DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 2007-147
XXXXXXXXXXXXX
XXXXXXXXXXXXX
FINAL DECISION
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 case on June 20, 2007,
upon receipt of the completed application, and subsequently prepared the final 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 March 13, 2008, is approved and signed by the three duly
APPLICANT’S REQUEST AND ALLEGATIONS
The applicant asked the Board to correct his record to show that he was advanced to chief
machinery technician (MKC; page grade E-7), effective September 1, 2004. The applicant
alleged that his name was removed from the Reserve advancement eligibility list and that he was
denied advancement because of a medical condition for which he was placed in a medical hold
status. At the time of his removal from the Reserve advancement eligibility list, the applicant
was serving on active duty pursuant to orders issued under Title 10 of the United States Code.
VIEWS OF THE COAST GUARD
On November 6, 2007, the Board received an advisory opinion from the Judge Advocate
General of the Coast Guard, recommending that the Board grant relief in accordance with a
memorandum from the Commander, Coast Guard Personnel Command (CGPC), which was
attached as an enclosure to the advisory opinion.
CGPC stated that in October 2003, the applicant took the Reserve service wide
examination (SWE) for advancement to MKC. The applicant was number 17 on the list because
he scored 17th highest of all the individuals who took the SWE for that cycle.
CGPC stated that on February 11, 2004, the applicant sustained an injury to his right
shoulder and as a result he was found not fit for duty and placed on medical hold. He remained
on medical hold until September 10, 2007.
The applicant received his regular Enlisted Employee Review ((EER) performance
appraisal)) on May 31, 2004. The applicant was not recommended for advancement on the EER
due to “Member cannot be recommended for advancement because he is in a medical hold status
and is not fit for full duty.”
On August 24, 2004, CGPC published the Reserve advancement list announcing those
service members who could be advanced to the next higher grade. The applicant’s name was on
this list.
However, on August 25, 2004, the applicant’s command sent messages to the Personnel
Service Center stating that the applicant was not eligible due to his “Not Recommended” for
advancement on his May 31, 2004 EER.
On August 31, 2004, the Personnel Service Center removed the applicant’s name from
the Reserve advancement list and stated that he would not be advanced due to the message from
his command.
On September 30, 2004, the applicant was released from active duty and on October 1,
2004, he was transferred to the retired reserve list without pay (RET-2).
CGPC concluded that the applicant was eligible for advancement based on the Reserve
SWE. However, before he was due to be advanced, he suffered an injury causing him to be
placed in a not fit for duty status. CGPC stated that the applicant’s command did not recommend
him for advancement on his May 31, 2004, EER because of his medical hold status. CGPC
stated that under Articles 5.C.251 and Article 10.B.6.a.32 of the Personnel Manual, personnel in a
not fit for full duty status can be advanced regardless of their fitness for duty. Moreover, CGPC
stated that Article 10.B.73 of the Personnel Manual prohibits giving adverse EERs based upon a
member’s not fit for duty status that limits his or her ability to perform. CGPC further stated the
following:
The withholding of an advancement recommendation based upon the applicant’s
medical hold status is contrary to policy. The command provides no other
justification for their adverse advancement recommendation and no guidance for
the applicant to earn an advancement recommendation. The command followed
1 Article 5.C.25.c. of the Personnel Manual states that personnel declared unfit for duty by CGPC are eligible for
advancement if their names appear above the cut-off for advancement on the current advancement eligibility list.
2 Article 10.B.6.a. of the Personnel Manual states that rating chains shall ensure that individuals who have a limited
opportunity to perform due to medical reasons do not receive adverse EERs solely for that reason.
3 Article 10.B.7. of the Personnel Manual states that a recommendation of “Not Recommended” reflects that the
member is not capable of satisfactorily performing the duties and responsibilities of the next higher pay grade. This
provision requires that the member is properly counseled on the steps necessary to earn a recommendation for
advancement.
procedure in requesting removal from the advancement list based upon his not
being recommended for advancement on his May 31, 2004 EER . . . However,
the basis for the not recommended is contrary to policy and unjustly
disadvantages the applicant.
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On November 28, 2007, the Board received the applicant’s response to the views of the
Coast Guard. He agreed with them.
FINDINGS AND CONCLUSIONS
The Board makes the following findings and conclusions on the basis of the applicant's
1. The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10
military record and submissions, the Coast Guard's submissions, and applicable law:
of the United States Code. The application was timely.
2. The JAG admitted, and the Board agrees, that the Coast Guard committed an error
when it marked the applicant as “Not Recommended” for advancement on his May 31, 2004
EER solely on the fact that the applicant was in a not for duty status. Article 10.B.6.a. of the
Personnel Manual states that members shall not receive adverse EERs solely because their
medical circumstances limit their ability to perform. The only justification given by the
applicant’s rating chain for not recommending him for advancement on his May 31, 2004 EER
was his not fit for duty status.
3. The Coast Guard committed further error by using the erroneous mark of “Not
Recommended” for advancement to justify removing the applicant from the Reserve SWE
advancement list. Article 5.C.25 of the Personnel Manual states that members above the cut-off4
on the advancement eligibility list and are found unfit for duty are eligible for advancement.
4. To summarize, the Board agrees with the Coast Guard that the removal of the applicant
from the enlisted Reserve advancement eligibility list was a violation of Article of Article 5.C.25
and Article 10.B.6.a. of the Personnel Manual.
5. The Board also finds that the mark of not recommended for advancement and the
comment “Member cannot be recommended for advancement because he is in a medical hold
status and is not fit for full duty” should be removed from the applicant’s EER dated May 31,
2004, because the Coast Guard has admitted they were assigned in violation of the regulation.
6. Accordingly, the applicant’s request should be granted.
4 Those service members above the cut-off are guaranteed advancement even after an advancement list expires,
whereas members below the cut-off must compete for advancement if not advanced prior to the expiration of the
advancement list.
ORDER
The application of XXXXXXXXXXXXX, USCGR, for correction of his military record
The applicant’s record, including his September 30, 2004 DD-214 and his RET-2 orders,
shall be corrected to show that he was advanced to MKC (E-7) effective September 1, 2004.
The applicant’s record shall be further corrected by removing the mark “not
recommended for advancement” and the comment “Member cannot be recommended for
advancement because he is in a medical hold status and is not fit for full duty” from his EER
dated May 31, 2004.
The Coast Guard shall pay him any back pay and allowances he may be due as a result of
is granted.
this correction.
Charles P. Kielkopf
Kenneth Walton
Eric J. Young
CG | BCMR | Enlisted Performance | 2007-073
The applicant alleged that in January 2006, YNC H of the in Service Transfer Team told him that upon his release from active duty, “your unit will request that you be placed on the Reserve Advancement List based on your [active duty] results – that’s your incentive.” The applicant further stated that YNC H and SKSC N (Seattle Reserve Career Develop- ment Advisor) told him that all he had to do was to have his Reserve Unit send a message to have his name transferred from the active duty...
CG | BCMR | Advancement and Promotion | 2005-077
CGPC stated that under Article 7.C.1.f. of the Reserve Policy Manual (RPM) reservists above the cutoff for advancement who are not advanced prior to beginning EAD may only be advanced if authorized by CGPC but, if not advanced while on EAD, should ask to be advanced upon their release from active duty. Under policy then in effect, however, Reserve members on EAD could not advance off a Reserve advancement list and were required to compete as members on active duty.
CG | BCMR | Advancement and Promotion | 2004-195
The applicant alleged that he “got dropped through the cracks” twice with respect to his advancement to MKC: once when he was not allowed to participate as a Reserve in the October 2002 SWE even though he would have been eligible if he had remained on active duty, and again when he was removed from the Reserve list because he integrated into the regular Coast Guard after being told twice by the MK force manager that it was unlikely he would be advanced from the list even if he stayed in...
CG | BCMR | Advancement and Promotion | 2007-143
YNCM stated that the Coast Guard has no record that the applicant completed the October 2000 RSWE or 2001 RSWE. She also denied that she discussed the issue of the applicant not having sufficient time to complete the exam with MKCS B. LTJG D also stated the following: [The applicant] states “LTJG [D] informed me that she had sent the wrong SSN and that a test wasn’t received.” ESO’s do not ORDER RSWE. The applicant alleged that an exam had been sent for him and that it was received by the ESO.
CG | BCMR | Advancement and Promotion | 2009-090
This final decision, dated November 10, 2009, is approved and signed by the majority of APPLICANT’S REQUEST AND ALLEGATIONS The applicant, who advanced to chief machinery technician (MKC/E-7) on October 1, 2007, off the advancement eligibility list (hereinafter “2006 list”) resulting from the May 2006 service-wide examination (SWE), asked the Board in his application (Tab C) to correct his record by backdating his date of advancement to December 1, 2006, which is the date, he alleged, that...
CG | BCMR | Advancement and Promotion | 2008-099
CGPC stated that the applicant placed #9 on the BMCM advancement list following the May 2001 SWE. CGPC stated that when members at the top of an advancement list are advanced or removed from the list, the members below do not “move up” the list. For example, on December 20, 2002, when CGPC issued ALCGENL 087/02 to announce the “carryover” of members above the cutoffs from the May 2001 advancement lists to the top of the May 2002 advancement lists, CGPC listed for carryover to the 2002 BMCM...
CG | BCMR | Advancement and Promotion | 2006-116
of the Personnel Manual (Tab H), it is a member’s responsibility to ensure his own eligibility to take the servicewide examination for advancement and that, under Article 5.C.4.g., only PSC has the authority to waive eligibility and deadlines for advancement and that “failure by member, supervisor, or supporting command to fulfill their responsibilities is not justification for a waiver and may result in a member not quali- fying … .” CGPC stated that these regulations apply to supplemental...
CG | BCMR | Advancement and Promotion | 2004-101
APPLICANT’S ALLEGATIONS The applicant stated that in March 2001, because he was not “above the cut” on the CWO final eligibility list, he was not certain whether he would be appointed. The applicant alleged that if he had known that he would not be able to re-compete for CWO for five years, he would not have had his name removed from the list. If the Coast Guard applied a five-year penalty for removing one’s name from the CWO final eligibility list without warning its members, the Board...
CG | BCMR | Advancement and Promotion | 2006-009
On March 15, 2005, the Coast Guard’s Personnel Service Center denied the applicant’s request for a waiver, citing Article 5.C.15.c., because he did not have 12 months of sea service in a pay grade higher than E-3. Prior to February 14, 2003, however, the sea duty requirement for advancement to BMC was the same no matter when one entered the rating: “12 months above pay grade E-3 in designated rating.” Waiver Regulations Article 5.C.15.a.1. Under ALCOAST 082/03, the sea duty requirement for...
CG | BCMR | Other Cases | 2006-009
On March 15, 2005, the Coast Guard’s Personnel Service Center denied the applicant’s request for a waiver, citing Article 5.C.15.c., because he did not have 12 months of sea service in a pay grade higher than E-3. Prior to February 14, 2003, however, the sea duty requirement for advancement to BMC was the same no matter when one entered the rating: “12 months above pay grade E-3 in designated rating.” Waiver Regulations Article 5.C.15.a.1. Under ALCOAST 082/03, the sea duty requirement for...