DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2008-099 
 
xxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxx 

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 April 11, 2008, upon receipt 
of  the  applicant’s  completed  application,  and  assigned  it  to  staff  member  J.  Andrews  to  pre-
pare 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  January  22,  2009,  is  approved  and  signed  by  the  three  duly 

 

 
 

 

 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

The applicant, who advanced to master chief boatswain’s mate (BMCM/E-9) on Septem-
ber  1,  2005,  off  the  advancement  list  resulting  from  the  May  2004  service-wide  examination 
(SWE), asked the Board to correct his record by backdating his date of advancement to Decem-
ber 1, 2003.  He alleged that this is the date he should have been advanced. 

 
The  applicant  alleged  that  following  the  May  2001  SWE,  he  was  a  senior  chief  boat-
swain’s mate (BMCS/E-8) #9 on the list for advancement to BMCM.  Another BMCS—BMCS 
X—was #8 on the list.  The designated cutoff for guaranteed advancement from the list was #8.  
When the list expired, only three BMCSes had been advanced to BMCM.  Therefore, the Coast 
Guard  Personnel  Command  (CGPC)  “carried  over”  the  names  of  the  members  who  were  #4 
through #8 on the list, including BMCS X, to the top of the May 2002 advancement list.   

 
The applicant alleged that in 2002 BMCS X lost his commanding officer’s (CO’s) recom-
mendation for advancement.  He alleged that under the Personnel Manual, the CO should have 
promptly  notified CGPC to remove BMCS X’s name from the advancement list.  If the CO had 
done so, the applicant alleged, his own name would have risen to be #8 on the list and been car-
ried over to the next list, and he would advanced to BMCM on December 1, 2003. 

 
The  applicant  alleged  that  because  BMCS  X’s  command  improperly  delayed  notifying 
CGPC  of  BMCS  X’s  loss  of  his  CO’s  recommendation  for  advancement,  CGPC  erroneously 
“carried over” BMCS X’s name instead of the applicant’s name.  The applicant alleged that the 

CO  of  xxxxxxxxxxxxxxxx  did  not  notify  CGPC  of  BMCS  X’s  loss  of  recommendation  for 
advancement until February 2003.  Therefore, he argued, his own advancement date should be 
backdated to December 1, 2003.   

 
The applicant stated that enlisted members competing for advancement through the SWE 
process “expect a fair opportunity to advance” and that to ensure fairness, all commands must 
obey the performance evaluation and advancement rules in the Personnel Manual.  The applicant 
argued that he was improperly denied advancement on December 1, 2003, because of the long 
delay of BMCS X’s CO at xxxxxxxxxxxxxxxxx. 

 
In  support  of  his  allegations,  the  applicant  submitted  a  copy  of  the  May  2001  BMCM 
SWE advancement list, which bears his name as #9 and BMCS X’s name as #8.  He noted that 
Article  5.C.5.d.4.  of  the  Personnel  Manual  states  that  if  a  member  whose  name  is  on  an 
advancement  list  to  pay  grade  E-9  receives  any  court-martial  or  civil  conviction,  non-judicial 
punishment,  unsatisfactory  conduct  mark,  or  low  performance  marks,  the  member’s  CO  must 
notify CGPC to remove the member’s name from the advancement list. 

 
The applicant also submitted a copy of a letter he sent to CGPC dated February 4, 2004, 
in which he requested advancement to BMCM with back pay.  He argued that when BMCS X 
lost his CO’s recommendation for advancement, his name was removed from the list, and the 
applicant’s name became #8, which was above the cutoff for guaranteed advancement to BMCM.  
The applicant’s CO forwarded this letter to CGPC with a very strong endorsement in favor of the 
applicant’s advancement.  The CO stated that the applicant had already been “hand-selected to 
fill  two  different  E-9  billets  on  the  District  xxxxxxxxx  staff.”    The  applicant  also  submitted 
CGPC’s response to his request, dated February 11, 2004, in which CGPC stated that his request 
had been carefully reviewed and disapproved.  CGPC stated that it 

 
appears from your memo there is a misinterpretation of the way revised cuts are calculated.  If one 
member is removed from the [advancement list], the members below the cut do not move up on the 
list.  In this particular case, the May 2001 [SWE] List revised cuts were announced in March 2002 
by ALCGENL 012/02 when the BMCM cut was revised to #8. … [T]here were 5 BMCM carry-
overs  from  the  May  2001  [list]  to  the  May  2002  [list].    These  carryovers  were  announced  in 
December 2002.  The BCMC cuts were not revised from what was announced earlier.  Therefore, 
your request for a retroactive advancement is not justified. 
 

VIEWS OF THE COAST GUARD 

 
 
On September 2, 2008, the Judge Advocate General (JAG) of the Coast Guard submitted 
an  advisory  opinion  recommending  that  the  Board  deny  relief  in  this  case.    In  so  doing,  he 
adopted the findings and analysis provided by CGPC in an enclosed memorandum on the case. 
 
CGPC stated that the applicant placed #9 on the BMCM advancement list following the 
 
May 2001 SWE.  Under ALCGENL 047/01, issued on August 15, 2001, the original cutoff for 
guaranteed advancement to BMCM was #3.  However, on November 20, 2001, the cutoff was 
revised to #4 in ALCGENL 063/01, and on March 7, 2002, the cutoff was revised again to #8, 
which was BMCS X, in ALCGENL 012/02. 
 

 
CGPC stated that ALCGENL 087/02, issued on December 2, 2002, authorized the carry-
over of the members at #4 through #8 on the 2001 list to the top of the 2002 list because the 2001 
list  was  expiring.    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.  Their names 
are not renumbered.  CGPC noted that Article 5.C.31. of the Personnel States that the cutoff is 
established  according  to  the  expected numbers of vacancies in the higher pay grade, and only 
members whose names are above the cutoff are guaranteed advancement.   
 
 
CGPC stated that cutoffs are set and revised based on the number of anticipated vacan-
cies,  and  the  actual  number  of  vacancies  that  occur  depends  upon  retirements,  discharges, 
appointments  to chief warrant officer, billet fluctuations, and service need.  The cutoff on the 
May 2001 BMCM was ultimately revised to #8 in anticipation of certain vacancies that did not 
occur.  When the number of vacancies fell short of what had been anticipated, CGPC had to carry 
over  the  names  of  the  members  that  had  been  above  the  revised  cutoff  to  the  May  2002  list.  
Because the cutoff was #8 and had never been revised to #9 or below, the applicant was never 
above the cut for advancement to BMCM and his name was not carried over. 
 
 
CGPC further explained that “[c]uts are actual names, not numbers.  Anticipated vacan-
cies  may  change  on  a  daily  basis,  and  sometimes  the  cutoff  is  higher  than  the  actual  need, 
resulting in carryovers.  Personnel do not move up an [advancement] list as others are removed. 
… The personnel actions relative to members on [an advancement list] do not change the num-
bering  of  those  below  them.”    Instead,  if  extra  vacancies  are  anticipated,  the  cutoff  may  be 
revised  down  the  list,  but  CGPC  does  not  necessarily  revise  the  cutoff  just  because  someone 
above  the  cut  has  been  disqualified  for  advancement.    CGPC  stated  that  the  names  on  an 
advancement  list  are  only  renumbered  if  a  member  proves  that  there  has  been  a  computation 
error in his placement.  CGPC refused to discuss any personnel matter with regard to BMCS X 
due to Privacy Act considerations. 
 
 
CGPC stated that there is no precedent for renumbering the applicant’s place on the list 
from #9 to #8 just because the person at #8 was disqualified due to loss of his CO’s recommen-
dation for advancement.  “The Coast Guard did not adjust the cutoff to include #9 as there was 
no service need for additional BMCMs and the Coast Guard had already overestimated the num-
ber of vacancies as indicated by those carried over to the subsequent [advancement] list. … The 
May  2001  SWE  Eligibility  List  expired  on  December  16,  2002,  without  further  revision,  and 
only those candidates above the cutoff at that point were carried over to the 2002 list.”  CGPC 
concluded that the applicant is not entitled to have his advancement backdated. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On  September  16  and  30,  2008,  the  applicant  submitted  statements  in  response  to  the 

Coast Guard’s advisory opinion.   

 
The applicant asserted that when BMCS X was disqualified, the applicant replaced him as 
#8 on the advancement list.  The applicant argued that while CGPC may claim that the cutoff is a 
candidate’s name, in CGPC’s correspondence in 2001 and 2002, CGPC always referred to the 
cutoff by number.  The fact that CGPC has recently changed its cutoff announcements to omit 
the numbered rank of the last member above the cut does not mean that in 2001 and 2002 the 

cutoff was not associated with the number, rather than the person.  The applicant further argued 
that because CGPC clearly intended to advance the top eight candidates from the list, he should 
have been advanced when BMCS X was disqualified.  He also argued that a “lack of precedence 
should not prevent this disservice from being corrected.”  The applicant also asked the Board to 
consider his CO’s endorsement of his 2004 request, in which the CO noted that CGPC had trans-
ferred the applicant to two E-9 billets during the lifecycle of the May 2001 list, while he was still 
an E-8, which clearly shows that he was ready to fill and E-9 billet. 

 
The  applicant  alleged  that  BMCS  X  had  offered  to  provide  information  about  his  dis-

qualification for advancement in 2002, but he did not submit any statement from BMCS X. 

 

 

APPLICABLE REGULATIONS 

Article 5.C.1.a. of the Personnel Manual in effect in 2002 states that “[t]he objective of 
the enlisted advancement system is to ensure the required degree of proficiency at the various 
grade  levels  within  each  specialty  and  promote  those  best  qualified  to  fill  vacancies  which 
occur.” 
 
Article 5.C.4.b.1.l. states that a member is not eligible to compete for advancement by 
taking the SWE unless the member is recommended for advancement by his or her CO.  Article 
5.C.4.e.4. states that “[t]he commanding officer's recommendation for advancement is the most 
important eligibility requirement in the Coast Guard advancement system.”   

 
Article 5.C.25.d. states that “[i]f at any time prior to effecting an advancement, a com-
manding officer wishes to withdraw his or her recommendation because an individual has failed 
to  remain  eligible  and  it  appears  that  eligibility  will  not  be  attained  prior  to  expiration  of  the 
current  eligibility  list,  the  commanding  officer  shall  advise the Human Resources Service and 
Information  Center  [HRSIC]  by  message  with  Commander,  (CGPC-epm),  as  an  information 
addressee, to remove the individual’s name from the eligibility list.”  Article 5.C.5.d.4. states that 
“[a]fter  the  individual  has  been  recommended  for  advancement,  but  has  not  been  advanced, 
commanding officers will submit a message to HRSIC (adv), with Commander, (CGPC-epm-1) 
as information addressee, to remove from the current advancement eligibility list any person who 
has received any of the following: CM [court-martial] or civil conviction, NJP, an unsatisfactory 
conduct mark, or a factor mark less than those provided for in Art. 10.B.9.”   

 
Article  5.C.31.f.  states  that  an  “individual’s  name  may  be  removed  by  Commander, 
CGPC as a result of disciplinary action, or for other good and sufficient reasons, whereby the 
individual  is  no  longer  considered  qualified for the advancement for which previously recom-
mended.  Commanding officers shall withhold any advancement under such circumstances and 
advise Commander, CGPC of their intentions relative to removal from the list. A commanding 
officer  may  also  direct  that  the  individual  not  be  removed  from  an  eligibility  list  but  that 
advancement is being withheld for a definite period. [See] Article 5.C.25. Individuals who have 
their names removed from an eligibility list must be recommended and qualify again through a 
subsequent SWE competition.” 

 
Under Article 5.C.3.b., following the SWE in May each year, the candidates for advance-
ment  to  a  particular  rate,  such  as  BMCM,  are  ranked  according  to  a  calculation  that  assigns 

points for each candidate’s SWE score, performance marks, time in service, time in present pay 
grade,  medals  and  awards,  and  sea  duty.    Article  5.C.31.a.  states  that  HRSIC  prepares  the 
advancement eligibility lists for approval by Commander, CGPC. 

 
Article 5.C.3.a.2. states that a “cutoff point is established for each rating and rate based 
upon vacancies anticipated at the time the eligibility list is compiled. Personnel who are below 
the cutoff point should plan on participating in subsequent SWEs in order to maintain eligibil-
ity.”  Article 5.C.31.b. states that “[c]utoff points on eligibility lists will be established by Com-
mander, CGPC, according to the number of advancements anticipated during the effective period 
of the respective lists.  The cutoff point on each list is shown by a mark adjacent to the rank-
order number of the last name above the cutoff, e.g., 21. Only those personnel [whose] names 
appear above the cutoff are assured of advancement.” 
 

Article 5.C.31.c. states that the “effective period of the advancement eligibility list will be 
published with the list.  Normally, each list will remain in effect until superseded by a new eligi-
bility list resulting from a later SWE competition.  When the new list is published all candidates 
above the cutoff on the superseded list will be carried over to the top of each new list.” 

 
Article 5.C.31.d. states that CGPC may amend an advancement eligibility list “when nec-
essary  to  insert  candidates  whose  regular  or  substitute  examination  were  received  too  late  for 
computer scoring.” 

 
Article 10.B.5.a.1. states that members in pay grade E-8 receive regular, annual perform-
ance  evaluations,  with  recommendations  for  or  against  advancement,  on  November  30th  each 
year.  Under Article 10.B.5.b., special performance evaluations must be prepared on certain occa-
sions, such as when a member receives NJP, a documented “alcohol incident,” or performance 
probation or when a member is convicted by court-martial or civil court. 

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 submission, and applicable law: 
 

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

 

1. 
 
2. 

 
3. 

Although the application was not filed within three years of the applicant’s failure 
to be advanced on December 1, 2003, it is considered timely under Detweiler v. Pena, 38 F.3d 
591, 598 (D.C. Cir. 1994).1 

 The applicant requested an oral hearing before the Board.  The Chair, acting pur-
suant 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. 

                                                 
1 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that under § 205 of the Soldiers’ and Sailors’ Civil 
Relief Act of 1940, the BCMR’s three-year limitations period under 10 U.S.C. § 1552(b) is tolled during a member’s 
active duty service). 
 

 

4. 

 The applicant alleged that the Coast Guard erroneously failed to advance him to 
BMCM on December 1, 2003, and asked the Board to order the Coast Guard to backdate his 
advancement  to  that  date.  The  Board  begins  its  analysis  in  every  case  by  presuming  that  the 
disputed information—in this case, the applicant date of advancement—is correct as it appears in 
his record, and the applicant bears the burden of proving by a preponderance of the evidence that 
the  disputed  information  is  erroneous  or  unjust.2    Absent  evidence  to  the  contrary,  the  Board 
presumes that Coast Guard officials have carried out their duties “correctly, lawfully, and in good 
faith.”3  
 
5. 

The applicant argued that he should have been advanced because he was #9 on the 
advancement list, the cutoff for advancement was #8, and the person ranked #8 on the advance-
ment list—BMCS X—became disqualified for advancement.  He argued that when BMCS X was 
disqualified,  his  name  should  have  been  removed  from  the  list,  and  the  list should have been 
renumbered so that the applicant’s name would rise to #8 and be above the cutoff.  The applicant 
failed to submit any evidence to show that BMCS X was disqualified for advancement in 2002.  
However,  even  assuming  the  applicant  could  prove  that  BMCS  X  became  disqualified  for 
advancement in 2002, the applicant’s claim fails for the reasons stated below. 

 
6. 

In the Board’s experience and as stated by CGPC, advancement eligibility lists are 
never  renumbered  when  members’  names  are  removed  from  the  top  of  the  list  due  to  either 
advancement or disqualification.  For instance, when CGPC authorizes the advancement of mem-
bers ranked #1, #2, and #3 on an advancement list,  the members ranked #4, #5, and #6 do not 
then  become  #1,  #2,  and  #3,  respectively.    Members  retain  their  numbered  positions  on  an 
advancement  list  unless  CGPC  discovers  scoring errors or must insert missed personnel in an 
advancement list in accordance with Article 5.C.31.d. of the Personnel Manual.  When a mem-
ber’s name is removed from an advancement list for any reason, both the name and the assigned 
number  are  simply  struck  out.    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 advancement list personnel numbered #4, #5, #6, #7, and #8 on the 2001 
BMCM advancement list.  If the 2001 list had been renumbered upon the removal from the list of 
#1, #2, and #3, due to their advancement, then ALCGENL 087/02 would have announced the 
carryover of members numbered #1, #2, #3, #4, and #5, instead of those numbered #4, #5, #6, #7, 
and #8.  Therefore, assuming arguendo that BMCS X’s name should have been struck from the 
BMCM advancement list sometime in 2002, the #8 position would have been struck out along 
with his name, and the applicant would have remained #9 on the list. 
 

Under ALCGENL 012/02, the cutoff on the May 2001 BMCM advancement list 
was lowered to “8 [BMCS X’s name].”  There is no evidence in the record indicating that the 
cutoff was ever lowered to the applicant’s position at #9 or below.  Under Article 5.C.31.b. of the 
Personnel Manual, only members whose names are above the cutoff are assured of advancement.  
Article  5.C.3.a.2.  states  that  members  whose  names  do  not  appear  above  the  cutoff  on  an 

7. 

                                                 
2 33 C.F.R. § 52.24(b).   
3 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

advancement list should plan to re-compete for advancement by participating in the next SWE.  
Members  are  advanced  off  a  list  only  as  vacancies  arise,  and  members  whose  names  appear 
above the cutoff are only assured advancement because, under Article 5.C.31.c. of the Personnel 
Manual, when the advancement list expires, “all candidates above the cutoff on the superseded 
list will be carried over to the top of each new list.”  The record indicates that the applicant was 
#9 on the 2001 advancement list and was never above the cutoff.  Therefore, he was not entitled 
to  have  his  name  carried  over  to  the  top  of  the  2002  list  under  either  Article  5.C.31.c.  or 
ALCGENL 087/02. 

 
The Board notes that the applicant never alleges exactly when in 2002 BMCS X’s 
name would or should have been removed from the advancement list.  ALCGENL 021/02, which 
revised the cutoff to BMCS X at #8, was issued on March 7, 2002.  It is theoretically possible 
that, if BMCS X’s name and the #8 position had been struck from the advancement list before 
March  7,  2002,  CGPC  might  have  decided  to  revise  the  cutoff  down  to  #9  instead  of  #8.  
However, this inquiry is entirely speculative.  Under the circumstances of this case, even if the 
applicant’s could prove that BMCS X’s name and the #8 position should have been struck from 
the  advancement  list  before  March  7,  2002,  the  Board  would  not  grant  relief  on  the  basis  of 
retroactive speculation about how CGPC might have revised the cutoff to a lower position more 
than six years ago. 
 
 
The applicant has not proved by a preponderance of the evidence that his failure to 
be advanced to BMCM on December 1, 2003, was erroneous or unjust.4  Members do not rise 
above the cutoff when names are removed from the top of the list; instead, Commander, CGPC, 
at  his  discretion,  may  revise  the  cutoff  downward  on  an  advancement  list  when  increased 
vacancies are anticipated.  The applicant’s name was never above the cutoff on the May 2001 
SWE advancement eligibility list.  Therefore, he was never assured advancement under Article 
5.C.31.b. of the Personnel Manual, and he was not entitled to have his name carried over to the 
top of the 2002 list under Article 5.C.31.c. 
 

9. 

Accordingly, the applicant’s request should be denied. 

 
8. 

10. 
 
 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
4 For the purposes of the BCMRs, “‘[i]njustice’, when not also ‘error’, is treatment by the military authorities, that 
shocks the sense of justice, but is not technically illegal.” Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976).   

The application of BMCM xxxxxxxxxxxxxxxxxxx, USCG, for correction of his military 

ORDER 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

        

 
 Bruce D. Burkley 

 

 

 
 Patrick B. Kernan 

 

 

 

 
 David A. Trissell 
 

 

 

 

 

 

 

 

 

 

 

 

 

 
 
record is denied.