DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2008-139 
 
XXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXX 
   

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 May 23, 2008, 
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 February 12, 2009, is approved and signed by the three duly 

APPLICANT’S REQUEST  

The  applicant,  a  chief  intelligence  specialist  (ISC/E7)  asked  the  Board  to  correct  his 
record to show that he was advanced to senior chief petty officer intelligence specialist (ISCS/E-
8), retroactive to January 1, 2008, with back pay and allowances.  Prior to January 1, 2008, the 
applicant was  a chief petty officer in the operations specialist rating  (OSC/E-7).  He took the 
service wide examination (SWE) for advancement to OSCS (E-8) and was number 8 on that list. 
No cutoffs were established for OSCS, meaning that there were no guaranteed advancements.1   
                                                 
1  There are 9 pay grades or rates in the enlisted system:  they are grades E-1 to E-9.   Most enlisted members 
come into the Coast Guard in pay grade E-1 (SR).  Advancement to pay grades E-2 through E-4 is usually done at 
the  command  level  or  upon  graduation  from  a  Service  “A”  school.      For  advancement  beyond  E-4,  enlisted 
members must participate in the Service Wide Competition, in which they can earn a total of 200 total points. 
Maximum points are assigned as follows: 80 points for the examination, 50 points for the performance factor, 20 
points  for  the  time  in  service,  10 points  for  the  time  in  pay  grade  in  present  rating,  10  points  for  medals  and 
awards, and 30 points for sea/surf duty.    After the scoring of the service examination (SWE), an advancement 
list for each rating is created and members are ranked on that list according to their total service wide competition 
score  from  highest  to  lowest.    Advancements  are  made  from  the  list  in  the  order  ranked  when  announced  by 
CGPC.  The Coast Guard anticipates the number of vacancies for each rating and makes that the cutoff point for 
each rate.  Only the member’s whose names appear above the cutoff are guaranteed advancements.  Those below 
the cutoff must compete for advancement the following year.  The effective period of the advancement eligibility 
list  is  published  with  the  advancement  list.    Normally,  each  list  remains  in  effect  until  superseded  by  a  new 
eligibility list resulting from a later SWE competition.  When the new list is published, the candidates above the 
cutoff on the superseded list are carried over to the top of each new list.  Article 5.C. of the Personnel Manual.   

The  applicant  applied  and  was  accepted  for  a  lateral  transfer  to  a  new  IS  rate  that  the 
Coast Guard was in the process of creating that year.  On October 2, 2007, an IS advancement 
list was created and published.  The applicant was 5th on the newly created IS advancement list.  
It appears that no cutoff was established for the ISCS advancement list until December 31, 2007, 
when the Coast Guard issued revised cuts for the entire May 2007 SWE.  The December 31, 
2007 revised cut for the OSCS rate was extended to number 13 (earlier the cut had been 0) and 
the cutoff for the ISCS advancement list was placed at 3.  The applicant was below the cut on the 
ISCS list at No. 5.   The applicant alleged, as discussed below, that he should have been placed 
above the cut on the IS advancement list as a result of the December 31, 2007 revised cutoff that 
extended the cutoff in his legacy rate to the 13th position.    
 

BACKGROUND CHRONOLOGY  

   
In  the  fall  of  2006,  the  Coast  Guard  announced  that  it  would  create  the  Intelligence 
Specialist  (IS)  rating  for  enlisted  members  and  the  intelligence  systems  specialist  (ISS)  for 
warrant  officers.    ALCOAST  078/07,  dated  February  14,  2007,  announced  the  procedures  for 
applying for a lateral to the new rate and that August 14, 2007 was the deadline for applications.  

 
In May 2007, the applicant took the SWE for advancement to OSCS/E-8.  The results of 

that SWE were published on June 29, 2007, and the applicant was number 8 on the OSCS list.   
 

On  July  13,  2007,  the  Coast  Guard  published  ALCOAST  341/07  that  contained  the 

procedure for creating the IS advancement list.  The ALCOAST directed the following:   

 
A. 2007 Advancements.  Members selected to lateral to IS whose names are on 
advancement lists in their legacy ratings will continue to advance as scheduled in 
their legacy ratings through [December 31, 2007]. 
 
B.  2008  Advancements.    1.    [January  1,  2008  –  December  31,  2008]  E7,  E8, 
Advancements and [January 1, 2008 – 30 June 2008], E5/E6 advancements.  On 
January 1, 2008, IS members on May 2007 SWE eligibility lists for advancement 
in their legacy ratings will be removed from their legacy advancement lists and 
merged into new IS advancement lists.  Placement on the new advancement lists 
will be based on the May 2007 final multiple score excluding SWE points.  The 
removal  of  the  SWE  points  will  eliminate  SWE  calculation  discrepancies  that 
may  result  from  different  legacy  rating  exams.    If  there  are  any  members 
remaining  above  the  cut  from  prior  advancements  lists,  they  will  be  ordered 
separately and placed above the cut at the top of the IS advancement lists.  

 
 
On July 13, 2007, the Coast Guard also issued ALCOAST 338/07.  It authorized the early 
advancements off the May 2007 list when advancements from the 2006 list for a particular rate 
had  been  exhausted.    It  provided  for  the  following  in  pertinent  part:  “Once  a  rating  on  the 
November  2006  SWE  advancement  eligibility  list  is  cleared,  CGPC-epm  is  authorized  to 

                                                                                                                                                             
 

advance personnel to fill vacancies using the May 2007 SWE advancement eligibility list for that 
rating.”    
 

On August 27, 2007, CGPC issued ALCGENL 134/07 announcing the cut for the May 
2007  SWE.    The  cut  for  the  OSCS,  OSC,  OS1,  and  OS2  was  zero,  meaning  there  were  no 
guaranteed advancements in these OS pay grades for the May 2007 advancement list.   
 
On  October  2,  2007,  Commander,  Coast  Guard  Personnel  Command  (CGPC)  issued  a 
 
memorandum announcing the IS eligibility list for advancement to pay grade E-5 through E-9.  
The  IS  advancement  eligibility  list  was  attached  as  enclosure  (1)  to  the  memorandum.      The 
applicant was in the 5th place on the list for advancement to ISCS.  The CGPC memorandum 
provided the following guidance and information: 
 

3.  Background.  
 
a.  [SWEs]  were  held  for  pay  grade  E-5  through  E-9  in  May  2007  and  the 
eligibility list was published on [June 29, 2007].  
 
b. The selection panel for lateral to the IS Rating was convened August 27, 2007 
and an IS advancement list was compiled from selectees . . . utilizing guidance in 
[ALCOST 341/07].  
 
c. For advancement to E-5 and E-6, the list in enclosure (1) becomes effective 1 
January 2008 and expires 16 June 2008.  For advancement to E-7 through E-9, the 
list  in  enclosure  (1)  becomes  effective  1  January  2008  and  expires  on  16 
December 2008. 
 
4.  General Information. 
 
a.  The  eligibility  list  contains  the  rank  order,  number,  name,  and  unit  for  each 
candidate.  Cutoffs for the SWE are not included on the eligibility lists and will be 
included in the first revision [of the list].  
 
b.  Personnel  whose  names  appear  at  or  above  the  cutoffs,  or  on  subsequent 
EPAAs will not have to compete in the next examination cycle . . .  

 
On October 7, 2007, CGPC issued ALCGENL 174/07 that authorized advancements with 
 
an effective November 1, 2007 date.  Of particular interest to this case, was the authorization for 
advancement  of  two  OS2s  to  OS1.    These  two  individuals  were  also  included  on  the  IS 
advancement list created on October 2, 2007. 
 
 
On December 17, 2007, CGPC issued ALGEN 204/07 that authorized the advancement 
of personnel to fill vacancies effective January 1, 2008.  Numbers 1 and 2 from the new ISCS 
advancement  list  were  authorized  advancement  to  ISCS,  twelve  ISCs  (E-7s)  were  authorized 
advancement.  There were no authorizations for advancement to ISCM or IS1.   
 

 

APPLICANT’S ALLEGATIONS AND ARGUMENTS 

 
On  December  31,  2007,  CGPC  issued  ALGENL  206/07  revising  the  cut  for  the  May 
2007 SWE.  Cuts for both the IS and OS rates were included on the ALGENL.   (There was 
nothing in this message explaining that those individuals who had lateraled to the IS rate had 
been  removed  from  their  legacy  rate.  Nor  was  there  any  statement  that  the  revised  cuts  were 
effective January 1, 2008.  The revised cut for OSCS was increased to the 13th position.  The 
applicant previously held the 8th place on the OSCS list. The revised cut for the new ISCS rate 
was placed at number 3; the applicant was below the cut at number 5.   

 
 The applicant applied and was accepted for a lateral transfer to a new IS rate that the 
Coast Guard was in the process of creating that year.  On October 2, 2007, an IS advancement 
list was created and published.  The applicant was 5th on the newly created IS advancement list.  
As  best  the  Board  can  be  determined  from  the  record,  no  cuts  were  established  for  the  ISCS 
advancement  list  until  December  31,  2007,  when  the  Coast  Guard  issued  revised  cuts  for  the 
entire May 2007 SWE.  The December 31, 2007 revised cut for the OSCS rate was extended to 
number 13 (earlier the cut had been 0) and the cut for the ISCS advancement rate was placed at 
3.  The applicant was below the cut on the ISCS list at No. 5.    

 
The  applicant  argued  that  he  should  have  been  advanced  to  ISCS  on  January  1,  2008 
because the revised cutoff for OSCS was extended to No. 13 and he was not removed from his 
legacy rate until January 1, 2008 according to ALCOAST 341/07.  He stated that on January 7, 
2008 he contacted Mr. H who was the Chief of the enlisted advancement and separation division 
at  Coast  Guard  Headquarters  to  ask  why  he  was  not  advanced  to  E-8.    According  to  the 
applicant,  Mr.  H  told  him  that  members  selected  for  the  IS  rating  were  removed  from  their 
legacy  rating  advancement  lists  on  October  2,  2008,  when  the  IS  list  was  published.      The 
applicant  stated  that  he  was  shocked  by  this  statement  because  ALCOAST  341/07  stated  that 
members  would  not  be  removed  from  their  legacy  ratings  until  January  1,  2008.    In  fact,  the 
applicant contended that two OS2s who were on the advancement list for OS1 and supposedly 
removed  from  their  legacy  rate  on  October  2,  2007,  were  actually  advanced  to  OS1  on 
November 1, 2007.   
 

1.  He questioned whether members were removed from their legacy rating and merged 

On January 7, 2008 the applicant sent a  letter to CGPC in which he asserted   that the 
Coast Guard did not follow the procedures set forth in ALCOAST 341/07 for establishing the IS 
advancement list.  In this regard, the applicant made three contentions: 
 
   
into the IS rating on January 1, 2008, as required by para. 2.B.1of ALCOAST 341/07.  
 
 
2.    He  contended  that  the  calculations  for  placement  on  the  IS  list,  although  done 
properly,  were  premature  because  they  did  not  take  into  account  ALGEN  206/07  issued  on 
December 31, 2007 that revised the cuts for the May 2007 SWE.    
 
3.    He  contended  that  members  remaining  above  the  cut  from  prior  advancement  lists 
 
were not ordered separately and placed above the cut at the top of the IS advancement lists as 
required by the last sentence of paragraph of 2.B.1of ALCOAST 341/07 which reads:  “If there 

are  any  members  remaining  above-the-cut  from  prior  advancement  lists,  they  will  be  ordered 
separately  and  placed  above  the-the-cut  at  the  top  of  the  IS  advancement  lists.”    He  further 
argued as follows: 
 

[ALGENL 206/07] established revised cutoffs for the May 2007 SWE, however, 
members such as myself were not “ordered separately and placed above-the-cut at 
the  top  of  the  IS  advancement  lists.”    I  disagree  with  the  argument  that  the 
mention of prior advancement lists refers to the year 2006 or earlier.  Since all 
three actions listed in [ALCOAST 341/07] occur in 2008, the 2007 advancement 
list would be a prior advancement list.  In addition, if I knew [that] the result of 
my 2007 [SWE] would be irrelevant to the 2008 advancement path for [IS], if this 
argument were true, I certainly would not have submitted a package to become an 
intelligence  specialist.    Anything  other  than  application  of  [ALGENL  206/07] 
would indicate this policy to be deceptive and clearly ambiguous; certainly not as 
advertised.   

 
 
On  January  22,  2008,  CGPC  issued  a  corrected  copy  of  a  letter  responding  to  the 
applicant’s  letter  of  January  8,  2008.      CGPC  denied  the  applicant’s  request  for  retroactive 
advancement to ISCS.  CGPC stated the following, in pertinent part: 
 

As directed by reference [ALCOAST 341/07] in preparation for standing up the 
new  IS  rating  on  1  January  2008,  PSC  and  CGPC-epm  created  an  IS  rating 
advancement  eligibility  list  from  the  candidates  selected  to  lateral  to  the  new 
rating.  This list was published on 2 October 2007 and was effective on 1 January 
2008.2    [The  2  October  2007  memo  establishing  the  list]  was  published  to  the 
field  via  the  Gold  Badge  Network  and  was  added  to  the  PSC  website  and  CG 
Central  on  3  October.    Your  name  is  shown  on  that  list  as  #  5  for  ISCS.  
[ALGENL 204/07] provided authority to advance enlisted personnel effective on 
1  January  2008,  including  advancements  for  members  of  the  new  IS  rating.  
Advancements to ISCS were included.  I conclude from these factors that the new 
IS list was published and visible at a proper time to enable advancements in the IS 
rate on 1 January 2008, as required by [ALCOAST 341/07].   
 
Your memo alleges that the development of this revised advancement list did not 
properly take into account members from prior advancement lists . . .  This issue 
is  at  the  core  of  your  request  for  relief,  and  interpretation  relies  on  a  careful 
reading of the policy guidance in paragraph 2.B.1 of  [ALCOAST 341/07].  This 
paragraph  has  two  parts.    The  first  part  (through  the  phrase  “different  legacy 
rating exams) discusses the process for placement on the first IS advancement list 
. . . The final sentence discusses the actions to be taken for any remaining above-
the –cut members from prior advancement lists . . .  The word “prior” refers to 
lists  prior  to  the  May  2007  list,  specifically  in  your  case  the  May  2006 
Advancement Eligibility List.  Since there were no personnel remaining above the 

                                                 
2   CGPC’s original letter to the applicant stated “[I]n preparation for standing up the new IS rating on a January 
2008,  PSC  and  CGPC-epm  removed  member  selected  for  lateral  to  the  new  IS  rating  from  their  legacy  list  and 
merged them into the new IS Advancement Eligibility list.  That list was published on 2 October 2007.” 

 
 
The applicant stated that prior to making the decision to apply for a lateral to the IS rate 
he discussed ALCOAST 341/07 with CWO B, the OS/IS enlisted assignment officer, ISCM RT, 
the intelligence specialist rating force manager, and MCPO R who was a member of the of the 
intelligence specialist rating implementation team to ensure that he understood the process.   The 
applicant stated that each assured him that members selected to lateral to the IS rating would be 
allowed advancement opportunities in their legacy rating until January 1, 2008.   
 
 
The  applicant  submitted  an  email  discussion  among  several  senior  enlisted  personnel 
about the IS advancement process.  On January 17, 2008, CMC C wrote to ISCM RT and CMC J 
that the applicant’s contention that the revised cut in December 31, 2007 included him was a 
stretch.  He stated that on January 1, 2008, the IS advancement list was definitive as established 
on October 2, 2007, except for those who advanced as a result of the May 2006 SWE prior to 
December 31, 2007 or anyone that was a “carry-over” from the May 2006 SWE eligibility list.   
CMC  C  noted  that  had  the  applicant  remained  an  OS  he  would  have  been  placed  above  the 
revised cut for OSCS on January 1, 2008.   
 
 
 

OSCM R responded to CMC C email with the following pertinent disagreement: 

cut on this list, this last sentence had no effect on the 2007 ISCS advancement 
eligibility list published on 2 October [2007].   
 
I have denied your request for relief since you were not above the cut for senior 
chief on any advancement eligibility list prior to May 2007 eligibility list; there is 
no  indication  that  the  IS  eligibility  List  published  on  2  October  2007  was 
improperly  developed  and  the  revised  cuts  published  [on  December  31,  2007] 
were properly established considering personnel lateraling to the IS rating from 
several rating advancement lists.   

As  one  of  the  few  senior  enlisted  members  that  assisted  in  developing  this 
message and the process, I completely agree with the [applicant’s] logic.  There 
are no gray areas here whatsoever.  The thought that the cuts became official on 1 
January is unsupportable.  The [date/time/group] of the message is the effective 
date  of  its  direction  unless  specific  language  is  included  to  say  otherwise.  
Discussions related to this very point were had during development of the policy 
and the ALCOAST.  The language “on Jan 1” was very specifically chosen.   I 
inquired  about  that  choice  during  the  discussions.    We  talked  over  the  various 
consequences  of  choosing  a  date.    Dates  were  discussed  from  the  date  of  the 
board,  through  Jan  1st.   It  was  the  clear  intent  of  the  implementation  team  that 
every member would be treated as a member of their legacy rating until Jan 1, and 
then on Jan 1, all official acts of transition would take place.   
 
This is a simple matter of integrity of the system.  The wording in the message is 
clear.    The  [applicant]  has  spoken  up  for  not  only  for  himself,  but  for  other 
members  of  which  there  is  at  least  one  more.    I  will  strongly  encourage  the 
[applicant]  to  file  a  BCMR  for  himself  and  all  others  affected  if  positive 
resolution is not reached here.  The intent is established in one place here, and that 

is the message from the COMDT, ALCOAST 341/07.  Practices, procedures, and 
even policies set by a subordinate command regardless of their good intentions or 
delegated authorities are secondary.  CGPC concurred with the message and are 
bound by it.   

 

ISCM RT wrote to OSCM R that he was 100% in agreement with the affected members 
and that he had informed people that the intelligence program would honor any revision to the 
cuts in their legacy rating up until January 1, 2008.  He stated that he did not expect a revision 
the day before the rating stood up.  ISCM RT stated that after discussing the matter with two 
CGPC personnel he could see their point that once the  ISC list was created in October 2007, 
members  were  removed  from  their  legacy  lists.  He  stated  that  one  can  not  be  on  two 
advancement lists at the same time.   
 

VIEWS OF THE COAST GUARD 

 

On October 28, 2008, the Board received an advisory opinion from the Judge Advocate 
General (JAG) of the Coast Guard, in which he adopted the memorandum from the Commander, 
Coast  Guard  Personnel  Command  (CGPC).    CGPC  recommended  that  the  Board  deny  the 
applicant’s request.   

 
 
CGPC stated that the Coast Guard complied with the Commandant’s policy with respect 
to the advancement of members in the IS rate beginning on January 1, 2008.  The Coast Guard 
stated that the advancement list from the May 2007 SWE, in which the applicant participated, 
did not become effective until January 1, 2008.  The applicant was not above the cut on the 2006 
SWE advancement eligibility list since he did not participate in that SWE cycle.  Therefore he 
was not authorized carry over to the top of the IS advancement list. 
 
 
The JAG stated that the May 2007 advancement eligibility list and the IS advancement 
eligibility list became effective on January 1, 2008.  However, only the member’s placement on 
the IS advancement list is controlling because the Commandant’s policy specified that members 
would be moved from their legacy lists to the IS list on January 1, 2008.   
 
 
The JAG noted the applicant’s argument that the December 31, 2007 revised cut placed 
him above the cut for E-8 on the OS legacy advancement list.  However, the JAG pointed out 
that the December 31, 2007 revised cut for OS was derived after considering the loss of those 
personnel on that list who had been approved for a lateral to IS on January 1, 2008.   
 
 
The  JAG  argued  that  the  phrase  “prior  advancement  lists”  is  misinterpreted  by  the 
applicant.    The  JAG  stated  that  cuts  apply  only  to  the  effective  period  of  the  advancement 
eligibility list.  
 

 The  policy  refers  to  those  individuals  above  the  cut  for  advancement  on 
eligibility  lists  expiring  prior  to  the  effective  date  of  the  IS  advancement 
eligibility list, January 1, 2008.  The only advancement eligibility lists effective 
prior  to  1  January  2008  were  the  eligibility  lists  based  on  the  May  2006  and 
November 2006 SWE, which the applicant did not participate in.  Even so, the 

applicant was never above the May 2007 cut in the legacy rating as he had been 
moved to the IS advancement list. 

 
 
The  JAG  stated  that  any  favorable  determination  in  the  case  by  the  BCMR  should  be 
subject  to  DHS  General  Counsel  review  as  it  would  represent  a  significant  divergence  for 
standard  application  of  Coast  Guard  policy  with  regard  to  the  stand-up  of  the  IS  rating  and 
placement on the advancement lists.  
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On June 17, 2008, the Board received the applicant’s response to the views of the Coast 
Guard.    He  disagreed  with  them.      The  applicant  restated  arguments  made  in  his  basic 
application. 
 

FINDINGS AND CONCLUSIONS 

 

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

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:  
 
 
of the United States Code.  The application was timely. 
 
 
2.      The  applicant  participated  in  the  May  2007  service  wide  competition  for 
advancement to OSCS (E-8).  The advancement list from the May 2007 competition was issued 
in  June  2007  and  the  applicant  placed  number  8  on  that  list.    CGPC  also  announced  that  the 
advancements resulting from the May 2007 SWE would not become effective until January 1, 
2008.  The cutoff for OSCS at that time was 0.  During 2007, the Coast Guard was in the process 
of creating an entirely new IS rate and members from pay grade E-4 through E-9 were eligible to 
apply for a lateral transfer to the new rate.  The applicant applied for a lateral to the new rate and 
was  selected.    On  July  13,  2007,  the  Coast  Guard  issued  ALCOAST  341/07  explaining  the 
advancement  process  for  the  new  rate.    The  ALCOAST  provided  the  following  for  2008 
Advancements,  in  pertinent  part:  “[January  1,  2008  –  December  31,  2008]  E7,  E8,  &  E9 
Advancements and [January 1, 2008 – 30 June 2008], E5/E6 advancements.  On January 1, 2008, 
IS members on May 2007 SWE eligibility lists for advancement in their legacy ratings will be 
removed from their legacy advancement lists and merged into new IS advancement lists . . .  If 
there  are  any  members  remaining  above  the  cut  from  prior  advancements  lists,  they  will  be 
ordered separately and placed above the cut at the top of the IS advancement lists.”  On October 
2, 2007, CGPC issued a memorandum announcing the IS advancement list.  On December 31, 
2007, the Coast Guard issued ALGENL 206/07 that revised the cuts for the May 2007 SWE.  
The cut for the OS rate, which was the applicant’s legacy rate until January 1, 2008, was revised 
from 0 to No. 13 (the applicant had been No. 8 on that list).  The cut for the new IS rate was at 
No. 3, but the applicant was placed at No. 5 on the ISCS list and not guaranteed advancement to 
ISCS.  The applicant alleged that since he was still a member of his legacy rate on December 31, 
2007 when the revised  cutoffs were issued, he  should have been promoted to OSCS/ISCS on 
January  1,  2008  or  at  the  very  least  moved  as  above  the  cutoff  to  the  top  of  the  ISCS 
advancement list.   

 

3. It is important to note that under normal circumstances an applicant who is above the 
cut, whether an original or revised cut, would normally be carried over to the top of the next 
advancement list in that rate.  However, in this case, the Commandant could deviate from the 
Personnel  Manual  in  establishing  the  new  IS  rate  because  Article  5.C.11.e.    states,  “The 
Commandant may authorize deviations from the normal path of advancement in Commandant 
Instructions or Notices to establish, disestablish, or merge ratings.”  Therefore, this case turns 
mainly on the interpretation of para. 2.B of ALCOAST 341/07 issued on July 13, 2007.   The 
entire paragraph read as follows: 

 
B.  2008  Advancements.    1.    [January  1,  2008  –  December  31,  2008]  E7,  E8, 
Advancements and [January 1, 2008 – 30 June 2008], E5/E6 advancements.  On 
January 1, 2008, IS members on May 2007 SWE eligibility lists for advancement 
in their legacy ratings will be removed from their legacy advancement lists and 
merged into new IS advancement lists.  Placement on the new advancement lists 
will be based on the May 2007 final multiple score excluding SWE points.  The 
removal  of  the  SWE  points  will  eliminate  SWE  calculation  discrepancies  that 
may result from different legacy rating exams.  If there are any member remaining 
above the cut from prior advancements lists, they will be ordered separately and 
placed above the cut at the top of the IS advancement lists.  

 
 
4.  The applicant maintained that he remained in his legacy rate until January 1, 2008 
under para. 2.B.1. of ALCOAST 341/07.  The Coast Guard seems to agree by stating that the IS 
advancement  list  and  the  OS  advancement  list  became  effective  on  the  same  date,  but  the  IS 
advancement  list  controls  because  the  policy  in  ALCOAST  341/07  specified  that  members 
would be moved from their legacy rate list to the IS list on January 1, 2008.  So on January 1, 
2008,  the  applicant  became  an  ISC  and  was  at  No.  5  on  the  list  for  advancement  to  ISCS.  
Paragraph 2.B.1 of ALCOAST 341/07 states in pertinent part:  “On January 1, 2008, IS members 
on [the] May 2007 SWE eligibility lists for advancement in their legacy ratings will be removed 
from  their  legacy  advancement  lists  and  merged  into  new  IS  advancement  lists,”    which  was 
effective from January 1, 2008, to December 31, 2008.   
 
 
5.    The  second  portion  of  the  applicant’s  contention  is  not  so  simple.      The  applicant 
argued that he should have been advanced to E-8 on January 1, 2008 because on December 31, 
2007 the cut for advancement on the OSCS list was revised to No. 13 and he had been No. 8 on 
that list.   He argued that since he was not removed from his legacy rate until January 1, 2008, he 
was  still  on  the  OSCS  list  on  December  31,  2007,  when  the  revised  cuts  were  issued  and 
therefore he was entitled to be carried over to the top of the IS list, which would have guaranteed 
him eventual advancement to ISCS without any further SWE participation.  The applicant argued 
that the last sentence of para. 2.B.1 of the ALCOAST 341/07, supports his position.  The last 
sentence of para. 2.B.1  of the ALCOAST 341/07 reads:   If there  are any  members remaining 
above the cut from prior advancements lists, they will be ordered separately and placed above the 
cut at the top of the  IS  advancement lists.”  The Coast Guard’s view is that the last sentence 
referred to those individuals above the cut on the May 2006 or earlier advancement lists.  As the 
Coast Guard noted the applicant was not on the May 2006 advancement list, or above the cut on 
any earlier lists, and therefore, he was not entitled to be carried over to the top of the new IS list.  

To  clarify:    the  applicant  argued  that  “prior  advancement  lists”  referred  to  the  May  2007  or 
earlier  lists  and  the  Coast  Guard  argued  that  “prior  advancement  lists”  referred  only  the  May 
2006 or earlier advancement lists.   
 
 
6.  The issue before the Board is the meaning of the term “prior advancement lists” in 
ALCOASTS 341/07.  Webster’s Ninth New Collegiate Dictionary defines “prior” as “earlier in 
time or order.”  Id at 936.  Therefore, the Board agrees with the Coast Guard that the use of the 
term “prior advancement lists” under the circumstances of para 2.B.1 of ALCOST 341/07 meant 
advancement lists that existed before the 2007 advancement list.  The Board is persuaded in this 
finding based upon the entirety of para 2.B.1 of ALCOST 341/07.   When the paragraph is read 
in its entirety, it becomes clear that the last sentence is referring to advancement lists earlier than 
2007  because  the  first  part  of  that  paragraph  discusses  quite  thoroughly  what  is  to  happen  to 
those  on  the  2007  advancement  list.    In  this  regard,  it  states  that  such  individuals  would  be 
moved from their legacy list into the new IS list on January 1, 2008.  There was no discussion in 
this portion of the paragraph about bringing any member from the legacy rate who was above the 
cut on any 2007 lists onto the IS list as above the cut.  Even if there were some ambiguity as to 
the meaning of this provision, the Coast Guard’s interpretation of its regulation and policy, if 
reasonable, would be entitled to deference.  Chevron U.S.A. Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837, 842-4 (1984).   
 
 
7.   Also, para. 2.B. of ALCOAST 341/07 stated that placement on the IS advancement 
list would be based on the May 2007 multiple excluding the SWE, to eliminate SWE calculation 
discrepancies that may result from different legacy rating exams.  In order words, the calculation 
to be used for the IS advancement list would in effect create a more level playing field.  To bring 
members to the top of the IS list who were above the cut on their legacy rating, would in effect 
cause the recalculation provision of the ALCOAST to have no effect.  Accordingly, the Board 
finds that the last sentence of para. 2.B.1 of ALCOAST 341/07 did not apply to the May 2007 
advancement list, and the applicant was not entitled to be promoted to ISCS or carried over to the 
top of the IS list  on January 1, 2008.   
 
 
8.    The  Board  is  persuaded  that  if  the  Coast  Guard  had  intended  to  bring  enlisted 
members who were above the cut in their legacy rate on the May 2007 SWE advancement list to 
the top of the new IS advancement list as above the cut, it would have specifically spelled that 
out in the ALCOAST as it did for warrant officers lateraling to the ISS specialty.  Paragraph 4. 
§§ A. & B. of ALCOAST 341/07 clearly stated that warrant officers selected to lateral to the new 
ISS specialty who were above the cut on either the 2006 and 2007 CWO eligibility list “will be 
ordered separately and placed above-the cut at the top of the new ISS CWO eligibility list.”  It is 
appropriate for the Board to consider para. 4 in determining the intent of para. 2 of ALCOAST 
341/07.  In Gottlieb v. Carnival corporation, 436 F.3d 335 (2d Cir. 2005), citing Natural Res. 
Def.  Council,  Inc.  v.  Muszynski,  268  F.3d  98  (2d.  Cir.  2001),  the  court  stated  that  “when 
determining the meaning of a statutory provision, “the text should be placed in the context of the 
entire statutory structure.”  That court relying on United States v. Dauray, 215 F.3d 257, 262 (2d 
Cir. 2000) further stated that “[A] statue is to be considered in all its part when construing any 
one of them.”    The Board is satisfied based upon the entirety of the ALCOAST and specifically 
the text of para. 2.B. of that AlCOAST that the phrase “prior advancement lists” refers to the 
2006 or earlier advancements lists.  If the Coast Guard had intended to transfer members who 

were  above  the  cut  in  their  legacy  ratings  to  the  top  of  the  IS  list,  it  would  have  specifically 
stated that in the ALCOAST.   
 
 
9.    The  applicant  has  demonstrated  through  the  submission  of  evidence  that  confusion 
existed  among  the  senior  enlisted  personnel  as  to  meaning  of  the  pertinent  provision  of  the 
ALCOAST.  In this regard, the applicant alleged that prior to his decision to request a lateral to 
the  IS  rate,  he  consulted  with  CWO  B,  the  OS/IS  enlisted  assignment  officer;  ISCM  RT,  the 
intelligence  specialist  rating  force  manager;  and  MCPO  MCPO  r  who  was  a  member  of  the 
intelligence specialist rating implementation team to ensure that he understood the process.   He 
claimed  that  each  one  assured  him  that  members  selected  to  lateral  to  the  IS  rating  would  be 
allowed advancement opportunities in their legacy rating until January 1, 2008.  Two of the three 
he  claimed  to  have  consulted  appear  to  support  the  applicant’s  contention  that  he  was  to  be 
treated  as  a  member  of  his  legacy  rate  until  January  1,  2008.      ISCM  RT  wrote  that  he  had 
informed  “people  that  the  intel[lignce]  program  would  honor  any  revision  to  the  cuts  in  their 
legacy  rating  up  until  January  1,  2008.”    Also,  OSCM  R  stated  that  it  was  the  intent  of  the 
implementation team for the new rate that every member would be treated as a member of their 
legacy rate until January 1, 2008.  However, the applicant has not provided sufficient evidence 
that  he  was  personally  given  erroneous  information  by  these  two  individuals.    In  this  regard, 
neither of these two individuals ever stated that they specifically discussed the matter with the 
applicant.  Moreover, the cut for the OSCS rate was 0 until December 31, 2007 and the Board 
questions  why  the  applicant  would  discuss  the  issue  of  a  revised  cut  with  senior  enlisted 
personnel prior to August 15, 2007, the date on which applications to lateral to the IS rate were 
due.  If the applicant had produced evidence that senior enlisted members specifically counseled 
him in a manner contrary to the Coast Guard’s interpretation of the pertinent provision of the 
ALCOAST,  the  applicant  would  arguably  have  a  claim  for  relief  based  upon  that  erroneous 
counseling.  However, as stated, the applicant has not provided sufficient evidence that he was 
misled into requesting a lateral to the IS rate by senior enlisted personnel.  OSCM R stated that 
he agreed with the applicant’s interpretation of ALCOAST 341/07, but he never stated that he 
gave the applicant any specific advice.  ISCM RT stated that he had informed people that the 
intelligence program would honor any revision to the cut in their legacy rating up until January 
1, 2008.  However, he never stated that he gave this advice to the applicant.   
 
 
10.  The applicant alleged that  the fact that on November 1, 2007, two OS2s on the May 
2007 OS1 advancement list were actually advanced to OS1 even though they had been selected 
for the new IS rate is evidence that the Coast Guard manipulated the IS advancement process.  It 
is unclear whether the OS2s were advanced in rate to OS1 or IS1.  The Coast Guard argued that 
they were advanced under the early advancement authority issued in ALCOAST 338/07 of July 
13, 2007, which permitted advancements from the May 2007 advancement list when a list from 
the  November  2006  SWE  had  been  exhausted.    However  the  Coast  Guard’s  argument  in  this 
regard appears to be an expedient and self-serving one.  The problem with the argument is that 
the IS rate did not officially begin until January 1, 2008 and all IS billets from E-5 through E-9 
were vacant, not just the two IS1 billets, so why would it have been necessary to advance only 
these  two  individuals  in  November  2006.    Further,  it  does  not  appear  reasonable  to  have 
advanced these two members in their legacy rate for only two months, since they would transfer 
to the IS rate effective January 1, 2008, and since they were not above the cut on their legacy rate 
advancement list.  The advancement of the two OS2s supports the applicant’s suggestion of an 

appearance that the rules related to the IS advancement process were unclear.  However, even if 
the  two  IS1s  were  advanced  mistakenly,  such  a  mistake  would  not  entitle  the  applicant  to  be 
advanced  to  ISCS  because  he  has  not  demonstrated  that  he  was  harmed  by  Coast  Guard’s 
mistake in advancing them.   In this regard, the  advancement of the two  IS1s  appears to have 
been an isolated incident and since they were in a different pay grade from that of the applicant, 
their  advancements  did  not  impact  the  applicant’s  advancement  opportunity  (or  lack  of 
opportunity) in any manner.  The applicant has not established a causal connection between their 
mistaken advancement, if any, and his non advancement to ISCS.  See Quinton v. United States, 
64 Fed. Cl. 118, 125 (2005), in which the court stated that a finding of harmlessness requires that 
there be “no substantial nexus or connection” between a proven error and the prejudicial record 
that the applicant wants corrected.   
 
 
11.  Accordingly, the applicant has failed to establish by a preponderance of the evidence 
that the Coast Guard committer an error or injustice against him that required corrective action 
by this Board.   
 
 
 
 
 
 
 
 
 

12.  The applicant’s request should be denied.     

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 

 

 

ORDER 

The  application  of  XXXXXXXXXXXX,  USCG,  for  correction  of  his  military  record 

 
 

denied.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Lillian Cheng 

 

 
 
 Paul B. Oman 

 

 
 
 Darren S. Wall