DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-179 
 
XXXXXXXXXXX 
XXXXXXXXXXX 
   

 

 

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 upon receipt of 
the  applicant’s  completed  application  on  June  22,  2009,  and  subsequently  prepared  the  final 
decision for the Board as required by 33 CFR § 52.61(c).         
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  March  11,  2010,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The applicant asked the Board to correct his military record by promoting him to chief 
warrant  officer- W3  (CWO3)  retroactively  to  January  1,  2009.      He  further  requested  that  all 
documentation  referencing  a  failure  of  selection  for  promotion  be  removed  from  his  military 
record.   
 
 
The  applicant  was  not  selected  for  promotion  to  CWO3  by  the  selection  board  that 
convened on October 20, 2008 (PY 2009 selection board).   The applicant stated that after he was 
notified that he had not been selected for promotion, he contacted a LCDR at CGPC to review 
his  PDR.    The  applicant  stated  that  after  that  review  the  LCDR  could  not  identify  a  specific 
problem but noted that the applicant had a lot of white space in some of the comment blocks on 
his officer evaluation reports (OERs) and that his marks should have been higher, especially the 
comparison  scale  marks  in  block  9  .    The  applicant  indicated  that  the  LCDR  noted  that  the 
applicant  had  one  negative  page  7  from  1990.    The  October  30,  1990  page  7  counseled  the 
applicant, who was a BM3 at the time, about his failure to ensure that junior personnel stood 
proper messenger watches.  
 
 
The  applicant  stated  that  the  Commandant  directed  members  of  the  selection  board  to 
select officers based on a best-qualified and a fully qualified basis after evaluating them in the 
performance,  professionalism,  leadership,  and  education  areas.    The  applicant  argued  that  he 
excelled  in  each  of  the  evaluation  areas.    In  this  regard,  he  stated  that  with  respect  to  the 
education  area,  he  has  earned  a  Bachelor  of  Science  and  a  Master  of  Science  degree.    In  the 

leadership area, he stated that since May 2007 he has served as the Resident Agent-in-Charge 
(RAC) of the Southeast Region.  In that position, the applicant stated that he was responsible for 
the daily management of operational and administrative duties including the supervision of 13 
agents.  He argued that being assigned and receiving the written RAC designation is the highest 
position a CWO in CGIS can attain, regardless of seniority.    He stated that of the 11 CWO2s 
competing against him in 2008, only one other held a RAC designation. 
 
With  regard  to  his  performance,  the  applicant  noted  that  he  had  been  the  case  agent 
 
and/or participated in numerous internal and external felony cases of all types.  He noted that he 
had  been  a  liaison  between  CGIS  and  Coast  Guard  commands  as  well  as  civilian  law 
enforcement  agencies.    He  stated  that  he  “single-handedly  planned  the  new  office  space  and 
relocation for CGIS RAO St. Petersburg, including the drawings and liaison with CEU Miami 
and Air Station Clearwater.”   
 
With respect to professionalism, the applicant stated that a part of his responsibility was 
 
to brief flag-level officers, assistant U.S. attorneys, senior-level civilians, and other high ranking 
officials.  The applicant stated that  the U.S. attorney has a 100-percent conviction rate for cases 
from his office.  The applicant stated that he was hand picked by the Commandant for a position 
on his detail.  
 
 
CWO3 selection board: 
 

The applicant offered the following for the Board’s consideration about a member of the 

In 2008, I was the case agent for a sensitive internal investigation involving two 
CG  members  assigned  to  CG  Air  Station  Clearwater,  in  which  the  victim 
subsequently  initiated  three  congressional  investigations.    During  the  course  of 
my investigation, I interviewed numerous witnesses assigned to either Air Station 
Clearwater  or  Sector  St.  Petersburg.    Two  witnesses  at  Air  Station  Clearwater 
were questioned about CDR [D’s] alleged involvement with the victim at a local 
party in the fall 2007 . . .  CDR [D] was a member of the CWO Selection Board 
for promotion to [CWO3].  Though I did not steer the investigation to interview 
CDR  [D],  he  may  have  perceived  that  he  was  under  suspicion  during  a  CGIS 
criminal  investigation,  which  could  conceivably  cast  a  negative  shadow  by  his 
superiors and peers, which could be detrimental to a career officer.  Even though I 
do  not  have  direct  evidence  concerning  CDR  [D’s]  neutrality  toward  me  while 
participating on the board, the possibility that he was biased exists.   

 
Statement from the Applicant’s Supervisor 
 
 
The supervisor stated that when he heard that the applicant was not selected for CWO3 in 
2008, he was in complete disbelief and knew there must have been a mistake.  The supervisor 
noted the applicant’s OERs had nothing derogatory in them, that he had earned a masters degree, 
that  he  had  attended  the  CWO  professional  development  course,  and  that  as  the  RAC  he 
supervised  an  office  of  10  agents.    The  supervisor  stated,  “I  know  of  nothing  personal  or 
professional  that  would  have  precluded  [the  applicant]  from  being  selected  for  promotion  to 

CWO3 and find it incomprehensible that he was not found to be among the best qualified for 
promotion to CWO3.”   
 
Applicant’s CWO2 OERS 
 
 
The applicant had four OERs that were reviewed by the CWO3 selection board.  They 
covered a period from January 1, 2005 to June 30, 2008.  On the first three OERs, the majority of 
the applicant’s marks were 5s, with an occasional 4 or 6.  On the last OER that the applicant 
received prior to the selection board for the period July 1, 2007, to June 30, 2008, the  majority 
of the applicant’s marks were 6s and 5s, with an occasional 4.  This report listed the applicant’s 
primary duty as the resident agent in charge (RAC), whereas the two previous reports listed his 
primary duty as special agent and noted in the description of his duties that he was the acting 
RAC.  Each of the OERs contained reviewer comments as required by the Personnel Manual.  
The reviewer comments covered less than half  a page, but  contained such comments  as “[the 
applicant] has demonstrated excellent initiative and resourcefulness during the reporting period” 
and “[the applicant] is a talented, dynamic, effective investigator, and his ready willingness to 
assist his superiors and peers in any tasks necessary to complete the mission are commendable.”     
 

VIEWS OF THE COAST GUARD 

 
 
On November 20, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion recommending that the Board deny relief to the applicant.  The JAG stated 
that  the  applicant  has  failed  to  produce  any  evidence  to  overcome  the  presumption  that  the 
selection board members carried out their duties correctly, lawfully, and in good faith.  The JAG 
stated that the applicant’s allegations are speculative at best and are of no legal moment.  The 
JAG stated that the selection board findings and decision were in accordance with Chapter 14 of 
the Personnel Manual.  The JAG also stated the following: 
 

[T]he  applicant  is  in  no  position  to  second  guess  the  findings  and  actions  of 
selections boards.  Thus, the conclusion can be reached that the selection board’s 
results  of  not  finding  the  applicant  as  best  qualified  for  promotion  as  being  an 
injustice is without merit.  The applicant is not entitled to circumvent the Coast 
Guard’s  promotion  board  process  and  procedures  by  alleging  the  possibility  of 
unsubstantiated  bias  with  no  evidence  to  prove  such.    The  applicant  failed  to 
provide any evidence which would substantiate a finding of bias as to any of the 
selection board members.   
 
The JAG attached a memorandum from the Commander of the Personnel Service Center 
(PSC)  as  a  part  of  the  advisory  opinion.    In  recommending  denial,  PSC  stated  the  following: 
“According to [the precept], members of the [selection board] shall swear or affirm that they will 
without  prejudice  or  partiality,  and  having  in  view  both  the  special  fitness  of  officers  and  the 
efficiency of the Coast  Guard, perform the duties imposed upon them.”  The president of the 
selection board was directed to emphasize to the members of the board the importance of their 
obligation  to  confine  themselves  to  facts  of  record  and  not  predicate  judgments  on  rumor  or 
hearsay.  The guidance also stated that at least two-thirds of the members of the selection board 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On December 22, 2009, the Board received the applicant’s reply to the views of the Coast 
Guard.  The applicant stated that he is “re-requesting to know if any basis whatsoever existed 
that justified a denial of promotion and placement in the lower 5% of my peers in light of my 
stellar professional qualification record.”  In this regard, the applicant stated: 
 

must agree that those selected are fully qualified and the best qualified to carry out the duties and 
responsibilities of the grade to which they are selected.   

 
PSC stated that the applicant asserted that his performance warranted selection to the next 
higher pay grade and implied that he was not selected because of a “prior indirect professional 
interaction with a board member that  may have biased the board member’s consideration of [the 
applicant’s] record.”  PSC stated it is impossible to say what impact, if any, the applicant’s prior 
interaction  with  a  board  member  may  have  had  on  the  proceedings,  but  the  members  of  the 
selection board are deemed to have acted fairly and professionally in carrying out their assigned 
duties. 
 

In  lieu  of  providing  any  basis  for  the  denial  of  my  promotion  last  year,  the 
Board’s advisory opinion sought solely to shift the burden to me to prove bias.  
The Board was not approached to  address the issue of bias but rather to provide 
some rational basis and/or any explanation for taking an action that I submit any 
other Board would certainly have done, as evidenced by my number one position 
on the subsequent list (2009 list).  The focus on any potential bias is misplaced 
and should not be the focus of any attention or effort, since I plainly indicated that 
I have no evidence to support any claim of actual bias . . . I have attached [2009 
CWO selection board] results, identifying me as the number one W2 out of 202 
eligible candidates.  This equates to 95% selection rate. 
 
I have been on active duty in the CG for 22 years and have been subjected to the 
promotion  process  throughout  my  career.    In  accordance  with  applicable  CG 
policies, I was not provided the opportunity to review the 202 military records of 
those  eligible  for  promotion  during  the  PY09  chief  warrant  officer  selection 
process.  While this is the norm, precluding me from any review of the records 
and  then  relying  on  my  inability  to  provide  a  rational  explanation  of  how  this 
could have occurred from a confidential process, leverages a policy to which I am 
naturally  disadvantaged.    I  leave  it  to  the  [BCMR]  to  utilize  its  judgment  and 
experience  to  fill  in  the  blanks  that  I  cannot.    Further,  while  I  understand  that 
promotion board precepts differ from  year to  year; my record reflects sustained 
stellar  performance  and  achievement  under  any  precept.    Therefore,  by  default 
some  other  explanation  exists  and  in  the  absence  of  any  blemishes,  I  sincerely 
cannot  account  for  how  else  I  could  be  in  the  bottom  5%  of  one,  200-person 
promotion group and the top .05 of the next one of approximately the same size.  
Any suggestion that 95% of the first candidate pool was truly better qualified for 
advancement than the entire following candidate pool runs counter to my 22 years 
experience and what I subjectively perceive as common sense.        

FINDINGS AND CONCLUSIONS 

 

 

The Board makes the following findings and conclusions on the basis of the applicant’s 

military record and submissions, the Coast Guard’s submissions, and applicable law: 
 

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

of the United States Code.  The application was timely. 

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

3.  The applicant requested to be promoted to CWO3 retroactive to the date he would 
have been promoted if he had been selected by the PY 2009 selection board, with back pay and 
allowances.  The  Board’s policy is not to promote, but to remove  a failure of selection if the 
applicant establishes a nexus between an error or injustice and the non-selection. Therefore the 
Board  treated  the  applicant’s  request  as  one  for  the  removal  of  his  failure  of  selection  for 
promotion to CWO3.  The applicant has the burden of proof in this case, which he has failed to 
meet.    
 

4.   To  obtain  the  removal  of  his  failure  of  selection,  the  applicant  must prove  that  his 
record before the CWO3 selection contained a prejudicial error or injustice or that an error or 
injustice  existed  with  the  CWO3  selection  board  process  itself.    With  respect  to  his  military 
record,  the  applicant  noted  his  excellent  performance,  which  included  service  as  a  RAC, 
involvement in numerous internal and external felony cases, supervision of other special agents, 
liaison  with  other  law  enforcement  communities,  and  his  receipt  of  Bachelor  and  Master  of 
Science degrees, all of which was before the selection board.  He stated that a LCDR suggested 
that the applicant’s OER marks were not high enough or that there was too much white space in 
some  areas  on  his  OERs.      However,  the  applicant  did  not  allege  any  specific  errors  in  his 
performance record and referred to it as stellar.   Therefore, the Board finds that the applicant had 
a substantially accurate and complete record before the FY 2009 selection board.   
 

6. Nor has the applicant made a specific allegation of error or injustice in the selection 
board  process  itself.      The  applicant  asserted  that  he  was  both  fully  and  best  qualified  for 
promotion  and  should  have  been  selected  for  CWO3.    However,  his  belief  that  his  record  of 
performance  supported  his  selection  for  CWO3  is  not  a  basis  for  this  Board  to  find  error  or 
injustice.    Selection  Board  deliberations  are  secret  and  the  selection  board  is  only  required  to 
explain  why  a  member  is  not  selected  if  it  finds  the  member’s  performance  unsatisfactory.  
Article 10.A.10.e.(2)(2) states that “there is no requirement to identify reasons for those officers 
who were fully-qualified but not best qualified.  However, if an officer is found to be performing 
in  an  unsatisfactory  manner,  the  Board  shall  specify  the  reason  for  that  finding.”    Since  the 
applicant  did  not  receive  any  notification  that  his  performance  was  unsatisfactory,  the  Board 
concludes that he was fully qualified but not best qualified. Although we will not speculate how 
the selection board made its decision, what is known about the process in this case suggests that 
nothing was wrong.    

 
7.  The applicant suggested that there could possibly have been some bias against him by 
one  of  the  selection  board  members,  but  he  admitted  that  he  had  no  proof  of  such  bias.  
Moreover,  for  a  member  of  the  selection  board  to  do  other  than  to  select  those 
individuals for promotion based on their records would have been to violate his oath as 
a member of that selection board.  It is presumed that this officer and other members of 
the  selection  board  followed  the  directions  of  the  Commandant  in  performing  their 
duties. The applicant has not presented sufficient evidence to rebut this presumption of 
regularity. 

 
8.    The  applicant’s  argument  that  his  selection  by  the  subsequent  2009  (PY  2010) 
selection  board  is  proof  that  the  earlier  board  committed  an  error  or  injustice  against  him  is 
speculative.  For  example,  the  records  before  the  2009  selection  may  not  have  been  as 
competitive  as  those  before  the  earlier  board  or  maybe  the  applicant’s  performance  increased 
significantly subsequent to the 2008 selection board. There could be any number of reasons why 
the  applicant  was  selected  the  second  time  and  not  the  first.    The  Board  cannot  correct  the 
applicant’s record based on speculation.  He has not shown an error or injustice in his failure to 
be selected by the 2008 (PY 2009) CWO3 selection board.   

 
9.  The applicant wants an explanation for his non-selection.  The Board cannot answer 
this question and the answer may never be known.  While the applicant has a very good record, 
the  Board  cannot  say  that  the  2008  selection  board  committed  an  error  or  injustice  by  not 
selecting him without proof of an error or injustice.   

 
10.  Accordingly, the applicant has failed to prove an error or injustice and his request 

should be denied. 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 

The  application  of  XXXXXXXXXXXXXXX,  USCG,  for  correction  of  his  military 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Lillian Cheng 

 

 
 George J. Jordan 

 

 

 
 
 Paul B. Oman 

 

 

 

 

 

 

 

 

 

 

 

 

record is denied.