officer requests to have the letter pulled.). 
b. Will complete at least one year at his or her duty station INCONUS, … 
c. Submit a request between one year and six months before the desired retirement date 
using the format in paragraph 9 below. … 
 
Article 12.C.9.a.9, which was also added to the Personnel Manual by Change 35, 
provides  that  the  letter  by  which  an  officer  requests  voluntary  retirement  should 
include the following sentences: 

 
1. I request retirement on the first day of [month/year], or as soon thereafter as possible. 
2.  I  understand  if  this  request  is  approved,  I  will  be  ineligible  for  promotion  if  already 
selected  for  the  next  higher  grade.    I  further  understand  that  a  copy  of  my  voluntary 
retirement  orders  will  be  included  in  my  permanent  record  and  will  be  visible  to  any 
future selection board. … 
4. I understand if I request to cancel this retirement, Commander (CGPC-opm) will con-
sider cancellation solely on the needs of the Service. 
 
Article  12.C.9.c.  of  the  Personnel  Manual  states  that  the  “decision  to  submit  a 
retirement letter is a serious one because the projected separation triggers transfer and 
promotion actions that, if reversed, could cause hardship to other officers.  Therefore, 
Commander (CGPC-opm) may approve a request to cancel or delay a scheduled retire-
ment based on Service needs or a member’s hardship situation similar or equal to those 
listed in Article 12.D.3.  The Service does not consider a change in civilian employment 
plans a hardship.” 
 

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: 
 

1. 

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

§ 1552.  The application was timely. 

 
2. 

The  applicant  argued  that  his  date  of  rank  should  be  backdated  by  one 
year to July 1, 2004, which, he alleged, would have been his date of rank had the CDR 
selection board that met in August 2003 not seen the voluntary retirement orders that 
were in his record at the time.  The applicant alleged that CGPC revealed his and other 
officers’ approved retirement requests to the selection board pursuant to an unjust pol-

icy.  The applicant argued that under this policy, selection boards rarely or never select 
officers with voluntary retirement orders because they improperly and unjustly use the 
approved  retirements  as  a  reason  not  to  find  the  officer  among  the  best  qualified  for 
promotion. 

 
3. 

“Injustice”  as  used  in  10  U.S.C.  § 1552(a)  is  “treatment  by  the  military 
authorities that shocks the sense of justice, but is not technically illegal.” Reale v. United 
States,  208  Ct.  Cl.  1010,  1011  (1976);  Decision  of  the  Deputy  General  Counsel,  BCMR 
Docket No. 2001-043.  “The BCMR has the authority to decide on a case-by-case basis if 
the Coast Guard has committed an error or injustice.”  Decision of the Deputy General 
Counsel, BCMR Docket No. 2002-040. 

 
4. 

Under 14 U.S.C. § 258, selection boards are entitled to see the records of 
the  candidates  for  promotion.    Nothing  in  the  applicable  statutes  (14  U.S.C.  §§ 251  et 
seq.) prohibits the Coast Guard from revealing voluntary retirement orders to selection 
boards.    The  Commandant’s  instruction  for  promotion  boards,  COMDTINST  1410.1, 
which  was  signed  on  May  23,  2000,  lists  “voluntary  separation  orders”  among  those 
performance and personnel records to be shown to selection boards. 

 
5. 

Under  14  U.S.C.  § 254,  Congress  requires  selection  board  members  to 
select officers for promotion “without prejudice or partiality, and having in view both 
the special fitness of officers and the efficiency of the Coast Guard.”  Under 14 U.S.C. 
§ 256, a “promotion zone” of candidates for promotion is based upon the needs of the 
service,  the  estimated  number  of  future  vacancies,  and  “the  extent  to  which  current 
terms of service in that grade conform to a desirable career promotion pattern.”  These 
statutes  clearly  contemplate  the  efficient  functioning  and  development  of  the  officer 
corps and the filling of extant and expected vacancies to be fundamental criteria in the 
selection  process.    Although  the  applicant  argued  that  hiding  voluntary  retirement 
orders  from  selection  boards  and  thereby  increasing  the  number  of  otherwise  best-
qualified, retiring officers among the selectees would increase efficiency by expediting 
promotions, it is not for this Board to decide what is most efficient for the Coast Guard.  
Even assuming that, as the applicant alleged but did not prove, selection boards habitu-
ally  fail  to  select  officers  with  voluntary  retirement  orders  and  that  the  Coast  Guard 
intentionally  invites  this  result  by  revealing  such  orders  to  the  selection  boards,  the 
Board finds nothing in these alleged actions and attitudes that is contrary to the stat-
utes.4 

                                                 
4  Although the Coast  Guard’s logic of  hiding mandatory retirement orders (such as age-related retire-
ment orders) from selection boards while revealing voluntary retirement orders is not stated in the record 
or  COMDTINST  1410.1,  the  difference  is  likely  mandated  by  the  Coast  Guard’s  determination  of  what 
promotes the efficient functioning and development of the officer corps and therefore outside the Board’s 
purview.  The applicant has neither argued nor proven that the difference in treatment of officers with 
voluntary and involuntary retirement orders “shocks the sense of justice.”  Reale v. United States, 208 Ct. 
Cl. 1010, 1011 (1976). 

 
6. 

Article 14.A.3.b. of the Personnel Manual provides that the “basic criteria” 
to  be  used  by  a  selection  board  are  performance  evaluations,  professionalism,  leader-
ship, and education.  The applicant argued that the selection boards’ alleged adoption 
of  another  criterion—not  having  retirement  orders—is  improper  as  it  does  not  fall 
within these four categories.  He also argued that selecting the “best-qualified” candi-
dates by definition prohibits the consideration of non-performance-related information 
such as an officer’s pending retirement.  However, in Article 14.A.3.a., the Commandant 
authorizes each selection board to develop its own standards and promotion criteria by 
which to determine whom to recommend for promotion.  Nothing in Article 14.A.2.a. 
requires that a selection board’s adopted criteria fall within the four basic criteria pro-
vided in Article 14.A.3.b.  Moreover, Article 14.A.1.b. expressly states that the “criteria 
published  here  are  furnished  to  boards  solely  to  guide  and  do  not  limit  the  scope  of 
authority vested in them.”  In addition, the Board notes that Article 14.A.6.b. states that 
selection  boards  should  compare  officers’  “past  performance,  their  capacity  to  under-
take  successfully  tasks  of  progressively  greater  difficulty  involving  broader  responsi-
bilities,  their  capability  and  inclination  to  study  for  further  professional  growth,  and 
their  potential  to  perform  creditably  those  duties  to  which  these  officers  might  be 
assigned in the next higher grade.”  A selection board member could reasonably con-
clude that a retiring officer has little if any “capacity to undertake successfully tasks of 
progressively greater difficulty involving broader responsibilities” in the Coast Guard, 
“capability  and  inclination  to  study  for  further  professional  growth”  in  the  Coast 
Guard, or “potential to perform creditably those duties to which these officers might be 
assigned in the next higher grade,” since the officer has voluntary retirement orders that 
will presumably prohibit him from doing any of those things.   

 
7. 

The  applicant  argued  that  the  policy  is  unjust  because  officers  who,  like 
him, change their minds and do not retire and officers who are recalled to active duty 
after retiring may have a failure of selection in their records due entirely to their prior 
voluntary retirement request and, therefore, less chance of promotion since two failures 
of selection result in mandatory retirement under 14 U.S.C. § 285.  Pursuant to Article 
12.C.9.c.  of  the  Personnel  Manual  and  based  upon  the  needs  of  the  Service,  CGPC 
allows  some  officers  to  change  their  minds  and  cancels  their  scheduled  retirements 
despite the negative impact such cancellations may have on more junior officers await-
ing promotion.  The Board finds that the fact that such officers  may have a failure of 
selection in their records because a prior selection board saw their voluntary retirement 
orders does not constitute “treatment by the military authorities that shocks the sense of 
justice.”  Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976).  In addition, the Board notes 
that  pursuant  to  Article  5.A.8.a.1.  of  the  Personnel  Manual,  “[e]xcept  in  extraordinary 
circumstances such as wartime recall or urgent Service need, retired officers recalled to active 
duty  normally  are  not  eligible  for  promotion  to  the  next  higher  grade,  an  exclusion  the  recall 
order will note.”  The fact that a failure of selection caused by retirement orders makes a recalled 
officer  ineligible  for  promotion  under  Article  5.A.8.a.3.  does  not  persuade  the  Board  that  the 

Coast  Guard’s  policy  of  showing  approved  voluntary  retirement  orders  to  selection  boards  is 
unjust. 

 
8. 

The applicant alleged that Change 35 to the Personnel Manual should not 
have applied to him in August 2003 because it was “not active” when he submitted his 
request for retirement in December 2002.  As evidence, he cited the (alleged) fact that 
his  revised  retirement  request  was  processed  and  approved  without  the  language 
required  in  Article  12.C.9.a.9.  about  “understand[ing]  that  a  copy  of  my  voluntary 
retirement orders will be included in my permanent record and will be visible to any 
future  selection  board.”    The  applicant  has  not  provided  a  copy  of  his  revised  retire-
ment request and no copy appears in his record.5  However, the Personnel Manual indi-
cates that Change 35 was added to the Personnel Manual in March 2002, and the Com-
mandant’s instruction for promotion boards (COMDTINST 1410.1), which was signed 
on May 23, 2000, includes “voluntary separation orders” among the records available to 
selection  boards.    Assuming  that,  as  the  applicant  alleged,  certain  personnel  officers 
overlooked a lack of required language in his revised retirement request, their failures 
do not prove that the Coast Guard’s policy was in not effect when the applicant sub-
mitted his retirement request in December 2002. 

 
9. 

The applicant argued that he had no notice of the Coast Guard’s policy of 
showing  voluntary  retirement  orders  to  selection  boards.    Article  12.C.9.a.9.  requires 
officers  to  acknowledge  that  they  understand  the  policy  in  their  retirement  requests.  
However, assuming arguendo that the applicant’s revised retirement request lacked the 
language required in Article 12.C.9.a.9. and that the applicant was unaware of the pol-
icy, the Board finds that the application of the policy to him in August 2003 was neither 
error nor “treatment by the military authorities that shocks the sense of justice.”  Reale v. 
United States, 208 Ct. Cl. 1010, 1011 (1976).  As an officer of the Coast Guard, the appli-
cant  was  charged  with  knowing  the  provisions  of  the  Personnel  Manual  and  of 
COMDTINST 1410.1.  Furthermore, when advised by CGPC in December 2002 that his 
first retirement request did not comply with the rules, the applicant may be deemed to 
have been put on notice that there were new rules in effect.  

 
10. 

The applicant alleged that one officer who failed of selection in 2004 told 
him that, before the selection board met, someone at CGPC offered to remove his vol-
untary retirement orders from his record before it was considered by a selection board.  
The applicant has not proved this allegation, and absent evidence to the contrary, the 
Board presumes that Coast Guard officials have carried out their duties “correctly, law-
fully, and in good faith.”  Arens v. United States, 969 F.2d 1034, 1037 (1992); Sanders v. 
United States, 594 F.2d 804, 813 (Ct. Cl. 1979); 33 C.F.R. § 52.24(b).  Moreover, under Arti-
cle 12.C.9.c. of the Personnel Manual, CGPC may properly cancel an officer’s voluntary 
                                                 
5  The  BCMR  staff  asked  the  applicant  for  a  copy  of  this  letter  by  telephone  message  on  September  13, 
2005, and in a telephone call on September 15, 2005.  Although the applicant stated that he had a copy of 
the letter and would promptly fax it to the BCMR, he did not do so and did not contact the BCMR.   

retirement  and  remove  retirement  orders  from  his  record  upon  his  request,  just  as 
CGPC did for the applicant in October 2003.  Therefore, if someone at CGPC did offer to 
remove retirement orders from a candidate’s record in 2004, the offer was presumably 
made in accordance with this regulation. 

 
11. 

The  applicant  has  not  proved  by  a  preponderance  of  the  evidence  that 
either his failure to be selected for promotion in August 2003 or his failure to be pro-
moted to CDR on July 1, 2004, was erroneous or unjust. 

 
12.  Accordingly, the applicant’s request should be denied.   

ORDER 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

military record is denied. 
 

 

 
 

 
 

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

        

 
 Frank H. Esposito 

 

 

 
 Randall J. Kaplan 

 

 

 
 Dorothy J. Ulmer