DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2007-141 
 
xxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxx   

FINAL DECISION 

 
 
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 June 8, 2007, upon receipt of 
the completed application, and assigned it to staff member J. Andrews to prepare the decision for 
the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 

This final decision, dated February 21, 2008, is approved and signed by the three duly 

 

 
 

 

 

APPLICANT’S REQUEST 

The  applicant,  who  was  still a lieutenant when he submitted his application, asked the 
Board to correct his record to show that he was selected for promotion by the promotion year 
2007  (PY07)  lieutenant  commander  (LCDR)  selection  board,  which  convened  on  August  21, 
2006.  He asked the Board to assign him the date of rank as a LCDR that he would have received 
had he been selected for promotion by the PY07 LCDR selection board; to adjust his placement 
on the active duty promotion list; and to award him corresponding back pay and allowances. 

 
The applicant alleged that he was not selected for promotion by that board because of an 
erroneous officer evaluation report (OER) in his record, which has since been corrected by the 
Personnel  Records  Review  Board  (PRRB).    The  OER  covered  his  performance  from  June  1, 
2005, through May 31, 2006.  He argued that if the OER had been prepared correctly, he would 
have been selected for promotion in 2006 and promoted to LCDR on August 1, 2007.  Instead, he 
was selected for promotion by the PY08 LCDR selection board, after the OER had been correct-
ed through the PRRB, and was not promoted until January 1, 2008.   

 
The  applicant  alleged  that  the  erroneous  OER  prejudiced  his  record  because  the 
“Description of Duties” in block 2, which is the most critical part of an OER considered by a 
selection  board,  contained  clear  errors  that  significantly  understated  his  responsibilities.    The 
erroneous OER failed to show that he supervised anyone or managed any resources as the Assis-
tant Prevention Department Head and Chief of the Investigations Division.  His role as Chief of 
the Investigations Division was not mentioned and his duties as Assistant Prevention Department 

Head were prefaced with the phrase “During dept head’s absence …,” which erroneously indi-
cated  that  he  only  performed  these  duties  on  rare  occasions  when  his  supervisor  was  absent.  
Moreover, the erroneous OER indicated that he was the Assistant Public Affairs Officer (APAO) 
for his unit, whereas in fact he was the Public Affairs Officer (PAO).  The applicant alleged that 
these  errors  are  particularly  egregious  because  they  mislead  a  reviewer  to  conclude  that  his 
duties, which had been correctly reported on his previous OER, had been reduced, as if he had 
been demoted from supervisory duties.  In support of these allegations, the applicant submitted 
copies of the original OER and the OER as corrected through the PRRB: 

 
The following is the Description of Duties in the applicant’s original OER for the period 
June 1, 2005, through May 31, 2006, which was reviewed by the PY07 LCDR selection board on 
August 21, 2007, but later corrected through the PRRB: 

 
SENIOR INVESTIGATING OFFICER (SIO): Leads investigations & enforcement activities of all 
marine casualty, civil violation of US/international regs/laws/treaties & merchant mariner miscon-
duct or negligence. Takes appropriate action through written warnings, civil penalties, or dispen-
sation of cases before a Federal Administrative Law Judge. ASST CHIEF, PREVENTION DEPT 
(APREV): During dept head’s absence supervises/manages 2 civ, 10 Os, 6 Enl personnel & $8K 
budget, conducting safety & security inspections onboard foreign/domestic vsls & 200+ outer con-
tinental shelf (OCS) oil & natural gas production units. COLLATS: Assistant Public Affairs Offi-
cer (APAO), Senior Performance Health Coordinator. 
 
The following is the Description of Duties in the applicant’s OER for the period June 1, 
2005, through May 31, 2006, as corrected by the Coast Guard Personnel Command through the 
PRRB on January 16, 2007: 

 
INVESTIGATIONS DIVISION CHIEF:  Leads 1 Ofcr & 3 Enlisted conducting marine casualty & 
mariner  misconduct/drug  use/negligence  invest’gns  &  reslting  enforcement  of  US/intn’l  regs/ 
treaties violations. Issues warnings, civil penalties & resolves mariner credential suitability.  ASST 
CHIEF, PREVENTION DEPT (APREV): (acting Dept head 25 days) Directs 2 civ, 10 Ofcrs, 6 
enlisted & administers $12K AFC-30; in complex safety/security inspections & investigations on 
1100+ vsls & 200+ outer continental shelf (OCS) petroleum drill/production units.  Coord’s dept 
24/7  response  to  casualties.  Hurr  Rita: Resource Unit Ldr & Joint Info Ctr (JIC) Public Affairs 
Officer (PAO).  Unit PAO, Sr. Performance Health Coordinator. 
  

VIEWS OF THE COAST GUARD 

 
 
On October 18, 2007, the Judge Advocate General of the Coast Guard forwarded to the 
Board a memorandum on the case prepared by the Coast Guard Personnel Command (CGPC) 
and asked the Board to accept the findings and recommendations therein as the Coast Guard’s 
advisory opinion.   
 

CGPC recommended that the Board grant relief by correcting the applicant’s record “to 
reflect as though he was selected by the PY07 LCDR Selection board with a back date of rank 
and  pay/allowances  commensurate  with  such  change.”    CGPC  stated  that  it  “is  plausible  that 
these ultimately expunged inaccuracies in the disputed OER in part resulted in the applicant’s 
non-selection by the PY07 Lieutenant Commander Selection Board.”  CGPC stated that this alle-
gation is supported by the fact that the applicant was selected for promotion after the disputed 
OER was corrected.  CGPC stated that it is “reasonable to conclude” that the applicant would 
have been selected for promotion in August 2006 if his OER had been correctly prepared. 

 

On October 30, 2007, the applicant responded to the Coast Guard’s advisory opinion by 
agreeing  with  CGPC’s  recommendation.    He  noted  that  because  of  his  failure  of  selection  in 
2006, he has missed various leadership opportunities.  
 

FINDINGS AND CONCLUSIONS 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

1. 

2. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  

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 applicable law: 
 
 
The application was timely. 
 
 
Article 10.A.1.b.1. of the Personnel Manual provides that “Commanding officers 
must  ensure  accurate,  fair,  and  objective  evaluations  are  provided  to  all  officers  under  their 
command.”    In  light  of  the  corrections  made  to  the  applicant’s  OER  through  the  PRRB,  this 
Board finds that the applicant has proved by a preponderance of the evidence that his perform-
ance record was inaccurate when it was reviewed by the PY07 LCDR selection board because the 
Description of Duties in his then most recent OER failed to reflect the full scope of his responsi-
bilities.   
 
Under Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982), when an officer 
 
proves that his record contained an error when it was reviewed by a selection board that did not 
select him for promotion, this Board must answer the following two questions to determine if the 
applicant is entitled to the removal of his failure of selection:  “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 [selected for promotion in 2006] in any event?”   
 
 
The  Board  is  persuaded  that  the  applicant’s  record  was  prejudiced  before  the 
PY07 LCDR selection board by the errors in the Description of Duties block in his original OER 
for the period June 1, 2005, through May 31, 2006.  The original Description of Duties reports 
his  primary  duty  as  Senior  Investigating Officer, instead of Investigations Division Chief, and 
fails to show that in performing those duties he supervised one other officer and three enlisted 
members.  The original version also denotes his first collateral duty as Assistant Public Affairs 
Officer, instead of Public Affairs Officer, and in comparison with the corrected version, it sig-
nificantly understates his responsibilities and authorities. 
 
When an officer shows that his record was prejudiced before a selection board by 
 
error,  “the  end-burden  of  persuasion  falls  to  the  Government  to  show  harmlessness—that  … 
there  was  no  substantial  nexus or connection” between the prejudicial error and the failure of 
selection.1  In this case, the Coast Guard has conceded that it is plausible and reasonable to con-
                                                 
1 Quinton v. United States, 64 Fed. Cl. 118, 125 (2005), citing Engels v. United States, 678 F.2d 173, 175 (Ct. Cl. 
1982). 

3. 

4. 

5. 

clude that the applicant would have been selected for promotion by the PY07 LCDR selection 
board had the Description of Duties in his most recent OER correctly reflected the full scope of 
his  responsibilities  and  authority.    Therefore  and  in  light  of  the  fact  that  the  applicant  was 
selected for promotion to LCDR following the revision of the OER, the Board finds that it is not 
unlikely that he would have been selected for promotion by the PY07 LCDR selection board if 
his record had been correct when reviewed by that board. 
 
Accordingly,  the  applicant’s  record  should  be  corrected  to  show  that  he  was 
 
selected for promotion by the PY07 LCDR selection board.  His date of rank should be back-
dated to what it would have been had he been selected for promotion by the PY07 LCDR selec-
tion  board,  and  his  position  on  the  active  duty  promotion  list  should  be  adjusted  accordingly.  
The Coast Guard should pay him any back pay and allowances he may be due as a result of these 
corrections. 
 
 

6. 

 
  

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

ORDER 

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

 
 
record is granted as follows: 
 
 
His record shall be corrected to show that he was selected for promotion by the PY07 
LCDR selection board.  His LCDR date of rank shall be backdated to what it would have been 
had he been selected for promotion by the PY07 LCDR selection board, and his position on the 
active  duty  promotion  list  shall  be  adjusted  accordingly.    The  Coast Guard shall pay him any 
back pay and allowances he may be due as a result of these corrections. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 

 
 Nancy L. Friedman 

 
 

 
 

 
 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 
 
 
 
 
 
 
 

 

 
 

 

 
 

 

 
 

 

 
 

 

 
 

 

 

 
 Patrick B. Kernan 

 

 

 

 
 Donald A. Pedersen