DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-001 
 
XXXXXXXXXXXXXXXX 
xxxxxxxxxxxxx, LT 
   

 

 
 

FINAL DECISION 

 
AUTHOR:  Ulmer, D. 
 
 
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 
application  on  October  7,  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  July  13,  2006,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST 

 

The  applicant,  a  member  of  the  Coast  Guard  Reserve,  requested  that  a  special 
selection  board  consider  her  for  promotion  to  lieutenant  commander  (LCDR).  She 
further requested that if selected by the special selection board that her LCDR date of 
rank be adjusted to the date she would have received if she had been selected by the 
calendar year 2005 inactive duty promotion list (IDPL) LCDR selection board, with back 
pay and allowances.  

 
The  Coast  Guard  has  no  statutory  authority  to  hold  special  selection  boards.1 
Therefore,  the  BCMR  will  treat  the  applicant's  request  as  one  for  the  removal  of  her 
failure of selection, if any is denoted in her record, and the placement of her corrected 
record before the next IDPL LCDR selection board as an officer who has not failed of 
selection  for  promotion  to  that  grade.  The  BCMR  will  further  consider  that  if  the 

                                                 
1   See advisory opinion infra. 

applicant is selected for promotion to LCDR by the next IDPL selection board, that her 
date of rank be adjusted retroactively to the date she would have had, if she had been 
selected by the 2005 promotion board, with back pay and allowances. 

 
 

 

 

APPLICANT’S ALLEGATIONS 

The  applicant  alleged  that  the  Coast  Guard  committed  an  error  by  not  adding 
her name to the list of candidates that were considered for promotion to LCDR by the 
calendar year 2005 IDPL promotion board, although CGPC had informed her that her 
name would be added to that list.  She asserted that due to this error, she did not have 
an opportunity to be selected and promoted to LCDR in 2005.  The applicant had been 
on  an  extended  active  duty  (EAD)  contract,  which  ended  on  July  31,  2005.      The 
selection board met on August 15, 2005. 
 

VIEWS OF THE COAST GUARD 

 

On February 21, 2006, the Judge Advocate General (JAG) submitted an advisory 
 
opinion recommending that the Board grant alternative relief to the applicant.  The JAG 
admitted  that  the  Coast  Guard  committed  an  error  by  not  submitting  the  applicant's 
record to the 2005 IDPL selection board.  The JAG stated the following: 
 

Applicant's record should have been considered by the [2005] IDPL LCDR 
Promotion  Board.    Applicant  was  eligible  for  selection  based  upon  the 
following facts:  (1) she was released from active duty into a reserve status 
on 31 July 2005; (2) the board convened on 15 August 2005; (3) her date of 
rank was 22 March 2000; and (4) the date of rank of the most junior officer 
considered  for  promotion  was  20  April  2001  .  .  .    this  error  occurred 
despite  Applicant's  efforts  to  ensure  that  her  record  was  screened.  
Therefore  it  is  reasonable  to  conclude  that  Applicant  has  presented 
sufficient evidence of an administrative error by the Coast Guard to rebut 
the presumption of regularity afforded government officials.   

 
 
The JAG stated that Coast Guard policy does not provide for convening special 
selection boards or back pay and allowances for a Reserve officer not considered by a 
IDPL  selection  board  due  to  administrative  error.    The  JAG  stated  that  the  proper 
remedy  for  such  cases  as  applicant's  is  found  under  Article  7.A.7.b.  of  the  Reserve 
Policy Manual, which states, as follows:  
 

A  Reserve  officer  is  not  considered  to  have  failed  selection  if  the  officer 
was not considered by a selection board due to administrative error. 
 

(1)  If  the  officer  is  selected  by  the  next  appropriate  selection  board  after 
the  error  is  discovered,  and  is  promoted,  then  the  date  of  rank  and 
precedence on the IDPL shall be assigned that would have been assigned 
if the officer had been recommended for promotion by the selection board 
that  originally  would  have  considered  the  officer  but  for  the  error  (14 
U.S.C. 739(b)).   
 
(2) However, such officer's date of appointment, which is the effective date that 
pay and allowances in the higher grade begins, cannot be backdated.  The date of 
appointment  is  that  date  the  Secretary  exercises  promotion  authority 
regardless of how much later that date may be than the date of rank.  

 

The Coast Guard recommended that the applicant's record be corrected to delete 
any references to the non-selection by the 2005 IDPL LCDR Promotion Board; that her 
record should go before the 2006 IDPL LCDR Promotion Board; that if she is selected 
for LCDR she be assigned the same date of rank and precedence on the IDPL that she 
would  have  had  if  she  had  been  selected  for  promotion  by  the  2005  IDPL  LCDR 
Promotion Board; and that she not receive a backdated date of appointment or back pay 
and allowances.   

 
However  in  a  supplemental  advisory  opinion,  the  JAG  offered  a  point  of 
clarification  on  its  comment:  "Applicant  may  not  receive  a  backdated  date  of 
appointment or back pay and allowances.  Her date of appointment and effective date 
of any increased pay and allowances should be determined by the date on which the 
Secretary exercises promotion authority."  In this regard, the JAG offered the following: 

 
[T]he Coast Guard policy contained in the Reserve Policy Manual does not 
prevent the Board for Correction of Military Records or the Secretary from 
providing the remedy of back pay and allowances to the applicant if she is 
entitled to it.  The Secretary, acting through the Board, has the statutory 
authority  under  10  U.S.C.  §  1552(c)  to  pay  a  claim  for  loss  of  pay  or 
allowances if it is found to be due the claimant when correcting a military 
record.    As  another  option,  the  Secretary  may  adjust  the  date  of 
appointment,  which  is  the  effective  date  of  pay  and  allowances  in  the 
higher grade, when he exercises promotion authority in Applicant's case, 
if  she  is  selected  for  promotion  by  the  [calendar  year  2006]  IDPL  LCDR 
promotion board.  [See 14 U.S.C. § 736(c)].   

 

APPLICANT'S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On February 22, 2006, the original advisory opinion was sent to the applicant and 
 
on March 15, 2005, the supplemental advisory opinion was sent to the applicant.   The 
BCMR did not receive a reply from the applicant to either mailing.   

 

FINDINGS AND CONCLUSIONS 

The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 

 
 
applicant's record and submissions, the Coast Guard's submission, and applicable law: 
 
 
United States Code.  The application was timely.  
 

1.    The  BCMR  has  jurisdiction  of  the  case  pursuant  to  section  1552  of  title  10, 

2.    The  calendar  year  2005  IDPL  LCDR  selection  board  did  not  consider  the 
applicant’s record due to an administrative error, i.e. the Coast Guard failed to place her 
name  on  the  list  of  candidates  being  considered  for  promotion  to  LCDR  by  the  2005 
IDPL promotion board.  The Coast Guard concedes the error.   

 
3.  The  applicant's  request  for  a  special  selection  board  cannot  be  granted  since 
the  Coast  Guard  does  not  have  the  statutory  authority  to  convene  such  boards.2  
However,  the  applicant  is  entitled  to  the  relief  normally  granted  in  these  situations, 
which  is  the  removal  of  the  2005  failure  of  selection  for  promotion,  if  any,  from  her 
record, and if selected for promotion by the calendar year 2006 IDPL LDCR selection 
board, her date of rank, once promoted, will be adjusted retroactively to the date she 
would  have  received  if  selected  by  the  2005  selection  board,  with  back  pay  and 
allowances.3  The Coast Guard agreed that the applicant should have relief, but did not 
initially  recommend  back  pay  and  allowances  for  the  applicant  under  the  mistaken 
belief  that  Article  7.A.7b.  of  the  Reserve  Policy  Manual4  prevented  the  Board  from 
awarding  the  back  pay  owed  to  the  applicant  as  a  result  of  correcting  her  record.   
However, the JAG subsequently issued a point of clarification on the back pay issue.  In 
the  clarification,  the  JAG  stated  that  under  10  U.S.C.  §  1552(c)5  the  Secretary  acting 
through  the  Board  has  the  authority  to  award  back  pay  that  is  owed  as  a  result  of  a 
record correction.6  
                                                 
2   In BCMR No. 2001-016, the Board also noted, based on advice from the Judge Advocate General, that 
the Coast Guard did not have statutory  authority to hold special selection boards   
3   Section 739(b) of title 14 of the United States Code states that a Reserve officer whose record was not 
considered  by  a  selection  board  due  to  administrative  error  but  who  is  selected  by  the  next  selection 
board, once promoted, shall have the same date of rank and precedence that would have been assigned if 
selected by the that Board that would have considered the officer but for the error.   
4   Article 7.A.7(b)(2) of the Reserve Policy Manual states that an officer's date of appointment (under the 
provision of 14 U.S.C. 739(b)), which is the effective date that pay and allowances in the higher grade can 
begin, cannot be backdated.   This provision of the Manual further states that the date of appointment is 
that date the Secretary exercises promotion authority regardless of how much later that date may be than 
the date of rank.    
5  Section 1552(c) of title 10 of the United States Code authorizes the Secretary to pay money owed as a 
result of a record correction from current appropriations.   
6   The JAG also recognized that under 14 U.S.C. 736(c), the Secretary may adjust a date of appointment as 
a matter of equity.   This provision of the law states in pertinent part:   ". . . the date of appointment shall 

 
4.  By  way  of  information,  the  Board  has  directed  back  pay  and  allowances  in 
similar cases, often with the agreement of the Coast Guard.  For instance in BCMR No. 
2001-040,  the  applicant's  record  was  not  considered  by  the  1999  lieutenant  selection 
board  due  to  administrative  error.    He  was  selected  the  next  year.    The  Coast  Guard 
itself adjusted that applicant's date of rank retroactive to the date he would have had if 
he  had  been  selected  by  the  earlier  board  and  directed  the  applicant  to  apply  to  the 
BCMR for back pay and allowances with a favorable recommendation for relief.    
 

5.  Accordingly, the applicant is entitled to the partial relief directed below.   

 
 
 
 
 
 
 

 
 

 

[ORDER AND SIGNATURES ON NEXT PAGE] 

                                                                                                                                                             
be that date when promotion authority is exercised by the Secretary.  However, the Secretary may adjust 
the date of appointment  . . .  for any  . . . reason that equity requires."  

 
 

ORDER 

The application of LT xxxxxxxxxxxxxxxx, USCGR, for correction of her military 

 
 
record is granted in part, as follows:   
  
 
(1)  The  Coast  Guard  shall  ensure  that  all  references,  if  any,  to  a  failure  of 
selection before the calendar year 2005 IDPL LCDR promotion board are removed from 
the applicant's record.   
 
 
(2)  The  applicant's  record  shall  be  placed  before  the  calendar  year  2006  IDPL 
LCDR  promotion  board.    If  she  is  selected  for  promotion  by  that selection  board,  her 
LCDR  date  of  rank,  once  promoted,  shall  be  adjusted  retroactively  to  the  date  she 
would  have  been  assigned  if  she  had  been  selected  by  the  2005  selection  board,  with 
back pay and allowances.   
 

All other relief is denied. 

 

 
 Philip B. Busch 

 

 

 
 Dorothy J. Ulmer 

 

 

 
 Richard Walter