DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 1999-083 
 
 
   

 

 
 

 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on March 26, 1999, upon the 
BCMR’s receipt of the applicant’s completed application. 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  March  9,  2000,  is  signed  by  the  three  duly  

APPLICANT’S REQUEST FOR RELIEF 

 

The  applicant,  who  was  retired  as  a  xxxxxx  in  the  Coast  Guard  on  August  1, 
199x, asked the Board to correct “the manifest injustice in the treatment accorded me by 
the Xxxxxxx Selection Board that convened xxx 199x.”  The applicant was passed over 
for promotion to xxxxxxx by that selection board.   

 
If the Board grants relief by placing his name on the promotion list, the applicant 
asked also that his request for retirement be withdrawn.  If the Board grants relief after 
he  has  been  retired,  the  applicant  asked  that  he  be  recalled  to  active  duty  and  be 
assigned the date of rank he would have received had he been selected for promotion 
by the selection board in xxx 199x.  He also asked to be awarded back pay and allow-
ances.  In the alternative, he asked to be retired at the rank and pay grade of xxxxxxx. 

 

 

APPLICANT'S ALLEGATIONS 

The  applicant  alleged  that  his  non-selection  for  xxxxxxx  was  a  mistake.    He 
stated that the selection board selected xx out of xxx (62.4 percent) eligible xxxxxxxs to 
be  promoted  but  did  not  select  him.    With  the  proceedings  of  selection  boards  con-

fidential, and no record made of why he was not chosen, he alleged that his failure of 
selection must be in error.  He alleged, however, that “it was not my Coast Guard that 
erred; it was a small group of individuals who[m] I do not know and who do not know 
me,  who  somehow  evaluated  my  distinguished  record  and  decided  that  I  was  in  the 
lower 37.6% of all Xxxxxxxs who went up for Xxxxxxx last time (xxxx 199x). …  I am not 
a ‘lower third officer’!”  The applicant alleged that his past supervisors had rated him as 
one in the top 10 percent. 
 
 
The applicant indicated that his performance evaluations are “well above aver-
age” and recommend that he be promoted ahead of his peers.  He indicated that he was 
performing an extremely demanding job as Deputy Group Commander and Executive 
Officer  for  Group  xxxxx.    He  alleged  that  his  group  had  recently  received  several 
awards and passed difficult audits and that he had played a major role in those accom-
plishments.    He  stated  that  on  his  officer  evaluation  reports  (OERs),  of  the  four 
xxxxxxxs  who  have  supervised  his  work  as  a  xxxxxxx,  one  rated  his  overall 
performance  as  “exceptional”  and  the  most  recent  three  recommended  him  for 
accelerated promotion. 
 
 
The applicant also alleged that his 29 years on active duty, including service on 
two ships and two joint tours with other branches, work as a xxxxx and member of a 
xxxxxxx detail, and enlisted experience as a xxxxxxx and xxxxx made him an excellent 
candidate for promotion.  He also stated that he had over 12 years experience in xxx 
and  xxx  and  that  he  had  helped  build  the  Coast  Guard’s  xxxxxx  Program  “from 
scratch.”  The applicant stated that his wide experience in many different Coast Guard 
missions and distinguished performance made him an excellent candidate for selection 
by  a  board  whose  goal  is  to  select  officers  who  are  “able  to  help  the  Coast  Guard 
provide  superior  public  service  across  all  missions  …  [and]  have  the  ability  to  form 
effective partnerships within and without the service.”   
 

The applicant hypothesized that he might have been passed over because he had 
not spent much time in “high-visibility jobs.”  He alleged that the Coast Guard some-
times promotes officers who have held “flashy operational jobs,” even if they are not 
top  performers,  over  better  performers  whose  work  is  lower  in  profile.    He  said  he 
should not be punished for accepting difficult assignments “outside of the limelight.”  
The applicant also hypothesized that his failure of selection might have been due to the 
fact that he performed two three-year “joint” tours, working primarily in other agen-
cies.  The applicant alleged that he had been actively recruited for these positions and 
that  the  Coast  Guard  encourages  officers  to  broaden  their  backgrounds  by  serving 
“joint” tours.  However, he alleged, such positions are not “career-enhancing,” and the 
OERs documenting an officer’s performance in these positions are unfairly discounted, 
if not ignored altogether, by selection boards. 

 

The applicant also alleged that his pass over for selection despite receiving top 
performance evaluations is a true error and not just a sign of inflation of performance 
evaluation marks.  He submitted a report from the Coast Guard Personnel Command 
(CGPC) indicating that average marks assigned on OERs had not significantly increased 
over recent years. 
 
 
The applicant explained that he was filing his application before failing of selec-
tion a second time because the next time his record was reviewed by a selection board, 
he  would  be  considered  “above  the  zone.”    He  stated  that  officers  “above  the  zone” 
have almost no chance of selection.  He also stated that if he waited to file an applica-
tion until he was forced to retire, he would be even older and “less marketable in the 
civilian job sector.” 
 

VIEWS OF THE COAST GUARD 

 
[T]he given reason for this hands-off policy is particularly valid with respect to the rec-
ommendations of selection boards for officer promotions, for the record of an individual 
on the list of eligible candidates is to be contrasted with similar records of the often hun-
dreds of other candidates on the same list.  The criteria [i.e., for promotion] were for the 
board in its sworn judgment to apply for the good of the service.  Suffice it to say that we 
are in no position to assess and appraise that record by itself even were we free to do so.  
Id. at 854. 
 

 
 
On October 29, 1999, the Chief Counsel of the Coast Guard submitted an advi-
sory opinion in which he recommended that the Board dismiss the application without 
prejudice “for incompleteness due to the failure of the Applicant to specify an action-
able error or injustice.”   
 

The Chief Counsel stated that under 33 C.F.R. § 52.21(b), the Board cannot proc-
ess an application unless it is complete, and a complete application requires one or more 
specific  allegations  of  error  or  injustice  accompanied  by  substantial  proof.    The Chief 
Counsel  argued  that  the  applicant’s  request  is  too  vague  for  the  Board  to  address 
effectively because the applicant did “not point to a specific error in his record nor has 
he  provided  the  BCMR  with  any  basis  to  infer  that  the  deliberations  of his July 199x 
Selection Board were anything but regular.”   

 
The  Chief  Counsel  stated  that,  under  the  presumption  of regularity, the Board 
must assume the selection board acted correctly, lawfully, and in good faith absent sub-
stantial  evidence  to  the  contrary.    Furthermore,  he  stated,  federal  courts  have  long 
refused  to  interfere  in  military  decisions  regarding  promotions  and  advancement.  
Reaves v. Ainsworth, 219 U.S. 296 (1911); Orloff v. Willoughby, 345 U.S. 83 (1953); Brenner 
v.  United  States,  202  Ct.  Cl.  678  (1973).    The  Chief  Counsel  suggested  that  the  Board 
stands in the same position as did the court in Payson v. Franke, 282 F.2d 851 (D.C. Cir. 
1960), cert. denied, sub nom. Robinson v. Franke, 265 U.S. 815 (1961): 

The  Chief  Counsel  stated  that  the  applicant  has  not  presented  substantial  evi-
dence indicating that his record before the selection board was in error or that the selec-
tion board somehow improperly reviewed his record. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  November  3,  1999,  the  Chairman  forwarded  a  copy  of  the  Chief  Counsel’s 
advisory opinion to the applicant and invited him to respond within fifteen days.  On 
November 15, 1999, the applicant responded. 
 
 
The  applicant  stated  that  the  Chief  Counsel’s  argument  that  the  Chairman 
should dismiss his request because the application was incomplete is moot because the 
BCMR  has  already docketed his case and the regulations require that applications be 
considered complete before they can be docketed. 
 
 
The applicant further stated that, though he agrees that there was no error in his 
record when it was reviewed by the selection board, his non-selection by that board was 
just  the  sort  of  “manifest  injustice”  that  the  BCMR  was  created  to  correct.    33  C.F.R.  
§ 52.12.    He  argued  that  his  non-selection  for  promotion  is  the  error  in  his  record  he 
wants corrected. 
 
 
The applicant also alleged that he has provided a basis for the Board to infer that 
the selection board erred.  He argued that the inconsistency between his failure of selec-
tion and the many recommendations for promotion ahead of his peers in his OERs and 
the  fact  that  many  senior  officers  were  surprised  at  his  failure  of  selection  constitute 
evidence  that  the  selection  board  erred  somehow  in  reviewing  his  record.    The 
applicant  also  stated  that  the  Coast  Guard’s  long  delay  (from  January  25,  199x,  to 
November  1,  199x)  in  responding  to  his  request  for  information  about  the  selection 
board  under  the  Freedom  of  Information  Act  suggests  that  the  proceedings  of  the 
selection board may have been irregular. 
 
 
Finally, the applicant stated that the Coast Guard’s references to federal courts 
that refused to change military promotion decision are irrelevant because 33 C.F.R. Part 
52 “gives the BCMR more than enough authority to act on my application.” 
 

COAST GUARD’S RESPONSE TO BOARD’S REQUEST 

 
On December 30, 1999, the Board met to consider this case.  The Board decided 
 
that further information from the Coast Guard might shed light on the applicant’s fail-
ure of selection.  Therefore, on January 12, 2000, the Board asked the Coast Guard to 
provide, if possible, (1) written confirmation by one or more members of the selection 
board that the applicant’s failure of selection was not due to an administrative oversight 

and (2) certain statistical information concerning the records of officers near the cut-off 
point on the selection list. 
 
On February 17, 2000, the Chief of the Office of Military Justice responded to the 
 
Board’s request.  He stated that the information requested by the Board was unavailable 
because  (1)  selection  board  members  are  required  by  statute  to  swear  an  oath  not  to 
divulge any information regarding the board’s deliberative process and (2) all written 
materials  prepared  or  used  by  selection  boards  are  destroyed  in  accordance  with  14 
U.S.C. § 261.1 
 
 
The  Chief  provided  a  copy  of  the  report  of  the  selection  board.    The  report 
includes the name of the applicant on a list of “nonselectees.”  Based on the appearance 
of  the  applicant’s  name  on  this  list,  the  Chief  argued,  “the  Board  may,  under  a  pre-
sumption of regularity, conclude that Applicant was considered and ultimately rejected 
for selection to O-x by the PY [promotion year] 9x selection board.” 
 

APPLICANT’S RESPONSE TO THE COAST GUARD 

 
 
In accordance with 33 C.F.R. § 52.82(d), the Board sent the applicant a copy of the 
Coast Guard’s response to the Board’s request for further information and invited him 
to respond within 15 days.  The applicant contacted the Board and asked for a copy of 
the Board’s request to the Coast Guard, which was provided to him in accordance with 
33 C.F.R. §§ 52.63 and 52.66.  Those regulations require the Board to maintain a record 
of each proceeding that is available to the applicant for inspection. 
 
 
On March 6, 2000, the applicant responded to the Coast Guard’s response to the 
Board’s request.  The applicant described the Coast Guard’s response as unjust because 
“any  proof  of  the  selection  board’s  manifestly  unjust  treatment  of  me  went  into  the 
shredder  before  the  final  gavel  fell,  and  you  can’t  ask  any  board  members  about  me 
because they have sworn an oath not to talk about it.”  The applicant queried the need 
for  such  secrecy  if  “everything  is  on  the  up-and-up  in  these  selection  boards”  as  the 
Coast Guard alleged.  The applicant argued that his failure of selection in light of his 
outstanding record should be sufficient to overcome the presumption of regularity and 
to require the Coast Guard to better explain his non-selection. 
 
 
The applicant stated that he has learned a great deal about how selection boards 
operate from friends who have served on them.  He alleged that selection board mem-
bers  initially  scan  all  the  candidates’  files  and  divide  them  into  three  piles:    a  small 
“definitely promote” pile; a “definitely do not promote” pile; and a large “in the mid-
dle” pile.  Thereafter, they are “under tremendous pressure to winnow out only a pre-
determined number of officers from the remaining ‘in the middle’ candidates.”  Under 
these conditions, the applicant alleged, “a simple comment by one member that an offi-
                                                 
1  The Coast Guard initially cited 14 U.S.C. § 262.  However, it subsequently corrected the citation. 

cer might not measure up for one reason or another could have grave consequences.”  
“[S]uch an unrestricted process,” he argued, “is ripe for errors in judgement and mani-
fest injustices, intentional or not.” 
 
 
Furthermore,  the  applicant  stated  that,  despite  the  destruction  of  the  selection 
board’s documents, the Coast Guard could have constructed summaries of the OERs of 
the candidates who were selected for promotion, determined which three of them have 
the lowest average OER scores, and provided that information to the Board.  And while 
selection is based on more than just OER scores, such as performance, leadership, pro-
fessionalism, and education, those qualities are reflected in OER scores. 
 
 
Finally, the applicant stated that the timing of submissions and responses in this 
case  indicates  that  “the  BCMR  takes  my  application  seriously,  …  it  seems  the  Coast 
Guard does not.”  “[T]he Coast Guard has treated my application as a trivial attack on 
their  secret  and  sacrosanct  selection  board  process;  nothing  but  a  mere  nuisance  that 
will go away if they expend the absolute minimum amount of effort over the longest 
possible  time.  …    I  believe  my  over  29  years  of  honorable,  dedicated  service  to  our 
country entitles me to better treatment than I have received from the Coast Guard … .” 
 

SUMMARY OF  THE RECORD 

 
Applicant’s Personnel Record 
 
 
The applicant enlisted in the Coast Guard in 19xx and rose to the rank of xxxxx.  
He attended Officer Candidate School and on June x, 19xx, accepted a commission as an 
ensign in the Coast Guard.  He was promoted to lieutenant junior grade on March 9, 
197x, and to lieutenant on August 15, 198x.  During this time, he served as a xxxxxx at 
the Coast Guard xxxxx.  He also was assigned many administrative duties.  In July 198x, 
he began serving as an xxxxx, planning xxxxx operations for the xxx District.  In May 
198x, he was made chief of the xxxxxxxxxxxxx, while continuing to serve as an xxxxxx.  
In June 198x, the applicant began serving as a xxxxxxx in Miami, planning joint xxxxx 
operations with other federal agencies.  
 

Throughout  the  1980s,  the  applicant  received  high  marks  and  excellent  com-
ments in his OERs. On July 1, 198x, the applicant was promoted to the rank of xxxxx, 
while continuing to serve as a xxxxxx, planning and evaluating xxxx operations with 
other xxxx agencies.  From July 199x to June 199x, the applicant served as the chief of 
the xxxx Branch of the xxxx District.  He supervised 24 persons involved in xxxxxxxx 
training.  The OERs he received for this service appear as numbers 1 through 5 in the 
table below.  They contain many laudatory comments from the officers who served on 
his rating chain.  His reporting officer consistently recommended that he be considered 
for a command position.  On January 1, 199x, prior to leaving this post, the applicant 
was promoted to the rank of xxxxxxx. 

 
 
From  June  199x  to  June  199x,  the  applicant  served  as  a  branch  chief  at  the 
xxxxxxx  in  xxxxxx.    His  supervisor  was  a  civilian  federal  employee  (GS-15),  but  his 
reporting  and  reviewing  officers  were  captains  in  the  Coast  Guard.    The  OERs  he 
received for this work appear as numbers 6, 7, and 8 in the table below.  They contain 
many laudatory comments, and his reporting officer consistently gave the applicant his 
“highest recommendation” for command and early promotion. 
 
 
In June 199x, the applicant was appointed Deputy Group Commander of Group 
xxxxxxxx,  overseeing  the  work  of  some  282  people.    The  OER  he  received  for  this 
assignment prior to the meeting of selection board in July 199x appears as number 9 in 
the table below.  In the OER, his supervisor, who also served as his reporting officer, 
called  him  a  “top-notch  XO,”  a  “flawless”  planner,  an  “outstanding  orator,”  and  a 
“splendid leader,” among many other laudatory comments.  He praised the applicant’s 
senior management abilities and gave him his highest recommendation for promotion 
to xxxxxxx and for appointment to command of a Coast Guard Group. 
 

In addition to his OERs, the applicant has received several awards and commen-
dations for his work over the years, including two Coast Guard Commendation Medals 
for his work as a branch chief at the xxxxxxxx and as a xxxxxx Officer in xxxxx and a 
Coast  Guard  Achievement  Medal  for  his  work  as  chief  of  the  xxxxxx  Branch  of  the 
xxxxx District.  

 

g When limited to the last seven OERs “considered most significant” for promotion to xxxx (Personnel Manual, Arti-

cle 14.A.4.d.), the final average remains 5.9. 

 

 
Report of Lack of Evaluation Mark Inflation 
 
 
annual review of OERs.  The report stated that the following: 
 

On February 26, 1999, the Coast Guard issued ALCGOFF 010/99, the report of an 

Year-end statistical data validate the revised OER (implemented in Oct 1997). …  
For those performance dimensions in the new OER which can be traced to per-
formance dimensions in the previous OER, more than a third were resistant to 
marks inflation.  For those dimensions that did increase, the increases were not 
significant, amounting to only a few hundredths of a point, and did not indicate 
universal inflation trends from previous years.  In fact, for some officer grades, 
marks deflation occurred.  The data also indicates that there continues to be no 
significant differences in marks averages among various officer groups (e.g. OCS 
vs. Academy, male vs. female, minority vs. non-minority, etc.)  

 

 
 
their selections, particularly the “potential section,” in block 10 of the OER. 

The  report  also  indicated  that  selection  boards  rely  heavily  on  OERs  to  make 

Affidavits of Senior Coast Guard Officers 
 
 
In support of his application, the applicant submitted nine letters written on his 
behalf by senior officers.  A retired captain who supervised the applicant from 199x to 
199x stated that he was “an intelligent, capable and dedicated officer who always went 
that ‘extra mile’ to get a tough job done.”  He further stated that he was very surprised 
that the applicant had failed of selection, particularly since he had been recommended 
for accelerated promotion on his four most recent OERs. 
 
 
A second retired captain, who supervised the applicant for two years when he 
served on a “joint” tour at the Department of xxxxx, stated that he was shocked to hear 
of the applicant’s failure of selection and believes “there must have been a mistake or a 
grave injustice committed.”  While on the joint tour, he stated, the applicant was “hand 
picked … to lead a task force of multi-agency personnel and contractors in pushing the 
boundaries to a truly revolutionary approach to xxxxxx.”  He stated that in his thirty 
years in the Coast Guard, he had not seen a better candidate for promotion to xxxx. 
 
 
A third retired captain stated that the applicant’s failure of selection must have 
been caused by “a mistake somewhere in his record or other information available to 
the [Selection] Board.”  He stated that he is “incredulous” about the applicant’s appar-
ent ranking by the selection board in the bottom third of eligible xxxxxxxs.  He stated 
that the applicant was consistently recommended for accelerated promotion and that he 
was a “highly sought after officer thoroughly respected throughout the Service for his 
knowledge, experience, professionalism, potential for increased responsibility, creative 
management,  [and]  ability  to  get  things  done  and  create  good-will  among  the 

customers of the Coast Guard and his fellow servicemembers.” There is “NO WAY,” he 
stated, the applicant was in the bottom third. 
 
A  rear  admiral  who  commanded  all  Coast  Guard  and  Navy  surface  and  air 
 
forces engaged in xxxxxxxxxx xxxxx in the xxxxxx while the applicant served at the U.S. 
xxxxxxxx in xxxxxx also submitted an affidavit.  He stated that he was “astounded and 
dismayed” by the applicant’s failure of selection.  He had been “continually impressed 
with  [the  applicant’s]  exceptional  leadership,  input,  and  ability  to  gain  complete 
cooperation from the military and civilian law enforcement agencies that he interacted 
with.”  He also stated that he had “followed” the applicant’s career and knew that the 
applicant “has demonstrated consistently outstanding performance in a wide range of 
critical Coast Guard and joint assignments.”  The rear admiral stated that when he was 
the  xxxxxxxx  of  Group  xxxxxx  he  had  specifically  requested  that  the  applicant  be 
assigned to the critical and demanding position of Deputy Group Commander because 
of his outstanding abilities. 
 
 
A second rear admiral submitted an affidavit in which he praised the applicant’s 
enthusiasm, professionalism, and ability to learn the new skills required by each new 
post throughout his career. 
 
A third rear admiral who had served as Executive Officer at xxxxxxx when the 
 
applicant  was  an  xxxxxxxxx  officer  also  submitted  an  affidavit.    He  stated  that  the 
applicant  was  “the  driving  force  in  meeting  a  demanding  timeline  and  making  the 
program  an  operational  success.”    Over  the  past  year,  he  stated,  the  applicant  has 
consistently  gotten  results  and  promoted  excellent  interagency  relationships  while 
serving  as  the  Executive  Officer  of  Group  xxxxxx.    He  indicated  that  he  was  very 
surprised the applicant was not selected for promotion. 
 
 
A retired rear admiral, who served as the applicant’s supervisor in the late 1980s 
in xxxxx, stated that as a xxxxx, the applicant had had “principal responsibility for the 
day-to-day management” of one of the “busiest components of the busiest operational 
district  at  the  busiest  period.”    The  applicant  “performed  in  a  spectacular—even 
heroic—manner” and his “performance was at THE HIGHEST level.”  The rear admiral 
described one incident in which over one weekend, the applicant was required to create 
from scratch with the help of one other lieutenant an “enormous volume of policy direc-
tives, operations order, rules of engagement, standard operating procedures, doctrine, 
etc., to enable the first xxxxxxxxx to take place on Monday morning.”  He stated that for 
this service, the applicant received the Meritorious Service Medal, which, he stated, is 
“usually reserved for very senior officers with great span of authority.” 
 
A retired vice admiral who has followed the applicant’s career stated that he was 
 
astonished the applicant was not selected for promotion.  He described the applicant’s 
performance  as  exceptional  and  quite  outstanding.    He  stated  that  very  few  Coast 

Guard officers have the applicant’s diverse background, which makes him a “most well 
rounded and mature professional.” 
 
A retired admiral stated that while he had not witnessed the applicant’s perform-
 
ance as a xxxxxxx, he believes that in light of the applicant’s many recommendations for 
accelerated promotion, his non-selection for promotion should be reviewed. 
 

APPLICABLE LAW 

 

 
According  to  10  U.S.C.  §  1552(a)(1),  “[t]he  Secretary  of  a  military  department 
may  correct  any  military  record  of  the  Secretary’s  department  when  the  Secretary 
considers it necessary to correct an error or remove an injustice. . . .  The Secretary of 
Transportation  may  in  the  same  manner  correct  any  military  record  of  the  Coast 
Guard.” 
 
 
According  to  33  C.F.R.  §  52.12,  the  function  of  the  BCMR  is  to  determine 
“[w]hether  an  error  has  been  made  in  the  applicant’s  Coast  Guard  military  record, 
whether the applicant has suffered an error or injustice as the result of an omission or 
commission in his or her record, or whether the applicant has suffered some manifest 
injustice in the treatment accorded him or her; and … [w]hether the Board finds it nec-
essary to change a military record to correct an error or remove an injustice.” 
 
 
According  to  33  C.F.R.  §  52.21(c),  no  application  shall  be  processed  until  it  is 
complete.    An  application  is  not  complete  unless  it  includes,  among  other  things,  “a 
specific allegation of error or injustice, accompanied by substantial proof in support of 
such allegation.” 
 
 
According to 33 C.F.R. § 52.32, the Chairman may, without prejudice, “deny in 
writing  all  requested  relief  to  an  applicant  at  any  time  prior  to  consideration  of  the 
applicant’s case by a Board if: (1) The information or evidence submitted by the appli-
cant is insufficient to demonstrate probable substantial error or injustice; ….” 
 
 
According to 14 U.S.C. § 254, every member of a selection board must swear an 
oath that “he will, without prejudice or partiality, … perform the duties imposed upon 
him.”   
 

According  to  14  U.S.C.  §  261(d),  “[e]xcept  as  required  by  this  section,  the  pro-
ceedings of a selection board shall not be disclosed to any person not a member of the 
board.” 
 

According to 14 U.S.C. § 260, each selection board must submit a written report, 
signed by all members, containing the names of the officers recommended for promo-

tion.  The report also must certify that the officers recommended for promotion are the 
best qualified. 
 
According  to  14  U.S.C.  §  262(b),  “[a]n  officer  shall  not  be  considered  to  have 
 
failed of selection if he was not considered by a selection board because of administra-
tive error.” 
 
 
Article  14.A.3.  of  the  Personnel  Manual  describes  in  detail  the  following  four 
basic criteria considered by selection boards:  performance evaluations, professionalism, 
leadership, and education. 
 
 
Article 14.A.4.i. of the Personnel Manual prescribes: “Except for its Report of the 
Board, the board members shall not disclose proceedings or deliberations to any person 
not a member of the board (14 U.S.C. 261).” 
 

FINDINGS AND CONCLUSIONS 

1. 

2. 

3. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

 
 
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 appli-
cable law: 
 
 
of title 10 of the United States Code.  The application was timely. 
 
 
The  applicant  alleged  that  his  rank  and  non-selection  for  promotion  to 
xxxxxxx, as shown in Coast Guard records, were unjust and the result of errors made by 
the  selection  board.    He  submitted  nine  affidavits  supporting  his  claim  that  his  non-
selection must have been due to an oversight.  The Board concludes that the applicant’s 
application  was  properly  completed  and  docketed  by  the  Chairman  under  33  C.F.R. 
§§ 52.12, 52.21(c), and 52.32. 
 
 
In  xxxx  199x,  a  selection  board  of  senior  Coast  Guard  officers  reviewed 
and  compared  the  records  of  xx  xxxxx  and  chose  xx  to  be  promoted  to  xxxxx.    The 
applicant’s name appeared on the list of the xx xxxxxx not chosen for promotion despite 
his excellent record and abilities. 
 
 
The supporting affidavits submitted by the applicant indicate that, in light 
of the applicant’s fine performance and background, senior officers were surprised that 
he  was  not selected for promotion to xxxxx.  The applicant’s record indicates that he 
was a very hard-working, responsible, effective, and knowledgeable professional who 
was a strong leader and respected officer.  In the early 1990s, his reporting officers rec-
ommended  that  he  be  considered  for  a  command  position.    Since  199x,  his  reporting 
officers  have  given  him  their  highest  recommendation  for  command  and  accelerated 
promotion in their OER comments. 
 
The applicant has not alleged or proven any irregularity, prejudice, or bad 
 
faith on the part of the selection board in failing to select him for promotion.  The appli-
cant asked the BCMR to infer from his excellent record that a mistake was made and 
that his non-selection for promotion to xxxxx is therefore in error and unjust.  
 

6. 

It is apparent that the applicant was very well qualified for promotion to 
xxxxxx.    Nothing  in  his  record,  however,  proves  that  he  was  more  fit  for  promotion 
than the xx xxxxxxx who were chosen.  Moreover, the factors taken into consideration 
by a selection board are not limited to OER marks and comments but are myriad, as 
indicated in the selection board’s precept and Article 14.A.3. of the Personnel Manual. 

4. 

5. 

 
7. 

Because  of  the  applicant’s  excellent  record,  the  Board  sought  from  the 
Coast Guard additional information that might shed light on the applicant’s failure of 

selection  or  prove  it  was  not  due  to  an  administrative  oversight.    The  Coast  Guard 
responded  that  the  information  requested  by  the  Board  was  unavailable.    The  Coast 
Guard explained that, under 14 U.S.C. § 261, selection board members are required by 
statute to swear an oath not to divulge any information regarding the board’s delibera-
tive  process,  and  all  written  materials  prepared  or  used  by  selection  boards  are 
destroyed.  However, the Coast Guard submitted a copy of the report of the selection 
board, signed by all members, listing the applicant’s name among those not chosen for 
selection.  Therefore, the Board finds that there is no evidence of administrative error 
and that the preponderance of the evidence establishes that the applicant’s record was 
considered  by  the  selection  board  and  that  his  failure  of  selection  was  not  due  to  an 
administrative oversight. 

Contrary to the position of the Coast Guard in responding to the Board’s 
request  for  additional  information,  the  Board  finds  that  14  U.S.C.  § 261  does  not 
prohibit  members  of  a  selection  board  from  confirming  that  an  officer’s  record  was 
reviewed.  In 14 U.S.C. § 262(b), Congress clearly anticipated that administrative errors 
might prevent an officer’s record from being considered.  If selection board members 
were  unable  to  report  or  deny  such  administrative  mistakes,  this  statute  would  be 
rendered ineffectual. 

While  the  applicant’s  record  is  excellent,  the  Board  cannot  find,  on  the 
basis of the application and the record before it, that the selection board erred in per-
forming  its  duties  when  it  did  not  select  the  applicant  for  promotion.    Nor  will  the 
Board usurp the role of the selection board or require the Chief Counsel’s office to do 
so.  The preponderance of the available evidence indicates the applicant’s record was 
considered  by  the  selection  board  and,  absent  evidence  of  bad  faith,  prejudice,  or 
irregularity  in  those  proceedings,  the  Board  has  no  grounds  for substituting its judg-
ment for that of a duly convened selection board of experienced Coast Guard officers. 
 

10.  Accordingly, the applicant’s request should be denied. 

 
8. 

 
9. 

 
 
 

[ORDER AND SIGNATURES APPEAR ON FOLLOWING PAGE] 

ORDER 

 
 

 
 

 

 

 
 

 
 

 

 

 

The application of retired XXXXXXX, USCG, for correction of his military record 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Michael J. McMorrow 

 

 

 
 

 
 

(see * below)   
Nancy Lynn Friedman 

is hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
*This  Board  member  was  unable  to  sign  the  order  page  because  she  was  detailed  to 
another  Department  at  the  time  of  signature.    However,  she  fully  participated  in  the 
Board’s deliberations and orally concurred in the outcome of this decision.  

 
Karen L. Petronis