DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2011-241 
 
XXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXX 

 

 

 
 

FINAL DECISION 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section  425  of  title  14  of  the  United  States  Code.    The  Chair  docketed  the  application  upon 
receipt of the applicant’s completed application on August 26, 2011, and subsequently prepared 
the final decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  May  17,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The  applicant  asked  the  Board  to  correct  his  record  by  removing  his  non-selection  for 
promotion to lieutenant (LT) before the Promotion year (PY) 2011 LT selection board.  He also 
requested  that  if  selected  by  the  PY  2012  LT  selection  board  that  his  LT  date  of  rank  be 
backdated to the date he would have received if he had been selected by the PY 2011 board.   
 
 
The applicant alleged that his electronic record (EI), which was reviewed by the PY 2011 
selection  board,  improperly  contained  extraneous  adverse  documents,  some  in  duplicate,  that 
should not have been reviewed by the selection board.  He alleged that these documents related 
to and highlighted a citation that he received on June 19, 2009, for operating a vehicle under the 
influence  of  alcohol.    The  extraneous  documents  were:    Letter  of  Recognizance,  BAC 
DataMaster Evidence Ticket, Traffic Citation, Ohio Bureau of Motor Vehicle License Suspension 
document,  and  a  CG-5588  (Personnel  Security Action  Form).    The  applicant  argued  that  these 
extraneous documents unnecessarily emphasized an alcohol incident and directly contributed to 
his non-selection for promotion before the PY 2011 promotion board.   
 
 
The applicant stated that he became aware of the error on December 21, 2010, and began 
an effort to have the documents removed from his record.  Four of the documents and duplicates 
have  been  removed  from  the  applicant’s  record  and  the  CG-5588  has  been  relabeled  from 
“SERV” to “ADMIN NO BRD,” which prohibits its review by the selection board.   
 

 

 

SERVICE RECORD DOCUMENTS 

 
Applicant’s Alcohol Incident and Related Documents 
 
 
mentioned by the applicant, it also properly contained the following documents. 
 

Although  the  applicant’s  electronic  record  contained  the  extraneous  documents 

1.  Letter of Counseling—First  Documented Alcohol  Incident.   This  letter noted that the 
applicant  received  an  alcohol  incident  “when  alcohol  was  determined  to  be  a  factor  in  his 
behavior resulting in his being pulled over and arrested by the Fairveiw Park Police Department 
at  0319 on June 19, 2009  for speeding and driving under the influence of alcohol.”  The letter 
also  stated  that  the  applicant  “failed  a  sobriety  test  and  a  breath-test  measured  the  applicant’s 
alcohol level at 0.159, which was above Ohio’s legal limit of 0.08%.”   

 
2.  Alcohol Screening Results.  The letter notes that the applicant was screened on July 2, 
2009,  to  determine  his  relationship  with  alcohol.    The  screening  determined  that  the  applicant 
met the criteria for alcohol abuse and a treatment plan was established that consisted of several 
counseling sessions.   

 
3.    Special  Officer  Evaluation  Report  (SOER).   A  SOER  was  submitted  for  the  period 
from May 9, 2009, to August 6, 2009, to document the applicant’s removal from his primary duty 
as  executive  officer  on  June  22,  2009,  and  to  document  his  non-judicial  punishment  (NJP)  on 
August 6, 2009, where an oral admonition was given for violating Article 111 (drunk or reckless 
driving) of the Uniform Code of Military Justice (UCMJ).   

 
On the SOER, the applicant was given below standard marks of 2 in judgment and health 
and well-being and 3 in responsibility and professional presence.1  The comments supporting the 
marks were similar to those in the alcohol incident letter.  The comments supporting the marks 
also stated, “As a member of the command cadre, his actions set an unacceptable example for the 
crew, undermined his ability to perform his duties, and brought discredit onto the Coast Guard.  
He was found to have committed Article 111: Drunken or reckless operation of a vehicle at NJP, 
an oral admonition was given.” 

 
On the comparison scale in block 9 of the SOER, the reporting officer rated the applicant 
in  the  lowest  of  7  categories  as  an  unsatisfactory  officer.    The  reporting  officer  did  not 
recommend the applicant for promotion in block 10.   

 
The  applicant  submitted  an  addendum  to  the  SOER  wherein  he  accepted  full 

responsibility for his situation. 
 
Applicant’s Other OERs 
 
 
performed his duties in an excellent manner. 

The  applicant’s  other  OERS  were  those  of  an  average  to  above  average  officer  who 

                                                 
1   OER marks range from a low of 1 to a high of 7. 

 

 

VIEWS OF THE COAST GUARD 

 
 
On January  11, 2012, the Judge Advocate General  (JAG) of the Coast  Guard submitted 
an advisory opinion recommending that the Board grant partial relief by removing the applicant’s 
non-selection by the PY 2011 selection board, in accordance with a memorandum submitted by 
the Commander, Personnel Service Center (PSC).    
 

The  JAG  noted  that  the  applicant  failed  to  be  selected  for  promotion  by  the  PY  2012 
selection  board  even  though  the  extraneous  material  had  been  removed  from  his  electronic 
record.    The  JAG  stated  that  although  selection  board  proceedings  are  not  disclosed,  it  is  the 
Coast  Guard’s  opinion  that  the  applicant’s  misconduct—as  properly  documented  in  his  service 
record—was more likely than not the cause of his non-selections for promotion before both the 
PY 2011 and 2012 selection boards.  In this regard, the JAG noted the following information in 
the applicant’s military record: 
 

On  22  June  2009,  the  applicant  was  awarded  a  counseling  letter  documenting 
[his]  first  alcohol  incident.    The  applicant’s  misconduct  .  .  .  resulted  in  the 
applicant  receiving  non-judicial  punishment  (NJP)  for  violating  Article  111 
[drunk or reckless driving] of the Uniform Code of Military Justice (UCMJ) and 
removal  from  his  primary  duties  (Executive  Officer/second  in  command  of 
USCG  NEAH  BAY.)  The  applicant  was  awarded  a  [SOER]  documenting  his 
misconduct and not recommending [him] for promotion.  It is the Coast Guard’s 
opinion that the applicant’s probability of selection for promotion based on the 
inclusion  of  the  SOER  is  more  likely  than  not  the  reason  why  he  was  not 
selected  for  promotion  during  PY  2012.    However,  the  Coast  Guard  concurs 
with CG PSC’s assessment in that the applicant should have his PY 2011 failure 
of selection for promotion removed from his record.  The applicant’s failure of 
selection  for  promotion  during  PY  2012  should  not  be  removed  and  should  be 
considered  his  first  failure  of  selection  for  promotion.    The  applicant  should 
have his mandatory separation status removed from his record and be allowed to 
have  his  record  reviewed  for  promotion  by  the  PY  13  selection  board.    If  not 
selected by the PY 13 selection board, the applicant will be considered twice not 
selected  for  promotion  and  placed  in  a  mandatory  separation  status  as  per  14 
U.S.C. § 282.   

 
PSC Memorandum 
 
 
PSC  admitted  that  the  Coast  Guard  committed  an  error  by  improperly  including  the 
extraneous documents in  the applicant’s  electronic  record.  PSC stated that  it is  not  possible to 
say  what  impact,  if  any,  the  disputed  documents  may  have  had  on  the  selection  board 
proceedings because such proceedings are secret under 14 U.S.C. 261.  PSC also stated: 
 

The Coast Guard officer promotion system is designed to provide each candidate 
at  least  two  impartial  opportunities  to  compete  for  promotion.    In  this  case,  [the 
applicant’s]  record  was  viewed  by  two  promotion  Boards;  however,  one  of  the 
two  Boards  had  access  to  information  that  did  not  comply  with  policy.    [The 

 

 

 

applicant’s non-selection by the PY 11 Board should be expunged and [his record 
should] be placed before the PY 13 LT selection board.   

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  February  2,  2012,  the  Board  received  the  applicant’s  response  to  the  views  of  the 
Coast Guard.  He agreed with them, except that he disagreed that his PY 2012 failure of selection 
should not be removed.  He argued that it was the record of his PY 2011 failure that caused his 
PY  2012  non-selection  instead  of  the  misconduct  documented  in  his  record,  as  argued  by  the 
Coast Guard.   He stated that the Coast Guard’s presumption that he was not selected because of 
the documented misconduct in his record is unfair and adversely impacts his status as an officer 
in the Coast Guard.   
 

FINDINGS AND CONCLUSIONS 

 

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

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

military record and submissions, the Coast Guard's submission and applicable law: 
 
 
of the United States Code.   The application was timely. 
 
 
2.  As the advisory opinion stated, each officer is entitled to two opportunities to compete 
for promotion with an accurate record. However, the Coast Guard admitted, and the Board finds, 
that  the  applicant’s  record  before  the  PY  2011  LT  selection  board  improperly  contained 
extraneous documents that related to  his  arrest  for driving under the influence of alcohol.  The 
Coast Guard recommended, and the Board agrees, that as a result of this error, the applicant’s PY 
2011  failure  of  selection  for  promotion  to  LT  should  be  removed  from  his  record  and  that  the 
applicant should have one additional opportunity to compete for promotion before the PY 2013 
LT selection board.   
 
 
3.  With respect to the removal of the applicant’s PY 2012 non-selection for promotion to 
LT,  the  Board  agrees  with  the  Coast  Guard  that  the  PY  2012  non-selection  should  not  be 
removed  from  the  applicant’s  record  and  should  be  considered  his  first  non-selection  for 
promotion to LT.  In this regard, the Board notes that the applicant had a corrected record when 
he was considered by the PY 2012 selection board and he was  still not selected for promotion.  
The applicant argued that contrary to the advisory opinion it was not the misconduct noted in the 
derogatory SOER or the alcohol incident letter that contributed to his PY 2012 non-selection.  He 
argued  that  it  was  the  fact  that  he  had  already  failed  once  when  the  PY  2012  selection  board 
considered his record that resulted in his non-selection.     
 
 
4.    The  question  before  the  Board  is  whether  the  applicant  has  established  a  nexus 
between his above zone status before the PY 2012 selection board and his non-selection by that 
board.  In determining whether a nexus existed between the error and the applicant’s failure of 
selection for promotion, the Board applies the standards set out in  Engels v. United States, 230 
Ct. Cl. 465 (1982).  In Engels, the United States Court of Claims established two "separate but 
interrelated standards" to determine the issue of nexus.  The standards are as follows:  "First, was 

 

 

the claimant'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 promoted in any event?”  Id. at 470. 
 
 
5.  With respect to the first prong of the Engels test, the Board finds that the applicant’s 
record did not appear worse before the PY 2012 selection board due to his above the zone status.  
In this regard, the applicant has provided no evidence that the Coast Guard places information in 
the  military  records  that  identifies  officers  who  have  failed  once  and  those  who  have  not.  
Moreover,  after  removal  of  the  extraneous  documents  from  his  EI,  the  applicant’s  record  still 
contained the alcohol incident letter noting the applicant’s arrest for driving under the influence 
of alcohol, his alcohol screening letter stating that he met the criteria for alcohol abuse, and his 
derogatory  SOER  noting  his  NJP  for  drunken  or  reckless  driving  and  his  removal  from  his 
primary duty as the executive officer. Therefore, the Board is not persuaded that the applicant’s 
PY  2011  non-selection  for  promotion  made  his  record  appear  worse  before  the  PY  2012 
selection board.   
 
 
6.  The Board further  finds that even if evidence of the applicant’s non-selection by the 
PY  2011  selection  board  had  been  in  his  record,  it  is  unlikely  in  any  event  that  the  applicant 
would  have  been  selected  for  promotion  by  the  PY  2012  selection  board.      The  Board  is 
persuaded in this finding by the fact that although the extraneous documents had been removed 
from his electronic record when it was considered by the PY 2012 selection board, he still was 
not  selected  for  promotion  even  though  his  other  OERs  were  average  to  above  average.  
Therefore, the Board concludes that with a performance record that contained an alcohol incident 
letter, an alcohol screening letter indicating alcohol abuse, a derogatory SOER documenting his 
NJP  for  drunk  or  reckless  driving,  removal  from  executive  officer  duty,  and  non- 
recommendation for promotion, the PY 2012 selection board was unlikely to select the applicant 
whether or not his record indicated he was above the zone.  The applicant has not established a 
nexus between his above the zone status and his non-selection by the PY 2012 selection board.    
 
 
  
 

7.  Accordingly, the applicant is entitled to the partial relief recommended by the JAG.   

  
 

 

 

 
 
  

 
 
 

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 
 

ORDER 

 

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

granted in part as follows: 
 

The Coast Guard shall correct his record by removing his PY 2011 failure of selection for 
promotion  to  LT.    His  PY  2012  failure  of  selection  for  promotion  to  LT  shall  not  be  removed 
from his record and shall be considered his first failure of selection for promotion to LT.  If he is 
selected for promotion to LT by the PY 2013 selection board, his date of rank shall be backdated 
to what it would have been had he been selected for promotion by the PY 2012 selection board.  
He  shall  be  retained  on  active  duty  until  he  has  had  one  more  opportunity  to  compete  for 
promotion to LT.  

 
No other relief is granted.   

 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 

 

 
 
 

 

 
 
 

 

 
 
 

 

 
 
 

 

 
Lillian Cheng 

 

 

 
Thomas H. Van Horn 

 

 

 

 
Barbara Walthers