DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2011-084 
 
Xxxxxxxxxxxxxxxx 
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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 receiving the applicant’s 
completed application on January 28, 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  November  4,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
The applicant, a commander (CDR) who retired from active duty on July 1, 2011, asked 
the Board to promote him to captain (CAPT) with an “appropriate date of rank and back pay and 
allowances”  because  he  has  not  been  selected  for  promotion  following  prior  corrections  to  his 
record ordered by the Board in past decisions. 
 

BACKGROUND 

 
 
Pursuant  to  two  prior  applications,  BCMR  Docket  Nos.  2006-085  and  2008-106,  the 
Board  ordered  the  Coast  Guard  to  remove  from  the  applicant’s  record  two  erroneous  officer 
evaluation reports (OERs) that he received in 2003 and 2004 and to remove three non-selections 
for promotion to CAPT in 2006, 2007, and 2008  (by the promotion  year (PY) 2007, 2008, and 
2009 selection boards, respectively) from his record so that he would have two more chances for 
selection without the erroneous OERs in his record.  The Coast Guard had recommended that the 
Board grant all of this relief.  However, the applicant was not selected for promotion to CAPT in 
2009 or 2010, and there is evidence in the record that the Coast Guard failed to correct his OERs 
in its electronic personnel database, Direct Access, which might have allowed the CAPT selec-
tion  boards  in  2009  and  2010  to  see  the  poor  numerical  marks  in  the  erroneous  OERs  even 
though the Board had ordered the OERs to be expunged.  To clarify the events in these proceed-
ings, a chronology appears below. 
 

 

 

CHRONOLOGY 

 
April 2006—The applicant filed Docket No. 2006-085 seeking removal of his 2003 OER. 
 
July 2006—The applicant was not selected for promotion to CAPT (1st non-selection). 
 
December 2006—The BCMR issued the decision in 2006-085 ordering the removal of the 2003 

OER and insertion of a Continuity OER, as recommended by the Coast Guard. 

 
July 2007—The applicant was not selected for promotion to CAPT (2nd non-selection). 
 
August 2007—The JAG asked the Board to amend its order in 2006-085 to include removal of 
the applicant’s  1st non-selection  in July  2006 because the 2003 OER was still in 
his record in July 2006.  The Board issued the amendment as requested. 

 
April  2008—The  applicant  filed  Docket  No.  2008-106  seeking  removal  of  his  2004  OER  and 

non-selections for promotion in July 2007 and July 2008 (prospectively). 

 
July 2008—The applicant was not selected for promotion to CAPT (3rd non-selection counted as 

2nd due to the removal of the 1st non-selection in July 2006). 

 
February 2009—The BCMR issued the decision in 2008-106 ordering the removal of the 2004 
OER,  insertion  of  a  Continuity  OER,  and  removal  of  his  non-selections  in  2007 
and 2008, as recommended by the Coast Guard. 

 
July 2009—The applicant was not selected for promotion to CAPT (4th non-selection counted as 

1st due to removal of 1st, 2nd, and 3rd non-selections in 2006, 2007, and 2008). 

 
July 2010—The applicant was not selected for promotion to CAPT (5th non-selection counted as 

2nd), making the applicant subject to mandatory retirement as of July 1, 2011. 

 
November 2010—Commander, Personnel Service Center advised the applicant that “by law your 

service on active duty cannot extend beyond 1 July 2011.” 

 
January  2011—The  applicant  filed  Docket  No.  BCMR  2011-084  seeking  direct  promotion  to 

CAPT by the BCMR. 

 
March 2011—The applicant requested that his record reflect a voluntary retirement instead of a 

mandatory retirement as of July 1, 2011. 

 
June 2011—The applicant printed a Direct Access database summary of his OER marks showing 

that the Coast Guard never removed his 2003 and 2004 marks from the database. 

 
July 1, 2011—The applicant voluntarily retired on the day he would otherwise have been invol-
untarily retired because of his two non-selections and 26  years of commissioned 
service pursuant to 14 U.S.C. § 285. 

 

 

 

APPLICANT’S ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  “overturn  the  results  of  the  Coast  Guard  PY10  and 
PY11 Selection Boards,” which convened in 2009 and 2010, respectively, by directly promoting 
him to captain.  He alleged that a direct promotion “appears the only remaining equitable means 
to correct the irreparable damage to my career resulting from these procedural inconsistencies” 
in the Officer Evaluation System (OES) that caused the Board to remove two of his OERs.  He 
alleged that the “appearance of two Continuity OERs in my record left too much in question for 
any  Selection  Board  to  fairly  assess  it  when  compared  to  the  records  of  other  candidates  for  
O-6.”  He alleged that he spoke with selection board members who would “not discuss specific 
actions  of  the  Selection  Board”  but  told  him  that  the  Continuity  OERs  “likely  resulted  in  my 
non-selection for O-6.”1  The applicant alleged that the Selection Board members would not pro-
vide him with statements but  
 

indicated  that  the  blank  OERs  created  questions  –  especially  when  compared  to  records  without 
gaps.  While the Continuity  OERs in and of themselves  were viewed as neutral by the  Selection 
Boards, it is my belief that the actual impact of their omission was perceived as negative because 
the  missing  information  could  not  be  reconciled  against  the  other  records  appearing  before  the 
Selection Board.  I strongly believe that my record, career assignment opportunities and prospects 
for  promotion  were  irrefutably  compromised  by  the  missing  OERs  and  by  the  substantial  career 
fallout resulting from the earlier errors and injustices. 
 
The members of the Selection Boards also indicated that my lack of an operational or command 
cadre assignment at the O-5 level put me at a disadvantage compared to others appearing before 
this  board.    My  discussions  with  the  Assignment  Officers  indicated  that  because  of  my  career 
“bump in the road”, I was not considered competitive for Command Cadre or other highly desired 
positions which would have further enhanced my opportunities for promotion.  As a result of the 
OERs from Training Center Yorktown, even after their removal by the BCMR, I was forced out of 
my  career  path  as  a  cutterman.    Having  been  told  I  would  not  compete  for  afloat  assignment  or 
command  cadre  ashore,  I  volunteered  to  fill  an  off-season  assignment  to  the  Department  of 
Homeland Security.  Following the very successful performance of my assignment at the Depart-
ment, I was once again told by the Assignment Officers that I was not competitive for any of the 
afloat, command cadre, or other career enhancing assignments that I requested. 
 
Although I have requested reassignment each of the past two years, I have not been able to com-
pete  due  to  the  lingering  negative  effect  that  this  “bump  in  the  road”  continues  to  have  on  my 
assignment opportunities.  Remaining in the same assignment for an extended period of time can 
also be detrimental to promotion opportunity; as a result of not being competitive, I am in the fifth 
year of my current assignment.  It is clear that the cumulative damage to my record and to my suc-
cessful pursuit of promotion resulting from the ineffective administration of the OES at Training 
Center Yorktown has not been remedied, despite the relief heretofore granted by the BCMR. 

 
 
The applicant alleged that the fact that his CDR date of rank was significantly earlier than 
the  dates  of  rank  of  other  CDRs  eligible  for  promotion  to  CAPT  in  2009  and  2010  was  also 
apparent to the selection board members and factored into their decisionmaking. 
 

                                                 
1 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)). 
 

 

 

The applicant  alleged that  before he served as  a  School  Chief at  Training Center York-
 
town, his “record was outstanding enough to successfully screen for Command Afloat at the O-3 
and O-4 levels and to be assigned as the Commanding Officer in two Coast Guard cutters.”  He 
noted that he was selected for promotion to CDR following his second command afloat, while he 
was  stationed  at  the  Training  Center,  and  that  the  CO  of  the  Training  Center  supported  his 
requests to remove OERs he received while assigned to the Training Center in both of his prior 
BCMR  applications.    The  applicant  stated  that  although  he  greatly  appreciates  the  relief  the 
BCMR has already granted, “it was not sufficient to negate the irreparable damage caused by the 
improper administration of the Coast Guard Officer Evaluation System which led to the removal 
of the OERs from my record.”  The applicant listed many of his accomplishments during his last 
year at the Training Center, which “would have been available to the Selection Board[s] had my 
record been accurate and complete.”  He alleged that if his 2003 and 2004 OERs had been accu-
rate, he would have been selected for promotion to captain in 2006. 
 
The applicant noted that in response to his prior request for direct promotion in response 
 
to the advisory opinion in BCMR Docket No. 2008-106, the Board pointed out that “officers can 
be selected for promotion with large gaps in their performance records” and cited BCMR Docket 
Nos.  2003-116  and  2005-058.    He  argued  that  his  situation  is  distinguishable  from  the  officer 
who was the applicant in those cases because that applicant was a lieutenant (LT) who was pro-
moted to lieutenant commander (LCDR) despite a six-year gap in his OERs; the opportunity for 
selection for promotion to LCDR is normally around 89%, whereas the opportunity for selection 
for promotion to CAPT was 60%; and the applicant in those cases had been discharged and his 
status  was  retroactively  corrected  to  show  that  he  was  a  Reserve  officer  between  his  discharge 
and his return to active duty.   
 
The  applicant  stated  that  he  filed  separate  applications  for  the  removal  of  the  2003  and 
 
2004  OERs,  not  to  get  any  advantage  in  the  promotion  process,  but  because  of  advice  he 
received from  the Officer Personnel  Management (OPM) Division  of the Personnel  Command.  
He  explained  that  when  preparing  his  first  BCMR  application  in  early  2006,  he  considered 
requesting removal of both the 2003 and 2004 OERs but was told that the removal of two con-
secutive OERs from his record would be problematic, so he requested removal of only the worst 
one,  the  2003  OER.    However,  when  he  was  passed  over  for  promotion  in  2007  despite  the 
removal of the 2003 OER from his record, he met with OPM staff again, and they told him that 
the 2004 OER had likely caused his non-selection.  Therefore, he submitted his second BCMR 
application requesting removal of the 2004 OER and his non-selections for promotion. 
 
The applicant stated that he is requesting direct promotion to captain through the BCMR 
 
because his non-selections for promotion in 2009 and 2010 show that the damage to his  career 
caused  by  the  2003  and  2004  OERs  “cannot  be  remedied  within  the  confines  of  the  Coast 
Guard’s evaluation and promotion system.”  He noted that the other Armed Forces can convene 
special  selection  boards  to  review  officers’  records  when  such  errors  have  occurred,  but  the 
Coast Guard cannot.  He stated that the “significant injustice resulting from the removal of two 
OERs  and  the  resulting  career  disadvantages  clearly  distinguishes  this  case  as  one  which  war-
rants the Board’s recommendation for direct promotion.” 
 

 

 

The applicant included with his application a letter to the Chair dated October 30, 2009, 
 
in  which  he  requested  reconsideration  of  his  request  for  direct  promotion;  a  letter  to  the  Com-
mandant requesting his recommendation for promotion; and a letter from Commander, Personnel 
Service Center, dated November 23, 2010, stating that  
 

[w]hile the Commandant plays a significant role in establishing policy and providing guidance to 
selection boards, an officer cannot promote to the next higher grade without the recommendation 
of a board of officers. … [O]ur promotion system renews our leadership ranks through the selec-
tion of officers deemed best-qualified for promotion to the next higher pay grade as determined by 
those  specific  members  of  each  board  composed.    The  unavoidable  reality  of  our  system  is  that 
many  outstanding  officers  will  not  be  afforded  the  opportunity  for  promotion,  especially  at  the 
most senior levels of the organization.  This year was no exception with reduced opportunities of 
selection across all selection boards.  Although your desire to remain on active duty is commenda-
ble,  by  law  your  service  on  active  duty  cannot  extend  beyond  1  July  2011.  …  [Y]our  have  the 
option to request review and relief through the Board for Correction of Military Records (BCMR).  

 
Finally,  the  applicant  noted  that  he  had  requested  a  voluntary  retirement  as  of  July  1, 
 
2011, only because he was told “that if I did not request voluntary retirement, my DD 214 [dis-
charge form] would reflect that I was involuntarily retired and could be construed negatively in 
the future.” 
 

SUMMARY OF THE APPLICANT’S CAREER 

 
The applicant, a graduate of the Coast Guard Academy, was commissioned an ensign in 
 
1985.  He began his career serving as the Food Services Division Officer and then the Operations 
Officer of a buoy tender with a crew of 50.  He received mostly positive comments and marks of 
4 and 5  in the various performance  categories  on the five  officer evaluation  reports (OERs)  he 
received while assigned to this unit.2   He was promoted to lieutenant junior grade in 1987. 
 
 
In 1988, the applicant was assigned to Coast Guard Headquarters as the Leased Housing 
Program Manager.  On the five OERs he received for this work, his marks gradually rose from 
marks of 4 and 5 to primarily marks of 6, including marks in  the sixth spot  on the comparison 
scale.3  He received an Achievement Medal at the end of this assignment. 
 

In  July  1990,  the  applicant  was  promoted  to  lieutenant  and  reported  for  duty  as  the 
Executive Officer of a buoy tender.  On his OERs for this work, his marks gradually rose from 
mostly marks of 5 to mostly marks of 6, and he received marks in the fifth spot on the compari-
son scale.4  The applicant was recommended for command afloat and received an Achievement 
Medal for his service aboard the buoy tender. 

 

                                                 
2  In  OERs,  officers  are  evaluated  by  a  “rating  chain,”  including  a  supervisor,  reporting  officer,  and  reviewer,  in  a 
variety of performance categories, such as “Professional Competence,” “Teamwork,” and “Judgment,” on a scale of 
1 to 7, with 7 being best.   
3 On an OER, 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.”  A mark in the sixth spot on the scale denoted an “exceptional officer.” 
4 On a lieutenant’s OER, the fifth spot (of seven) on the comparison scale denoted a “distinguished performer; give 
tough, challenging, visible leadership assignments.” 

 

 

In  September  1992,  the  applicant  was  transferred  to  Headquarters  to  serve  on  a  fleet 
development  team  in  the  Short  Range  Aids  to  Navigation  Division.    On  his  six  OERs  in  this 
position, his marks rose gradually from primarily marks of 4 and 5 to primarily marks of 5 and 6, 
and  he  received  marks  in  the  fifth  spot  on  the  comparison  scale.    The  applicant  received  two 
Achievement Medals while working at Headquarters. 

 
In October 1995, the applicant took command of a 140-foot tugboat with a crew of eigh-
teen members.  On his two OERs in this position, he received primarily marks of 5 and 6 in the 
various performance categories and marks in the fifth spot on the comparison scale.  The appli-
cant received another Achievement Medal for his command of the tugboat, and in August 1996, 
he was promoted to lieutenant commander. 

 
In June 1997, the applicant took command of a 180-foot buoy tender with a crew of 50.  
On the three annual OERs he received in this position, the applicant received primarily marks of 
6  in  the  performance  categories  and  marks  in  the  fifth  spot  on  the  comparison  scale.5    He 
received a Commendation Medal upon his departure from the buoy tender. 

 
In July 2000, the applicant reported to the  Coast  Guard’s Training Center in Yorktown, 
Virginia,  to  become  Chief  of  the  National  Aids  to  Navigation  (NATON)  School.    On  his  first 
OER in this position, dated April 30, 2001, he received primarily marks of 5 and 6 in the various 
performance categories and a mark in the fifth spot on the comparison scale.  In September 2001, 
the applicant was promoted to commander (CDR).  On his second OER as the NATON School 
Chief—his first as a CDR—the applicant received primarily marks of 4 and 5 in the various per-
formance categories and a mark in the fourth spot on the comparison scale.6 
 
BCMR Docket No. 2006-085 
 
 
In BCMR Docket No. 2006-085, the applicant asked the Board to remove the third OER 
he received as the NATON School Chief, covering his service from April 1, 2002, to March 31, 
2003 (hereinafter “2003 OER”).  The 2003 OER contained five low marks of 3, ten marks of 4, 
and three marks of 5 in the various performance categories and a mark in the fourth spot on the 
comparison  scale.    The  2003  OER  contained  several  very  negative  comments  about  the  appli-
cant’s  performance,  such  as  “[w]ith  O-5  filling  O-4  billet  for  entire  marking  period,  perfor-
mance/growth of school and its stature in ATON community less than expected”; “[i]nability to 
think/act beyond scope of school sometimes limits effectiveness”; “[w]hen motivated, produces 
good  product”;  “[t]eamwork  not  usually  visible”;  and  “produced  mostly  acceptable  results  but 
not what the CG expects from an O-5 filling an O-4 billet.”   Moreover, instead of recommend-
ing  the  applicant  for  promotion  from  commander  (O-5)  to  captain  (O-6),  the  reporting  officer 
wrote that the applicant was not working up to his potential; “[p]roduces good work but appears 
content  with  O-4  level  of  responsibilities”;  and  was  recommended  only  “for  positions  of 
responsibility within the ATON program such as District, Area, or Headquarters ATON staff.”   
 

                                                 
5 On a lieutenant commander’s OER, the fifth spot on the comparison scale denoted an “excellent performer; give 
toughest, most challenging leadership assignments.” 
6 On a lieutenant commander OER, the fourth spot on the comparison scale denoted a “good performer; give tough, 
challenging assignments.” 

 

 

The  applicant  alleged  to  the  BCMR  that  the  low  marks  and  negative  comments  in  the 
2003  OER  were  inaccurate  because  his  new  supervisor  and  reporting  officer  did  not  know  or 
appreciate  how  much  he  had  accomplished  during  the  evaluation  period.    He  alleged  that  the 
OER would have been much better had it been completed by his properly designated rating chain 
for the evaluation period.  In support of this allegation, he submitted a statement from the com-
manding officer (CO) of the Training Center, who signed the 2003 OER as the Reporting Offi-
cer, even though he was not a designated member of the applicant’s rating chain: 
 

After reviewing the statements of personnel directly involved  with [the applicant’s] performance 
during the marking period, I do not feel that the marks and comments in [his] OER for the above 
period  accurately  reflect  his  accomplishments  during  the  period.    The  statements  provide  a  sub-
stantially different picture than the information I was provided by [his] supervisor. 
 
During the period, I do not believe [the applicant’s] supervisor adequately conveyed the program-
matic  issues  that  [the  applicant]  was  actively  working  to  resolve.    As  a  result,  I  was  not  made 
aware  of  [his]  efforts  to  successfully  resolve  many  of  these  issues.    In  addition,  the  supervisor 
failed to inform me of [the applicant’s] efforts to standardize curriculum development within the 
Training Division. 
 
Likewise, I do not believe the supervisor provided an accurate portrayal of [the applicant’s] effort 
to support the [NATON] staff.  The statements provided by the personnel who  worked for [him] 
show that he encouraged and supported their professional growth and their personal needs.  This 
again is inconsistent with the information provided in the OER. 
 
In response to the application in Docket No. 2006-085, the JAG admitted, and the Board 
 
found, that the applicant’s command had violated Article 10.A.3.a.2.b. of the Personnel Manual 
by  failing  to  have the 2003 OER prepared by the applicant’s designated  Reporting  Officer.    In 
light of statements submitted by the applicant’s rating officials, the Board found that the error in 
the composition of his rating chain was prejudicial to the 2003 OER and ordered the Coast Guard 
to remove the 2003 OER from his record and replace it with a Continuity OER.7 
 
Subsequent OERs 
 

In May 2003, the applicant was reassigned from his position as the NATON School Chief 
to  be  the  Force  Protection  Officer  (FPO)  at  the  Training  Center.    Upon  his  departure  from  the 
Training  Center  at  the  end  of  February  2004,  he  received  an  OER  documenting  his  continuing 
service  as  the  NATON  School  Chief  in  April  and  May  2003  and  his  service  as  the  FPO  from 
June  2003  through  February  2004.    On  this  OER  (hereinafter  “2004  OER”),  he  received  six 
marks  of  4  and  twelve  marks  of  5  in  the  various  performance  categories,  a  mark  in  the  fourth 
spot on the comparison scale, and a recommendation for promotion “with peers.”  In addition, he 
received an Achievement Medal for his service as the FPO. 

 
In March 2004, the applicant  transferred from the Training Center to become an opera-
tions  analyst  for  the  Department.    In  December  2004,  he  earned  a  Master’s  degree  in  Public 
Administration  from  Troy  State  University.    In  his  first  OER  as  an  operations  analyst,  which 
covers  the  period  March  1,  2004,  to  March  31,  2005,  the  applicant  received  nine  marks  of  5, 

                                                 
7  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.  Coast Guard Personnel Manual, Article 10.A.3.a.5. 

 

 

seven marks of 6, and two marks of 7 in the various performance categories and a mark in the 
fifth spot on the comparison scale.  His Reporting Officer, a rear admiral serving as the Deputy 
Director of Department’s Operational  Integration Staff, noted that the applicant had “made sig-
nificant contributions to the development of DHS policies” and recommended him for promotion 
“with peers.”  On his second OER in this position, which covers his service from April 1, 2005, 
to October 18, 2005, the applicant received six marks of 5, ten marks of 6, and two marks of 7 in 
the performance categories and a mark in the fifth spot on the comparison scale.  His Reporting 
Officer  wrote  that  he  “continues  to  make  significant  contributions  to  the  development  of  DHS 
policies” and highly recommended him for promotion to CAPT.  On the applicant’s third OER in 
this position, which covers his service from October 19, 2005, to March 31, 2006, the applicant 
received four marks of 5, twelve marks of 6, and two marks of 7 in the performance categories 
and a mark in the fifth spot on the comparison scale.  The Reporting Officer and Reviewer wrote 
that  the  applicant  displayed  exceptional  operational  knowledge  and  had  their  “highest  recom-
mendation  for  promotion  to  O-6”  as  well  as  for  command  afloat  or  ashore.    The  applicant 
received two Commendation Medals while assigned to the Department.   

 
From  April  1  to  July  31,  2006,  the  applicant  served  as  the  Chief  of  the  Readiness  and 
Support Branch in  the DHS Preparedness  Directorate’s Office of  Infrastructure Protection.  On 
his OER for this work, he received ten marks of 6 and eight marks of 7 in the performance cate-
gories  and  a  mark  in  the  sixth  spot  on  the  comparison  scale,  which  indicates  that  he  was 
“strongly  recommended  for  accelerated  promotion”  by  his  Reporting  Officer.    Because  his 
Reporting Officer was a civilian, the Reviewer added a comment page and assigned him a mark 
in  the  fifth  spot  on  the  comparison  scale.    The  OER  notes  that  the  applicant  received  another 
Commendation Medal on May 26, 2006. 
 
Non-Selections for Promotion in 2006 and 2007 
 
 
In the summer of 2006, while his first BCMR application was pending and the erroneous 
2003  OER  was  still  in  his  record,  the  applicant  became  “in  zone”  for  promotion  to  CAPT  but 
was not selected for promotion by the promotion year (PY) 2007 selection board that convened 
in 2006. 
 

In  August  2006,  the  applicant  began  serving  as  Chief  of  the  Waterways  Management 
Branch for the Fifth District.   In September 2006, he earned a Master’s degree in Security Stu-
dies from the Naval Postgraduate School.  On an OER covering his service from August 1, 2006, 
to March 31, 2007, the applicant received thirteen marks of 6 and five marks of 7 in the perfor-
mance categories.  Under a new officer comparison system, the applicant was marked as among 
the top 10% of all commanders and “one of the few distinguished performers” on the comparison 
scale, and on the promotion scale he received a mark of “definitely promote.” 
 
 
On June 8, 2007, the Commandant issued ALCGOFF 059/07 announcing the upcoming 
CAPT  selection  board  in  July  2007  for  PY  2008  and  stating  that  the  selection  board  would  be 
allowed  to  select  61  of  92  eligible  commanders  for  promotion.    Paragraph  16  of  this  bulletin 
advises  all  candidates  for  promotion  to  review  their  military  records  prior  to  the  date  of  the 

 

 

selection board.8  However, the applicant was passed over for promotion again in July 2007 even 
though  the  2003  OER  disputed  in  Docket  No.  2006-085  had  been  ordered  removed  from  his 
record and replaced with a Continuity OER pursuant to the Board’s order. 
 
Technical Amendment to the Final Decision in BCMR Docket No. 2006-085 
 

In August  2007,  following the applicant’s second non-selection for promotion,  the JAG 
asked the BCMR to amend its order in BCMR Docket No. 2006-085 to include removal of the 
applicant’s  non-selection  for  promotion  in  July  2006  because  the  erroneous  OER  had  not  yet 
been  removed  from  the  applicant’s  record  when  the  selection  board  convened.    The  BCMR 
amended the order as requested.   
 
Non-Selection for Promotion in 2008 

 
On his second OER as Chief of a District Waterways Management Branch, covering his 
performance from April 1, 2007, to March 31, 2008, the applicant received nine marks of 6 and 
nine marks of 7 in the performance categories, and he was again assigned a mark in the top 10% 
of  all  commanders  his  reporting  officer  had  known—i.e.,  “one  of  the  few  distinguished 
performers”—and a mark of “definitely promote” on the promotion scale.  On July 11, 2008, the 
new commanding officer of the Training Center awarded the applicant a Commendation Medal 
for his work as the NATON School Chief from August 2000 to May 2003.   

 
However, the applicant was passed over for promotion again in July 2008 by the PY 2009 
CAPT selection board.  The opportunity of selection by that board was 66% in that the board was 
allowed to select 89 of the 134 eligible candidates for promotion to CAPT. 
 
BCMR Docket No. 2008-106 
 

On April 18, 2008, the applicant filed another BCMR application, in which he asked the 
Board to remove the 2004 OER on which he had received mediocre marks for his performance 
as the FPO for the Training Center and to replace it with another Continuity OER.  He also asked 
the Board to remove his non-selections for promotion in 2007 and 2008 by the PY 2008 and PY 
2009 CAPT selection boards, respectively, because the 2004 OER had been in his record when 
those boards convened.9  In addition, he asked the Board to backdate his date of rank and award 
him back pay and allowances if he were selected for promotion after his record was corrected by 
removal  of  the  2004  OER  and  to  take  any  additional  actions  that  would  alleviate  any  negative 
perceptions  that  a  selection  board  might  draw  from  the  two  consecutive  Continuity  OERs  he 
would have in his record.   
 

The  applicant  alleged  that  that  the  2004  OER  should  be  removed  because  he  was  only 
assigned to serve as the FPO because of the unfair 2003 OER, which the Board had found to be 

                                                 
8  This  advice  has  long  been  standard  in  all  ALCGOFFs  announcing  selection  boards  and  eligible  candidates  for 
promotion. 
9 The PY 2009 CAPT selection board had not yet met when the applicant submitted his application in April 2008.  
However, he requested this relief prospectively in case he again failed of selection.  The applicant was not selected 
for promotion by the PY 2009 selection board, which convened on July 14, 2008. 

 

 

erroneous in its Final Decision for BCMR Docket No. 2006-085.  He alleged that the FPO posi-
tion “did not afford the opportunity to perform at a level appropriate for [his] pay grade, resulting 
in [a] substandard OER for the period ending [February 29, 2004].”  The applicant  also alleged 
that his “reassignment was not within the authority of the Commanding Officer [CO] of Training 
Center Yorktown and was based on inaccurate information on [his] performance.”   

 
 
In  response  to  this  new  application,  the  JAG  recommended  that  the  Board  grant  relief.  
The JAG stated that the  applicant’s  CO’s  “decision to  relieve the  applicant  of his  duties as the 
Chief of the [NATON School], placing him into a position of lesser responsibility and opportu-
nity for leadership stemmed from  information provided in  an inaccurate OER.”    The JAG  also 
stated that the reassignment constituted “legal error” because the CO did not seek the Personnel 
Command’s approval before reassigning the applicant.  The JAG concluded that the mediocrity 
and lack of leadership potential shown in the 2004 OER “is clearly evident and when viewed in 
comparison  to  Applicant’s  OER  history—is  detrimental  and  could  have  been  the  cause  of  his 
non-selections.”   
 

In response to the JAG’s recommendation, the applicant argued that because the JAG had 
admitted that it is not unlikely that the applicant would have been selected for promotion in 2007 
and 2008 if the 2004 OER had not been in his record, the Board should order his promotion to 
CAPT  directly  rather  than  merely  correcting  his  record  and  removing  his  prior  non-selections.  
He  noted  that  the  removal  of  the  2004  OER  would  create  a  two-year  gap  in  his  performance 
record filled only with Continuity OERs.  Therefore, he asked the Board to consider recommend-
ing that he be directly promoted to captain.  The applicant argued that direct promotion, instead 
of merely removing his failures of selection, is appropriate “because it is impossible to see how 
[he] will ever be able to overcome the ruinous effect on his career opportunities as a result of the 
events underlying this case and the cumulative impact of two successive continuity OERs in his 
current grade.” 
 
 
In the Final Decision for BCMR Docket No. 2008-106, the Board granted relief by order-
ing removal of the applicant’s 2004 OER and his non-selections for promotion in 2007 and 2008 
by the PY 2008 and PY 2009 CAPT selection boards, respectively.  In reaching that decision, the 
Board found that the applicant’s intra-unit reassignment to be the FPO was neither unlawful nor 
unjust.  The Board noted that he was well qualified for the FPO position, which “was apparently 
an  O-5  level  position  appropriate  to  the  applicant’s  O-5  rank  with  significant  responsibility,  as 
shown in block 2 of the 2004 OER, whereas the NATON School Chief position is an O-4 billet.”  
The Board also noted that the applicant had not challenged the 2004 OER in his first application 
and appeared to be “alleging errors in old records in piecemeal fashion so that he may have extra 
chances for promotion.”  However, the Board granted relief based on the following finding: 

 
The marks in the 2004 OER are mediocre for an O-5, but the Board is not persuaded that anything 
about  the  FPO  duties  per  se  prevented  the  applicant  from  earning  higher  marks.    In  their  state-
ments, the rating officials for the 2004 OER claimed that the applicant could have earned marks 
and  comments  that  would  have  reflected  well  on  his  leadership,  management,  and  professional 
skills, but that he did not earn exceptional marks.  The JAG and the CO who made the reassign-
ment insist that it was unfair and that the resulting 2004 OER should be removed.  However, they 
do not expressly contradict the rating chain’s claim that it was an O-5 level position.  It is not clear 
whether  they  believe  the  FPO  assignment  would  have  been  unfair  for  any  O-5,  or  whether  they 
believe it was unfair for the applicant simply because the erroneous 2003 OER contributed to the 

 

 

 
 
ing: 
 

decision to choose him for the assignment.  Nevertheless, because the JAG has found, contrary to 
the statements of the rating officials, that the reassignment was unfair because it gave the applicant 
little  opportunity  to  demonstrate  leadership,  the  Board  will  concur  in  his  recommendation  [for 
relief]. 

In response to  the applicant’s request  for direct  promotion,  the Board stated the follow-

The applicant asked the Board to recommend his direct promotion to captain because, he alleged, 
the effect of having two continuity OERs in his record is ruinous and cannot be overcome.  In the 
Board’s experience, however, officers can be selected for promotion with large gaps in their per-
formance records.10  Nothing in the record distinguishes this case from the many others in which 
failures of selection have been removed.  The Board is not persuaded that a direct promotion rec-
ommendation  is  warranted  and  will  not  usurp  the  role  of  the  Coast  Guard’s  selection  boards, 
which are tasked  with the difficult job of selecting  for promotion to captain only the best candi-
dates from among many exceptional commanders. 
 
 
In response to the applicant’s request that the Board take any action that might alleviate 
any negative perceptions that a selection board might draw from his two consecutive Continuity 
OERs,  the  Board  ordered  the  inclusion  of  the  following  paragraph  in  the  Continuity  OER 
replacing the 2004 OER: 
 

 
“[The  applicant’s]  Personnel  Data  Record  includes  two  continuity  Officer  Evaluation  Reports 
covering  his  active  duty  service  from  April  1,  2002,  to  February  29,  2004.    His  record  has  been 
corrected by the Secretary in accordance with 10 U.S.C. § 1552, and no adverse inference of any 
kind  is  to  be  drawn  from  the  lack  of  more  substantive  Officer  Evaluation  Reports  during  this 
period.” 

 
OERs and Non-Selections for Promotion in 2009 and 2010 
 
 
On his second OER as Chief of a District Waterways Management Branch, covering his 
performance from April 1, 2008, to March 31, 2009, the applicant received nine marks of 6 and 
nine marks of 7 in the performance categories, and he was again assigned a mark in the top 10% 
of all commanders his  reporting officer had known—i.e., “one of the few  distinguished perfor-
mers”—and a mark of “definitely promote” on the promotion scale.  However, the applicant was 
not selected for promotion in 2009 by the PY 2010 CAPT selection board.  Because the BCMR 
had removed his non-selections for promotion to CAPT in 2006, 2007, and 2008, this non-selec-
tion counted as his first. 
 
On  his  third  OER  as  Chief  of  a  District  Waterways  Management  Branch,  covering  his 
 
performance from April 1, 2009, to March 31, 2010, the applicant received nine marks of 6 and 
nine marks of 7 in the performance categories, and he was again assigned a mark in the top 10% 
of all commanders his  reporting officer had known—i.e., “one of the few  distinguished perfor-
mers.”  On the promotion scale, he received a mark of “accelerated promotion/in-zone reorder-
ing.”  In addition, the applicant received another Commendation Medal for his work during this 
period.  However, the applicant was not selected for promotion in 2010 by the PY 2011 CAPT 
selection board, which counted as his second opportunity for promotion to CAPT.  Therefore and 

                                                 
10 See, e.g., BCMR Docket Nos. 2003-116 and 2005-058, in which the applicant was selected for promotion to O-4 
less than a year after returning to active duty despite a six-year gap in his substantive OERs. 

 

 

because  the  applicant  had  completed  26  years  of  commissioned  service,  he  voluntarily  retired 
from  the  Coast  Guard  on  July  1,  2011.11    Prior  to  his  retirement,  the  applicant  was  awarded  a 
Meritorious Service Medal for exceptionally meritorious service as Chief of the District Water-
ways Management Branch from August 2006 to June 2011. 
 

VIEWS OF THE COAST GUARD 

 
On  June  2,  2011,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard  submitted  an 
 
advisory  opinion  in  which  he  recommended  that  the  BCMR  deny  the  applicant’s  request  for 
promotion. 
 
 
The JAG stated that the applicant has failed to submit any evidence to overcome the pre-
sumption that the members of the CAPT selection boards carried out their duties correctly, law-
fully, and in good faith.12  The JAG noted that it “is well settled that [the BCMR’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  his  non-selection”  so  that  the  member  may  have  another  opportunity  for 
selection for promotion before another selection board.  The JAG argued that the BCMR should 
therefore interpret the applicant’s request as a request to remove his non-selections for promotion 
in 2009 and 2010 and deny the request because he has not shown that his record was erroneous 
when it was reviewed by those selection boards. 
 
 
The  JAG  stated  that,  as  the  BCMR  noted  in  its  final  decision  for  BCMR  Docket  No. 
2008-106,  officers  can  be  promoted  with  gaps  in  their  OER  record,  and  argued  that  the  appli-
cant’s  situation  is  “no  different  than  the  many  others  in  which  failures  of  selection  have  been 
removed” from applicants’ records.  The JAG argued that the BCMR should not “usurp the role 
of the CG’s selection boards by providing a direct promotion recommendation in this particular 
case.” 
 
 
The JAG noted that any possible negative inference created by the two Continuity OERs 
in the applicant’s record were addressed by the BCMR’s explanatory paragraph.  The JAG also 
noted that the applicant was allowed to submit a memorandum to the selection boards in accor-
dance  with  policy  and  used  the  opportunity  to  provide  “ample  information  on  his  performance 
accomplished during the period covered by the continuity OERs.  For the applicant to now allege 
that his failures of selection from PY10 and PY11 Selection Boards are the result of his continu-
ity OERs are speculative at best and do not carry his burden of production and persuasion.”  The 
JAG argued that the “Government does not have to disprove Applicant’s contentions or allega-
tions of error;  instead, Applicant  bears the burden of producing sufficient  evidence to  establish 
prima facie proof of the alleged error or injustice.”  The JAG alleged that the applicant’s “allega-
tions  are  speculative  at  best  and  are  of  no  legal  moment.    The  Applicant  failed  to  submit  any 
evidence, either legal or factual to support his allegations of error or injustice.  As a result, the 

                                                 
11 14 U.S.C. § 285 (2010) (providing that an active duty CDR with two non-selections shall be retired, if eligible, on 
the June 30th following the second non-selection, unless the CDR is selected for continuation on active duty, but that 
no CDR not  selected  for promotion to CAPT  may be continued on active duty beyond  26  years of commissioned 
service). 
12 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

 

 

Applicant’s allegations are insufficient as a matter of law to overcome the strong presumption of 
regularity afforded military officers.” 
 

 
The  JAG  noted  that  under  Article  14.A.  of  the  Personnel  Manual,  the  selection  boards’ 
“results were based on at least two-thirds majority determination.”  He argued that the applicant 
“is  in  no  position  to  ‘second  guess’  the  findings  and  actions  of  CG  Selection  Boards.  …    The 
Applicant  is  not  entitled  to  circumvent  the  CG’s  Promotion  Board  process  and  procedures  by 
alleging  the  possibility  of  unsubstantiated  errors  or  injustices  with  no  evidence  to  prove  such.  
Moreover,  the  Applicant  has  had  every  ‘benefit  of  the  doubt’  regarding  his  several  failures  of 
selection.” 

 
In making his recommendation, the JAG adopted the findings and analysis provided in a 
memorandum on the case prepared by the Personnel Service Center (PSC).  Regarding the appli-
cant’s allegations that he had received less prestigious  assignments as a result of the erroneous 
OERs, the PSC stated that the applicant “has been assigned duties commensurate with his rank 
during his tenure as a Commander.”  Regarding the applicant’s claim that the Continuity OERs 
had prejudiced his record, the PSC noted that the BCMR had ordered that “no adverse inference 
of any kind is to be drawn from the lack of more substantive Officer Evaluation Reports during 
this Period” and that the selection board members had sworn an oath to perform their duties and 
make their selections “without prejudice or partiality, and having in view both the special fitness 
of officers and the efficiency of the Coast Guard.”  The PSC stated that it “is not possible to say 
what  impact,  if  any,  the  gaps  in  the  Applicant’s  record  had  on  the  proceedings  of  the  Captain 
Selection Board; however, the Coast Guard agrees with the conclusions found in [the final deci-
sion  in  BCMR  Docket  No.  2008-106],  specifically  that  ‘officer  can  be  selected  for  promotion 
with large gaps in their record.’”  The PSC concluded that the applicant’s record had been fairly 
reviewed by the CAPT selection boards in 2009 and 2010 and that he had failed to substantiate 
an error or injustice in his record. 
 
 
tion board, dated July 7, 2010.  The applicant wrote to the selection board that  
 

The PSC submitted a copy of the applicant’s communication to the PY 2011 CAPT selec-

[i]n  reviewing  my  record,  the  Board  will  find  two  Continuity  OERs  covering  the  periods  from 
April 1, 2002 to March 30, 2003 and April 1, 2003 to February 29, 2004.  Recognizing that these 
OERs are to be considered neutral by the Promotion Board, I respectfully request that the Board 
members consider the other information available in my record which portrays my continued high 
performance and dedication throughout this period and my career. … 

 
The  applicant  pointed  out  that  he  had  received  medals  for  his  work  as  the  NATON 
 
School Chief and the FPO and asked the Board to read the citations for the medals for evidence 
of the quality of his performance during that period.  He also provided two paragraphs about his 
accomplishments during the period and also descriptions of his subsequent work. 
 
 

 

 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On June 28, 2011, the applicant submitted his response to the views of the Coast Guard.  

 
 
The applicant submitted an “OER Summary” printed from the Coast Guard’s Direct Access per-
sonnel  database  on  June  1,  2011.    The  OER  Summary  shows  all  of  the  poor  marks  from  the 
applicant’s 2003 and 2004 OERs, which the Board had ordered expunged in his two prior cases.  
Although the paper  copy of the applicant’s military  record contains only the Continuity  OERs, 
the OER Summary in Direct Access shows that the OERs were not removed from his electronic 
record.    The  applicant  noted  that  in  accordance  with  “Commandant  Instruction  1410.2,  Perfor-
mance  Data,  including  data  maintained  in  Direct  Access  is  permitted  to  be  viewed  by  Active 
Duty Promotion Boards.”  The applicant alleged that the continuing damage to his record caused 
by the Coast Guard’s errors has denied him promotion to captain even though  
 

I was highly competitive for assignment and promotion prior to the contested OERs and I main-
tained  a  continued  high  level  of  performance.    My  ability  to  perform  at  the  O-6  level  in  my 
assignment at the Department of Homeland Security and in my current assignment is well docu-
mented in my record and includes reference to my serving for extended periods as an acting Divi-
sion Chief.  Based upon my overall career performance, I believe that it is apparent that my record 
cannot be corrected to allow full and fair consideration by a selection board. 

 
The  applicant  pointed  out  that  in  removing  his  non-selections  for  promotion  in  2006, 
 
2007, and 2008 pursuant to the final decisions in BCMR Docket Nos. 2006-085 and 2008-106, 
the Board found, in following the Engels test,13 that is was not unlikely that he would have been 
selected for promotion had the erroneous OERs not been in his record when it was reviewed by 
those selection boards. 
 
The applicant noted that pursuant to Article 14.A.4.d. of the Personnel Manual, a selec-
 
tion board reviews an officer’s entire record but “the most significant portion of the record eva-
luated for selection to Captain (O-6) is seven years of immediate previous service or all service 
in present grade, whichever is greater.”  He pointed out that his 2003 and 2004 OERs were both 
CDR OERs and were thus included in those the selection boards were supposed to consider most 
significant.  In addition, he noted that because the content of communications to selection boards 
is limited to matters of record, “the information in my letter to the board was limited to perfor-
mance that was already available elsewhere in my record.  This communication could not replace 
the OERs which had been removed, nor could it provide ample information to cover my perfor-
mance during the period covered by the continuity OERs.” 
 
The applicant repeated many of his arguments and allegations and cited two prior cases 
 
of  the  Air  Force  BCMR  (AFBCMR  89-0043114  and  98-0007615)  in  which  that  board  recom-

                                                 
13 Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982) (holding that to determine if an applicant is entitled to 
the  removal  of  his  non-selection  for  promotion  because  of  an  error  in  his  record,  the  Board  must  answer  the 
following  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 [he] would have been [selected for promotion] in any event?”). 
14 AFBCMR BCMR Docket No. 89-00431 is not in the record before the Board.  The decision is cited in AFBCMR 
Docket No. 98-00076 as one in which the AFBCMR directly promoted the applicant because it was impossible to 
correct his record in such a way that would give him a fair chance at promotion before a selection board. 

 

 

mended the promotion of an officer because extraordinary circumstances prevented the officer’s 
full and fair consideration by a selection board. 
 
 
The applicant alleged that “my performance throughout my career has justified selection 
at a best qualified board, which indicates that the reason for my non-selections is a direct result 
of the errors committed by the Coast Guard.”  He asked the Board to “recognize the significant 
injustice  resulting  from  the  improper  administration  of  the  Officer  Evaluation  System  while  I 
was  assigned  to  Coast  Guard  Training  Center  Yorktown  and  the  resulting  impacts  which  pre-
clude full and fair consideration by a selection board.” 
 

SUBSEQUENT PROCEEDINGS 

 
 
The BCMR staff forwarded the Coast Guard a copy of the applicant’s new evidence—the 
June 1, 2011, print-out of his OER marks from the Direct Access database—and invited a written 
response.    The  PSC  responded  that  “per  COMDTINST  1410.2  -  Documents  Viewed  by  Coast 
Guard  Officer  Promotion  and  Special  Boards,  the  attachment  you  reference  below  (Employee 
Summary  of  Marks)  is  not  authorized  to  be  viewed  by  an  officer  promotion  board.  Therefore, 
this issue should be moot.”  In addition, the PSC stated that the applicant’s 2003 and 2004 OER 
marks have been removed from  the Direct  Access database.   In reply, the  BCMR  staff pointed 
out that COMDTINST 1410.2 contains the following provisions authorizing selection boards to 
view electronic data sets of officers’ OERs: 
 

  Paragraph 7.b. of COMDTINST 1410.2 states that “Documents and data sets permitted to 

be viewed by ADPL promotion boards are outlined in the attached enclosure.” 

 

 

 

  The  enclosure  to  COMDTINST  1410.2  contains  a  chart  of  the  documents  that  may  be 
viewed and a chart of the data sets that are “Permitted to Be Viewed” or “Masked from 
View.”  An officer’s “performance data” is in the column of data sets that are “Permitted 
to Be Viewed.”   

  Paragraph 6.m. of COMDTINST 1410.2 defines “performance data” as “Data related to 
an  officer’s  performance,  currently  captured  in  Officer  Evaluation  Reports  (OERs), 
administrative remarks, punitive letters, etc.” 

The  Chief  of  the  Boards  Section  in  the  Officer  Personnel  Manage  Branch  of  the  PSC 

wrote the following in response: 

                                                                                                                                                             
15 In AFBCMR Docket No. 98-00076, the Air Force BCMR  panel found that the applicant had not received a fair 
review  by  a  special  selection  board  (SSB)  convened  to  review  his  record  after  it  was  corrected  by  the  Air  Force 
BCMR.    The  panel  found  that,  because  99.2%  of  all  candidates  for  promotion  to  O-5  with  a  mark  of  “definitely 
promote” on their latest evaluation  were  selected  for promotion by  the regular selection board, the SSB could not 
have  fairly  reviewed  the  applicant’s  record  before  non-selecting  him.    Therefore,  the  panel  recommended  that  his 
record be corrected to show that he was promoted to O-5; that “action be initiated to obtain Senate confirmation” of 
the  promotion;  and  that  once  promoted,  the  applicant’s  date  of  rank  be  backdated  and  he  be  paid  back  pay  and 
allowances.  However, the panel’s recommendation was disapproved and relief was denied based on a finding that 
the  statistic  that  99.2%  of  all  candidates  for  promotion  to  O-5  with  a  mark  of  “definitely  promote”  on  their  latest 
evaluation were selected for promotion by the regular selection board did not prove that the SSB failed to perform 
its review fairly. 

 

 

 
While  it  could  be  interpreted  that  COMDTINST  1410.2  authorizes  data  sets  for  the  promotion 
board to view, board member profiles in Direct Access do not have permissions for this view and 
we  do  not  provide  any  additional  information  to  the  board  members  other  than  the  imaged  data 
record  which  has  the  complete  OERs.    In  order  for  the  board  members  to  evaluate  a  member's 
marks, they must view the imaged OERs that are in the system. 
 
The BCMR staff forwarded this emailed correspondence to the applicant and invited him 
 
to  respond.    In  response,  the  applicant  argued  that  the  error  of  not  deleting  his  2003  and  2004 
OER  marks  from  Direct  Access  “is  indicative  of  the  improper  administrative  of  the  Officer 
Evaluation  System”  and  “another  example  of  the  poor  quality  control  within  the  system  which 
creates  further  doubt  in  the  Coast  Guard’s  ability  to  provide  full  and  fair  consideration  by  a 
selection board in my case.”  He alleged that there is “uncertainty about the information actually 
provided to the Promotion Board.”  Moreover, he noted, his OER marks in Direct Access could 
have  been  used  in  making  other  decisions  that  affected  his  career.    He  alleged  that  assignment 
officers,  who  had  access  to  his  marks  in  Direct  Access,  found  that  he  was  not  competitive  for 
command cadre and other highly desired assignments that would have enhanced his career and 
hence his chances for promotion.  Therefore, the Coast Guard’s failure to remove the OER marks 
from  Direct  Access  did  in  fact  prevent  his  selection  for  promotion.    He  asked  the  Board  to 
“recognize the extraordinary circumstances which have precluded full and fair consideration by a 
selection  board  and  grant  relief  in  the  form  of  a  directed  promotion  to  O-6  and  payment  of 
appropriate back pay and allowances.” 
 

APPLICABLE REGULATIONS AND GUIDANCE 

 
Coast Guard Personnel Manual 
 
Article  5.A.4.a.1.  of  the  Personnel  Manual  states  that  a  CDR  becomes  eligible  for  con-
 
sideration  for  promotion  by  a  CAPT  selection  board  when  he  has  served  four  full  years  as  a 
CDR.  Article 5.A.4.a.4. states that once an officer is eligible for consideration for promotion, he 
remains eligible as long as he continues to serve on active duty. 
 
Article  5.A.4.e.1.  states  that  an  “officer  eligible  for  consideration  by  a  selection  board 
 
may communicate with the board through the officer’s chain  of command by letter arriving by 
the date the board convenes, inviting attention to any matter in his or her Coast Guard record that 
will be before the selection board. A letter sent under this paragraph may not criticize any officer 
or reflect on any officer’s character, conduct, or motive (14 U.S.C. 253(b)).” 
 
 
Article 14.A.3.b. states that the basic criteria for selecting officers for promotion are per-
formance  evaluations;  education;  leadership;  and  professionalism  (“[T]he  Service  expects  each 
officer  to  have  true  professional  competence  in  one  occupational  field  and,  from  assignments 
outside it, experience in other fields. While technical specialization is essential in certain lower 
grades and for certain assignments, in the higher grades emphasis shifts to leadership skills.”). 
 
Article 14.A.4.d. states that in  reviewing CDRs’ records for promotion  to CAPT, selec-
 
tion  boards  should  consider  to  be  most  significant  the  CDRs’  “[s]even  years  of  immediate 
previous service or all service in present grade, whichever is greater.” 

 

 

Article  14.A.6.b.  of  the  Personnel  Manual  states  that  selections  boards  shall  select 

 
 
officers for promotion by making comparisons as follows: 
 

In recommending, a board shall compare all officers submitted for consideration and base its rec-
ommendations  on  the  extent  to  which  they  compare  among  themselves  in  accomplishing  past 
assignments  and  potential  for  greater  responsibility  according  to  the  overall  criteria  the  board 
adopted; … 
 
1. Selection on a best-qualified basis embodies three elements; the board: 
 

a. First, considers all officers impartially and equally. 

 

 

b. Second, applies the same criteria to all. 

c. Third, evaluates by comparison, with the most capable officers advancing to positions 

of higher responsibility. 
 
2. Best-qualified boards consider officers’ records, comparing past performance, their capacity to 
undertake successfully tasks of progressively greater difficulty involving broader responsibilities, 
their capability and inclination to study for further professional growth, and their potential to per-
form creditably those duties to which these officers might be assigned in the next higher grade. 

 
 
Article  14.A.7.c.2.e.  states  that  a  selection  board’s  report  must  include  a  “certification 
that, in the opinion of at least a majority of the members of the board, the officers recommended 
for promotion are fully qualified and the best qualified of those officers whose names have been 
furnished to the board.” 
 
Selection Board Precept and Guidance for 2009 (PY 2010) 
 
 
On July 7, 2009, the PSC issued a precept convening a CAPT selection board composed 
of six captains on July 13, 2009, to select 64 of 96 eligible CDRs for promotion.  An enclosure to 
the  precept  was  the  Commandant’s  Guidance  to  PY10  Officer  Selection  Boards  and  Panels, 
which stated the Coast Guard needs captains who assess and manage risk well; who are flexible, 
innovative, and capable  of operating in  a dynamic environment; who can “think on their feet”; 
who can build relationships with non-Coast Guard partners and agencies; who continually rein-
force the Coast Guard’s core values of honor, respect, and devotion to duty; who value diversity 
and are culturally attuned to people; who mentor subordinates; who have technical expertise and 
management skills; who understand the major issues facing the Coast Guard; and who can “make 
the  leap  from  hands  on  management  of  the  day-to-day  details  to  empowering  their  people  to 
perform those functions while they take a strategic view.”  
 
Selection Board Precept and Guidance for 2010 (PY 2011) 
 

On July 6, 2010, the PSC issued a precept convening a CAPT selection board composed 
of six captains on July 12, 2010, to select 59 of 98 eligible CDRs for promotion.  An enclosure to 
the  precept  was  the  Commandant’s  Guidance  to  PY11  Officer  Selection  Boards  and  Panels, 
which stated the Coast Guard needs captains who step forward to serve in positions accompanied 
by risk and rigorous accountability; who take broadening assignments; who create work climates 

 

 

of  environments  of  care,  concern,  and  equity;  who  “set  the  bar  high”  and  hold  subordinates 
accountable; who are “mindful of the communities, industries, governments, and citizens that we 
serve”; “who can sustain key relationships to make our Service more capable and credible”; who 
can focus on safely and skillfully performing the Service’s missions while prioritizing demands 
and  ensuring  mission  readiness;  who  represent  a  diverse  array  of  professional  backgrounds, 
academic skills, and career experience; who can innovate and incorporate new perspectives and 
approaches to recognize, manage and resolve problems; who have mastery of the specialty and 
demonstrate an overarching understanding of the Service; who have strong representational, oral, 
and written communications skills; who demonstrate the ability to complete major projects and 
initiatives;  and  who  possess  the  acumen  and  savvy  to  navigate  complex  situations  and  ensure 
compliance with financial and legal requirements. 
 

FINDINGS AND CONCLUSIONS 

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

 
 
military record and submissions, the Coast Guard’s submission, and applicable law: 
 
 
The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10 U.S.C.  § 1552.  
Although  the  application  was  not  filed  within  three  years  of  the  applicant’s  discovery  of  the 
alleged error or injustice, it is considered timely under Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 
1994).16  
 

1. 

2. 

The applicant requested an oral hearing before the Board.  The Chair, acting pur-
suant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case without 
a hearing.  The Board concurs in that recommendation.17   
 

3. 

The Board begins its analysis in every case by presuming that the disputed infor-
mation in the applicant’s military record 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.18    Absent  evidence  to  the  contrary,  the  Board  presumes  that  Coast  Guard 
officials and other Government employees have carried out their duties “correctly, lawfully, and 
in good faith.”19  

 

                                                 
16 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that, under § 205 of the Soldiers’ and Sailors’ Civil 
Relief  Act  of  1940,  the  BCMR’s  three-year  limitations  period  under  10  U.S.C.  §  1552(b)  is  tolled  during  a 
member’s active duty service). 
17  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”); Flute v. United States, 
210  Ct.  Cl.  34,  40  (1976)  (“The  denial  of  a  hearing  before  the  BCMR  does  not  per  se  deprive  plaintiff  of  due 
process.”);  Armstrong v. United States, 205 Ct. Cl. 754, 764 (1974) (stating that a hearing is not required because 
BCMR proceedings are non-adversarial and 10 U.S.C. § 1552 does not require them). 
18 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002, approved by the Deputy 
General Counsel, May 29, 2002) (rejecting the “clear and convincing” evidence standard recommended by the Coast 
Guard and adopting the “preponderance of the evidence” standard for all cases prior to the promulgation of the latter 
standard in 2003 in 33 C.F.R.§ 52.24(b)). 
19 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

 

 

 

4. 

The fact that CAPT selection boards normally select a smaller percentage of eligi-

The  applicant  alleged  that  the  Board  should  promote  him  because  the  two  con-
 
secutive Continuity OERs in his performance record prevented the CAPT selection board from 
selecting  him  for  promotion  since  selection  for  CAPT  is  highly  competitive  and  only  the  best 
60% of eligible CDRs were selected.  However, the Board is not persuaded that the two consec-
utive  Continuity  OERs  prevented  the  applicant’s  selection  for  CAPT  because  the  Board  had 
entered  in  his  record  an  instruction  for  the  selection  boards  not  to  draw  any  adverse  inference 
from  the  lack  of  substantive  OERs  for  those  two  years.    As  noted  in  the  Board’s  findings  for 
Docket  No.  2008-106,  the  applicant  whose  record  was  corrected  in  BCMR  Docket  Nos.  2002-
110,  2003-116,  and  2005-058  was  selected  for  promotion  to  lieutenant  commander  with  a  six-
year  gap in  his  performance record, including more than two  years of active duty with  no sub-
stantive  OER  documenting  his  performance  followed  by  almost  four  years  of  constructive 
inactive service in  the Reserve with  no substantive OERs.  However, the Board entered in  that 
applicant’s record the instruction to selection boards to draw no adverse inference from the gap 
in his performance record resulting from its correction by the Secretary, and he was selected for 
promotion less than a year after he returned to active duty.  Therefore, the Board concludes that 
selection boards are clearly able to refrain from drawing any adverse inference from a gap in an 
officer’s record created by a BCMR decision, especially when instructed to do so. 
 
 
ble  candidates  for  promotion  than  do  LCDR  selection  boards  does  not  alter  the  Board’s  view.  
The  applicant  apparently  believes  that  the  selection  boards  considered  the  lack  of  substantive 
OERs in his record for 2003 and 2004 to be damaging, despite the BCMR instruction not to draw 
any  adverse  inference,  and  that  while  the  damage  was  not  enough  to  prevent  another  officer’s 
selection  when  the  selection  rate  was  around  89%,  it  was  enough  to  prevent  his  own  selection 
when the selection rate was just 60%.  However, the Board is not persuaded that selection board 
members are mentally unable to ignore the presence of two Continuity OERs in lieu of substan-
tive  OERs  in  an  officer’s  record  and  to  refrain  from  drawing  adverse  inferences.    In  the  appli-
cant’s case in particular, his performance record was not thin or sparse because of the Continuity 
OERs when it was reviewed by the selection boards in 2009 and 2010.  Under Article 5.A.4.a.1. 
of the Personnel  Manual,  a CDR becomes  eligible for consideration for promotion by  a CAPT 
selection board when he has served four full years as a CDR.  Because CDRs normally receive 
OERs annually,20 most CDRs have just four substantive CDR OERs documenting performance 
in  two  or  three  assignments  in  their  records  when  they  first  become  eligible  for  selection  to 
CAPT.    The  applicant,  on  the  other  hand,  had  seven  substantive  CDR  OERs  (not  all  annual) 
when his record was reviewed by the CAPT selection board in 2009, and he had likewise served 
in  several  highly  responsible  CDR  assignments.    Although  the  applicant  argues  that  his  extra 
time in  grade hurt his  chances for selection, the Board is  not  convinced that a longer record of 
proven  performance  in  highly  responsible  CDR-level  positions  with  excellent  OERs  hurt  the 
applicant’s chance of selection for promotion. 
 
 
The  applicant  submitted  a  print-out  dated  June  1,  2011,  from  the  Coast  Guard’s 
Direct  Access personnel  database showing that the Coast  Guard had  failed to  remove his  2003 
and 2004 OER marks from the database.  He pointed out that under COMDTINST 1410.2, selec-
tion boards are authorized to view performance data sets, but did not allege that selection boards 
actually see candidates’ Direct Access marks summaries.  The Chief of the Boards Section in the 
                                                 
20 Personnel Manual, Article 10.A.3.a.1. 

5. 

6. 

 

Officer Personnel Management Branch of PSC has stated that selection board members are not 
given the electronic “permission” needed to open candidates’ Direct Access records and are not 
“provided  any  additional  information  …  other  than  the  imaged  data  record  which  has  the 
complete  OERs.”    The  Board  has  reviewed  the  imaged  data  record  containing  the  applicant’s 
OERs, and it does not contain any of the numerical marks or comments from the 2003 and 2004 
OERs, which the Board has ordered expunged.  Instead, it contains the Continuity OERs that the 
Board ordered to be entered in his record to replace the expunged OERs.  Therefore, although the 
Coast  Guard  clearly should  have removed the 2003 and 2004 OER marks from  the applicant’s 
Direct  Access  record  and  has  agreed  to  do  so,  the  failure  to  do  so  did  not  prejudice  the 
applicant’s  record  before  the  CAPT  selection  boards  in  2009  and  2010  because  the  CAPT 
selection boards did not see his Direct Access OER marks summary. 
 
 
Whether the  applicant  would  have been selected  for promotion  to  CAPT  had he 
received  accurate  OERs  in  2003  and  2004  is  unknowable.    However,  his  record  has  been  cor-
rected and has been duly and fairly considered by two CAPT selection boards in 2009 and 2010 
with ample substantive CDR OERs to review.  He was not selected for promotion, but his non-
selections do not prove his allegations that his Continuity OERs, assignments, and length of ser-
vice ruined his chances to be selected for promotion.  Unfortunately, many CDRs with excellent 
OERs  are  never  selected  for  promotion  to  CAPT  and,  like  the  applicant,  must  retire  as  CDRs.  
There is no proof that the Continuity OERs or the applicant’s subsequent assignments prevented 
him from being selected for promotion to CAPT.  The Board is not persuaded that a direct pro-
motion recommendation is warranted and will not usurp the role of the Coast Guard’s selection 
boards, which are tasked with the difficult job of determining, based on the guidance provided in 
the  Personnel  Manual  and  by  the  Commandant,  which  of  the  many  excellent  CDRs  should  be 
promoted to CAPT. 
 
 
 
  

Accordingly, the applicant’s request should be denied. 

7. 

8. 

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 

 

ORDER 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxx,  USCG  Retired,  for  correction  of  his 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Marion T. Cordova 

 

 

 
 Patrick B. Kernan 

 

 

 

 

 
 Jeffrey E. VanOverbeke 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 
military record is denied.