DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-046 
 
Xxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxx 
   

 

 
 

FINAL DECISION ON FURTHER CONSIDERATION 

 
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 11, 2005, upon receipt of the completed application. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated October XX, 2005, is signed by the three duly appointed 

APPLICANT’S REQUEST 

 
The applicant, a Reserve officer, 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  convened  in  2003;  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 convened in 2004; and to award him back-
pay and allowances.    
 

APPLICANT’S FIRST CASE:  BCMR DOCKET NO. 2004-076 

 
In the applicant’s prior application to the Board, BCMR Docket No. 2004-076, he 
 
asked for the same relief.  He alleged that in 2003, when he was serving on extended 
active duty, he should have had the option of being considered for promotion by the 
IDPL CDR selection board.  The applicant alleged that although at that time, Reserve 
officers  serving  on  extended  active  duty  (EAD)  contracts  were  required  by  statute  to 
compete for promotion on the active duty promotion list (ADPL) against regular active 

duty Coast Guard officers.  However, the Coast Guard unjustly and secretly allowed a 
few Reserve officers to break their EAD contracts just for the duration of the selection 
boards  so  that  they  could  be  considered  for  promotion  by  the  IDPL  selection  board 
instead of the ADPL promotion board.  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.  In 2004, the applicant was allowed, 
along with other Reserve officers, to break his EAD contract for the purpose of compet-
ing  for  promotion  on  the  IDPL.    He  was  selected  for  promotion  to  CDR  and  then 
returned to EAD. 
 
 
In  the  advisory  opinion  for  BCMR  Docket  No.  2004-076,  the  Judge  Advocate 
General (JAG) of the Coast Guard recommended that the Board deny relief based upon 
a  memorandum  provided  by  the  Coast  Guard  Personnel  Command  (CGPC).    CGPC 
stated  that  when  the  applicant  began  EAD  in  2002,  he  received  orders  that  such 
required him to compete on the ADPL in accordance with 14 U.S.C. § 41a.1  However, 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 selection boards adjourned.  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.”  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 applicant could have requested to 
compete on the IDPL but did not do so.  CGPC also stated that since July 2002, EAD 
orders have informed Reserve officers that they may ask to break their EAD contracts 
for the purpose of competing on the IDPL instead of the ADPL. 
 
In response to the advisory opinion, the BCMR staff asked the JAG under what 
 
legal authority the officer who made the request in June 2002 was released early from 
his EAD contract just to compete on the IDPL.2  The JAG cited Article 12.A.7.2. of the 
Personnel Manual.3  

                                                 
1 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.” 
  
2 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)).”  Article 5.A.1.c. of the Personnel Manual states that, “[p]ur-

 

 
 
The BCMR staff also asked the JAG how the opportunity to compete on the IDPL 
under  Article  12.A.7.2.  was  advertised  to  Reserve  officers  on  EAD  prior  to  July  2002.  
The JAG responded only by stating that it was included in EAD contracts beginning in 
July 2002.  The JAG did not explain how a Reserve officer who began serving on EAD 
before  July  2002  could  know  that  beginning  in  July  2002  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.7.2. 
 
 
The applicant responded to the Coast Guard’s advisory opinion in BCMR Docket 
No. 2004-076 by stating 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.   
 
 
application without prejudice based upon the following findings and conclusions: 
 

In  the  Final  Decision  in  BCMR  Docket  No.  2004-076,  the  Board  dismissed  the 

5. 

 
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. [citation omitted] 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 permissible under Article 12.A.7. of the Personnel Manual.  Previously, CGPC 

                                                                                                                                                             
suant 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.”  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.].” 
 
3  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 obligation 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 

request. 

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

alleviate.” 

 

 

6. 

had required Reserve officers on EAD to compete for promotion on the ADPL in accor-
dance  with  statute  and  regulation.    However,  in  June  2002,  CGPC  apparently  reinter-
preted the needs of the Service without amending Article 12.A.7. or otherwise advertis-
ing 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”4  (the  IDPL).    The 
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 signi-
ficant  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.”5 
 
 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. 

7. 

8. 

APPLICANT’S ALLEGATIONS FOR FURTHER CONSIDERATION 

 

 

                                                 
4 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 
promotion). 
5 Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976); see Decision of the Deputy General Counsel, BCMR 
Docket No. 2001-043. 

 

 
The applicant alleged that in light of the very high quality of his officer evalua-
tion reports (OERs), it is clearly not “unlikely that he would have been promoted in any 
event” if he had been allowed to compete on the IDPL in 2003 and so his date of rank 
should be backdated in accordance with the standards set in Engels v. United States, 678 
F.2d  173,  176  (Ct.  Cl.  1982).    The  applicant  also  pointed  out  that  he  was  selected  for 
promotion when he was allowed to break his EAD contract temporarily and compete 
on the IDPL in 2004, and that this fact is also evidence that he would have been selected 
for promotion in 2003 had he been allowed to break his contract and compete on the 
IDPL at that time, as other officers had been. 
 

SUMMARY OF APPLICANT’S MILITARY RECORD 

  
 
On  March  28,  2002,  the  applicant  received  assignment  orders  recalling  him  to 
active duty.  At the time, he had more than 12 years of prior active service and more 
than 13 years of service in the Reserve.  On April 3, 2002, the applicant signed a two-
year  EAD  contract.    In  July  2003,  the  applicant  was  first  considered  for  promotion  to 
CDR by the ADPL CDR selection board.  He failed of selection.  In July 2004, the appli-
cant was released from EAD for the duration of the selection boards so that he could 
compete on the IDPL.  He was selected for promotion to CDR.  The applicant’s OERs 
appear as shown in the table below.  (Officers are evaluated in a variety of performance 
categories on a scale of 1 to 7, with 7 being best.) 
 

APPLICANT’S MARKS IN OERs FROM 4/1/94 THROUGH 4/30/03 

CATEGORYa 
Being Prepared/Planning 
Using Resources 
Getting Results 
Responsivenessa 
Work-Life Sensitivitya 
Adaptabilitya 
Specialty Expertise/Professional Competence 
Collateral Dutya 
Working with Others/Teamwork 
Human Relations/Workplace Climate 
Looking Out for Others 
Developing Subordinates 
Directing Others 
Evaluations 
Speaking & Listening 
Writing 
Initiative 

 

0ER1  OER2  OER3  OER4  OER5  OER6  OER7 

6 
7 
7 
6 
4 
 
7 
6 
6 
5 
5 
6 
6 
5 
6 
6 
7 

5 
6 
7 
7 
4 
 
7 
6 
6 
5 
5 
6 
6 
5 
6 
6 
7 

5 
6 
6 
6 
4 
 
6 
4 
6 
4 
5 
5 
4 
5 
5 
6 
6 

4 
4 
5 
 
 
5 
5 
 
5 
4 
5 
6 
4 
4 
5 
5 
4 

 

6 
5 
6 

 
5 
5 
 
6 
5 
5 
6 
5 
4 
5 
5 
6 

7 
6 
7 
 
 
6 
6 
 
7 
5 
6 
6 
6 
5 
7 
6 
7 

7 
6 
7 
 
 
6 
6 
 
7 
5 
6 
6 
7 
5 
7 
6 
7 

6 
6 
6 
5 
5 
7 
7 
 
6 

5 
5 
5 
5 
5 
6 
6 
 
5 

4 
4 
 
5 
 
4 
 
 
4 

6 
7 
 
5 
 
6 
 
 
6 

6 
6 
6 
6 
6 
7 
6 
 
5 

Judgment 
Responsibility 
Staminaa 
Health & Well-Being 
Military/Professional Bearinga 
Professionalisma 
Dealing with the Publica 
Average Mark in OER 
Comparison Scaleb 
a Some categories’ names have changed slightly over the years and some have been discontinued or initiated.   
b The comparison scale is not actually numbered.  However, as with the performance categories, there are seven 
possible marks.  Officers are supposed to be marked in comparison with all other officers of the same rank known to 
the reporting officer.  In this row, “4” means the officer was a ”good performer; give tough, challenging assignments.”  
A “5” means the officer was an “excellent performer; give toughest, most challenging leadership assignments.”  A “6” 
means that the officer is “strongly recommended for accelerated promotion.”  A “7” means “BEST OFFICER of this 
grade.” 
 

5 
5 
 
4 
 
5 
 
 
5 

6 
7 
 
5 
 
6 
 
 
7 

VIEWS OF THE COAST GUARD 

 
On  June  2,  2005,  the  JAG  recommended  that  the  Board  grant  relief.    The  JAG 

adopted a memorandum on the case prepared by CGPC. 

 
CGPC noted that in August 2003, the IDPL CDR selection board selected 43 of 62 
Reserve  officers  for  promotion  so  that  the  “opportunity  for  selection  for  promotion 
[was] 69 percent.”   CGPC noted that the applicant’s record was  strong, especially his 
most  recent  marks  on  the  Comparison  Scale,  and  was  devoid  of  any  misconduct.  
Therefore,  CGPC  concluded  that  “[h]ad  his  record  not  been  tainted  by  Coast  Guard 
error, Applicant’s selection by the [August 2003] IDPL Commander board was not an 
improbability” and that the “statistical likelihood” of his selection was high. 

 
Therefore,  CGPC  argued  that  the  Board  should  grant  relief  by  expunging  the 
failure of selection to CDR and assigning him the date of rank he would have received 
had he been selected by the PY04 (the selection boards that met in August 2003 were for 
promotion  year  2004)  IDPL  CDR  selection  board  and  promoted  with  his  active  duty 
running  mate.    CGPC  also  stated  that  the  applicant  should  receive  any  backpay  and 
allowances he might be due as a result of this correction. 

  
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On  June  13,  2005,  the  applicant  responded  to  the  advisory  opinion.    He  stated 

that he fully concurs in the recommended relief. 

 

 

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. 

4. 

3. 

The Board concurs with the findings and conclusions of the final decision 
in  BCMR  Docket  No.  2004-076.    The  applicant  proved  by  a  preponderance  of  the 
evidence that the Coast Guard, in changing a significant policy about releasing Reserve 
officers from EAD so that they could compete for promotion on the IDPL instead of the 
ADPL,  without  informing  all  Reserve  officers  on  EAD  who  were  eligible  to  take 
advantage of it, committed an injustice that “shocks the sense of justice.”6 
 
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 2003 failure of selection and backdate his date of promotion.  First, the Board 
must  determine  that  the  applicant’s  “record  has  been  prejudiced  by  errors”  when  he 
was  considered  for  promotion  in  August  2003.    As  indicated  in  the  final  decision  in 
BCMR Docket No. 2004-076, the applicant has proved that his record was prejudiced in 
that it was placed before the ADPL CDR selection board, in competition with regular 
active duty officers, rather than before the IDPL CDR selection board, where he would 
have been competing for promotion against other Reserve officers.   
 
Second,  under  Engels,  the  Board  must  determine  whether,  despite  that 
 
prejudice, it is “unlikely that he would have been promoted in any event.”7  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.”8    The  applicant’s  record 
contains many excellent OERs, especially the last two in which his reporting officer, in 
comparing  the  applicant  to  all  the  other  lieutenant  commanders  whom  the  reporting 
officer  had  known  throughout  his  career,  recommended  the  applicant  for  accelerated 
promotion  and  then  rated  him  as  the  “BEST  OFFICER  of  this  grade.”    Therefore,  the 
Board agrees with the JAG and CGPC that if the applicant’s record had been considered 

                                                 
6 “Injustice” may be defined for purposes of 10 U.S.C. § 1552(a) as “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); see Decision of the Deputy General Counsel, BCMR Docket No. 2001-043. 
7 Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982). 
8 Id. at 177. 

 

5. 

by the PY04 IDPL CDR selection board, which met in August 2003, it is not “unlikely 
that he would have been promoted in any event.”9 
 
Accordingly, relief should be granted by removing the applicant’s failure 
 
of  selection  by  the  PY04  ADPL  CDR  selection  board,  backdating  his  date  of  rank  to 
what it would have been had he been selected by the PY04 IDPL CDR selection board 
and promoted with his active duty running mate, and awarding him any backpay and 
allowances he might be due as a result of these corrections. 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
9 Id. at 176. 

 

ORDER 

 
 

 

 
 

 
 Jordan S. Fried 

The application of LCDR xxxxxxxxxxxxxxxxxxxxxxxx, USCGR, for correction of 

 
 
his military record is granted as follows: 
 
 
The  Coast  Guard  shall  remove  his  failure  of  selection  by  the  PY04  ADPL  CDR 
selection board from his record; backdate his date of rank to what it would have been 
had  he  been  selected  by  the  PY04  IDPL  CDR  selection  board  and  promoted  with  his 
active duty running mate; and pay him any backpay and allowances he may be due as a 
result of these corrections. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 Kathryn Sinniger 

 

 
 
 Steven J. Pecinovsky