DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2005-070 
 
XXXXXXXXXXXXXXX  
xxxxxxxxxxxx, LCDR  
   

 

 
 

FINAL DECISION 

 
Author:  Ulmer, D. 
 
 
This is a proceeding under 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 February 25, 
2005, upon receipt of the applicant’s completed application and military records. 
 
 
members who were designated to serve as the Board in this case. 

This final decision, dated January 5, 2006, is signed by the three duly appointed 

 

 

APPLICANT’S REQUEST 

 
The applicant asked the Board to remove or mask all of his officer performance 
reports  (OPRs)  and  officer  evaluation  reports  (OERs)  from  a  prior  period  of  Coast 
Guard  service.1    He  also  asked  the  Board  to  remove  his  failures  of  selection  for 
promotion to commander (CDR) from his record, to back date his date of rank if he is 
selected  for  promotion  by  the  first  CDR  selection  board  to  consider  him  based  on  a 
corrected record, and to award him back pay and allowances.2  

APPLICANT’S ALLEGATIONS 

The  applicant  alleged  that  he  was  prejudiced  before  the  CDR  selection  boards 
because  his  record  contained  OERs  from  a  prior  period  of  active  duty  in  the  regular 
Coast  Guard,  while  the  records  of  the  other  members  of  his  1990  direct  commission 
aviator (DCA) class did not contain any prior service OERs.   

 

                                                 
1   In this decision, the term OERs also refers to OPRs. 
 
2   The applicant stated that he has been passed over for promotion to CDR four times.   

 
 
 
 
 

SUMMARY OF RECORD 

 

The applicant served in the regular Coast Guard from 1982 to 1988.  On June 30, 
1988, he was discharged from the Coast Guard in the grade of lieutenant junior grade 
(LTJG) because he twice failed to be selected for promotion to lieutenant (LT).   

 
On April 21, 1990, the applicant signed an oath of office in which he accepted a 
commission  in  the  Coast  Guard  Reserve  through  the  DCA  program  in  the  grade  of 
LTJG.    In  due  course,  the  applicant  was  selected  for  promotion  to  lieutenant  and  to 
lieutenant commander.   

  
On  August  4,  2003,  the  promotion  year  2004  [PY04]  CDR  selection  board 

 
considered the applicant's record but did not select him for promotion to that grade. 
 

On July 26, 2004, the PY05 CDR selection board considered the applicant's record 

but did not select him for promotion to that grade. 
 

VIEWS OF THE COAST GUARD 

 
 
On  July  11,  2005,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  the  applicant’s 
request.  The JAG stated that the applicant does not challenge the accuracy of the OERs 
but  instead  challenges  the  Coast  Guard's  policy  of  implementing  14  USC  §  258  that 
requires selection boards to receive the "name and record of all officers who are eligible 
for  consideration  for  promotion."    See  Coast  Guard  Active  Duty  Officer  Promotion 
Boards, COMDTINST 1410.1, para 7 and Encl (1).  In support of this argument, the JAG 
quoted the following from the Commander, Coast Guard Personnel Command (CGPC) 
memorandum that is attached as Enclosure (1) to the advisory opinion. 
 

In  limiting  the  evaluations  to  those  earned  as  a  Coast  Guard  officer, 
Commandant  Instruction  1410.1  serves  to  prevent  a  candidate  from 
unfairly  being  advantaged  or  disadvantaged  during  the  Selection  Board 
process.    Since  all  officers  don't  have  enlisted  service,  enlisted  records 
could  provide  additional  positive  or  negative  information  that  one 
without  enlisted  service  had  no  chance  to  earn.    Additionally,  all  Coast 
Guard officers do not have service in another Armed Force prior to entry 
in the Coast Guard.  Other Services have different standards, expectations 
and  core  values,  so  it  is  difficult  to  fairly  evaluate  the  strengths  and 
weaknesses of an individual based on those evaluations.  Any strengths or 

weaknesses  developed  in  one's  background  will  manifest  itself  in  the 
officer's Coast Guard performance that will be documented with a Coast 
Guard  standard  OER. 
  Not  displaying  prior  Coast  Guard  officer 
evaluations following a break in service could be particularly damaging to 
an  officer  that  departed  under  the  temporary  separation  program  and 
expected to have that previous service documented when going before a 
selection board.   

 
 
The JAG stated that Coast Guard's interpretation of 14 USC § 258 that a selection 
board receives all Coast Guard officer evaluations relating to a member is to be given 
considerable deference.  See e.g., Small v. United States, 158 F. 3d 576, 580 - 81 (Fed Cir. 
1998)  adopting  Chevron,  U.S.A.  v.  Natural  Resources  Defense  Council,  467  U.S.  837 
(1984).   
 
 
The  JAG  further  commented  that  "ALCOAST  214/03  Masking  Ensign  OERs" 
states that ensign evaluations should not be presented to CDR promotion boards. The 
JAG also stated that the Coast Guard considers the previous seven years of service or all 
service in the present grade as the most significant portion of the record for selection to 
CDR.  See Article 14.A.4.d. of the Personnel Manual.  The JAG argued that some of the 
OPRs/OERs the applicant seeks to have excluded either were not before the selection 
board or were not considered to be significant.   
 

 
The  JAG  stated  that  the  documents  sent  to  the  selection  board  for  its 
consideration  in  the  applicant's  case  were  substantially  complete  and  favorably 
portrayed the applicant's record.  The JAG argued that there is a strong presumption 
that  military  officials  acted  correctly,  lawfully,  and  in  good  faith.    Arens  v.  United 
States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 
(Ct. Cl. 1979).  In this regard, the JAG stated that the applicant did not raise any issues 
and there was nothing in the record to suggest that the Coast Guard did not carry out 
its responsibilities in accordance with the applicable law and Coast Guard regulation.   

 
The  JAG  asked  the  Board  to  accept  the  CGPC  memorandum  attached  as 
Enclosure (1) to the advisory opinion as part of the opinion.  CGPC stated that 14 USC § 
258  and  COMDTINST  1410.1  require  that  all  Coast  Guard  OERs  be  provided  to 
selections boards.  CGPC stated that the instruction does not specify specific periods of 
service  or  note  that  a  break  in  service  will  exclude  previous  Coast  Guard  officer 
evaluations.  CGPC stated, "Displaying the record of previous service as a Coast Guard 
officer following a break in service is a common practice when officers depart through 
the temporary separation program and return to active service." 

 
CGPC  stated  that  there  were  20  graduates  of  the  April  1990  DCA  course 
including the applicant.  The other 19 applicants did not have prior Coast Guard officer 
service, but if they had had such service, it would have been included in their records.    
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On September 12, 2005, the BCMR received the applicant's reply to the views of 
the Coast Guard.  He disagreed with the Coast Guard's recommendation that his case 
should be denied.  In regard to the Coast Guard argument that its interpretation of 14 
USC § 258 is entitled to deference, he stated that since he did not leave the Service in 
1988 under the temporary separation program and since he competed against others for 
a  direct  commissioned  appointment  in  1990,  he  should  stand  on  equal  footing  with 
those peers when going before a promotion board.  Therefore, he argued that his prior 
service OERs should be masked.  
 
 
The applicant stated that having the prior service OERs in his record did not help 
him  and  he  believes  that  he  suffered  an  injustice  by  having  them  placed  before  the 
selection board.  He stated that although he has been passed over for promotion four 
times, the aviation detailer recently offered to recall him to active duty under a contract.   

United States Code 

APPLICABLE LAW 

 

 

 

 

Section  258  of  title  14  of  the  United  States  Code  states  the  following:    "The 
 
Secretary  shall furnish the appropriate selection board convened under section 251 of 
this  title  with:  .  .  .  (2)  the  names  and  records  of  all  officers  who  are  eligible  for 
consideration for promotion to the grade to which the board will recommend officers 
for promotion, with identification of those who are in the promotion zone." 
 
Coast Guard Personnel Manual 

Selection for promotion to CDR on active duty is made on a best-qualified basis.    

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

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

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

 

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

 
boards:  performance evaluations, professionalism, leadership, and education. 
 
Article 14.A.4d. of the Personnel Manual states that “[a]  board must consider an 
 
officer’s entire record; however, the following is considered the most significant portion 
of  the  record  evaluated:    .  .  .    Commander  .  .  .    seven    years  of  immediate  previous 
service or all service in present grade, whichever is greater.” 
 
COMDTINST 1410.1 (Coast Guard Active Duty Officer Promotion Boards) 
 
 
includes "CG-5311-CG-5317 All Officer Evaluations." 
 
 
ALCOAST 214/03 
 
 
view any ensign OER at LCDR and above promotion boards . . ."  
 
 
 

This ALCOAST states, "active duty and reserve promotion boards will no longer 

Enclosure  (1)  lists  documents  to  be  viewed  by  the  selection  board.    The  list 

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: 
 
 
§ 1552.  The application was timely.  
 

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

1. 

3. 

2. 

 The  applicant  requested  an  oral  hearing  before  the  Board.    The  Chair, 
acting 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 has not proven that the Coast Guard committed an error by 
 
providing all of his Coast Guard OPRs/OERs to the CDR selection boards.  Section 258 
of title 14 of the United States Code states that the Secretary shall furnish to the selection 
boards "the names and records of all officers who are eligible for consideration to the 
grade  to  which  the  board  will  recommend  officers  for  promotion."    The  Coast Guard 
has  interpreted  this  statute  to  mean  that  a  selection  board  should  receive  all  of  an 
officer's  Coast  Guard  OERs  (except  that  ensign  OERs  will  not  be  presented  to  LCDR 
and higher selection boards) and it has implemented the policy in COMDTINST 1410.1 
and ALCOAST 214/03.  The applicant has not presented any evidence that the Coast 
Guard's regulation is contrary to law.  Therefore, the applicant has failed to prove an 

error in this regard.  Moreover, the Board notes that the applicant does not argue that 
any one of the earlier OERs is erroneous. 
 

4.  Nor has the applicant established that he suffered an injustice by having the 
earlier  OPRs/OERs  from  his  previous  Coast  Guard  service  included  in  his  military 
record.  As the Coast Guard stated, the applicant was not treated any differently than 
other officers who had prior Coast Guard service.  The fact that he was the only aviator 
from the 1990 DCA class to have prior service OERs in his record does not constitute an 
injustice; it only reflects reality.  Moreover, the law and regulation were in effect at the 
time the applicant received his 1990 Reserve commission in the Coast Guard.  The fact 
that the applicant may have been unaware of the regulation, and that he disagrees with 
it, does not render it unjust.  
 

5.  In addition, the Board notes that the Coast Guard has acted to diminish the 
impact of junior officer OERs before CDR selection boards through ALCOAST 214/03, 
which  prohibits  consideration  of  ensign  OERs,  and  through  Article  14.A.4.d.  of  the 
Personnel  Manual,    which  makes  the  last  seven  years  of  an  officer's  record  the  most 
significant.      Under  the  circumstances  of  this  case,  the  applicant's  argument  that  the 
earlier  OERs  were  the  reason  for  his  non-selections,  without  more,  is  insufficient  to 
prove that the Coast Guard committed an injustice.  The Court defined injustice in Reale 
v. United States, 208 Ct. Cl. 1010, 1011 (1976), as treatment by military authorities "that 
shocks the sense of justice."  The Coast Guard's treatment of the applicant in this case 
was consistent with the law and regulation and does not shock our sense of justice. 

 
 

 

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

 
 
 
 
 

[ORDER AND SIGNATURES ON NEXT PAGE] 

 

 

 

ORDER 

The  application  of  LCDR  XXXXXXXXXXXxxxxx,  USCG,  for  correction  of  his 

 

 
 

 
 
military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

______________________________  
 Stephen H. Barber 

______________________________ 
 Harold C. Davis, M.D. 

______________________________ 
 David Morgan Frost