DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2012-007 
 
XXXXXXXXXXXXX 
XXXXXXXXXXXXX 

 

 

 
 

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 October 18, 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  June  7,  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  a  March  18,  1993 
Arrest  Report  for  public  intoxication,  by  removing  his  non-selection  for  promotion  to  captain 
(Capt)  before  the  promotion  year  (PY)  2012  Capt  selection  board,  and  by  placing  his  record 
before the PY 2013 Capt selection board as an in-zone officer.  He also requested that if selected 
by the PY 2013 Capt  selection board, his  Capt date of rank be backdated to  the date he  would 
have received if he had been selected by the PY 2012 selection board.   
 
 
The applicant alleged that his record before the PY 2012 Capt selection board improperly 
contained a 1993 Arrest Report that should have been removed in accordance with a January 30, 
1995  final  decision  from  the  Personnel  Records  Review  Board  (PRRB)  in  Case  No.  0039-94.  
The applicant submitted a copy of the PRRB decision in which he requested that all references to 
his 1993 arrest be removed from his military record.  The PRRB decision stated that there were 
no  references  to  the  1993  arrest  in  the  applicant’s  record  except  for  a  comment  in  an  officer 
evaluation report (OER) covering the period from October 1, 1992 to May 31, 1993.  In granting 
relief to the applicant, the PRRB ordered the comment about the arrest removed from the OER 
because the underlying offense for the arrest was dismissed shortly after the arrest occurred. The 
PRRB  stated  that  under  Article  10-A-4g(1)  of  the  Personnel  Manual,  it  was  improper  for  the 
rating  chain  to  have  commented  on  the  arrest.    The  applicant  submitted  a  1995  letter  from  the 
Commander,  Military  Personnel  Command  informing  the  applicant  that  his  headquarters 
personal data record had been corrected in accordance with the PRRB decision.   

 

 

 
 
The applicant stated that in the years following his PRRB decision, he experienced a very 
successful  and  enjoyable  Coast  Guard  career  and  there  was  no  reason  to  believe  that  the 
unwarranted  arrest  report  was  in  his  official  record.    Indeed,  since  the  PRRB  decision,  he  has 
been promoted from lieutenant junior grade (LTJG) to CDR.  He also screened for command and 
served  as  a  commanding  officer  of  a  Coast  Guard  cutter  and  was  selected  for  the  Coast  Guard 
Academy Instructor Program.   
 
 
The applicant stated that after notification of his  non-selection for promotion to Capt in 
August  2011,  he  reviewed  his  personnel  record  and  discovered  that  the  Arrest  Report  was 
included in his record that was reviewed by the selection board.  The applicant stated that he was 
told  by  Coast  Guard  Personnel  Service  Center  (PSC)  personnel  that  the  “Report  of  Arrest 
automatically  triggered  an  adverse  ‘conduct’  mark  on  the  record  summary  page  used  by  the 
selection  board.”    The  applicant  also  stated  the  same  person  told  him  that  it  appeared  that  the 
Arrest Report somehow appeared in his official personnel record when the records were scanned 
into an electronic format in January 2006.   
 
 
The  applicant  argued  that  he  has  suffered  a  grievous  injustice  by  the  Coast  Guard’s 
wrongful  inclusion  of  the  Arrest  Report  in  his  military  record.    He  argued  that  the  erroneous 
document  was  prejudicial  and  left  him  at  a  severe  disadvantage  during  the  PY  2012  Capt 
selection board and directly contributed to his non-selection for promotion.   
 

VIEWS OF THE COAST GUARD 

 
 
On January 25, 2012, the Judge Advocate General  (JAG) of the Coast  Guard submitted 
an advisory opinion recommending that the Board grant the relief requested by the applicant, as 
recommended by the Commander, Personnel Service Center (PSC).   
 
 
In recommending relief, PSC stated that the PRRB failed to locate and remove the Arrest 
Report  dated  March  18,  1993.    PSC  stated  that  the  Arrest  Report  would  have  been  ordered 
removed just like the comment referencing the arrest was ordered removed from the OER, if the 
PRRB had located it in the 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.  However  PSC  conceded  that  the  error  has  the  effect  of  making  the  applicant’s 
overall record appear worse than it would in the absence of the error.   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 
[selection]  board  had  access  to  a  document  that  should  have  been  removed  in 
1995 . . .  
 
 [The  applicant’s]  non-selection  by  the  PY  12  Capt  selection  board  should  be 
expunged and he should be considered as an in-zone candidate for promotion . . .  
before the PY 13 LT selection board.  

 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On  February  1,  2012,  the  Board  received  the  applicant’s  response  to  the  views  of  the 

 

Coast Guard.  He agreed with them.  
 

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.   The  1993 Arrest  Report  should  be  removed  from  the  applicant’s  record.   The  Coast 
 
Guard  admitted  in  the  advisory  opinion,  and  the  Board  agrees,  that  this  document  should  have 
been removed in 1995 in accordance with the final decision in PRRB Case no. 0039-94.  
 
3.    The  Coast  Guard  also  admitted  in  the  advisory  opinion  that  the Arrest  Report  was 
 
improperly included in the applicant’s military record when his record was reviewed by the PY 
2012  Capt  selection  board.  The  advisory  opinion  stated  each  officer  is  entitled  to  two 
opportunities to compete for promotion with an accurate record. However, the applicant did not 
have an accurate record before the PY 2012 Capt selection board. 
 
 
4.  In determining whether a nexus existed between the error in the applicant’s record and 
the his  PY 2012 failure  of selection  for promotion to  Capt, 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.    The  advisory  opinion  stated,  and  the  Board  agrees,  that  the  inclusion  of  the  arrest  report 
was  prejudicial  to  the  applicant  before  the  PY  2012  Capt  selection  board  because  it  made  his 
overall record appear worse.  With regard to the second prong of the test,  whether it is unlikely 
that  the  applicant  would  have  been  promoted  in  any  event,  the  Board  finds  no  evidence  in  the 
record to support a finding that the applicant’s selection for promotion to Capt was unlikely with 
a corrected record.  Nor has the Coast Guard offered any  evidence to support a conclusion that 
the applicant’s selection for promotion was unlikely with a corrected record  
 
 
5.  Therefore because of the prejudicial error caused by improperly including the Arrest 
Report in the applicant’s record before the PY 2012 Capt selection board, that failure of selection 
for promotion to Capt should be removed from his record and his record should be placed before 
the PY 2013 Capt selection board as an in-zone officer.   
 
 
  

 6.   Accordingly, the applicant is entitled to the relief.   

 

 

 

ORDER 

 

The  application  of  XXXXXXXXXXXXXXXXXXXX,  for  correction  of  his  military 

record is granted.  The Coast Guard shall correct his record as follows: 

 

  Removing the March 18, 1993 Report of Arrest; 

 

  Removing his PY 2012 failure of selection for promotion to captain; 

 

  Placing his record before the PY 2013 captain selection board; and 

  Adjusting  his  date  of  rank,  if  he  is  selected  for  promotion  to  captain  by  the  PY  2013 
selection board, to what it would have been had he been selected for promotion by the PY 
2012 captain selection board, and paying him corresponding back pay and allowances.  
 
No other relief is granted.   

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Donna M. Bivona 

 

 

 
 Randall J. Kaplan 

 

 

 
 
 Paul B. Oman