DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2008-024 
 
XXXXXXXXXX 
XXXXXXXXXX 
   

 

 
 

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 November 8, 
2007, upon receipt of the applicant’s completed application and subsequently prepared the final 
decision for the Board as required by 33 CFR § 52.61(c).         
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  April  30,  2008,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The applicant asked the Board to correct his military record by removing his failure of 
selection for promotion to lieutenant junior grade (LTJG).  He further requested to be promoted 
retroactively to that grade effective September 1, 2007.  The applicant stated that when the LTJG 
selection  board  convened  on  June  4,  2007,  he  did  not  have  a  complete  and  accurate  record 
because a concurrent officer evaluation report (concurrent OER) for the period January 4, 2007, 
to May 1, 2007, was not in his record when it was considered by the calendar year 2007 LTJG 
selection board. Although the OER was received by Coast Guard Personnel Command (CGPC) 
on May 7, 2007, it was not placed in his record until August 8, 2007.   
 
The  concurrent  OER  covers  the  applicant’s  performance  while  he  was  on  temporary 
 
additional duty (TAD) as the Assistant Surface Operations Manager for seven stations and four 
patrol boats.  He did not receive a mark lower than 4 in any performance dimension and on the 
comparison scale, in block 9, he was marked in the fifth block as “one of the many competent 
professional who form the majority of this grade.”  The reporting officer wrote in block 10 of the 
concurrent OER that the applicant had his strongest recommendation for promotion with the very 
best of his peers.    
 
 
The  applicant  also  requested  that  the  regular  OER  for  the  period  October  1,  2006,  to 
March 31, 2007, be corrected to accurately reflect the days in which he was not observed by that 
rating chain.  The regular OER shows that he was not observed for a period of 51 days because 

he  was  on  leave.    The  applicant  alleged  that  he  was  on  leave  from  September  1,  2006,  to 
September  16,  2006,  and  from  November  24,  2006,  through  January  3,  2007,  and TAD  from 
January 4, 2007, through May 4, 2007.  This TAD period is not reflected in section 1.h. of the 
regular OER under discussion.   
 

VIEWS OF THE COAST GUARD 

 
On March 18, 2008, the Judge Advocate General (JAG) of the Coast Guard submitted an 
 
advisory opinion recommending that the Board grant relief to the applicant, as recommended by 
the Commander CGPC in a memorandum attached to the advisory opinion as Enclosure (1).  In 
recommending relief, CGPC stated the following: 
 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On March 19, 2008, a copy of the views of the Coast Guard was sent to the applicant for 

 
 
a reply.  The Board did not receive a response from the applicant.    
 

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: 
 

Due to administrative oversight, the applicant’s concurrent OER dated May 2007 
did  not  go  before  the  Selection  Board.  .  .  .    However,  the  regular  OER  dated 
March 2007 went before the Selection Board and contained substandard marks in 
nine  of  eighteen  performance  dimensions.    The  regular  OER  also  contained  a 
reference to an alcohol incident and a statement not recommending the applicant 
for promotion to the next grade.  Ultimately, the applicant was non-selected for 
promotion. 

In order to rectify this situation, the applicant’s complete record should go before 
the June 2008 [LTJG] selection board.  If the applicant is selected for promotion, 
he should be given a date of rank, back pay and allowances commensurate with 
the promotion schedule for those officers selected to the grade of [LTJG] during 
the time period when the applicant initially failed of selection.  If the applicant is 
non-selected for promotion then it should be considered the applicant’s first non-
non-selection  for  promotion.    The  applicant’s  record  would  then  go  before  the 
next [LTJG] selection board scheduled for June 2009.  Based on law and Coast 
Guard policy, this is the appropriate relief.   

The applicant was temporarily assigned to another unit during [a portion of] his 
regular  evaluation  period  and  86  days  should  have  been  reflected  as  days  not 
observed in his March 2007 OER . . .  The Board should grant relief with regard 
to the administrative data in section 1.h. of the  March 2007 OER to  accurately 
reflect the temporary assignment.   

 

 

1. The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

of the United States Code.  The application was timely. 

 
2.  The applicant requested an oral hearing before the Board.  The Chair, acting pursuant 
to  33  C.F.R.  § 52.51,  denied  the  request  and  recommended  disposition  of  the  case  without  a 
hearing.  The Board concurs in that recommendation. 
 

3.  The JAG admitted, and the Board finds, that the applicant did not have a substantially 
complete and fair record before the 2007 LTJG selection board.  In this regard, the Board notes 
that  the  applicant’s  concurrent  OER  for  the  period January  4,  2007,  to  May  1,  2007,  was  not 
included in the applicant’s record that was considered by the selection board.   The concurrent 
OER  was  particularly  important  to  the  applicant’s  record  because  it  provided  a  more  positive 
evaluation of his performance  when  compared  with that in the regular  OER, which contained 
some below average marks and negative comments.  The inclusion of the concurrent OER in the 
applicant’s record probably would have made the applicant’s record appear better and it would 
have increased the likelihood of the applicant’s selection for promotion.   

 
4.  The JAG also recommended that section 1.h. of the applicant’s regular OER for the 
period  October  1,  2006  to  March  31,  2007  be  corrected  to  include  the  number  of  days  from 
January 4 to March 31 that the applicant was TAD as non-observed, in addition to the 51 days 
that the applicant was on authorized leave.  The Board agrees with this recommendation.  

 
5.  The Board having found errors must decide whether a causal connection might have 
existed between the errors and the applicant’s failure to be selected by the 2007 promotion board.   
Having  applied  the  test  for  prejudice  under  Engels  v.  United  States,  678  F.2d  173,  175-76 
(Ct. Cl.  1982)1  and  having  found  that  the  applicant  suffered  such  prejudice  by  having  an 
incomplete record before the 2007 LTJG selection, the Board finds, and the Coast Guard agrees, 
that  there  was  likely  a  causal  connection  between  the  errors  and  the  applicant’s  failure  of 
selection  for  promotion  to  LTJG.    In  this  regard,  the  Coast  Guard  recommended  that  “the 
applicant’s  complete  record  should  go  before  the  June  2008  [LTJG]  selection  board.    If  the 
applicant is selected for promotion, he should be given a date of rank, back pay and allowances 
commensurate  with  the  promotion  schedule  for  those  officers  selected  to  the  grade  of  [LTJG] 
during the time period when the applicant initially failed of selection.  If the applicant is non-
selected  for  promotion  then  it  should  be  considered  the  applicant’s  first  non-non-selected  for 
promotion.    The  applicant  record  would  than  go  before  the  next  [LTJG]  selection  board 
scheduled for June 2009.”    
 
 
 

 6.  Accordingly, the applicant should be granted relief.   

                                                 
1 Engels v. United States, 678 F.2d 173, 175-76 (Ct. Cl. 1982) contains the standards to be applied in determining 
whether an applicant’s record has been prejudiced by error.  In Engels, the Court of Claims held that, if the Board 
finds that an officer’s record contained an error when it was reviewed by a selection board, the Board should decide 
whether the officer’s failure of selection for promotion should be removed by answering 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 [the applicant] would have 
been promoted in any event?”   

ORDER 

 

period January 4, 2007, to May 1, 2007, is added to his record.  

 
Section 1.h. of the regular OER for the period October 1, 2006, to March 31, 2007, shall 
be corrected to reflect accurately the total number days in which the applicant was not observed 
by that rating chain.  Specifically, the number of days in which he was TAD for the reporting 
period shall be included in section 1.h. 

 
His 2007 failure of selection for promotion to LTJG shall be removed from his record so 
that he shall have two more selection opportunities for promotion to that grade.  If he is selected 
for promotion to LTJG by the calendar year 2008 selection board or the first Board to consider 
him for promotion to that grade based on a corrected record, his date of rank as an LTJG shall be 
adjusted  to  the  date  he  would  have  had  if  he  had  been  selected  in  2007,  with  back  pay  and 
allowances once promoted to LTJG.   

 
No other relief is granted.   

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

as follows: 

The application of XXXXXXXXXXXX, for correction of his military record is granted 

 
   The Coast Guard shall ensure, if it has not done so, that the concurrent OER for the 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Bruce D. Burkley 

 

 

 
 Randall J. Kaplan 

 

 

 
 James E. McLeod