DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2009-090 
 
xxxxxxxxxxxxxx 
xxxxxxxxxxxxxx 

 

 
 

DECISION OF THE DEPUTY GENERAL COUNSEL 

AS THE OFFICIAL WITH DELEGATED AUTHORITY TO TAKE 

FINAL ACTION ON BEHALF OF THE SECRETARY OF 
THE U.S. DEPARTMENT OF HOMELAND SECURITY 

       
 
After  considering  the  unique  facts  of  this  case,  I  approve  the  majority’s  Recommended  Final 
Decision of the Board for Correction of Military Records of the United States Coast Guard and 
grant the relief recommended therein. 
 
 
 
 
 
 
 
 
Date:  _[12/24/09]_______________  
 
 
 
 
 
 
 
 

     
_/s/_________________________________ 
Joseph B. Maher  
Deputy General Counsel 
U.S. Department of Homeland Security 

 
 
 
 
 

 

 
 
 

 

 
 
 

 

 
 
 

 

 
 
 

DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2009-090 
 
xxxxxxxxxxxxxx 
xxxxxxxxxxxxxx 

RECOMMENDED 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 after receiving the applicant’s 
completed application on February 24, 2009, 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). 
 
 
the three duly appointed members who were designated to serve as the Board in this case. 

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 he should have been advanced off the eligibility list (hereinafter “2005 list”) resulting from 
the May 2005 SWE (Tab G). 

 
The applicant alleged that after he took the May 2005 SWE to advance from first class 
machinery technician (MK1/E-6) to MKC, his name was #126 on the 2005 list for advancement 
to  MKC.    However,  advancements  were  made  down  only  as  far  as  #125  before  the  2005  list 
expired on December 16, 2006, so he was not advanced.  The applicant alleged, however, that he 
recently learned that MK1 Xxxxxxx, who was above him on the 2005 list and did get advanced 
to MKC off that list, had committed fraud and was improperly advanced.  The applicant further 
alleged  that  had  MK1  Xxxxxxx  not  been  improperly  advanced,  the  applicant  would  have 
advanced to MKC on December 1, 2006.  Therefore, he asked the Board to backdate his date of 
advancement to what it would have been had MK1 Xxxxxxx not been improperly advanced.   

 
In support of his request and allegations, the applicant submitted a series of emails show-
ing the following:  On October 27, 2008, a Coast Guard attorney sent an email to several mem-
bers, including the applicant, reminding them that they were scheduled to serve as witnesses at 
the court-martial of MK1 Xxxxxxx (who was an MKC at the time of trial) beginning on Decem-

ber 15, 2008, in Seattle, Washington (Tab B).  The applicant, who was then serving in Kuwait, 
replied  to  the  attorney  saying,  “I  am thinking this is an accidental mail?  Please advise.”  On 
October 28, 2008, the attorney responded to the applicant saying,  
 

Thanks for checking in.  It wasn’t a mistake.   
 
The story is that a Coast Guard member was improperly advanced to Chief in front of you off of 
the 2005 SWE because he did not correct his PDE which said he had 2 more achievement medals 
than he actually had.  You were the individual that would have made Chief off of that SWE had the 
member’s PDE been correct. 
 
The member is being tried by court-martial for his conduct and we would like to have you testify at 
his sentencing, probably via telephone, if/when he is convicted.  What we need now from you is a 
new email (not a response to this email) explaining your feelings about being promoted to Chief a 
year later than you should have been because of the member’s conduct in not correcting his PDE. 
 
I know this is out of the blue, but your assistance will help in ensuring the member’s conduct is 
properly punished. [Tab B] 

 

 

On October 29, 2008, the applicant sent an email to a chief yeoman (YNC) asking about 
the differences in pay and benefits for an MK1 versus an MKC from December 2006 through 
September  2007  (Tab  A).    The  YNC  replied  that  the  total  difference  in  pay  and  benefits  was 
$5,577.60.  The applicant forwarded the YNC’s email to the Coast Guard attorney asking for the 
name  of  a  contact  within  the  Personnel  Service  Center  (PSC)  who  could  correct  his  date  of 
advancement and pay.  The attorney forwarded this email string to another officer asking whether 
the applicant could “receive back pay, etc., for the time that he should have been a Chief.” 

VIEWS OF THE COAST GUARD 

 
 
On April 30, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion (Tab L) recommending that the Board deny relief in this case.  In so doing, he 
adopted the findings and analysis provided by the PSC in an enclosed memorandum on the case 
(Tab K). 
 
 
The PSC stated that the applicant placed #126 on the May 2005 MKC advancement list 
(Tab E), and MK1 Xxxxxxx placed ahead of him on the list at #97 (Tab F).  The “cut” for guar-
anteed advancement was ultimately revised down to #121—below MK1 Xxxxxxx but above the 
applicant (Tabs D & E).  MK1 Xxxxxxx was advanced to MKC off the 2005 list on November 1, 
2006 (Tab K).  On December 1, 2006, the last advancements off the 2005 list were made, and 
MK1s down to place #125 were advanced to MKC before the list expired (Tab K).  At #126, the 
applicant  did  not  advance.    However,  the  applicant  had  competed  in  the May 2006 SWE and 
placed #119 on the 2006 MKC advancement list (Tab O).  He advanced to MKC off the 2006 list 
on October 1, 2007 (Tab K). 
 
 
In April 2008, the Coast Guard discovered that MK1 Xxxxxxx (then an MKC) had con-
cealed the fact that he had been awarded four extra SWE eligibility points (Tab K).  He was erro-
neously  credited  with  the  four  extra  points  for  having  two  more  Achievement  Medals1  in  his 
                                                 
1  An Achievement Medal is awarded for professional or leadership achievement of a superlative nature that exceeds 
that  which  is  normally  required  of  the  member.    In  the  order  of  precedence,  it  is  the  lowest  medal  awarded  for 

record than he had actually received.  The PSC stated that MK1 Xxxxxxx’s “promotion to MKC 
in November of 2006 was directly effected by the extra four points, and his advancement would 
not have occurred without the benefit of the extra points.”2 (Tab J)  MK1 Xxxxxxx was subse-
quently  tried  at  court-martial  and  “reduced  to  MK1  as  a  result  of  a  fraudulent  advancement.” 
(Tab  J)    Nevertheless,  the  PSC  argued  that  the  applicant’s  request  should  be  denied  for  the 
following reasons: 
 

Only  members  above  the  advancement  cut  are  guaranteed  advancement,  [citing  ALCGENL 
118/06].  Had [the applicant] been number 122, he may have been able to make an argument that 
had [MK1 Xxxxxxx] not been advanced, he would have been number 121.  However, [the appli-
cant] was number 126 and [MK1 Xxxxxxx’s] reduction in rank 2 years later had no bearing on him 
rising above the advancement cut. 
 
Furthermore, the fact that 2 years later the Coast Guard discovered [MK1 Xxxxxxx’s] fraud and 
reduced [him] does not mean that [the applicant] should be advanced.  This situation is no different 
from when members’ advancements are withheld or who are removed from eligibility lists, or later 
reduced in grade for disciplinary reasons.  We do not go back in history and revise the advance-
ment eligibility lists because members are later reduced in grade for misconduct. 

 
 
In support of these allegations, the PSC submitted a copy of the report of the investigation 
(Tab I) into MK1 Xxxxxxx’s advancement and awards (see summary below) and the following 
documentation regarding the 2005 list for advancement to MKC: 
 

On July 1, 2005, the Chief of Enlisted Personnel Management at the Personnel Command 
issued the eligibility lists for advancement resulting from the May 2005 SWE.  His memorandum 
(Tab G) shows that the MKC list would be in effect from January 1 to December 16, 2006.  He 
further stated that members whose names appeared at or above the cutoffs would not have to re-
compete  for  advancement  in  the  next  SWE  unless  their  advancements  were  withheld  by  their 
commanding officers beyond the expiration of the list or their names were removed for cause 
from the list.  The 2005 list for advancement to MKC shows the applicant’s name at #126 and 
MK1 Xxxxxxx’s name above (ahead of) his at #97 (Tabs E & F).   The 2005 list also shows  

 
that fifteen MK1s who placed above the applicant were removed from the list because 
they had already advanced to MKC off the 2004 list or because they had been appointed 
to chief warrant officer;3  
that  three  other  MK1s  who  placed  above  the  applicant  was  removed  from  the  list  for 
performance or disciplinary problems; and  
that one MK1 who placed above the applicant was voluntarily removed from the list.4 

• 

• 

• 

                                                                                                                                                             
personal achievement but higher than a Letter of Commendation Ribbon Bar.  U.S. COAST GUARD, COMDTINST 
M1650.25D,  MEDALS  AND  AWARDS  MANUAL,    Chap.  2.A.16.  and  Encl.  (22)  (May  2008).    In  determining  a 
member’s position on an advancement list, a member receives two eligibility points for each Achievement Medal in 
his record. U.S. COAST GUARD, COMDTINST M1000.6A, COAST GUARD PERSONNEL MANUAL Art. 5.C.3.b.3. 
(Change 37, March 2005) (hereinafter PERSMAN). 
2 Upon inquiry by the Board, the Coast Guard stated that without the four fraudulent advancement eligibility points, 
MK1 Xxxxxxx would have placed #143, below the applicant on the 2005 list, and at #128, instead of #92, on the 
2006 list.  In addition, the Coast Guard stated that MK1 Xxxxxxx began serving on active duty in 1987 (Tab O). 
3 Members whose names are above the cutoff on a chief warrant officer eligibility list are not eligible for advance-
ment as an enlisted member.  PERSMAN, Art. 5.C.13.d. 
4 Members whose requests for retirement are approved are ineligible for advancement.  PERSMAN, Art. 5.C.13.f. 

 
On August 25, 2006, the Personnel Command issued ALCGENL 118/06 (Tab D) with 
“revised cutoffs” for guaranteed advancement from the 2005 advancement eligibility lists.  The 
revised cutoff for advancement to MKC was the member who placed #121 on the 2005 list. 
 
Report of the Investigation into MK1 Xxxxxxx’s Medals and Advancement (Tab G) 
 
The PSC submitted a copy of the May 14, 2008, report of an investigation (Tab G) into 
 
MK1  Xxxxxxx’s  advancement  and  awards.    The  investigator  concluded  that  MK1  Xxxxxxx 
“availed himself of the servicewide promotion points and the subsequent early advancement that 
resulted from two Coast Guard Achievement Medals he was not entitled to wear.  Further, [he] 
wore said medals on his uniform with the knowledge that they were not rightfully his and falsely 
verified official documents to the same effect.”  The investigator stated that on April 7, 2008, 
MK1 Xxxxxxx’s command noticed that MK1 Xxxxxxx (then an MKC) had three Achievement 
Medals in the Coast Guard’s database, and they were all dated within two months of each other 
in February and March 2001.  A query to the command where MK1 Xxxxxxx was stationed in 
2001  revealed  that  he  had  received  only one award but it had been entered in the new Direct 
Access database three times by yeomen in training whose work was not checked.  MK1 Xxxxxxx 
also admitted that he had received only one Achievement Award.  The investigator stated that 
during  an  inspection  in  December  2007,  MK1  Xxxxxxx  had  worn  his  Achievement  Medal 
ribbon with two silver stars and was asked if he had won eleven Achievement Awards, which is 
what two silver stars normally indicate.5  MK1 Xxxxxxx had replied that he thought the ribbon 
with two silver stars represented only three awards.  In addition, when asked later by a crewmate 
about how many SWE points he had received for awards, MK1 Xxxxxxx had replied that he had 
one  more  Achievement  Medal  than  the  crewmate,  who  had  two  of  them,  and  that  he  would 
probably be advanced to senior chief because of his points for the three awards.   
 

The  investigator  reported  that  a  review  of  MK1  Xxxxxxx’s record had shown that the 
extra four points probably did not cause his advancement to MK1 in June 2003 because so many 
MK2s were advanced to MK1 at the time that the four extra points would not have mattered.  
However, MK1 Xxxxxxx’s “promotion to MKC in November of 2006 was directly effected by 
the extra four points and would not have occurred without the benefit of the three [Coast Guard 
Achievement Medals].”  The investigator concluded that MK1 Xxxxxxx had clearly intended to 
deceive because he had worn the ribbon with two stars, had verbally claimed to have received 
three Achievement Medals, had verbally discussed the probable impact of the three medals on his 
advancement eligibility, and had signed six personnel data extracts (PDEs)6 since 2001 verifying 
the accuracy of his record prior to taking each SWE. The investigator also wrote that “[n]o other 

                                                 
5 A gold star is attached to the Achievement Medal ribbon for each four subsequent awards of the medal.  A silver 
star is attached to an Achievement Medal ribbon in lieu of five gold stars.  U.S. COAST GUARD, COMDTINST 
M1650.25D, MEDALS AND AWARDS MANUAL,  Chap. 1.J. (May 2008). 
6  PERSMAN,  Article  5.C.4.a.  (stating  that  it  “is  each  individual’s  responsibility  to  ensure  their  eligibility  in  all 
respects for the SWE. The key to doing so is by verifying and signing the Personnel Data Extract, CG-4902, received 
prior to the SWE date. By signing the CG-4902, members state all changes noted or information on the form are 
current and correct and no further corrections are necessary.”). 

MKCs  were  denied  promotion  at  the  appropriate  time,  since  [MK1  Xxxxxxx]  was  promoted 
‘below [sic] the cut’7 and not in place of another member who might have been above it.”  

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On May 11, 2009, the Chair sent the applicant a copy of the views of the Coast Guard and 

invited him to submit a written response within thirty days.  No response was received (Tab M). 
 

TIMELINE OF EVENTS 

Feb./Mar. 2001  Coast Guard seamen training on new Direct Access database accidentally enter 
MK1  Xxxxxxx’s  (then  an  MK2)  one  and  only  Achievement  Medal  into  his 
electronic record three times (Tab H). 

2001 to 2005  MK1 Xxxxxxx annually verifies the accuracy of a personal data extract (PDE) 
from  his  electronic  record,  thus  fraudulently  claiming  to  have  received  three 
Achievement Medals instead of just one. He thereby enhances his advancement 
eligibility by receiving four extra eligibility points (two per medal) (Tab H). 

May 2005  The applicant and MK1 Xxxxxxx take the May 2005 SWE for advancement to 
MKC.  The applicant places #126 on the 2005 list and MK1 Xxxxxxx places 
above (ahead of) him at #97, although without the four erroneous advancement 
eligibility points, MK1 Xxxxxxx would have been #143 (Tabs E, F, & O). 

Jan. 1, 2006  The  2005  list  goes  into  effect  and  the  Coast  Guard  begins  making  advance-
ments off the top of the list.  The applicant, at #126, is below the initial “cut-
off” of #78 and so is not guaranteed advancement from the 2005 list (Tab O). 

May 2006  The applicant and MK1 Xxxxxxx take the May 2006 SWE for advancement to 
MKC because they are still below the cutoff for guaranteed advancement on 
the  2005  list.    The  applicant  places  #119  on  the  2006  list.    MK1  Xxxxxxx 
places #92 but would have been #128 without the erroneous points (Tab O). 

Aug. 2006  The Personnel Command revises the “cutoff” for guaranteed advancement on 
the 2005 list, which is still in effect, down to #121.  At #97, MK1 Xxxxxxx is 
now above the cutoff, but the applicant, at #126, is still below it (Tab D). 

Nov. 1, 2006  MK1 Xxxxxxx is advanced to MKC off the 2005 list (Tab K). 
Dec. 1, 2006  The member at #125 is the last MK1 to advance to MKC off the 2005 list.  At 

#126, the applicant is not advanced (Tab K). 

Dec. 16, 2006  The 2005 list expires. 

Jan. 1, 2007  The 2006 list resulting from the May 2006 SWE goes into effect. 
Oct. 1, 2007  The applicant is advanced to MKC off the 2006 list (Tab K). 
April  2008  MK1 Xxxxxxx’s (then MKC) fraud in claiming two Achievement Medals that 
he had not earned and the four corresponding advancement eligibility points is 

                                                 
7  Because  MK1  Xxxxxxx placed  #97 and the cutoff had been revised down to #121  prior to his advancement to 
MKC, he was actually “above the cut” on the 2005 list as of August 25, 2006.  U.S. COAST GUARD, ALCGENL 
118/06 (Aug. 25, 2006) (Tab D). 

discovered and investigated (Tab K). 

Dec. 2008  MK1 Xxxxxxx is convicted of fraud at court-martial (Tab J).  In the sentencing 
phase, the applicant is called as a witness to testify to the harm done to him in 
not having been advanced off the 2005 list on December 1, 2006 (Tab B).  A 
YNC  determines  that  the  applicant  lost  $5,577.60  in  pay  and  allowances 
because he did not advance to MKC until October 1, 2007 (Tab A). 

APPLICABLE REGULATIONS 

 

 

Article  5.C.1.a.  of  the  Personnel  Manual  in  effect  in  2005  (COMDTINST  M1000.6A, 
Change  39)  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.3.a.1. states that “[w]hile it cannot be 
guaranteed  that  any  one  person  will  be  advanced,  the  SWE  ensures  a  fair  and  an  impartial 
opportunity  for  advancement  and  a  guarantee  that  all  enlisted  personnel  of  a  particular  rating 
shall have an equal advancement opportunity.” 

 
Article 5.D.1.a. states that the “Personnel Data Extract (PDE) is the command and mem-
bers’  tool  to  verify  that  the  information  for  correctly  computing  the  Servicewide Examination 
(SWE)  Final  Multiple.”    Article  5.D.1.b.  states  that  “Commanding  Officer,  Personnel  Service 
Center (PSC/adv) collects the PDE information from the members’ Direct Access data.  A cru-
cial part of accurate data collection is timely entry in Direct Access. Members, commands, and 
PERSRUs should ensure the necessary Direct Access entry is completed promptly.” 

 
Article 5.C.3.b.1. states that prior to the SWE, the PSC provides each member with a per-
sonnel data extract (PDE), and the member “must take corrective action if it’s incorrect.”  Article 
5.C.4.a. states that members must verify and sign the PDE prior to taking the SWE.  Under Arti-
cle 5.C.3.b., the candidates for advancement to a particular rate, such as MKC, are ranked on the 
advancement  eligibility  list  according  to  a  calculation  that  assigns  points  for  each  candidate’s 
SWE score (up to 80 points), performance marks (up to 50 points), time in service (1 point per 
year for up to 20 years), time in present pay grade (2 points per year for up to 5 years), medals 
and awards (varying from 1 point per Good Conduct Medal and 2 points per Achievement Medal 
up to 10 points for a Medal of Honor), and sea duty (1 point per month and a maximum of 2 
points per year for up to 30 points), as shown on the PDE. 

 
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.38.e. states that “[i]f an enlisted member is advanced in error due to no fault 
of his or her own and solely as a result of administrative error, the member shall be reduced to 
the correct rate as of the date the erroneous advancement is noted.  In such cases, time in grade in 
present rating will be computed from the date originally advanced to the correct rate.  The mem-
ber shall not be required to repay any overpayments caused by this erroneous advancement if the 
following conditions are met … “ 
 

PRIOR BCMR DECISION 

 
In BCMR Docket No. 94-898 (Tab P, Q & R), a senior chief petty officer asked the Board 
 
to promote him retroactively to chief warrant officer (CWO) in 1984 after it was proved in 1988 
that  the  member  who  had  been  ranked  #3  on  the  list  for  appointment  to  CWO  in  1984  had 
cheated  on  the  SWE.    The  applicant  had  ranked  #14  on  that  list,  and  appointments  had  been 
offered to the top thirteen members on the list before it expired (Tab R).  The applicant had not 
received an appointment to CWO in the interim (Tab R). 
 
 
The  Board’s  initial  decision  (Tab  P)  and  decision  on  remand  (Tab  Q)  recommended 
granting relief and argued that the applicant’s position on the list had been usurped by a cheater, 
which constituted a “manifest injustice,” which “detract[ed] from the integrity of the advance-
ment system.” (Tab Q) 
 
 
The delegate of the Secretary, however, denied relief (Tab R).  She stated that promotion 
or appointment is “not a matter of right, but of discretion” and that placement on an eligibility list 
does not entitle a member to promotion or appointment.  She stated that promotion “results from 
both placement as the next member in line from the top of the eligibility list and also the appear-
ance of a vacancy.”  She concluded that the applicant was not entitled to promotion because the 
cheater had in fact “encumbered” a CWO position and so no vacancy in the CWO ranks occurred 
for the member at #14 on the advancement list prior to that list’s expiration.  She stated that the 
vacancy did not occur until 1988, when the other member’s cheating was discovered.  Further-
more, she pointed out that there were other factors, besides the member’s cheating, that affected 
the circumstances of the case.  She noted that the Personnel Command had set the cutoff at #7, so 
that the applicant could not have had an expectation of appointment.  She also noted that only ten 
appointments were made  off the list; so the member at #13 was appointed only because three 
members higher on the list had declined the appointment.  Therefore, she stated, the causal nexus 
between the cheating and the applicant’s failure to be appointed was very weak, as his rise to the 
top of the list “was more of an aberration in probability than a legitimate expectation that the 
applicant came so close to being promoted.” 
 
 
Finally,  the  delegate  stated,  “the  reactivation  of  expired  eligibility  lists  raises  not  only 
legal concerns, [citing Kletzing v. Young, 210 F.2d 729 (D.C. Cir. 1954) (where blind applicant 
to the civil service brought suit to have his name restored to the eligibility list after it was alleg-
                                                 
8 Docket No. 94-89 (DOT BCMR, Sept. 18, 1990).  Under the old numbering system, BCMR Docket No. 94-89 was 
the 94th application received in docket year 1989. 

edly wrongfully removed because of his handicap, the Circuit Court considered his claim moot 
because that eligibility list had expired and could not be revived)] but also equitable ones.”  She 
pointed out that promoting the applicant would mean that the member who was at the top of the 
list in 1988 would not be promoted to fill the next vacancy—the one created by the discovery of 
the  cheating—as  required  by  the  Personnel  Manual.    “Thus,  in  effect,  the  BCMR  now  would 
repeat through official action the wrong of bumping an otherwise qualified member to a position 
below the number of vacancies for the year.”  She stated that although it is unfortunate that the 
cheating negatively affected the applicant, the Coast Guard neither condoned it nor covered it up.  
Moreover,  she  stated  “[i]n  its  proper  perspective,  the  injury  done  here  was  not  by  the  Coast 
Guard against [the applicant], but by one member against another.  I do not find here that the 
Coast Guard must be obligated, at the cost of inflicting injury upon another service member as 
well as itself, to correct this type of ‘inequity’.” (Tab R) 
 

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: 
 

1. 

The Board has jurisdiction over this matter pursuant to 10 U.S.C. § 1552.  The 
application is timely as it was filed within three years of the applicant’s discovery of the alleged 
error.9 

 The applicant alleged that his date of advancement as an MKC is erroneous and 
unjust because a member, MK1 Xxxxxxx, who advanced to MKC before him committed fraud in 
gaining  that  advancement  and  the  applicant’s  name  was  at  the  top  of  the  2005  advancement 
eligibility list when it expired.  Therefore, the applicant asked the Board to backdate his date of 
rank as an MKC from October 1, 2007, to December 1, 2006 (Tab C).  The Board begins its 
analysis in every case by presuming that the disputed information—in this case, the applicant’s 
date of advancement to MKC—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.10  Absent evidence to the contrary, the Board presumes that Coast Guard officials have 
carried out their duties “correctly, lawfully, and in good faith.”11  

 
2. 

 
3. 

The applicant has proved by a preponderance of the evidence that the Coast Guard 
committed error by entering one Achievement Medal into MK1 Xxxxxxx’s record three times in 
February and March 2001.  The May 2008 report of the investigation (Tab I) into the three med-
als shows that the Coast Guard committed this error when in 2001 Coast Guard yeomen in train-
ing  entered  MK1  Xxxxxxx’s  first  and  only  Achievement  Medal  into  the  new  Direct  Access 
database three times and that the Coast Guard then failed to detect the two erroneous awards for 
seven years (Tab H).  Over a period of seven years, the Coast Guard failed, on at least six occa-
sions, to detect the obvious abnormality of a member receiving three separate achievement med-
                                                 
9 See also Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that under § 205 of the Soldiers’ and Sail-
ors’ 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). 
10 33 C.F.R. § 52.24(b).   
11 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

als in two months (Tab H).  Such an event is probably unprecedented in history of this medal or 
any  like it.  The Coast Guard’s errors enabled MK1  Xxxxxxx, who was, like the applicant, a 
candidate for advancement to MKC in 2005 and 2006, to commit fraud by verifying his personal 
data  extract  (PDE)  with  the  two  extra,  erroneous  Achievement  Medals  therein  and  thus  to  be 
credited with four advancement eligibility points to which he was not entitled (two points per 
unearned medal).12   

The Coast Guard has further stated that because of the four unearned eligibility 
points, MK1 Xxxxxxx placed #97 on the 2005 list for advancement to MKC (Tab F)—above the 
applicant who placed #126 (TabE)—whereas without the four unearned points, MK1 Xxxxxxx 
would have placed below the applicant at #143 (Tab O).  In addition, the Coast Guard has stated 
that the last advancements to MKC were made off the 2005 list on December 1, 2005, and were 
made down to and including the person at #125 (Tab K).  The applicant was #126 on the 2005 
list and therefore at the top of the list when it expired on December 16, 2006 (Tab E).  In an 
email dated October 28, 2008, a Coast Guard attorney advised the applicant that he would have 
advanced  to  chief  (MKC)  on  December  1,  2006,  had  MK1  Xxxxxxx  not  been  improperly 
advanced, and called on the applicant to testify to the harm done to him during the sentencing 
phase  of  MK1  Xxxxxxx’s  court-martial  (Tab B).  By soliciting and advancing the applicant’s 
testimony (offered in federal court subject to perjury) that he had been uniquely harmed by the 
errors in question, the Coast Guard, at the very least, should acquiesce in the conclusion that the 
applicant has been uniquely harmed.  Therefore, the Board finds that but for the Coast Guard’s 
errors  in  entering  two  unearned  medals  in  MK1  Xxxxxxx’s  record,  the  applicant  would  have 
advanced to MKC on December 1, 2006.  In this regard, the Coast Guard’s errors constitute a 
proximate  cause  of  the  applicant’s  failure  to  advance  off  the  2005  list.  Instead, the applicant 
advanced to MKC on October 1, 2007, off the 2006 list (Tab K).  A YNC has calculated that the 
applicant lost $5,577.60 in pay and allowances as a result of MK1 Xxxxxxx’s improper advance-
ment on November 1, 2006 (Tab A). 

 
4. 

 
5. 

In  attributing  the  applicant’s  failure  to  advance  to  MKC  off  the  2005  list  on 
December 1, 2006, to the Coast Guard’s errors, the Board is not ignoring the fraud committed by 
MK1  Xxxxxxx.    If  MK1  Xxxxxxx  had  honestly  alerted  the  Coast  Guard  to  the  erroneous 
Achievement  Medals  in  his PDE, as required by the Personnel Manual,13 the applicant would 
have  placed  #125  on  the  2005  list  and  would  have  advanced  to  MKC  on  December  1,  2006.  
However, the Coast Guard erroneously placed the two unearned Achievement Medals in MK1 
Xxxxxxx’s record, did not (and does not) require any other check on the accuracy of PDEs (Tab 
O), and instead relies on enlisted members to verify their own PDEs,14 which greatly affect their 
ultimate placement on the advancement eligibility lists.  Thus, the Coast Guard requires enlisted 
members, such as the applicant, to trust in the integrity of the advancement system and honor 
system but then provides no remedy for the victims when those systems fail.  The Coast Guard’s 
reliance on honor among its members carries the duty to show respect for those members who are 
injured by their reliance on that system.  The Coast Guard committed a series of errors that pre-
vented  the  applicant  from  being  promoted  in  a  timely  fashion.    Its  response  is  to  avoid  any 
responsibility to its innocent member by assigning all guilt to the person who exacerbated the 

                                                 
12 PERSMAN, Art. 5.C.3.b.3. 
13 PERSMAN, Arts. 5.C.3.b.1. and 5.C.4.a. 
14 Id. 

Coast Guard’s errors by criminal conduct.  As the Coast Guard operates on a system where it 
takes a man or woman at their word, Coast Guard members are entitled to (and must) rely on 
their  fellow  members.    Where  such  reliance  causes  injury,  the  Coast  Guard  must  repair  that 
injury.  Failure to restore the applicant to his correct time in grade would constitute a failure of its 
own honor system and respect for this Coast Guardsman.  Honor and respect are two of the three 
core values of the Coast Guard.15  The Board is not persuaded that the Coast Guard has done 
enough by punishing the criminal and ignoring his victim.  It does the victim little good to know 
that the United States punished the thief and pocketed his ill gotten gains.  The money the Coast 
Guard asked the applicant to tell a court of law that he lost, $5,577.60, should not remain in the 
U.S. Treasury. 

While  the  Personnel  Manual  contains  a  provision  (Article 5.C.38.e.) addressing 
the situation wherein an enlisted member is advanced due to an administrative error, it contains 
no provisions for reviewing past advancements or promotions and revising dates of rank when a 
member is not advanced due to such an error.  The Board recognizes that, if authorized by regu-
lation,  such  corrections  would  likely  affect  several  members’  dates  of  rank.    For  example, 
because MK1  Xxxxxxx  was improperly advanced  to MKC on November 1, 2006, (a) another 
MK1 who would have advanced on that date, instead of MK1 Xxxxxxx, was not advanced until 
December 1, 2006; (b) the applicant was not advanced to MKC until October 1, 2007, off the 
2006 list; and (c) another MK1 on the 2006 list would have advanced off that list on October 1, 
2007, in lieu of the applicant.  Here these other potential claimants fall closer to the “aberration 
of probability” noted by the delegate of the Secretary in BCMR Docket No. 94-89 (Tab R).  It is 
indeed difficult to point to subsequent advancement lists and attempt to maintain a “proximate 
cause” of error.  It is totally irrelevant to discuss matters that happen after a list is created, such as 
subsequent misconduct, retirements, and commissioning, and to attempt to equate those with the 
facts in this case.  This case can be distinguished from BCMR Docket No. 94-89 by the very 
unique facts.  The Coast Guard, through the attorney who called on the applicant to testify at 
MK1 Xxxxxxx’s court-martial (Tab B), recognized that the applicant is uniquely placed as the 
most  obvious  and  significant  victim  of  the  Coast  Guard’s  several  errors  and  the  improper 
advancement  of  MK1  Xxxxxxx.    The  Coast  Guard  should  not  compound  its  errors  by  hiding 
behind  the  criminal  acts  of  MK1  Xxxxxxx.    While  those  standing  between  the  applicant  and 
MK1  Xxxxxxx  on  the  2005 list might show some level of harm, none will approach the ten-
month delay of the applicant’s advancement.  In addition, the applicant had to endure the anxiety 
of another SWE.  These facts place this applicant in a unique status.  They shock our sense of 
justice.16  The Board finds that the injury to the applicant is due to error by the Coast Guard.  But 
even  if  we  did  not  reject  the  Coast  Guard’s  assertion  that  its  errors  were  overcome  by  MK1 
Xxxxxxx’s criminal act of certification and found no error on the part of the Coast Guard, we 
would still conclude that there must be some equity in a case as it shocks our sense of justice. 

 
6. 

 

                                                 
15 PERSMAN, Art. 8.K.2.a.; see also http://www.uscg.mil/leadership/values.asp, noting that the Coast Guard’s three 
core values are honor, respect, and devotion to duty. 
16 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 
Board has authority to determine whether an injustice exists on a “case-by-case basis.” Docket No. 2002-040 (DOT 
BCMR, Decision of the Deputy General Counsel, Dec. 4, 2002). 

7. 

The loss of more than $5,500 in pay and allowances and the loss of time in rate,17 
which will negatively affect future advancements, are not only very harmful to the applicant’s 
financial well-being but also, potentially, to his and all enlisted members’ morale and trust in the 
Coast Guard’s advancement system and honor system.  The applicant is the victim of a manifest 
injustice18  attributable  not  only  to  MK1  Xxxxxxx’s  fraud  in  verifying  his  PDE  with  two 
unearned  Achievement  Medals  therein,  but  also  to  the  Coast  Guard’s  errors  in  entering  one 
medal in MK1 Xxxxxxx’s record three times and the failing to detect the errors for seven years 
(Tabs B & H).  Although correction of the applicant’s date of rank under such circumstances is 
not required by regulation, the Board believes that it is required in the interest of justice.19  As 
the United States Court of Appeals for the Federal Circuit has stated, “‘when a correction board 
fails to correct an injustice clearly presented in the record before it, it is acting in violation of its 
mandate.’”20  And, “[w]hen a board does not act to redress clear injustice, its decision is arbitrary 
and capricious.”21  Moreover, 10 U.S.C. § 1552(a) does not limit the injustices that the Board is 
authorized to remove to those that are solely attributable to the Coast Guard’s errors or actions.22  
The Board strongly believes that it is grossly unjust for the Personnel Manual to address admin-
istrative errors that benefit a candidate for advancement23 while ignoring those errors that hurt 
him.  In light of the clear injustice that the applicant has suffered and the fact that the injustice is 
attributable in part to the Coast Guard’s errors, the Board finds that the applicant is entitled to 
relief.   
 
8. 

The  Board  notes  that  there  are  some  similarities  between  this  case  and  that  in 
BCMR Docket No. 94-89, wherein the delegate of the Secretary denied relief (Tab R).  However, 
this case is easily distinguishable from that case on two significant bases.  First, in No. 94-89, the 
applicant’s failure to be appointed to CWO was due to another member’s cheating on a test and 
not to any administrative errors by the Coast Guard.  In that case, the delegate of the Secretary 
stated that the Coast Guard was “as much—if not more—a victim of the cheater’s wrongdoing” 
as the applicant and that the Coast Guard was not obligated to correct one member’s injury to 
another—i.e., the cheater’s injury to the applicant in preventing his appointment to CWO.  In this 
case, however, the Coast Guard’s administrative errors in entering two erroneous medals in MK1 
Xxxxxxx’s record and failing to detect them for seven years (Tab I) and its absolute reliance on 
the honor system in verifying PDEs  (Tab O) and ranking candidates for advancement enabled 
MK1 Xxxxxxx to perpetrate his fraud and thus directly harmed the applicant.  Second, in No. 94-
89 (Tab R), the applicant had never been appointed to CWO, and so his retroactive appointment 
would have prevented the appointment of someone on the CWO eligibility list in effect when the 
cheating was discovered.  The delegate of the Secretary stated that granting relief in that case 
“would repeat through official action the wrong of bumping an otherwise qualified member to a 
                                                 
17 PERSMAN, Art. 5.C.3.b.2. (stating that members receive one eligibility point for each six months spent in their 
current rate). 
18 Reale, 208 Ct. Cl. at 1011. 
19  10  U.S.C.  §  1552(a)  (authorizing  the  Secretary,  through  the  BCMR,  not  only  to  correct  errors  but  to  remove 
injustices from military records). 
20 Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004) (quoting Yee v. United States, 206 Ct. Cl. 388, 397 
(1975)). 
21 Boyer v. United States, 81 Fed. Cl. 188, 194 (2008). 
22 See, e.g., Docket No. 2002-110 (DHS BCMR, Decision of the Delegate, 2003) (restoring the veteran to the rolls as 
an active duty officer—but not voiding his discharge, which was based on his plea of nolo contendere in a State 
court—after the child who had claimed he had molested her credibly recanted her story). 
23 PERSMAN, Art. 5.C.38.e. 

position below the number of vacancies for the year.”  In this case, however, the applicant has 
already advanced to MKC and asks only that his date of rank be backdated by ten months from 
October 1, 2007, to December 1, 2006 (Tab C).  Therefore, a grant of relief in this case would 
not “bump” or otherwise prevent the advancement of anyone on the current MKC advancement 
eligibility  list.    Given  these  two  significant  factual  differences  between  this  case  and  BCMR 
Docket No. 94-89, the Board is not persuaded that the delegate’s denial of relief in No. 94-89 
requires denial of relief in this case. 

Accordingly, the applicant’s request should be granted. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
 

 
9. 
 

 

ORDER 

 
 
The application of MKC xxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his military 
record is granted.  The Coast Guard shall backdate his MKC date of rank from October 1, 2007, 
to  December  1,  2006,  and  shall  pay  him  any  back  pay  and  allowances  due  as  a  result  of  this 
correction. 
 
 
 

 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

(see dissenting opinion) 
 Lillian Cheng 

 

 
 Francis H. Esposito 

 

 

 

   
 
 Janice Williams-Jones 

 

 

 

 

 

 

 

 

 

 

   
 

   

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2009-090 
 
xxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxx 

DISSENTING OPINION 

 

 

 

 
1. 

 
2. 

I  respectfully  dissent  from  the  recommended  decision  and  order  of  the  majority  of  the 

Board and would deny the applicant’s request for relief in this case for the following reasons: 

The  May  2008  report  of  the  investigation  (Tab  I)  into  MK1  Xxxxxxx’s  fraud 
states that inexperienced Coast Guard yeomen in training in 2001 mistakenly and unintentionally 
entered MK1 Xxxxxxx’s single Achievement Medal into the Direct Access database three times 
(Tab H).  The report further states that MK1 Xxxxxxx thereafter annually verified his personal 
data  extract  (PDE)  as  accurate,  even  though  he  knew  he  had  received  only  one  Achievement 
Medal, and that he fraudulently obtained his advancement to MKC off the 2005 list because of 
the four extra advancement eligibility points that he received for the two unearned Achievement 
Medals in his PDE.24   The Coast Guard has admitted that without the four extra points, MK1 
Xxxxxxx would have placed #143, instead of #97, on the 2005 list (Tab O); that advancements 
were made down to #125 on the 2005 list before it expired in December 2006 (Tab K); and that 
the  applicant  placed  #126  on  the  2005  list  (Tab  E).    The  applicant  subsequently  advanced  to 
MKC  off  the  2006  list  on  October  1,  2007  (Tab  K).    I  agree  with  the  majority  of  the  Board, 
therefore, that the applicant has proved that the Coast Guard committed an error with respect to 
MK1 Xxxxxxx’s record and awards.     

The  yeomen’s  error,  however,  cannot  be  considered  the  proximate  cause  of the 
applicant’s  failure  to  advance  off  the  2005  list  on  December  1,  2006,  as  the  majority  argues, 
because MK1 Xxxxxxx’s repeated fraud in verifying his PDE is an intervening and superseding 
cause.25    The  majority’s  insistence  that  the  Coast  Guard  erred  in  failing  to  discover  MK1 
Xxxxxxx’s fraud before 2008 is speculative and not based on any evidence contained within the 
record.    The  evidence  does  not  support  the  majority’s  conclusion  that  the  errors  of  the  Coast 

                                                 
24 U.S. COAST GUARD, COMDTINST M1000.6A, COAST GUARD PERSONNEL MANUAL Art. 5.C.3.b.3. (Change 
37,  March  2005)  (hereinafter  PERSMAN)  (stating  that  a  member  receives  two advancement eligibility points for 
each Achievement Medal in his record). 
25 57A AM. JUR. 2d Negligence § 562 (May 2009) (“Where a new, independent, and efficient cause, which was not 
reasonably foreseeable, intervenes, the original actor’s negligence is not the proximate cause of an injury. [Citations 
omitted.] In such cases, the causal factor qualifies as a supervening one, and the original negligence may be said to 
undergo a legal metamorphosis into a remote cause or a mere condition. [Citations omitted.]”). 

Guard’s yeomen were the proximate cause of the applicant’s failure to advance off the 2005 list.  
Article 5.C.3.b.1. of the Personnel Manual states that prior to the SWE, the PSC provides each 
member with a PDE, and the member “must take corrective action if it’s incorrect.”  Indeed, as 
noted in section 4.A.6 of the current pre-SWE instruction, ALCOAST 012/09, the “member is 
solely responsible to review all data [within his or her personal data extract (PDE)] for accuracy.” 
(Tab N)     

Thus,  the  Coast  Guard  reasonably  relies  on  the  honor  system  in  ranking  candi-
dates for advancement by having the members—who are best positioned to know what should 
and should not be in their records—verify their own PDEs.26  The Coast Guard did not condone 
or cover up MK1 Xxxxxxx’s fraud and, once it discovered the fraud, took action against MK1 
Xxxxxxx  and  ultimately  convicted  him  at  court-martial  for  his  crime  (Tab  J).    Therefore, 
although MK1 Xxxxxxx took advantage of the honor system and the yeomen’s error in 2001 to 
commit the fraud, I do not believe that the Coast Guard is obligated in this case to violate its 
policy of not retroactively fixing members’ dates of rank when fraud or cheating is discovered.  
The Personnel Manual contains no provisions for reviewing past advancements or promotions 
and revising dates of rank when enlisted members or officers are found to have committed crimes 
and obtained their ranks fraudulently. 

 
3. 

 
4. 

 
5. 

Members are only assured advancement when their names appear at or above the 
cutoff  on  an  advancement  eligibility  list.27    Cutoffs  are  set  in  anticipation  of  expected 
vacancies,28  and  advancements  are  made  to  fill  vacancies.29    Moreover,  members  do  not  rise 
above  the  cutoff  when  a  name  is  removed  from  the  list.    Rather,  Commander,  CGPC,  at  his 
discretion, may revise the cutoff downward on an advancement list when additional vacancies are 
anticipated (Tab D).  In this case, the cutoff for MKCs on the 2005 list was initially set at #78, 
first revised to #82, later revised to #110, and then finally revised down to #121 (Tab O).  Thus, 
at #126, regardless of MK1 Xxxxxxx’s fraud, the applicant was never above the cutoff on the 
2005 list and had no legitimate expectation of advancement in the fall of 2006.  Nor would he 
have been above the cutoff if MK1 Xxxxxxx’s military record had been accurate because even 
the member at #125 was not above the final cutoff.  The members at #125 and above on the 2005 
list, including MK1 Xxxxxxx, were advanced to fill vacancies, and there was no known vacancy 
in the MKC ranks for the applicant, at #126.  Therefore, he has not proved that his failure to be 
advanced on December 1, 2006, was erroneous or unjust.30   

Even though MK1 Xxxxxxx committed fraud in obtaining his place at #97 on the 
list, I do not believe that the Coast Guard is committing an error or injustice against the applicant 
by refusing to backdate his date of rank as if he had advanced to MKC from the 2005 list.  The 
facts of this case are very similar to the facts in BCMR Docket No. 94-89 (Tabs P, Q & R), in 
which the delegate of the Secretary denied relief, noting that placement on an eligibility list does 
not  per  se  entitle  a  member  to  a  promotion,  which  “results  from  both  placement  as  the  next 
member in line from the top of the eligibility list and also the appearance of a vacancy.”  (Tab R)  
                                                 
26 PERSMAN, Arts. 5.C.3.b.1. and 5.C.4.a. 
27 PERSMAN, Art. 5.C.31.b. 
28 PERSMAN, Art. 5.C.3.a.2. 
29 PERSMAN, Art. 5.C.1.a. 
30 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).   

 
6. 

 
7. 

 
8. 

Like the applicant in BCMR Docket No. 94-89, this applicant’s failure to advance 
off the 2005 list on December 1, 2006, was due in part to his position on the list as well as to 
another member’s fraud in placing ahead of him on the list (Tab R).  The applicant’s placement 
on the 2005 list was determined by numerous factors that were included in the calculation of his 
final multiple.31  However, his position at the top of the 2005 list when it expired was due not 
only to those factors but also to the fact that nineteen MK1s ahead of him on the list had been 
removed from the list for various reasons (Tab G).  In BCMR Docket No. 94-89, the delegate of 
the  Secretary  stated  that  that  applicant  was  not  entitled  to  relief  because  there  was  no  known 
vacancy for him in the CWO ranks and because the “chain of causality” between the applicant’s 
failure  to  be  appointed  to  CWO  and  the  cheating  of  the  member  who  placed  #3  on  the  1984 
CWO list was weak (Tab R).  In so stating, she noted that the Coast Guard had anticipated only 
seven CWO vacancies while the 1984 list was in effect; that ten vacancies ultimately occurred; 
and that the applicant in that case, who had placed #14 on the list, was only at the top of the list 
when it expired because three of the thirteen members above him had declined the promotion.  
The delegate concluded that “it was more of an aberration in probability than a legitimate expec-
tation that the applicant came so close to being promoted.”  (Tab R)  While the applicant in this 
case obviously won his position at #126 on the 2005 list through long years of hard work, the fact 
that he was at the top of the list when it expired was similarly improbable. 

The majority’s attempt to distinguish BCMR Docket No. 94-89 from this case is 
not persuasive.  While it was Coast Guard yeomen who initially incorrectly entered two medals 
in  MK1  Xxxxxxx’s  record,  the  supervening  and  therefore  central  conduct  that  generated  the 
fraud and improper advancement was MK1 Xxxxxxx’s actions in misrepresenting two admin-
istrative mistakes as truth (Tab H).  By Coast Guard regulation and policy, the onus was on MK1 
Xxxxxxx  to  verify  the  accuracy  of  his  record,32  which  he  and  he  alone  failed  to  do,  thereby 
constituting  fraud  (Tab  J).    MK1  Xxxxxxx’s  conduct  is  closely  analogous  to  the  member’s 
cheating in No. 94-89 (Tab R).  

The  majority  also  argues  that  in  No.  94-89,  the  applicant  had  never  been 
appointed to CWO and therefore his retroactive appointment would have prevented or “bumped” 
the  appointment  of  someone  else,  and  that  here  the  grant  of  relief  would  not  prevent  the 
advancement of anyone on the current MKC eligibility list.  This distinction, however, goes more 
to  the  question  of  what  kind  of  relief  is  appropriate  than  whether  relief  itself  is  appropriate.  
Backdating the applicant’s advancement by ten months, as he requested (Tab C), may not bump 
someone  else  from  advancement,  but  it  would  underscore  the  unaddressed  harm  of  the  other 
individuals described below.  In this regard, the majority’s recommended decision would merely 
substitute one form of disparity for another.  Ultimately, the majority’s decision cannot explain 
away the essential similarities between No. 94-89 and this case:  a member committed a fraud, 
which  allowed  him  placement  on  an  advancement  eligibility  list  at  a  position  higher  than  the 
                                                 
31 PERSMAN, Art. 5.C.3.b. (showing that the candidates for advancement to a particular rate, such as MKC, are 
ranked  on  the  advancement  eligibility  list  according  to  a  calculation  of  a  multiple  that  assigns  points  for  each 
candidate’s SWE score (up to 80 points), performance marks (up to 50 points), time in service (1 point per year for 
up to 20 years), time in present pay grade (2 points per year for up to 5 years), medals and awards (varying from 1 
point per Good Conduct Medal and 2 points per Achievement Medal up to 10 points for a Medal of Honor), and sea 
duty (1 point per month and a maximum of 2 points per year for up to 30 points), as shown on the PDE). 
32 PERSMAN, Arts. 5.C.3.b.1. and 5.C.4.a. 

 
9. 

applicant, who fell below the cutoff, and when the fraud was discovered by the Coast Guard, the 
member was punished and reduced in rate.  Those facts were not enough to entitle the applicant 
in No. 94-89 to the relief he requested (Tab R), and, in the interests of consistency and fairness, 
those facts should not be enough here.   

Granting the relief requested by the applicant would raise more equitable concerns 
than it would resolve.  If authorized, backdating the applicant’s date of promotion would clearly 
affect  several  members’  dates  of  rank.    For example, because MK1 Xxxxxxx  was improperly 
advanced to MKC on November 1, 2006, (a) another MK1 who would have advanced to MKC 
on  that  date  presumably  was  not  advanced  until  December  1, 2006; (b) the applicant was not 
advanced to MKC until October 1, 2007, off the 2006 list; and (c) another MK1 on the 2006 list 
would have advanced off that list on October 2, 1007, in lieu of the applicant.  Whenever such 
fraud occurs, numerous members who placed below the wrong-doer on the current and subse-
quent lists may be harmed by being promoted later than they would have been but for the fraud 
or,  as  in  Docket  No.  94-89,  by  never  being  promoted  at  all  (Tab  R).    That  the  applicant  was 
promoted the last of all of these individuals on the 2005 list and therefore, by this single measure, 
arguably suffered the most harm does not negate that every individual whose advancement MK1 
Xxxxxxx  affected  by  his  wrongdoing  suffered  a  harm  because  of  his  fraud.    I  believe  such 
matters should be settled by policy applicable to all.  The Coast Guard’s advisory opinion states 
that the Coast Guard “do[es] not go back in history and revised the advancement eligibility lists 
because members are later reduced in grade for misconduct.” (Tab J) 
 

The delay of the applicant’s advancement by ten months is indeed a substantial 
harm  (Tab  A),  but,  as  pointed  out  above,  it  is  not  the  only  harm  that  resulted  from  MK1 
Xxxxxxx’s fraud, and  I am not convinced that the applicant is entitled to relief simply on the 
basis that his harm may have been the most substantial.  Unlike the majority, I do not place any 
significance  on  the  prosecutor’s  decision  to  ask  the  applicant  to  testify  at  MK1  Xxxxxxx’s 
sentencing (Tab B), since a prosecutor’s concerns about proving a criminal case, as well as his or 
her resources to do so, are very different than the equitable and policy concerns at issue before 
the Board.  I do not dispute the majority’s view that the applicant here has suffered a harm; the 
paramount question, however, is whether the applicant has shown, in light of the evidence in the 
record, Coast Guard policy and practice, and the overarching considerations of equity, that he is 
entitled to the relief he seeks.  I do not believe he has. 

10. 

 
11. 

 
12. 

The majority appears to believe that Coast Guard members are entitled to a 100% 
fool-proof record-keeping system and a 100% fraud-proof advancement system.  I do not agree.  
Imperfection is a hallmark of human existence and no human endeavor, however thoughtfully 
planned and carefully executed, will be immune from error.  The Board ought not demand per-
fection from the Coast Guard where none is possible, but rather a reasonable, good faith effort at 
carrying out the entrusted duties.  The record here clearly does not show perfection, but I believe 
it shows that the Coast Guard acted reasonably and in good faith under the applicable policy.    

It is very unfortunate that MK1 Xxxxxxx committed his fraud, thereby injuring 
numerous fellow members of the Coast Guard, including the applicant.  I am sympathetic to the 
applicant’s obvious grievance at his situation and for the harm he has suffered.  But I believe that 
the decision in BCMR Docket No. 94-89, the lack of a Coast Guard policy providing for the cor-
rection of members’ advancement dates under the circumstances at issue here, and a prudential 

consideration  of  the  equities of a policy that applies to all, compel a denial of the applicant’s 
request for relief.  For the foregoing reasons, I believe his application should be denied. 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Lillian Cheng 

 

 

 

 

 

   
 
 
 
 

   
 
Date