DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-147 
 
xxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxx   

FINAL DECISION 

 

 
 

 

 
AUTHOR:  Andrews, J. 
 
 
This proceeding was conducted under the provisions of section 1552 of title 10 and sec-
tion 425 of title 14 of the United States Code.  The Chair docketed the case on July 14, 2006, 
upon receipt of the completed application. 
 
 
who were designated to serve as the Board in this case. 
 

This final decision, dated March 30, 2007, is signed by the three duly appointed members 

APPLICANT’S REQUEST AND ALLEGATIONS 

The applicant, who was a commander in the Coast Guard Reserve when he submitted his 
application, asked the Board to remove from his record his failure of selection for promotion to 
captain by the Reserve captain selection board that met in the summer of 2005.  He further asked 
that, if selected for promotion by the board that met in the summer of 2006, his date of rank be 
backdated to what it would have been had he been selected for promotion in 2005.  (The appli-
cant was in fact selected for promotion by the Reserve captain selection board that met in 2006.)   
 

The applicant alleged that many weeks before the Reserve captain selection board met in 
2005, he submitted a promotion package to that board through his chain of command.  However, 
his supervisor departed on leave for five weeks and never forwarded the package.  Therefore, his 
package remained in his supervisor’s in-box and was not reviewed by the selection board when it 
met. 

 
In  support  of  his  allegation,  the  applicant  submitted  statements  from  his  supervisor, 
CAPT C, and from the Area Chief of Staff Reserves, CAPT D.   CAPT C wrote that in the “sum-
mer of 2005, I was out of the office on leave and TAD for approximately five weeks out of a six 
week  period.    I  returned  to  the  office  at  the  end  of  that  period  to  find  a  package  from  [the 
applicant] to the Reserve O-6 promotion board in my inbox.  Unfortunately, administrative staff 

did not recognize the urgency of the package.  By the time I realized what it contained, it was too 
late  to  get  the  information  before  the  board.”  CAPT  D  wrote  that  the  applicant’s  promotion 
package was inadvertently delayed while his supervisor was out of the office.  CAPT D stated 
that CDR N of the Reserve Personnel Management Division at Headquarters had informed him 
that the applicant’s package was not received until after the Reserve captain selection board had 
completed its deliberations. 
 

VIEWS OF THE COAST GUARD 

 
 
On December 7, 2006, the Judge Advocate General of the Coast Guard issued an advi-
sory opinion recommending that the Board grant the applicant’s request.  In doing so, he adopted 
the facts and analysis provided in a memorandum on the case prepared by the Coast Guard Per-
sonnel Command (CGPC). 
 

CGPC  noted  that  the  bulletin  that  announced  the  candidates  for  the  Reserve  captain 
selection  board  in  the  summer  of  2005,  ALCGPERSCOM  050/05,  issued  on  June  10,  2005, 
included the applicant as a candidate and stated that “Reserve officers eligible to be considered 
by this board are strongly encouraged to submit communications to the board IAW Art. 5.A.4.e. 
of [the Personnel Manual].  Communications should be sent in care of [CGPC-RPM] to arrive 
NLT the day the board convenes.” 

 
CGPC  stated  that  the  applicant’s  chain  of  command  has  admitted  that  the  applicant’s 
communication to the selection board was not timely forwarded to CGPC and that the applicant 
was unaware of the problem until his supervisor returned, by which time it was too late.  CGPC 
stated that the “delay in processing the Applicant’s request was beyond his control and he was 
unjustly disadvantaged by having an incomplete record considered by the board.” 

 
CGPC stated that the applicant was not selected in 2005 but was selected for promotion 
to captain in 2006.  CGPC stated that, had the applicant been selected in 2005, his date of rank as 
a captain would have been July 1, 2006.  CGPC recommended that the Board promote the appli-
cant to captain with a date of rank of July 1, 2006, and award him back pay and allowances. 
 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

On  December  8,  2006,  the  Chair  sent  the  applicant  a  copy  of  the  views  of  the  Coast 

 
 
Guard and invited him to respond within 30 days.  No response was received. 
 

FURTHER PROCEEDINGS 

 
 
On March 8, 2007, in response to a question from the BCMR staff about the applicant’s 
status, CGPC explained that, to avoid having to retire the applicant, the Coast Guard promoted 
him to captain on September 29, 2006, following Senate confirmation of the selection list result-
ing from the Reserve captain selection board that convened in the summer of 2006.  The Coast 
Guard stated that when the applicant was promoted, his name appeared at the top of the 2006 
selection list and the 2005 list had been depleted. 
 

 
Title 14 U.S.C. § 729 states the following regarding the promotion of Reserve officers 

APPLICABLE LAW 

 

and recommendations of selection boards:  

 
(a) Except as otherwise provided by law, a Reserve officer shall only be promoted pursuant to the 
recommendation of a selection board. 
  
(b) The Secretary shall convene selection boards from time to time to recommend Reserve officers 
for promotion to the next higher grade.  A board may be convened to consider officers in one or 
more grades. 
  
(c) A selection board shall, from among the names of those eligible Reserve officers submitted to 
it, recommend for promotion to the next higher grade …  
  
(d) (1) Before convening a selection board to recommend Reserve officers for promotion, the Sec-
retary shall establish a promotion zone for officers serving in each grade to be considered by the 
board. … 
  
(f) The provisions of section  260 of this title apply to boards convened  under this section. The 
Secretary shall determine the procedure to be used by a selection board. 
  
(g) The report of a selection board shall be submitted to the Secretary for review and transmission 
to  the  President  for  approval.    When  an  officer  recommended  by  a  board  for  promotion  is  not 
acceptable to the President, the President may remove the name of that officer from the report of 
the board. 
  
(h) The recommendations of a selection board, as approved by the President, constitute a list of 
selectees from  which the promotions of Reserve officers shall be made.  An officer on a list of 
selectees remains thereon until promoted unless removed  by the President  under section 738 of 
this title.  If an existing list of selectees has not been exhausted by the time a later list has been 
approved, all officers remaining on the older list shall be tendered appointments prior to those on 
the later list. 
  
(i) A Reserve officer whose name is on a list of selectees for promotion shall, unless that officer's 
promotion is lawfully withheld, be tendered an appointment in the next higher grade on the date a 
vacancy occurs, or as soon thereafter as practicable in the grade to which the officer was selected 
for promotion or, if promotion was determined in accordance with a running mate system, at the 
same time, or as soon thereafter as practicable, as that officer's running mate is tendered a similar 
appointment. 
 
Article 7.A.9. of the Reserve Policy Manual (RPM) states that “[t]he recommendations of 
selection boards as approved by the Commandant (for promotion to lieutenant commander and 
below) and as approved by the President (for promotion to commander and above) constitute a 
list  of  selectees  from  which  the  promotions  of  Reserve  officers  shall  be  made  (14  U.S.C. 
729(h)).” 
 

Article 7.A.11.a. of the RPM states that a “Reserve officer whose name is on an approved 
promotion list will be promoted to the next higher grade at the same time or as soon thereafter as 
practicable as the officer's running mate is promoted (14 U.S.C. 729(i)).” 

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 applicable law: 
 

The Board has jurisdiction concerning this matter pursuant to section 1552 of title 

1. 

10 of the United States Code.  The application was timely. 
 

2. 

The applicant has proved by a preponderance of the evidence that his record was 
incomplete when it was reviewed by the Reserve captain selection board that met in 2005.  His 
communication  to  the  selection  board  was  not  timely  forwarded  by  his  chain  of  command.  
Given the provisions in ALCGPERSCOM 050/05 strongly encouraging the candidates to submit 
such communications, the Board finds that the lack of one in the applicant’s record when it was 
considered by the selection board in 2005 likely prejudiced him before that board.  In light of the 
applicant’s selection for promotion in 2006, the Board finds that the applicant likely would have 
been  selected  in  2005  had  his  communication  been  timely  forwarded  to  the  selection  board.  
Therefore, in accordance with the decision in Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 
1982),1 the applicant’s failure of selection in 2005 should be removed from his record. 
 

The  applicant  asked  the  Board  to  backdate  his  promotion  if  selected  by  the 
Reserve captain selection board in 2006.  The Coast Guard has stated that July 1, 2006, is the 
date the applicant would have been promoted had he been selected for promotion by the selec-
tion board that convened in 2005.  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).  Because the applicant was selected for promotion in 2006, the Coast Guard 
recommended that the Board directly promote the applicant to captain with a date of rank of July 
1, 2006, and award him back pay and allowances.  However, the Board has since learned that the 
Coast Guard already promoted the applicant as of September 29, 2006. 

3. 

 
4. 

Accordingly, relief should be granted by backdating the applicant’s date of rank 
to July 1, 2006, and awarding him the back pay and allowances that would be due as a result of 
this correction. 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
 
 

                                                 
1 Under Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982), to determine whether an 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?”  

ORDER 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 Philip B. Busch 

The  application  of  xxxxxxxxxxxxxxxxxxxxxx,  USCGR,  for  correction  of  his  military 
record  is  granted.    Upon  promotion  to  captain  (O-6)  as  a  result  of  his  selection  by  the  IDPL 
captain selection board that convened in 2006, his date of rank as a captain shall be backdated to 
July 1, 2006.  The Coast Guard shall pay him the back pay and allowances due as a result of this 
correction. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 Steven J. Pecinovsky 

  

 

 
 Francis H. Esposito