DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2011-083 
 
Xxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxx 

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 upon receipt of the applicant’s 
completed application on January 27, 2011, and assigned it to staff member J. Andrews to pre-
pare the decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  October  13,  2011,  is  approved  and  signed  by  the  three  duly 

BACKGROUND 

 
 
The  applicant,  a  lieutenant  (LT)  in  the  Reserve,  is  a  prior  applicant  who  was  granted 
relief  in  BCMR  Docket  No.  2009-071,  as  shown  in  the  following  findings  excerpted  from  that 
decision, which was approved by the delegate of the Secretary on November 29, 2010: 

11. 

 
 
The applicant has proven by a preponderance of the evidence in the record that 
during the evaluation period for the disputed OER, he was assigned to administrative, finance, and 
logistics duties for which he had little to no experience or training; that he was erroneously evalu-
ated by a single officer, the XO, in violation of the Personnel Manual; that the XO did not  want 
him  to  be  assigned  to  the  unit  and  was  predisposed  to  distrust  and  resent  him;  and  that  he 
ultimately  received  a  derogatory  OER  that  erroneously  shows  that  his  primary  duty  during  the 
evaluation period was to be the AOO.  Therefore, the Board finds that he has also proven by pre-
ponderance of the evidence that the disputed OER is erroneous and was negatively affected by a 
prejudicial violation of a regulation1 and so should be removed from his record and replaced with 
an OER prepared “for continuity purposes only.”2 
 

12. 

The  applicant  voluntarily  resigned  from  his  active  duty  commission  in  June 
2007 but is still a Reserve officer and has asked the Board to remove his failures of selection for 
promotion to lieutenant commander so that he will have two additional opportunities to compete 

                                                 
1 Hary v. United States, 618 F.2d  704, 708 (Ct. Cl. 1980), cited in Lindsay v. United States, 295 F.3d 1252, 1259 
(Fed. Cir. 2002). 
2  A  continuity  OER  is  one  that  includes  a  description  of  the  officer’s  duties  but  does  not  contain  any  numerical 
marks or comments about his performance.  PERSMAN, Article 10.A.3.a.5. 

 

 

 

for promotion with a corrected record.  His Reserve OERs and affidavits from his superior officers 
in the Reserve show that he  has performed exceptionally  well  in the  Reserve. [Reference to evi-
dence omitted.]  The JAG opted not to address the applicant’s request to have his failures of selec-
tion  for  promotion  removed.  [Reference  omitted.]    When  an  applicant  proves  that  his  military 
record  contained  a  prejudicial  error  or  injustice  when  it  was  reviewed  by  a  selection  board,  this 
Board must determine whether the applicant’s failure of selection should be removed by answer-
ing two questions:   “First,  was [the applicant’s] record prejudiced by the errors in the sense that 
the  record  appears  worse  than  it  would  in  the  absence  of  the  errors?    Second,  even  if  there  was 
some such prejudice, is it unlikely that [the applicant] would have been promoted in any event?”3  
Under  this  Engels  test,  when  an  officer  shows  that  his  record  was  prejudiced  before  a  selection 
board  by  error,  “the  end-burden  of  persuasion  falls  to  the  Government  to  show  harmlessness—
that,  despite  the  plaintiff’s  prima  facie  case,  there  was  no  substantial  nexus  or  connection” 
between the prejudicial error and the failure of selection.4  To void a failure of selection, the Board 
“need  not  find  that  the  officer  would  in  fact  have  actually  been  promoted  in  the  absence  of  the 
error, but merely that promotion was not definitely unlikely or excluded.”5 
 
 
The  disputed  OER  documenting  the  applicant’s  removal  from  his  duties  at  the 
EMSST  is  clearly  derogatory  and  highly  prejudicial  as  it  labels  him  as  a  “marginal  performer” 
with  “limited  potential”  and  states  that  he  is  “[n]ot  recommended  for  promotion.”  [Reference 
omitted.]  Therefore, it clearly prejudiced his record when it was reviewed by the LCDR selection 
boards.    Furthermore,  the  disputed  OER  contains  the  only  negative  marks  in  the  applicant’s 
record.  [References  omitted.]    Therefore,  it  is  not  unlikely  that  the  applicant  would  have  been 
selected for promotion had the disputed OER not been in his record when it was reviewed by the 
selection boards.  Accordingly, under the Engels test, the Board finds that the applicant’s failures 
of selection for promotion must be removed from his record.   
 
 
he be selected for promotion in the future.[6]  Therefore, the Board will not address this matter. 
 
 
OER; replacing it with a continuity OER; and removing his failures of selection for promotion.  

The applicant  made no request regarding backdating of his date of rank should 

14. 

13. 

15. 

Therefore, the applicant’s record should be corrected by removing the disputed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

The  applicant,  who  was  selected  for  promotion  to  LCDR  by  the  promotion  year  (PY) 
2011 Reserve LCDR selection board, which convened on August 16, 2010, now asks the Board 
to backdate his date of rank to lieutenant commander (LCDR) by one promotion year (PY 2010) 
because his record was prejudiced by the erroneous OER when it was reviewed by the PY 2010 
selection board.  He did not request full backdating to PY 2009, even though his record was also 
prejudiced by the erroneous OER when it was reviewed by the PY 2009  selection board,  so as 
“to allow plenty of time to be evaluated as a LCDR prior to being considered for the next pro-
motion” to commander (CDR).  The applicant alleged that he would have been selected for pro-
motion  by  the  PY  2010  LCDR  selection  board  if  his  record  had  not  contained  the  erroneous, 
derogatory  OER  that  has  since  been  removed  from  his  record  by  the  Board’s  order  in  BCMR 
Docket No. 2009-071. 
 
                                                 
3 Quinton v. United States, 64 Fed. Cl. 118, 125 (2005); Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982). 
4 Christian v. United States, 337 F.3d 1338, 1343 (Fed. Cir. 2003), citing Engels, 678 F.2d at 175; Quinton, 64 Fed. 
Cl. at 125.   
5  Engels, 678 F.2d at 175. 
6  The  applicant  was  selected  for  promotion  to  LCDR  by  the  PY 2011  LCDR  selection  board,  which  convened  on 
August 16, 2010.  ALCGPSC 099/10 (September 30, 2010). 

 

 

SUMMARY OF THE RECORD 

 
 
On  August  6,  1999,  the  applicant,  a  prior  enlisted  Reserve  port  security  specialist,  was 
appointed an ensign in the Coast Guard Reserve.  He was promoted to lieutenant junior grade on 
February  6,  2001,  and  began  serving  on  extended  active  duty  on  August  1,  2002.    On  June  1, 
2003, he was integrated into the regular Coast Guard as a lieutenant junior grade.  On August 6, 
2003, he was promoted to lieutenant. 
 

Aside from the erroneous, derogatory OER, which the Board has expunged, the applicant 
has received excellent OERs7 serving as a marine investigator investigating marine casualties at 
the  port  of  Los  Angeles  and  Long  Beach;  an  assistant  intelligence  officer  at  a  Harbor  Defense 
Command “providing expeditionary harbor defense and force security for CONUS & OCONUS 
deployable  operations”;  a  force  protection  officer  at  a  Harbor  Defense  Command,  managing  a 
security  program  for  a  joint  expeditionary  unit  of  51  members  in  multiple  locations  and  situa-
tions; a staff officer in the Port Security Directorate at Coast Guard Headquarters; a staff officer 
in  the  Maritime  Homeland  Security  Operations  and  Tactics  Directorate;  a  staff  officer  in  the 
Office  of  Port  Security  Policy  and  Planning;  and  a  contingency  planner  at  the  Atlantic  Area 
Contingency Planning Branch.  On his final active duty OER, he received four marks of 5, eight 
marks of 6, and six marks of 7 (highest possible mark) in the various performance categories and 
a mark in the fifth spot on the comparison scale, denoting an “[e]xcellent performer, give tough-
est,  most  challenging  leadership  assignments.”    In  addition,  he  was  strongly  recommended  for 
promotion.   

 
On  June  13,  2007,  the  applicant  resigned  his  regular  commission  and  returned  to  the 
Reserve.    On  June  1,  2008,  he  was  assigned  to  serve  as  the  Senior  Reserve  Officer  in  the 
xxxxxxxxxxxxxxx at xxxxxxxxxxxxxxxxx and as such was responsible for five Reserve officers 
and  22  petty  officers  on  two  Reserve  Sector  Boarding  Teams  and  Marine  Environmental 
Response Teams.  The applicant received two outstanding OERs for this work with performance 
marks  of  6  and  7  and  marks  in  the  fifth  spot  on  the  comparison  scale.    He  was  strongly 
recommended for promotion in both of these OERs, but was not selected for promotion in 2008 
and  2009  by  the  PY  2009  and  PY  2010  selection  boards,  respectively,  with  the  disputed, 
derogatory  OER  in  his  record.    The  percentage  of  Reserve  LTs  eligible  for  promotion  in  2008 
and  2009  who  were  selected  for  promotion  to  LCDR  was  71%.8    However,  before  the  Board 
ordered the removal of the erroneous OER from his record in November 2010, the applicant was 
selected  for promotion by  the PY2011 selection  board.   Only  67% of the Reserve  LTs  eligible 
for promotion to LCDR were selected for promotion by that board.9 

 

 

 

                                                 
7  In  OERs,  officers  are  evaluated  in  a  variety  of  performance  categories,  such  as  “Professional  Competence,” 
“Teamwork,” and “Judgment,” on a scale of 1 to 7, with 7 being best.  In addition, the reporting officer completes a 
“comparison scale” on which he compares the reported-on officer to all other officers of the same grade whom the 
reporting officer has known throughout his career.  The 7 possible marks on the comparison scale range from a low 
of “[p]erformance unsatisfactory for grade or billet” to a high of “BEST OFFICER of this grade.” 
8 ALCGRSV 024/08 (July 17, 2008) and ALCGRSV 035/09 (July 17, 2009). 
9 ALCGPSC 099/10 (September 30, 2010). 

 

 

 

VIEWS OF THE COAST GUARD 

On  May  4,  2011,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard  submitted  an 
advisory opinion in which he recommended that the Board deny relief in this case.  In so doing, 
he adopted the findings and analysis provided in a memorandum on the case prepared by the Per-
sonnel Service Center (PSC), which stated the following in pertinent part: 
 

d.  In accordance  with Title  14 USC § 736, all IDPL officers [officers serving on  inactive duty] 
will be promoted on the same date as their running  mate.   Law  limits  the  number of  LCDR and 
above promotions, and the number is authorized each year by the Commandant.  Each controlled 
grade can only comprise a certain percentage of the total officer corps.  Even if the Coast Guard 
has vacant billets in a controlled grade, we can only promote officers until we reach our authorized 
cap.  The authorized number of officers in each controlled grade is determined every year in May 
after the Academy class graduates and the Coast Guard officer corps is at its largest.  Promotion 
numbers for controlled grades are significantly larger during the summer months due to the higher 
number of officer separations during these months. 
 
e.  As of April 13, 2011, the applicant had not yet been authorized to assume the rank of LCDR for 
the reasons noted above.  Thus, the applicant’s claim that his date of rank to LCDR be backdated 
is without merit as the applicant does not yet have such a date. 
 
f.    It  is  also  erroneous  for  the  applicant  to  assume  “my  record  would  have  been  successful  for 
promotion based on the excellent OERs in my record.”  The criteria for promotion of officers vary 
from  selection  board  to  selection  board  based  on  the  unique  dynamics  of  each  board.    Further-
more,  for  the  applicant  to  assume  he  would  have  vied  successfully  for  promotion  is  nearly 
impossible  to  predict  from  his  position,  as  promotion  of  officers  is  based  on  a  “best  qualified 
basis” when viewed holistically. 
 
g.  Since the applicant has not shown an error or injustice in his record, no basis exists on which to 
consider  the  removal  of  his  selection  to  LCDR  in  PY11  for  a  selection  to  LCDR  in  PY10.  
Accordingly, the applicant’s request should be denied. 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

 

On June 8, 2011, the applicant responded to the views of the Coast Guard.  He stated that 
he  himself  has  been  directly  involved  with  selection  boards  and,  based  on  that  experience,  he 
knows that if the erroneous, derogatory OER had not been in his record, his chances to be pro-
moted  in  2008  and  2009  by  the  PY  2009  and  2010  selection  boards,  respectively,  would  have 
been  significantly  improved.    The  applicant  also  noted  that  in  finding  13  of  the  Board’s  final 
decision for his prior case, BCMR Docket No. 2009-071, the Board stated that “it is not unlikely 
that the applicant would have been selected for promotion had the disputed OER not been in his 
record” and therefore removed the two non-selections for promotion from his record. 
 

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: 
 

 

 

2. 

3. 

1. 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10 U.S.C.  § 1552.  
 
The  application  to  the  Board  was  timely  because  it  was  submitted  within  three  years  of  the 
applicant’s discovery of the alleged error.10  
 
 
The applicant  requested an oral hearing before the Board.  The Chair denied the 
request, acting pursuant to 33 C.F.R. § 52.51, and recommended disposition of the case without a 
hearing.  The Board concurs in that recommendation.11   
 
 
The applicant alleged that, because he has been selected for promotion by the PY 
2011 Reserve LCDR selection board and because this Board has determined that his record was 
greatly prejudiced by an erroneous, derogatory OER when it was reviewed by the PY 2009 and 
PY 2010 selection boards, his date of rank should be backdated to what it would have been had 
he  been  selected  for  promotion  by  the  PY  2010  selection  board,  and  he  should  receive  corres-
ponding  back  pay  and  allowances.    The  applicant  bears  the  burden  of  proving  his  claim  by  a 
preponderance of the evidence.12  However, in the  final  decision for  BCMR Docket  No. 2009-
071, the Board already found that the  
 

disputed  OER  documenting  the  applicant’s  removal  from  his  duties  at  the  EMSST  is  clearly 
derogatory and highly prejudicial as it labels him as a  “marginal performer” with “limited poten-
tial” and states that he is “[n]ot recommended for promotion.” [Reference omitted.]  Therefore, it 
clearly prejudiced his record when it was reviewed by the  LCDR selection boards.  Furthermore, 
the disputed OER contains the only negative marks in the applicant’s record. [Reference omitted.]  
Therefore, it is not unlikely that the applicant would have been selected for promotion had the dis-
puted  OER  not  been  in  his  record  when  it  was  reviewed  by  the  selection  boards.  [Emphasis 
added.] 

 
In light of this finding, the Board found that the Coast Guard should remove the applicant’s non-
selections for promotion by the PY 2009 and 2010 selection boards, as well as the disputed OER, 
from his record.  The Board’s decision was approved by the delegate of the Secretary. 
 
The  Board  has  already  found  that  but  for  the  erroneous,  derogatory  OER  in  his 
 
record, “it is not unlikely that the applicant would have been selected for promotion [by the PY 
2009  and  2010  selection  boards]  had  the  disputed  OER  not  been  in  his  record  when  it  was 
reviewed by the selection boards.”  The Board notes in this regard that  
 

4. 

the erroneous, derogatory OER contained the only negative marks in his record; 

 
  aside from the derogatory OER, the applicant’s OERs contain many 6s and 7s, the high-

est possible evaluation marks;  

  71% of the Reserve LTs eligible for promotion to LCDR were selected for promotion by 
the PY 2009 and 2010 selection boards, whereas only 67% were selected by the PY 2011 
selection board, which selected the applicant for promotion;13 and 

                                                 
10 10 U.S.C. § 1552(b). 
11  See  Steen  v.  United  States,  No.  436-74,  1977  U.S.  Ct.  Cl.  LEXIS  585,  at  *21  (Dec.  7,  1977)  (holding  that 
“whether to grant such a hearing is a decision entirely within the discretion of the Board”). 
12 33 C.F.R. § 52.24(b). 
13 ALCGRSV 024/08 (July 17, 2008); ALCGRSV 035/09 (July 17, 2009); ALCGPSC 099/10 (September 30, 2010). 

 

 

 

the applicant was selected for promotion by the PY 2011 selection board in August 2010 
even before the Board ordered the derogatory OER removed from his record in Novem-
ber 2010.   

5. 

 
Therefore, the Board finds that it is not only not unlikely but actually probable that the applicant 
would  have  been  selected  for  promotion  by  the  PY  2009  and  2010  Reserve  LCDR  selection 
boards had the erroneous, derogatory OER not been in his record when it was reviewed by those 
boards.  Specifically, the Board finds that the preponderance of the evidence shows that the erro-
neous  OER  prevented  the  applicant’s  selection  for  promotion  by  the  PY  2010  Reserve  LCDR 
selection  board.    His  non-selection  for  promotion  by  that  board  is  an  injustice  caused  by  the 
erroneous OER, which was entered in his record by his Coast Guard rating chain. 
 
 
The Coast Guard argued against backdating the applicant’s date of rank to what it 
would have been had he been selected for promotion by the PY 2010 selection board.  However, 
the Secretary, acting through the Board,  “is obligated not only to properly determine the nature 
of any error or injustice, but also to take  ‘such corrective action as will appropriately and fully 
erase such error or compensate such injustice.’”14  Moreover, “once the Board decides to give a 
remedy, it should not be free to slice the relief illegally or arbitrarily, sending the claimant forth 
with half-a-legal-loaf or even less.”15  When a military officer’s record has been prejudiced by an 
error  when  it  was  reviewed  by  a  selection  board,  full  relief—erasing  the  error—normally 
includes backdating the officer’s date of rank if he is selected for promotion by the next selection 
board to review his record and paying him back pay and allowances.16  Such relief has long been 
provided  by  this  Board  in  similar  cases,17  and  in  fact  the  Coast  Guard  itself  has  typically 
recommended backdating an officer’s date of rank and paying back pay and allowances when it 
found  that  the  officer’s  record  was  prejudiced  by  error  before  a  selection  board.18    Thus,  in 
                                                 
14  Roth  v.  United  States,  378  F.3d  1371,  1381  (Fed.  Cir.  2004)  (quoting  Caddington  v.  United  States,  147  Ct.  Cl. 
629, 632 (1959)).   
15  DeBow  v.  United  States,  193  Ct.  Cl.  499,  504  (1970),  cert.  denied,  404  U.S.  846  (1971);  see  Bonen  v.  United 
States,  229  Ct.  Cl.  144,  149  (1981)  (“The  ‘half-a-loaf’  doctrine  normally  applies  where  a  corrections  board 
grants plaintiff’s claim, but stops short of awarding the  full appropriate relief requested by plaintiff. Failure of the 
board  to  grant  full  relief  where  it  is  mandated  by  the  records  change  results  in  ‘a  new  cause  of  action’  or 
‘“continuing” claim’ which revives the statute of limitations.”). 
16 See 10 U.S.C. § 628(d) (“Persons considered by promotion boards in unfair manner … A person who is appointed 
to the next higher grade as the result of the recommendation of a special selection board convened under this section 
shall, upon that appointment, have the same date of rank, the same effective date for the pay and allowances of that 
grade,  and  the  same  position  on  the  active-duty  list  as  he  would  have  had  if  he  had  been  recommended  for 
promotion to that grade by the board which should have considered, or which did consider, him”); Richey v. United 
States, 322 F.3d 1317 (Fed. Cir. 2003). 
17 See, e.g., the following BCMR decisions in which the Board has ordered backdating of an officer’s date of rank 
and awarded back pay and allowances  when the officer’s record was prejudiced by error before a selection board:  
BCMR  Docket  Nos.  2011-082,  2011-035,  2010-252,  2010-097,  2008-115,  2008-106,  2008-071,  2008-026,  2007-
141,  2007-138,  2007-114,  2007-022,  2006-147,  2006-070,  2006-001,  2005-147,  2005-046,  2004-159,  2004-120, 
2004-115,  2004-109,  2004-105,  2004-095,  2004-023,  2002-007,  2001-041,  2000-162,  2000-128,  2000-106,  2000-
016, 1999-183, 1999-142, 1998-018, and 1998-073.   
18  See,  e.g.,  the  following  BCMR  cases  in  which  the  Coast  Guard  has  recommended  backdating  an  active  duty  or 
Reserve officer’s date of rank and awarding back pay and allowances when the officer’s record was prejudiced by 
error before a selection board: 2011-082, 2011-035, 2010-252, 2008-115, 2008-106, 2008-071, 2007-141, 2007-114, 
2006-147,  2006-070,  2006-001,  2005-147,  2005-046,  2004-159,  2004-120,  2004-109,  2004-105,  2004-095,  2004-
023, 2000-162, 2000-128, 2000-106, and 1999-183. 
 

 

 

recommending  that  the  Board  deny  the  requested  relief,  the  Coast  Guard  is  going  against 
precedent and against its own prior recommendations in many similar cases. 
 

6. 

The  Coast  Guard  argued  that  the  applicant  is  not  entitled  to  a  backdated date  of 
rank because it is impossible to assume or know for certain whether he would have been selected 
for  promotion  by  the  PY  2010  selection  board  had  the  erroneous  OER  not  been  in  his  record.  
However,  the  same  has  been  true  in  past  similar  cases  in  which  the  Coast  Guard  has  recom-
mended  backdating  an  officer’s  date  of  rank  because  selection  board  proceedings  are  not 
disclosed.19    Moreover,  the  Coast  Guard’s  argument  that  the  applicant  should  be  required  to 
prove  that  but  for  the  erroneous  OER,  he  would  have  been  selected  for  promotion  by  the  PY 
2010 selection board is contrary to precedent because courts have long rejected this “but for” test 
when determining an officer’s entitlement to a backdated date of rank and back pay and allow-
ances when his record has been prejudiced by error before selection boards.20  However, as indi-
cated in finding 4, the preponderance of the evidence shows that the applicant in this case would 
receive a backdated date of rank even if the “but for” test applied. 

 
7. 

The  Coast  Guard  argued  that  the  applicant  is  not  entitled  to  a  backdated date  of 
rank because he has not yet been promoted to LCDR pursuant to his selection for promotion by 
the PY 2011 LCDR selection board.  In so arguing, the Coast Guard ignores the fact that pros-
pective backdating of a date of rank contingent upon the officer’s being selected for promotion 
and promoted  pursuant  to  a subsequent  selection board is  the usual  relief recommended by the 
Coast  Guard  and  awarded  by  the  Board  when  an  officer’s  record  has  been  prejudiced  by  error 
before  a  selection  board.21    In  this  case,  the  applicant  has  already  been  selected  for  promotion 
and so backdating his date of rank need only be contingent upon his actual promotion pursuant to 
his selection by the PY 2011 LCDR selection board. 

 
8. 

The  Coast  Guard  argued  that  the  applicant  is  not  entitled  to  a  backdated date  of 
rank because of the statute regarding running mates and the limitation on the size of the officer 
corps.22  However, these statutes have been in existence for many years and have not previously 
stopped  the  Coast  Guard  from  recommending  or  the  courts  or  the  Board  from  ordering  the 
backdating of an officer’s date of rank.  The Coast Guard has provided no explanation for why 
these  statutes  should  suddenly  prevent  the  Board  from  granting  full  relief  when  an  officer’s 
record has been prejudiced by error before a selection board.  In this regard, the Board notes that 
backdating  a  Reserve  officer’s  date  of  rank  under  such  circumstances  is  completely  consistent 

                                                 
19 14 U.S.C. § 261(d) (“the proceedings of a selection board shall not be disclosed to any person not a member of the 
board”) (originally enacted as Pub. L. 88-130, § 1(10)(C), 77 Stat. 181 (1963)). 
20 See, e.g., Sanders v. United States, 594 F.2d 804, 816 (Ct. Cl. 1979); Porter v. United States, 163 F.3d 1304, 1316 
(Fed. Cir. 1998); Richey v. United States, 50 Fed. Cl. 3, 9 n4 (2001), rev’d on other grounds, 322 F.3d 1317 (Fed. 
Cir. 2003). 
21 See, e.g., the following cases in which the BCMR’s backdating of an officer’s date of rank was made contingent 
upon the officer actually being promoted pursuant to his selection by a subsequent selection board: BCMR Docket 
Nos.  2011-082,  2011-035,  2010-252,  2008-115,  2008-071,  2008-026,  2006-147,  2006-070,  2006-001,  2005-147, 
2004-120, 2004-109, 2004-105, 2004-023, 2000-162, and 2000-106. 
22 14 U.S.C. § 736(a) (“When a Reserve officer is promoted to the next higher grade under this subchapter, the date 
of rank  shall be the date of appointment in that  grade, unless the promotion  was determined in accordance  with a 
running  mate  system  …”);  14  U.S.C.  §  702  (allowing  the  Secretary  to  determine  the  number  of  officers  at  each 
grade within the Coast Guard Reserve). 

 

 

with the law in 14 U.S.C. § 739(b),23 which expressly authorizes the Coast Guard to backdate a 
Reserve  officer’s  date  of  rank  and  adjust  his  precedence  on  the  inactive  duty  promotion  list 
(IDPL) accordingly,24 even without a BCMR order to do so, when a selection board has failed to 
review  an  eligible  officer’s  record  because  of  an  administrative  error.    This  statute  requires  a 
change  of  running  mate  and  reordering  of  the  IDPL  when  a  Reserve  officer’s  date  of  rank  is 
corrected  pursuant  to  the  statute,  and  it  retroactively  increases  the  number  of  officers  in  the 
higher rank beyond the prior limit.25  Congress clearly does not consider the order of the IDPL 
and  the  limitation  on  the  size  of  the  officer  corps  to  be  so  sacrosanct  as  to  preclude  fully 
correcting  an  officer’s  record  when  he  has  been  denied  a  fair  opportunity  for  promotion  but  is 
later selected for promotion. 
 
 
Accordingly, relief should be granted by backdating the applicant’s LCDR date of 
rank, once he has been promoted pursuant to his selection by the PY 2011 selection board, to the 
LCDR  date  of  rank  he  would  have  had  if  he  had  been  selected  for  promotion  by  the  PY  2010 
selection board, by adjusting his precedence on the IDPL accordingly, and by awarding him the 
back pay and allowances he is due as a result of these corrections. 
  

9. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
 

                                                 
23 “A  Reserve officer is not  considered to  have  failed of selection if  the officer  was  not considered by a selection 
board because of administrative error. If that officer is selected by the next appropriate selection board after the error 
is  discovered,  and  is  promoted,  the  same  date  of  rank  and  precedence  shall  be  assigned  that  would  have  been 
assigned  if  the  officer  had  been  recommended  for  promotion  by  the  selection  board  that  originally  would  have 
considered  the  officer  but  for  the  error.”  14  U.S.C.  §  739(b).    This  statute  is  reflected  in  Article  7.A.8.b.of  the 
Reserve Policy Manual, which states that “[a] Reserve officer is not considered to have failed selection if the officer 
was not considered by a selection board due to administrative error.”  The article further states that if an officer is 
selected  by  the  next  board  after  the  error  is  discovered,  that  officer  is  entitled  to  have  the  date  of  rank  and 
precedence on the IDPL that would have been assigned if the officer had been selected by the appropriate board. 
24 Reserve officers are listed on the inactive duty promotion list (IDPL) by their date of rank.  Therefore, backdating 
a Reserve officer’s date of rank inherently involves adjusting his precedence on the IDPL. 
25 14 U.S.C. § 739(b). 

 

 

ORDER 

 
 
military record is granted as follows: 
 
 
IDPL LCDR selection board, the Coast Guard shall 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCGR,  for  correction  of  his 

Upon  his  promotion  to  LCDR  pursuant  to  his  selection  for  promotion  by  the  PY  2011 

 
(a)  backdate his LCDR date of rank to the date of rank he would have received if he had 

been selected for promotion by the PY 2010 IDPL LCDR selection board; 

 
(b)    correct  his  precedence  on  the  IDPL  to  the  precedence  he  would  have  had  he  been 

selected for promotion by the PY 2010 IDPL LCDR selection board; and 

 
(c)  pay him any back pay and allowances that he is due as a result of these corrections. 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Anthony C. DeFelice 

 

 

 
 Frank E. Howard 

 

 

 
 Jeff M. Neurauter