DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-252 
 
Xxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxx   

FINAL DECISION 

 

 
 

 

This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section 425 of title 14 of the United States Code.  The Chair docketed the case after receiving the 
completed application September 21, 2010, 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). 
 
 
ed members who were designated to serve as the Board in this case. 
 

This final decision, dated June 3, 2011, is approved and signed by the three duly appoint-

APPLICANT’S REQUEST 

 
 
The applicant, who was selected for promotion from lieutenant (LT) to lieutenant com-
mander  (LCDR)  in  2010,  alleged  that  her  military  record  contained  several  prejudicial  errors 
when it was reviewed by the LCDR selection board in 2009.  She asked the Board to correct the 
alleged errors, to remove her 2009 failure of selection for promotion,1 and to backdate her date 
of rank to what it would have been had she been selected for promotion in 2009.  To correct the 
prejudicial errors that she alleged were seen by the LCDR selection board in 2009, the applicant 
asked the Board to do the following: 
 

(a) Place her current, active duty Acceptance and Oath of Office (CG-9556) dated September 
12, 2008, in her record.  (This correction was made by the Coast Guard Personnel Service 
Center (PSC) before the LCDR selection board convened in 2010.) 
 

(b) Place her current Record of Professional Development (CG-4082) in her record, which 
shows that she passed a course in Tactical Emergency Vehicle Operations offered by the  
xxxxxxxxxxxxxxxxxxxxxxx on January 14, 2008, and passed a course to be certified as a 

                                                 
1 The applicant asked the Board to promote her directly to LCDR as alternative relief.  However, the Board’s policy 
is not to promote officers directly but to remove their failures of selection so that they have more opportunities to be 
selected for promotion through regular selection boards.  Moreover, because the applicant has already been selected 
for promotion to LCDR, this request is moot. 

xxxxxxxxxxxxxxxxxxxxxxxxxxx on February 4, 2008.  (This correction was also made 
by the PSC before the LCDR selection board convened in 2010.)  

(c) Raise the mark of 42 she received for “Responsibility” on her Officer Evaluation Report 
(OER) covering her service from June 1, 2005, to June 18, 2006, to a mark of 6.  (This is 
the only requested correction contested by the Coast Guard.) 
 

(d) Correct her rank on her BAH/Dependency Data form and her Emergency Contact Infor-
mation form from her rank in the Reserve (LCDR/O-4) to her rank in the regular, active 
duty Coast Guard (LT/O-3)3 so that LCDR selection boards will not be confused about 
her current rank.  (The  PSC notes both that officers are responsible for  updating these 
forms themselves and can do so at any time and also that these forms are not seen by 
selection boards.  Therefore, the fact that the applicant had not updated these forms since 
her return to active duty as a LT could not have affected her chance to be selected for pro-
motion in 2009.) 

 

 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that she was not selected for promotion to LCDR in 2009 because 
of the above-listed errors in her record.  With regard to the missing CG-9556 and CG-4082, the 
applicant stated that before the LCDR selection board met on August 18, 2009, she requested a 
copy of her record to ensure that it was complete, and she noticed that these forms were missing.  
Without the CG-9556, she alleged, her record appeared to be that of a Reserve officer serving 
active duty instead of the record of  a regular officer because the most recent CG-9556 in her 
record was the one she completed when she became a Reserve officer during her two-year tem-
porary separation.  Without the CG-4082, she alleged, the LCDR selection board had no way of 
knowing what courses she had passed during her two-year temporary separation.   
 

The applicant alleged that on August 6, 2009, she emailed copies of the CG-9556 and the 
CG-4082 to the Personnel Service Center (PSC) and asked that they be put in her record before 
the selection board convened on August 19th.  She stated that she did this because she knew that 
it was important for the selection board to know that she was a regular Coast Guard officer and 
to know that she had spent her two-year separation as a xxxxxxxxxxxxxxxxxx.  She submitted a 
copy  of  this  email  with  the  two  attachments,  which  was  addressed  to  Mr.  H,  who  in  turn 
forwarded it to Ms. T (with a cc to the applicant) and told Ms. T to ensure that the documents 
were entered into the applicant’s record.  However, on April 27, 2010, the applicant alleged, she 
requested  another  copy  of  her  record  and  discovered  that  the  CG-9556  and  CG-4082  had  not 
been entered in her record.  
 
 
Regarding  the  mark  of  4  she  received  for  “Responsibility”  on  her  OER  for  the  period 
June 1, 2005, to June 18, 2006, the applicant argued that the mark is unjust because the written 
comments are inconsistent with a mark of 4 and support a mark of 6.  In this regard, she pointed 
                                                 
2  Coast  Guard  officers  are  evaluated  on  numerous  aspects  of  their  performance,  such  as  “Responsibility,” 
“Adaptability,” “Teamwork,” and “Professional Competence,” on a scale of 1 (worst) to 7 (best). 
3 Active duty officers who elect to participate in the Temporary Separation Program return to active duty in the rank 
they last held on active duty even if, in the interim, they were promoted as a Reserve officer. 

out  that  her  reporting  officer  used  the  phrase  “unwavering  responsibility,”  which  she  argued 
meets the criteria for a mark of 6 in the category.   
 

The  applicant  also  stated  that  she  believes  the  Officer  Personnel  Management  (OPM) 
branch  itself  is  confused  about  her  status  for  two  reasons.    First,  after  she  was  promoted  to 
LCDR in the Reserve on July 1, 2008, she received two promotion certificates, copies of which 
she submitted:  one for her Reserve promotion and another purporting to document her promo-
tion as an active duty officer.  When she called OPM to ask about the second certificate, someone 
told  her  that  she  would remain  a  LCDR  upon  her  return  to  active  duty,  but  a  few  hours  later 
someone called her to correct that misstatement.  Second, she submitted a copy of a page from 
the 2010 Register of Officers and noted that her name appears twice, first as a LCDR and then as 
a LT, with two separate signal numbers. 

 
In light of these errors and confusion, the applicant asked the Board to correct the errors, 
to remove her failure of selection in 2009, and to backdate her date of rank to what it would have 
been had she been selected for promotion in 2009. 
 

SUMMARY OF THE RECORD AND REGULATIONS REGARDING THE OER MARK 

The written criteria for the numerical marks for “Responsibility” on an OER form appear 
below with the mark assigned by the applicant’s reporting officer, a 4, filled in and the mark the 
applicant wants, a 6, highlighted in yellow: 

 

STANDARDS FOR NUMERICAL MARKS IN “RESPONSIBILITY” ON AN OER FORM 

 

 

Responsibility 
Ability to act 
ethically, 
courageously, 
and 
dependably 
and inspire the 
same in 
others; 
accountability 
for own and 
subordinates’ 
actions. 

 

1 
 
 
 
 
 

 

Actions demonstrated 
questionable ethics or lack 
of commitment.  Tolerated 
indifference or failed to hold 
subordinates accountable.  
Allowed organization to 
absorb personnel problems 
rather than confronting them 
as required. Tended not to 
speak up or get involved. 
Provided minimal support 
for decisions counter to own 
ideas. 

 

3 
 
 
 
 
 
 

Held self and subordinates 
personally and 
professionally accountable. 
Spoke up when necessary 
even when expressing 
unpopular positions. 
Supported organizational 
policies and decisions which 
may have been counter to 
own ideas.  Committed to 
the successful achievement 
of organizational goals. 

 

5 
 
 
 
 
 
 

Integrity and ethics beyond 
reproach.  Always held self 
and subordinates to highest 
standards of personal and 
professional accountability.  
Did the right thing even when it 
was difficult. Succeeded in 
making even unpopular 
policies or decisions work.  
Actions demonstrated 
unwavering commitment to 
achievement of organizational 
goals. 

 

7 
 
 
 
 
 
 

Article 10.A.4.c.7. of the Personnel Manual instructs reporting officers to assign marks 

and write comments in their portion of an OER form as follows: 
 

b. For this evaluation area, the Reporting Officer shall review the Reported-on Officer’s perfor-
mance and qualities observed and noted during the reporting period. Then, for each performance 
dimension, the Reporting Officer shall carefully read the standards and compare the Reported-on 
Officer’s  performance  to  the  level  of  performance  described  by  the  standards.  The  Reporting 
Officer shall take care to compare the officer’s performance and qualities against the standards - 
not to other officers and not to the same officer in a previous reporting period. After determining 
which  standard  best  describes  the  Reported-on  Officer’s  performance  and  qualities  during  the 
marking period, the Reporting Officer fills in the appropriate circle on the form in ink. 

•   •   • 

d.  In  the  “comments”  block  following  this  evaluation  area,  the  Reporting  Officer  shall  include 
comments citing specific aspects of the Reported-on Officer’s performance and behavior for each 
mark that deviates from a four. The Reporting Officer shall draw on his or her own observations, 
information provided by the Supervisor, and other information accumulated during the reporting 
period. 
 
e. Comments should amplify and be consistent with the numerical evaluations. They should iden-
tify  specific  strengths  and  weaknesses  in  performance.  Well-written  comments  must  be  suffi-
ciently  specific  to  paint  a  succinct  picture  of  the  officer’s  performance  and  qualities  which 
compares reasonably with the picture defined by the standards marked on the performance dimen-
sions in the evaluation area. Mere repetition or paraphrasing of the standards is not sufficient narr-
ative justification for marks. 

 

The reporting officer’s marks and comments in the disputed OER appear below with the 

contested mark and the associated comments highlighted: 
 

REPORTING OFFICER’S MARKS AND COMMENTS IN THE DISPUTED OER 

# 

7 

CATEGORY 

MARK  WRITTEN COMMENTS 

Reporting 
Officer 
Comments 

NA 

[The applicant] increased the utilization of the various divisions within the Operations Dept and 
created a greater synergy with the Planning Dept which has resulted in increased unit efficiency 
and effectiveness.  Continued unit tradition of working alongside other federal, state and local 
agencies to accomplish homeland security mission goals and worked to expand those efforts by 
engaging with the XXX, an agency which this unit had not previously worked with.  Actively grew 
the future workforce of the CG by efforts to increase the knowledge of the JOs assigned in the 
Ops Dept. 

8a 

Initiative 

8b 

Judgment 

8c  Responsibility 

8d  Professional 

Presence 

8e  Health & Well-

Being 

9 

Comparison 
Scale 

6 

6 

4 

6 

7 

5 

10  Potential 

NA 

 

 
 

Good initiative. Hosted Ferry Captain Meeting at MSST w/ concerned BMC & Sector Rep during 
MARSEC II Ops to improve escort procedures, improved working relationship w/ ferry companies 
& appropriate visibility of MSST vs other USCG units. Created & drafted new OPSUM for all 
xxxAREA MSSTs to reflect ONS msg req & insisted new OPSUM be sent via SIPR, xxxAREA req 
all xxxAREA MSSTs to submit product drafted by xxxx.  Sound judgment.  Provided insightful 
guidance to PO conducting first telephone hearing, resulted in excellent testimony & impressive 
civil penalties.  Provides solid recommendations to TAOs when called regarding RBS Boardings, 
PSBs, crew fatigue limits & Sector conflicts.  Unwavering responsibility.  Set clear goals for AOPS 
while on leave, fulfilled tasks to include xxxx MOU, Surge Op Planning, new Surge OP AAR.  
Work until job is done, closely monitor inbox to ensure leave chits, memos & projects not 
neglected.  Self assured presence.  Impressively represented MSST at AMSC Operations 
Meetings. Assisted remedial PT Group when taking PT Test, paced members in 1.5 run, 
significantly better times achieved.  Participated in 2 MSST Team Runs, placed 3rd in military 
category at xxxxxxx. 

[This mark means that in comparison to all other LTs whom the Reporting Officer has ever 
known, the applicant ranked as an “[e]xcellent performer; give toughest, most challenging 
leadership assignments.”] 

[The applicant] hit the ground running upon reporting aboard as the Operations Officer, a 
challenging job at any unit, but especially challenging at a still burgeoning unit like the MSST.  
Was able to stay focused on key issues despite constantly changing MSST program policy and 
utilization and positively effected change.  Clearly an outstanding representative of the Coast 
Guard as was demonstrated by the myriad of high level visitors and high vis media engagements 
with the unit.  Well-suited and highly recommended for XO of an MSST or TACLET, Sector 
Response Enforcement Division Chief, and any PG School program of her choosing and for 
promotion with the best of peers. 

VIEWS OF THE COAST GUARD 

 
 
On February 17, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion in which he recommended that the Board grant most of the relief requested 
by the applicant.  In so doing, the JAG adopted the findings and analysis provided in a memoran-
dum on the case prepared by the PSC.   
 

The  PSC  stated  in  its  memorandum  that  all  of  the  requested  corrections  have  been  or 
should be made, or she can make them herself, except that no correction should be made to the 
contested OER mark.  Regarding corrections already made, the PSC stated that the applicant’s 
latest CG-9556 and CG-4082 have been entered in her record, and the Register of Officers has 
been fixed so that her name appears only once.  Regarding corrections she can make herself, the 
PSC stated that the applicant may update her own BAH/Dependency Data and Emergency Con-
tact Information forms at any time, that it is her responsibility to do so, and that these two forms 
are not seen by selection boards anyway. 
 

Regarding  corrections  the  Board  should  make,  the  PSC  recommended  that  the  Board 
remove  the  applicant’s  failure  of  selection  in  2009  by  the  promotion  year  (PY)  2010  LCDR 
selection board from her record and backdate her LCDR date of rank as requested because the 
CG-9556 and CG-4082 were not in her record when the LCDR selection board reviewed it in 
2009.  Because the proceedings of selection boards are secret, the PSC could not determine if the 
omission of these documents caused the applicant’s failure of selection in 2009.  However, PSC 
argued, “[w]ithout clear evidence to show that the member was not impacted by the errors in her 
record [the missing CG-9556 and CG-4082] and considering she was subsequently selection for 
promotion” after the forms were entered in her record, it would be “prudent to err on the side of 
the applicant.”   Therefore, the PSC recommended that the Board grant relief “back dating the 
applicant’s date of rank to when she would have been promoted if selected by the PY2010 ADPL 
LCDR selection board [which convened in August 2009] with back pay and allowances.” 
 
 
Regarding the contested OER mark of 4, however, the PSC recommended that the Board 
deny the requested relief.  The PSC noted first that the applicant waited four years to complain 
about the mark and never exercised her right to submit an OER Reply to address the mark after 
she received it or to seek correction through the Personnel Records Review Board within a year 
of receiving it. 
 
 
To investigate the validity of the contested mark, the PSC sought and received declara-
tions from the applicant’s reporting officer, who assigned the mark, and the OER reviewer, who 
was responsible for ensuring the consistency of the OER.  Based on these declarations, which are 
summarized below, the PSC stated that the contested mark “is a fair and accurate assessment of 
the member’s performance” in the category “Responsibility” and should not be raised. 
 
Declaration of the Applicant’s Reporting Officer 
 
The applicant’s reporting officer for her 2006 OER was the commanding officer (CO) of 
 
her unit, a Maritime Safety and Security Team (MSST), where the applicant served as the Opera-
tions Officer.  The CO stated in his declaration for the PSC that the mark of 4 for “Responsibil-

ity” was warranted.  The CO indicated that the mark was based on several aspects of the appli-
cant’s  performance.    For  example,  he  stated  that  as  the  Operations  Officer,  the  applicant  was 
responsible for achieving “boat hours,” which received a lot of scrutiny from the Area Command 
and Coast Guard Headquarters.  The goal for the MSST was 6,000 boat hours, the ceiling was 
9,000 boat hours, and the minimum was 3,600 boat hours.  The applicant’s predecessor achieved 
the goal of 6,000, and her successor as Operations Officer achieved 5,000, but during the year 
the applicant held the responsibility, the MSST “barely made the minimum” of 3,600. 
 
 
As another example, the CO stated that on a trip to New York in January 2005, he noticed 
that Coast Guard boats in the harbor had two machine guns mounted, fore and aft, instead of just 
one.  Thereafter, he ordered the MSST to adopt this as a new operational standard, and the only 
obstacle was a lack of locker space in the armory.  In May 2005, two gunner’s mates told him 
that  they  had  advised  the  applicant  weeks  earlier  that  they  had  cleared  sufficient  space  in  the 
armory to implement to plan.  However, nothing had been done.  Therefore, the CO shared this 
information with the applicant, “and still nothing was done.  Approximately two weeks later, the 
change had not been effected by the applicant, and I instructed the armory staff directly to make 
the change I had directed five months earlier.” 
 
 
The CO stated that “[t]hese were just two of the major items I can recall four years later, 
but there were others where the applicant performed to a level thereby earning a mark of ‘4’ in 
Responsibility.” 
 
Declaration of the OER Reviewer 
 
 
The reviewer for the disputed OER was the Chief of Shore Forces for the xxxxx Area and 
the CO’s supervisor.  The reviewer stated that he did not personally observe the applicant’s daily 
performance,  but  he  carried  out  his  responsibilities  as  OER  reviewer  in  accordance  with  the 
Personnel Manual.  He stated that the comments in block 8 about the applicant’s responsibilities 
are consistent with the mark of 4.  He noted that “[t]he general comments of what she did are not 
followed  by  specific  comments  of  how  well  she  did  them  or  what  the  specific  results  of  her 
actions were.”  Therefore, he concluded that the comments do not support a higher mark. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On May 25, 2011, the applicant responded to the views of the Coast Guard.  She stated 
that she agreed with the Coast Guard’s recommendation for relief except for the recommendation 
not to raise the OER mark.  Regarding the CO’s declaration about the OER mark, the applicant 
noted that, as shown on the OER itself, she did not report for duty to the MSST until June 20, 
2005.  Therefore, she was not even assigned to the MSST when the CO had difficulty imple-
menting his plan to use two machine guns on each boat.   
 

Regarding the CO’s complaint about boat hours, the applicant admitted that the MSST 
achieved  only  3,639  boat  hours  but  alleged  that  this  was  “the  second  highest  number  of  boat 
hours of the xxxxxxxxxx Area MSSTs” that year.  She also argued that “[d]uring my tenure as 
Operations  Officer,  my  highest  priority  was  the  crew’s  safety  and  fatigue  factor,  rather  than 
achieving 6,000 boat hours.” 

FINDINGS AND CONCLUSIONS 

1. 

2. 

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

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

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  
The application was timely filed even with respect to the applicant’s 2006 OER because she has 
been serving on active duty for all but two years since she received the OER, and the Board’s 
three-year statute of limitations4 is tolled while a member is serving on active duty.5 
 

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 her record, and the applicant 
bears the burden of proving by a preponderance of the evidence that the disputed information is 
erroneous  or  unjust.6    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.”7  When challenging an OER, an applicant cannot “merely allege or prove that an 
[OER] seems inaccurate, incomplete or subjective in some sense,” but must prove that the dis-
puted OER was adversely affected by a “misstatement of significant hard fact,” factors “which 
had no business being in the rating process,” or a prejudicial violation of a statute or regulation.8 

Because of the corrections already made by the Coast Guard and the applicant’s 
own ability to update her BAH/Dependency Data and Emergency Contact Information forms, the 
only issues before the Board are (a) whether the applicant’s OER mark for “Responsibility” on 
her 2006 OER should be raised and (b) whether her 2009 failure of selection should be removed 
and her date of rank backdated to what it would have been had she been selected for promotion 
to LCDR in 2009.   

 

 
3. 

 
4. 

The Board finds that the applicant has failed to prove by a preponderance of the 
evidence that the mark of 4 she received for “Responsibility” on her 2006 OER is erroneous or 
unjust.  The applicant argued that the mark must be erroneous because, she alleges, it is incon-
sistent with the comments.  OER comments are supposed to “amplify and be consistent with” the 
numerical marks.9  However, in preparing an OER, officers do not write the comments and then 
pick  a  numerical  mark  that  matches  the  comments;  instead,  they  read  the  standards  for  the 
numerical marks on the OER form, assign marks by comparing the reported-on officer’s perfor-
mance to the standards, and then add a comment or two to support each mark.  The applicant’s 

                                                 
4 10 U.S.C. § 1552(b).   
5 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). 
6 33 C.F.R. § 52.24(b). 
7 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
8 Hary v. United States, 618 F.2d 704, 708 (Ct. Cl. 1980), cited in Lindsay v. United States, 295 F.3d 1252, 1259 
(Fed. Cir. 2002). 
9 Personnel Manual, Article 10.A.4.c.7.e.  

reporting  officer  apparently  found  that  her  performance  met  the  standard  for  a  mark  of  4  for 
“Responsibility” but not a mark of 5 or 6.  His declaration indicates that the mark of 4 was inten-
tionally assigned, even if four years later he cannot perfectly remember the reasons he assigned 
it.   

 
5. 

  
 6. 

 
7. 

The Board finds that the reporting officer’s comment—“Unwavering responsibil-
ity.  Set clear  goals  for  AOPS while on leave,  fulfilled tasks to include xxx MOU, Surge Op 
Planning, new Surge OP AAR.  Work until job is done, closely monitor inbox to ensure leave 
chits, memos & projects not neglected”—is not inconsistent with a mark of 4 in light of the stan-
dards for marks of 4 and 6 on the OER form.  The comment alone is insufficient to prove that the 
applicant’s performance met the written standard for a mark of 6 during the evaluation period.  
Therefore, the Board finds no grounds for raising the mark. 

The applicant asked the Board to remove from her record her failure of selection 
for promotion in 2009 by the PY 2010 LCDR selection board and to backdate her LCDR date of 
rank  to  what  it  would  have  been  had  she  been  selected  for  promotion  by  that  board.    Under 
Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982), to determine if the applicant is entitled 
to the removal of her failure of selection, 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 [she] would have been [selected for promotion in 2009] in any event?”  When 
an  officer  shows  that  her  record  was  prejudiced  before  a  selection  board  by  error,  “the  end-
burden of persuasion falls to the Government to show harmlessness—that, despite the plaintiff’s 
prima facie case, there was no substantial nexus or connection” between the prejudicial error and 
the failure of selection.10  To void a failure of selection, the Board “need not find that the officer 
would in fact have actually been promoted in the absence of the error, but merely that promotion 
was not definitely unlikely or excluded.”11   

The  only  proven  errors  in  the  applicant’s  record  when  it  was  reviewed  by  the 
selection board in 2009 were the lack of her most recent CG-9556, showing that she had returned 
to the regular Coast Guard from the Reserve, and her most recent CG-4082, showing that during 
her  temporary  separation,  she  had  passed  a  course  in  Tactical  Emergency  Vehicle  Operations 
offered by the  xxxxxxx and a course to be certified as a xxxxxxxxxxxxxxxxx.  The applicant 
presumably submitted her own communication to the selection board revealing her regular active 
duty status and what she accomplished during her temporary separation,12 but she did not submit 
a copy of this communication.  Therefore, it is not clear whether the selection board could have 
been confused about her regular status or about her training and accomplishments at the xxxx.  
However, her record does appear stronger with the most recent CG-9556 and CG-4082 in it, and 
the  PSC  has  admitted  that  it  is  possible  the  lack  of  these  updated  documents  might  have 

                                                 
10 Christian v. United States, 337 F.3d 1338, 1343 (Fed. Cir. 2003), citing Engels v. United States, 678 F.2d 173, 
175 (Ct. Cl. 1982); Quinton v. United States, 64 Fed. Cl. 118, 125 (2005). 
11 Engels v. United States, 678 F.2d 173, 175 (Ct. Cl. 1982). 
12 Personnel Manual, Article 5.A.4.e.1., states that “[e]ach 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.” 

prejudiced her record before the selection board.  Therefore, the applicant has met the first prong 
of the Engels test. 

With regard to the second prong of the Engels test, the Coast Guard has neither 
argued nor shown that even without the errors in her record in 2009 it is unlikely that the appli-
cant would have been selected for promotion in any event.  Nor can the Board see any obvious 
obstacle to her selection in 2009, especially given the fact that she was selected for promotion in 
2010.  Therefore, and in light of the presumption, the Board finds that the applicant has met both 
prongs of the Engels test and is entitled to the removal of her failure of selection in 2009.   

 
8. 

 
9. 

 
10. 

For the same reasons that the Board will remove the applicant’s 2009 failure of 
selection for promotion, the Board finds that she is entitled to have her LCDR date of rank back-
dated to what it would have been had she been selected for promotion in 2009, as well as to back 
pay and allowances.  Under 10 U.S.C. § 1552, an applicant is entitled to “placement in the same 
position [she] would have been had no error been made.”13  Although the Board cannot be cer-
tain that the applicant would have been promoted in 2009 had her most recent CG-9556 and CG-
4082 been in her record, the Board finds that she is entitled to full relief in this regard because it 
is not unlikely that she would have been promoted.14 

 
Accordingly, the Board will grant partial relief by removing the applicant’s failure 
of selection for promotion to LCDR in 2009 by the PY 2010 selection board; by backdating her 
date of rank, after she is promoted, to what it would have been had she been selected for promo-
tion by that selection board; and by awarding her corresponding back pay and allowances. 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
13 Denton v. United States, 204 Ct. Cl. 188, 199-200, cert. denied, 421 U.S. 963 (1975), cited in Bliss v. Johnson, 
279 F. Supp. 2d 29, 35 (D.D.C. 2003); see Kimmel v. United States, 196 Ct. Cl. 579, 591 (1971) (“The injustice was 
removed by placing plaintiff in the same position he would have been had no error been made. This was all that 
plaintiff  was  entitled  to  receive.”);  Hamrick  v.  United  States,  120  Ct.  Cl.  17,  25,  96  F.  Supp.  940,  943  (1951) 
(holding that “full correction of the error would require plaintiff’s being put in the same position he would be in had 
the erroneous determination not been made”), cited in Ramsey v. United States, 123 Ct. Cl. 504, 506 (1952), cert. 
denied, 345 U.S. 994 (1953). 
14 “[O]nce the Board decides to give a remedy, it should not be free to slice the relief illegally or arbitrarily, sending 
the claimant forth with half-a-legal-loaf or even less.” DeBow v. United States, 193 Ct. Cl. 499, 504 (1970), cert. 
denied, 404 U.S. 846 (1971); see Bonen v. United States, 229 Ct. Cl. 144, 149 (1981) (“The ‘half-a-loaf’ doctrine 
normally applies where a corrections board grants plaintiff’s claim, but stops short of awarding the full appropriate 
relief  requested  by  plaintiff.  Failure  of  the  board  to  grant  full  relief  where  it  is  mandated  by  the  records  change 
results in ‘a new cause of action’ or ‘“continuing” claim’ which revives the statute of limitations.”) (citing Denton v. 
United States, 204 Ct. Cl. 188, 195, cert. denied, 421 U.S. 963 (1975)). 

The application of xxxxxxxxxxxxxxxxxxx, USCG, for correction of her military record is 

ORDER 

 

granted in part as follows: 

 
The  Coast  Guard  shall  remove  her  failure  of  selection  for  promotion  by  the  PY  2010 
ADPL LCDR selection board, and after she is promoted, the Coast Guard shall backdate her date 
of rank to what it would have been had she been selected for promotion by the PY 2010 ADPL 
LCDR selection board and shall pay her any back pay and allowances she is due as a result of 
these corrections. 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Andrew D. Cannady 

 

 

 
 Nancy L. Friedman 

 

 

 
 Dorothy J. Ulmer