DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2005-147 
 
Xxxxxxxxxx 
  xxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on August 17, 2005, upon the 
BCMR’s receipt of the applicant’s completed application. 
 
 
members who were designated to serve as the Board in this case. 

This  final  decision,  dated  June  1,  2006,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

 

The  applicant,  a  Reserve  officer  in  the  Selected  Reserve,  asked  the  Board  to 
remove his failure of selection for promotion by the Reserve captain selection board that 
met  on  July  11, 2005.  He stated that when his record was reviewed by that selection 
board,  it  contained  a  significant,  detrimental  error  that  was  later  corrected  by  the 
BCMR.  He alleged that the error likely caused his failure of selection.   In support of his 
allegation, the applicant submitted a copy of ALCGPERSCOM 050/05 and ALCGPERS-
COM  074/05,  which  show  that  he  was  considered  for  selection  for  promotion  by  the 
Reserve captain selection board that convened on July 11, 2005, but was not selected. 

 
The applicant also noted that the “starting date” of an officer evaluation report 
(OER) in his record is erroneous as it should be January 17, 2000, instead of February 1, 
2000.  He stated that with the current starting date of February 1, 2000, his record has an 
impermissible gap since the “ending date” of his prior OER was January 16, 2000. 
 

PRIOR HISTORY:  BCMR DOCKET NO. 2004-158 

 

On  May  19,  2005,  the  Board  signed  a  split  decision  with  the  majority  recom-
mending  to  the  delegate  of  the  Secretary  that  relief  be  granted  in  BCMR  Docket  No. 

2004-158 by ordering the Coast Guard to correct an OER covering the applicant’s per-
formance from February 1 to September 30, 2000, by  
 

  changing the date in block 1.m. to March 27, 2001 (2001/3/27); 
  raising the mark for “Evaluations” in block 5.f. from 3 to 4;  
  deleting from block 5 the comment, “Evaluation delayed due to sudden and 
unexpected transfer and lack of software and forms at new DOD command”; and 
  removing the reviewer’s comment page, CG-5315.  
 
The disputed OER contained many very positive comments and noted that the 
applicant had recently been promoted.  Aside from the low mark of 3 for “Evaluations,” 
the applicant received one mark of 4, fifteen marks of 5, and one mark of 6 in the vari-
ous  performance  categories,  and  a  mark  of  5  on  the  comparison  scale.1    In  the  corre-
sponding comments section for the mark of 3, his supervisor wrote the following:   

 
“Evaluation delayed due to sudden and unexpected transfer and lack of 
software  and  forms  at  new  DOD  command.    Provided  complete,  well-
documented  evaluation;  excellent  input  to  CWO4  and  GS-7s  perform-
ance.”   
 
The reporting officer’s comments indicated that the applicant was unexpectedly 
transferred to the U.S. Joint Forces Command and that he was “sorry to lose [the appli-
cant’s] expertise.”  The reviewer of the OER added an optional comment page stating 
the following:   

 
“I  am  disappointed  by  the  amount  of  time  that  elapsed  between  [the 
applicant’s]  departure  from  this  command  and  his  submission  of  OER 
input.  His input was many months late, and directly contributed to the 
lateness  of  this  report.    This  shortcoming  is reflected in his ‘evaluations’ 
mark, and tarnishes an otherwise positive evaluation.” 
 
The  majority  of  the  Board  recommended  granting  relief  because  the  mark  of  3 
 
and supporting negative comments reflected conduct that occurred outside of the eval-
uation period for the disputed OER and therefore clearly violated Articles 10.A.4.f.11. 
and 10.A.4.c.11.g. of the Personnel Manual.  The applicant was informed on October 17, 
2000, that he had been transferred to a new command as of September 30, 2000, and that 
the transfer required him to initiate an OER.  Since the applicant was not informed of 
his transfer during the evaluation period, any undue delay by him in providing input 

                                                 
1  Coast Guard officers are evaluated in a variety of performance categories on a scale of 1 to 7, with 7 
being  best.    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.  A comparison scale mark in the fifth place 
means the officer was rated to be a “distinguished performer; give tough challenging, visible leadership 
assignments.” 

for  the  OER  necessarily  occurred  after  the  evaluation  period  ended.    Therefore,  the 
majority found, such delay should not have been mentioned and should not have been 
used to support a lower mark in his OER for the period ending September 30, 2000.   
 
 
On July 25, 2005, the Chair informed the Coast Guard that the Board’s majority 
recommended decision had become the final decision of the Board in accordance with 
14 U.S.C. § 425(b)(1) because the delegate of the Secretary had returned the case to the 
BCMR without having taken action prior to the ten-month deadline for issuing a final 
decision on the case, which was July 14, 2005. 
 

VIEWS OF THE COAST GUARD 

On January 3, 2006, the Judge Advocate General (JAG) of the Coast Guard sub-

 
 
mitted an advisory opinion in which he recommended that the Board grant relief. 
 
 
 
The JAG adopted the facts and analysis of the case provided in a memorandum 
by the Coast Guard Personnel Command (CGPC).  CGPC stated that because when the 
selection  board  convened  on  July  11,  2005,  the  applicant’s  record  contained  negative 
information  later  removed  by  the  BCMR,  “it  is  likely  that  the  applicant’s  record  was 
prejudiced before the PY06 [promotion year 2006] IDPL [inactive duty promotion list] 
CAPT  Selection  Board.”    Therefore,  CGPC  recommended  that  the  BCMR  not  only 
remove the applicant’s failure of selection in 2005 but also, if he is selected for promo-
tion by the next IDPL (Reserve) captain selection board to review his record as correct-
ed, backdate the applicant’s date of rank as a captain to the date he would have had had 
he been selected for promotion to captain in July 2005. 
 
 
In addition, CGPC agreed that the starting date for the applicant’s OER should 
be January 17, 2000, instead of February 1, 2000, since the ending date of the applicant’s 
prior OER was January 16, 2000. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On January 12, 2006, the applicant stated that he agreed with the recommenda-

  
 
tion of the Coast Guard. 
 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submission, and appli-
cable law: 
 
 
§ 1552.  The application was timely. 
 

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

1. 

2. 

 
When the Reserve captain selection board met on July 11, 2005, the errors 
addressed by the Board in BCMR Docket No. 2004-185 had not yet been corrected.  The 
applicant  asked  the  Board  to  remove  from  his  record  his  failure  of  selection  by  the 
Reserve captain selection board that convened on July 11, 2005, on the grounds that his 
record still contained prejudicial errors when the selection board reviewed it.  The Coast 
Guard  agreed  with his assessment and recommended that the Board grant this relief.  
To determine whether the applicant’s failure of selection should be removed, the Board 
must  answer  two  questions:    “First,  was  [the  applicant’s]  record  prejudiced  by  the 
errors  in  the  sense  that  the  record  appears  worse  than  it  would  in  the absence of the 
errors?    Second,  even  if  there  was  some  such  prejudice,  is  it  unlikely that [he] would 
have  been  promoted  in  any  event?”  Engels  v.  United  States,  678  F.2d  173,  176  (Ct. Cl. 
1982). 
 

3. 

Article 10.A.4.c.4.g. of the Personnel Manual states that on an OER form a 
“mark of four represents the expected standard of performance.”  Therefore, a mark of 
3  is  considered  a  low  mark  reflecting  a  level  of  performance  that  does  not  meet  the 
expected  standard.    In  addition,  the  erroneous supporting comments removed by the 
BCMR  in  the  applicant’s  prior  case  were  negative  assessments  of  his  performance.  
Therefore, the Board finds that the applicant’s record was prejudiced in the sense that it 
appeared  worse  than  it  would  have  in  the  absence  of  the  errors  when  the  selection 
board reviewed it. 

 
4. 

 
5. 

The applicant’s performance record, as corrected by the BCMR in Docket 
No.  2004-185,  contains  consistent  recommendations  for  promotion,  many  high marks, 
many laudatory comments, and no mark lower than a 4 since the applicant was a lieu-
tenant  junior  grade  in  1988.    Given  the  fine  quality  of  the  applicant’s  performance 
record, the Board finds that it is not unlikely that he would have been selected for pro-
motion had his record been correct when it was reviewed by the Reserve captain selec-
tion board in 2005.  Therefore, the Board agrees with the Coast Guard that the applicant 
has met both parts of the Engels test and is entitled to the removal of his failure of selec-
tion. 

As the Coast Guard indicated, when the Board corrects an officer’s record 
by  removing  a  failure  of  selection  by  a  selection  board,  the  applicant  is  normally 
entitled to a backdated date of rank, as well as corresponding back pay and allowances, 
if he is selected for promotion by the next such selection board to review his record as 
corrected.    See  Sanders  v.  United  States,  219  Ct. Cl. 285 (1979).  Such relief reflects that 
mandated under 14 U.S.C. § 739(b) when, due to an administrative error, a Reserve offi-
cer’s record is not considered by a selection board.  In the instant case, if the applicant’s 
record  had  not  contained  prejudicial  errors  on  July  11,  2005,  he  might  have  been 
selected for promotion by the selection board.  Therefore, if the applicant is selected for 
promotion to captain by the next selection board to review his record, his date of rank 
should be backdated to what it would have been had he been selected for promotion in 
July 2005, and he should receive corresponding back pay and allowances. 

 

6. 

The  applicant  asked  the  Board  to  correct  the  starting  date  of  one  of  his 
OERs  from  February  1,  2000,  to  January  17,  2000.    The  applicant’s  prior  OER  has  an 
ending date of January 16, 2000.  Article 10.A.4.c.1.j. of the Personnel Manual states that 
“[t]he regular reporting period commences the day after the ending date of the previous 
regular  OER  or the day of commissioning (for the first OER for newly commissioned 
officers)  and  ends  on  the  date  of  the  occasion  for  the  current  report.  …  Elapsed  time 
between permanent or temporary duty stations (in transit, on leave, hospitalized, etc.) 
shall  be  accounted  for  in  the  next  period  of  report  …  .”    Therefore,  the  Board  agrees 
with CGPC that the starting date for the OER should be corrected to January 17, 2000. 
 
 
Accordingly, the Board should grant relief by correcting the starting date 
of the applicant’s OER to January 17, 2000; by removing his failure of selection by the 
Reserve  captain  selection  board  that  met  in  July  2005;  and  by  backdating  his  date  of 
rank and awarding him corresponding pay and allowances if he is selected for promo-
tion by the next captain selection board to review his record. 

7. 

ORDER 

The  application  of  xxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his  military 

 
 
record is granted as follows: 
 
 
The starting date in block 1.j. of the OER in his record for which the ending date 
is September 30, 2000, shall be corrected to January 17, 2000, instead of February 1, 2000. 

 
His  failure  of  selection  for  promotion  by  the  PY  2006  Reserve  (IDPL)  captain 

selection board shall be removed from his record. 
 
 
If selected for promotion by the next captain selection board to review his record, 
his date of rank shall be backdated to what it would have been had he been selected for 
promotion by the PY 2006 Reserve (IDPL) captain selection board, and he shall be paid 
corresponding back pay and allowances. 
  

No copy of this decision shall be placed in the applicant’s records.  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
  

 

 
 Elizabeth F. Buchanan 

 

 

 

 
 Randall J. Kaplan 

 

 

 
 Audrey Roh