DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2000-169 
 
 
   

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 July 25, 2000, 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  May  31,  2001,  is  signed  by  the  three  duly  

 

 
 

 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

The  applicant,  who  resigned  his  commission  as  a  XXXXXXXXX  in  the  regular 
Coast Guard on December 1, 1964, asked the Board to correct the errors and injustices in 
his record caused by his failure to be selected for promotion to commander in the Coast 
Guard  Reserve  in  1971.    He  alleged  that  the  Coast  Guard’s  errors  and  unjust  actions 
denied  him  the  right  to  continue  serving  in  the  Reserve  and  receive  retirement  pay 
upon reaching age 60 in December 1990. 
 

The applicant alleged that his non-selection for promotion to commander was a 
mistake.  He alleged that the error is proved by the highly positive comments in his fit-
ness reports.  He alleged that his erroneous and unjust failure of selection was caused 
by a mark made by his district commander to a selection board in 1970.  He alleged that 
the district commander, when forwarding the applicant’s own letter to the board, erro-
neously and unjustly scored the applicant as “average” in comparison with his contem-
poraries, instead of “outstanding,” “superior,” “excellent,” or “above average.”  

 
The  applicant  alleged  that  the selection board was supposed to choose officers 
for  promotion  on  the  basis  of  who  was  “best  qualified.”    He  argued  that,  under  the 

“best qualified” standard, he should have been selected because he was a graduate of 
the Coast Guard Academy and Naval Postgraduate School, had ten years of active duty 
experience  in  several  operational  fields,  had  outstanding  fitness  reports,  and  was  “in 
the zone” for promotion.  He alleged that the other Reserve officers he knew who were 
selected for promotion had fewer qualifications and less active duty experience. 

 
The applicant alleged that after he was passed over for promotion the first time 
in February 1971, he sent the Commandant a letter asking in what way his service was 
deficient so that he might improve.  He alleged that he received, in response, excerpts 
from the selection board’s precept with guidelines for determining which officers were 
“best qualified,” such as duties, education, fitness reports, citations, etc.  He stated that 
under these guidelines, he was not deficient in any area of performance.   
 

The applicant alleged that after he was passed over for promotion a second time 
in June 1971, his congressman wrote the Commandant on his behalf.  In response, the 
Acting Commandant told his congressman that no law prescribes exactly how a selec-
tion  board  must  determine  which  officer is best qualified for promotion.  The Acting 
Commandant stated that a review of the applicant’s record indicated that he had com-
pleted only two satisfactory years of service during his six years in the Reserve and that 
this may have been a factor in his failure to be promoted.  The Acting Commandant fur-
ther stated that the applicant’s failure to be promoted did “not mean that [he] was not 
excellent.  It means that, after careful consideration, the selection board concluded that 
there were other officers more qualified for promotion.”   

 
The applicant alleged that his failure to accumulate more than two satisfactory 
years for retirement purposes was an old, invalid criterion and was not in the board’s 
instructions for selecting officers on a “best qualified” basis.1  He alleged that because 
the  selection  board  used  a criterion that was no longer valid for selecting officers for 
promotion, he was discharged on October 1, 1970, after having accumulated 12 years, 6 
months, and 4 days of federal service.  His discharge “eliminat[ed] any opportunity to 
work  toward  retirement  pay.”    He  alleged  that  it  was  also  an  injustice  that,  upon 
resigning his commission in 1964, he was transferred into a voluntary training unit of 
the Reserve rather than a paid unit. 

 
The applicant stated that he did not apply for relief sooner because he only dis-
covered the existence of the BCMR in 1999.  He stated that “the sheer magnitude alone 
of the injustice in [his] case warrants consideration of this application.” 
 

                                                 
1    In  support  of  this  allegation,  the  applicant  submitted  a  1976  fact  sheet  pertaining  to  proposed  legis-
lation, H.R. 12940, which stated that the attainment of a minimum number of retirement points had not 
been  considered  a  valid  criteria  for  promotion  since  the  “best  qualified”  standards  were  instituted  in 
September 1970. 

SUMMARY OF  THE APPLICANT’S RECORD 

 
 
The applicant graduated from the Coast Guard Academy and received his com-
mission in 195X.  Most of his active duty fitness reports indicate that he was considered 
a “very fine officer” in comparison with other officers.  Most of his performance evalua-
tion marks were 6s, 7s, or 8s (on a scale of 1 to 9, with 9 being best).   
 

On December 1, 1964, the applicant resigned his commission and was transferred 
to  a  voluntary  training  unit  of  the  Ready  Reserve.    His  record  indicates  that  he  had 
submitted letters of resignation at least twice before but had withdrawn them.  His let-
ters  and  his  command’s  endorsements  indicate  that  he  was  very dissatisfied with his 
Coast Guard career, particularly his assigned billets and the level of pay.  During the 
following six years, he performed sufficient drills to earn the following points toward 
retirement:  15, 22, 46, 50, 43, 50.  Members of the Reserve receive 15 points even if they 
do  not  perform  any  drills.    He  did  not  perform  active  duty  for  training,  apparently, 
because he had already served on active duty for 10 years. 
 
 
During  his  six  years  in  the  Reserve,  the  applicant  received  fitness  reports  in 
which he was rated “very good,” “excellent,” or “outstanding” (corresponding to marks 
of  7,  8,  and  9)  in  the  performance  categories.    In  comparison  with  other  officers,  he 
received ratings of “competent and efficient,” “dependable and typically effective,” and 
“very fine,” and one rating as “one of the few outstanding officers I know.”  The written 
comments in his Reserve fitness reports include the following: “very capable”; “experi-
enced  and  capable”;  “outstanding  …  largely  responsible  for  the  excellent  program  of 
this unit”; “capable, interested, and enthusiastic”; and “good instructor, generally effec-
tive and dependable.”  He was consistently recommended for retention and promotion. 
 
 
On September 5, 1969, the applicant filled out a form summarizing his service, 
education, and civilian work for review by the selection boards.  The district command-
er, a captain who had served as the reviewer for his fitness reports (reviewing the for 
“completeness only,” not indicating his concurrence), forwarded his form to the selec-
tion  board  on  November  12,  1969.    In  comparison  with  other  officers,  the  captain 
marked the applicant as “average,” in fourth place on a scale of eight descriptors rang-
ing from “poor” to “outstanding.”  The applicant failed of selection twice in 1971 and 
was therefore transferred to the inactive Standby Reserve on October 1, 1971. 
 

VIEWS OF THE COAST GUARD 

 
 
On January 31, 2001, 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.”    In  the  alternative,  he  recommended that the Board deny the 
application for untimeliness or for lack of merit. 

The Chief Counsel interpreted the application as a request to be promoted to the 
rank  of  commander.    He  stated  that  the  applicant’s  request  and  allegations  are  too 
vague  for  the  Board  to  address  effectively  because  there  is  no  “specific  allegation  of 
error or injustice … or substantial proof of any error or injustice by the Coast Guard.”  
He argued that the applicant seems to allege irregularity in the proceedings of the selec-
tion  boards  but  presents  only  his  own  record  and  the  Acting  Commandant’s  letter 
about the possible reasons for his failure of selection as proof.  The Chief Counsel stated 
that  because  selection  board  proceedings  are  strictly  confidential  under  14  U.S.C. 
§ 261(d), it is impossible for anyone to know why the applicant was passed over, but 
that, as the Acting Commandant indicated, the applicant’s failure to achieve satisfactory 
years for retirement in four of the six years he served in the Reserve “was notable.” 
 

The Chief Counsel argued that under Arens v. United States, 969 F.2d 1034, 1037 
(Fed. Cir. 1992) and Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979), the Board 
must assume that the selection boards have acted correctly, lawfully, and in good faith 
absent clear, cogent, and convincing evidence to the contrary.  Furthermore, he alleged 
that federal courts have long refused to interfere in military decisions regarding promo-
tions  and  advancements,  particularly  when  they  are  determined  by  selection  boards 
comparing  hundreds  of  eligible  candidates.    Reaves  v.  Ainsworth,  219  U.S.  296  (1911); 
Orloff v. Willoughby, 345 U.S. 83 (1953); Payson v. Franke, 282 F.2d 851 (D.C. Cir. 1960), 
cert. denied, sub nom. Robinson v. Franke, 265 U.S. 815 (1961); Brenner v. United States, 202 
Ct.  Cl.  678  (1973).    The  Chief  Counsel  argued  that  the  Board  should  apply  the  same 
standards as the courts under the presumption of regularity afforded selection boards. 

 
The  Chief  Counsel  further  argued  that  the  application  should  be  denied  for 
untimeliness  under  the  Board’s  three-year  statute  of  limitations,  which should not be 
waived in light of the lack of merit in the case.  Dickson v. Secretary of Defense, 68 F.3d 
1396 (D.C. Cir. 1995).  Finally, he argued that if the Board decides the case on the merits, 
relief should be denied consistent with the Board’s decision in BCMR Docket No. 1999-
083 because the applicant did not prove any procedural error but based his claim on the 
quality of his record. 
 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  February  2,  2001,  the  Chairman  forwarded  a  copy  of  the  Chief  Counsel’s 
advisory opinion to the applicant and invited him to respond within 15 days. The appli-
cant was granted an extension and responded on February 28, 2001. 
 
 
The  applicant  alleged  that  his  allegations  of  error  were  quite  specific:  (1)  the 
“average” rating he received from the captain who forwarded his form to the selection 
board and (2) the invalid criterion used by the selection board.  With respect to the first 
error, the applicant alleged that the captain who marked him as “average” for the selec-

tion boards “never had any official or personal face-to-face contact with [him].  His sole 
basis  on  which  to  judge  [his]  qualifications  was  [his]  military  record  and  fitness 
reports.”  He alleged that the “average” mark is clearly erroneous given his high marks 
and comments he received in his fitness reports, including comments from an admiral.  
With respect to the second error, the applicant argued that he had proved that the selec-
tion boards used an invalid criterion for promotion under the “best qualified” system:  
retirement  points.    He  alleged  that  the  boards’  use  of  this  criterion  was  also  unfair 
because during his first two years in the Reserve, he was trying to establish a civilian 
career, and during his last four years, he performed two satisfactory years and barely 
missed  performing  satisfactory  years  twice  “due  to  heavy  job  conflicts  with  a  highly 
competitive commission sales territory frequently involving out-of-town travel.” 
 
 
The applicant argued that the BCMR should not apply the same standards used 
by  the  courts  because  “Congress  views  the  Boards  as  their  administrative  arms 
entrusted  with  the  responsibility  to  be  guarantors  of  fair  and  equitable  treatment  for 
active duty military members, veterans and retirees.”  He also alleged that, given the 
quality of his record, the Chief Counsel’s argument that he has not proven that he was 
more fit for promotion than other lieutenant commanders who were chosen for promo-
tion is “absurd.”  He argued that it is particularly absurd because he has no access to the 
other officers’ records that would allow him to prove his case. 
 
 
The applicant further argued that his application is not untimely because he did 
not  discover  the  captain’s  erroneous  “average”  mark  until  April  8,  2000,  when  he 
received the Coast Guard’s response to his request for information under the Freedom 
of Information Act.  Therefore, he alleged, he applied for relief within three years of his 
discovery  of  the  error.    Moreover,  he  alleged,  “the  sheer  magnitude”  of  the  injustice 
done to him warrants consideration of his case on the merits.  In addition, he argued 
that the delay should not be held against him because when he protested his failure of 
selection to the Coast Guard and his congressman in 1971, neither mentioned the BCMR 
to him as a possible avenue of relief. 
 
 
Finally,  the  applicant  argued  that  his  case  can  be  distinguished  from  that  in 
BCMR  Docket  No.  1999-083  because  (1)  the  mark  of  “average”  constitutes  a  material 
error in his record; (2) the selection boards used an invalid criterion; and (3) in light of 
the quality of the rest of his record, these two material errors caused his failure of selec-
tion.  He argued that but for his erroneous failures of selection, he would have contin-
ued to serve in the Reserve and retired with at least 20 years of satisfactory service. 

 

 

APPLICABLE LAW 

According to 33 C.F.R. § 52.22, “[a]n application for correction of a record must 
be filed within three years after the applicant discovered or reasonably should have dis-
covered the alleged error or injustice.  If an application is untimely, the applicant shall 
set forth reasons in the application why its acceptance is in the interest of justice.  An 

untimely application shall be denied unless the Board finds that sufficient evidence has 
been presented to warrant a finding that it would be in the interest of justice to excuse 
the failure to file timely.” 
 

Under 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.”  
Article 14 U.S.C. § 260 requires each selection board to submit a written report, signed 
by all members, containing the names of the officers recommended for promotion.  The 
report also must certify that the officers recommended for promotion are the best quali-
fied.  Under 14 U.S.C. § 261(d), “[e]xcept as required by this section, the proceedings of 
a selection board shall not be disclosed to any person not a member of the board.” 
 
 
Article  14-A  of  the  Personnel  Manual  in  effect  in  1971  governed  the  work  of 
selection  boards.    Article  14-A-1(b)  stated  that  the  “criteria  published  herein  are  fur-
nished  boards  solely  for  guidance  and  do  not  limit  the  scope  of  authority  vested  in 
[selection] boards.  Each member of the board must retain an impartial, unbiased and 
unprejudiced attitude regarding all officers being considered and regarding all groups 
and specialized duties in the Coast Guard.”  According to Article 14-A-1(c), selections of 
officers for promotion to the rank of lieutenant and above were to be based on a deter-
mination of who was “best qualified.”  (Congress limits the number of officers in the 
ranks of lieutenant and above, so only a certain number of officers may be promoted.) 
 

Article  14-A-3(a)  provided  that  each  selection  board  “will  develop  its  own 
overall standards and criteria.  The degree of significance assigned to each of the many 
factors to be considered will vary according to the grade level and the type of selection 
with which the board is concerned.”  Article 14-A-3(b) described four basic criteria to be 
considered  by  selection  boards:    performance  of  duties  as  revealed  in  fitness  reports; 
personal  qualities,  such  as  leadership,  judgment,  initiative,  and  professionalism;  and 
education.  Article 14-A-4 provided that commander selection boards should consider 
the greater of (a) the seven most recent years of service or (b) all of an officer’s service at 
his current rank to be most significant. 

 
Article 14-A-6(b) provided that, “[i]n arriving at recommendations, comparisons 
should be made among all officers whose names are submitted to the board for consid-
eration.  The extent to which these officers measure up, among themselves, in accom-
plishments in past assignments and potential for greater responsibility according to the 
overall criteria adopted by the board should be the basis for recommendation.”  Article 
14-A-6(c)  stated  that  the  Commandant  could  provide  boards  with  procedures  and 
forms to their assist evaluations, but “[t]he determination to use such assistance in the 
form provided or in modified form, or not at all, rests solely with the board.” 
 
 
Article 14-A-6(5) stated that each board should issue a report listing the names of 
those  officers  selected  for  promotion  and  certifying  that,  “in  the  opinion  of  at  least  a 

majority of the members if the board has five members, or in the opinion of at least two-
thirds  of  the  members  if  the  board  has  more  than  five  members,  the  officers  recom-
mended  for  promotion,  …  are  the  best  qualified  for  promotion  …  of  those  officers 
whose names have been furnished to the board.” 
 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submission, and appli-
cable law: 
 

The Board has jurisdiction concerning this matter pursuant to section 1552 

1. 

 
2. 

 
3. 

of title 10 of the United States Code.   

An  application  to  the  Board  must  be  filed  within  three  years  after  the 
applicant  discovers  the  alleged  error  in  his  record.  10  U.S.C.  §  1552.    The  applicant 
alleged  that  he  did  not  discover  the  fact  that  he  had  been  marked  “average”  by  his 
command until 1999.  However, the applicant failed of selection in 1971, and the form 
with the “average” mark has been in his official military record and accessible to him 
since  that  time.    Therefore,  the  Board  finds  that  the  applicant  knew  or  should  have 
known of the alleged errors of which he now complains in 1971.  Thus, his application 
was untimely by almost 26 years. 

4. 

Pursuant to 10 U.S.C. § 1552, the Board may waive the three-year statute 
of limitations if it is in the interest of justice to do so.  To determine whether it is in the 
interest of justice to waive the statute of limitations, the Board should conduct a cursory 
review of the merits of the case.  Allen v. Card, 799 F. Supp. 158, 164 (D.D.C. 1992).   
 
 
The applicant has not proved that either of the selection boards that failed 
to select him for promotion adopted unlawful criteria in selecting officers.  The Acting 
Commandant’s comments regarding the possibility that his previous level of participa-
tion in the Reserve may have been a factor in his failure of selection do not prove that 
the  selection  boards  actually  used  that  as  a  criterion  or  that  he  failed  of  selection 
because of his past level of participation.  Moreover, the applicant has not proved that 
such a criterion is unlawful.  Under the regulations in the Personnel Manual, selection 
boards had (and still have) broad discretion to adopt their own criteria for evaluating 
candidates for promotion and were not obligated to adopt or limit themselves to those 
shown in the precept.  The fact that the Coast Guard had removed a specific criterion 
regarding the number of satisfactory years does not mean that the selection boards were 
not allowed to consider the level of an officer’s past participation in the Reserve when 
deciding who should be promoted.  In fact, the Board finds that an officer’s level of par-
ticipation in the Reserve, as indicated by the number of retirement points earned each 
year, would be an obvious and appropriate criterion for selection. 

5. 

6. 

 
 
The applicant alleged that, in light of the quality of his fitness reports, the 
“average” mark assigned by the captain who endorsed his report form for the selection 
boards  is  a  clear  and  prejudicial  error  that  unjustly  caused  his  failures  of  selection. 
However, the Coast Guard’s officer evaluation system, like many personnel evaluation 
systems,  has  sometimes  been  afflicted  with  grade  inflation.    The  system  has  been 
revised  several  times  over  the years to combat this phenomenon.  Moreover, the fact 
that  some  of  his  previous  commands  had  awarded  him  high  marks  and  had  written 
highly laudatory comments about his performance does not prove that the captain did 
not intend to mark him as “average” or that the captain made the mark because of some 
unfair  bias  against him.  The applicant’s fitness reports indicate that the captain only 
reviewed  them  to  determine  their  completeness,  not  to  evaluate  the  accuracy  of  the 
reporting  officer’s  marks  and  comments.    In  addition,  although  the  applicant  alleged 
that the captain was not familiar with his performance, he did not prove that the cap-
tain  did  not  base  the  “average”  mark  on  reliable  information.    Therefore,  the  Board 
finds that the applicant has not proved that the mark was in error. 
 
 
The applicant alleged that his failures of selection constituted a clear injus-
tice in light of the quality of his fitness reports.  He asked the Board to infer from his 
excellent record that a mistake was made and that his failures of selection were unjust.  
While it is apparent that the applicant was a highly competent officer, nothing in his 
record  proves  that  he  was  more  fit  for  promotion  than  any  of  the  officers  who  were 
chosen.    Moreover,  the  factors  taken  into  consideration  by  a  selection  board  are  not 
limited  to  fitness  report  marks  and  comments  but  are  myriad.    Therefore,  even  if  he 
could prove that his average marks were higher than those of an officer who was select-
ed for promotion, this would not prove that the selections boards committed any error 
or injustice in exercising their discretion.  Under 14 U.S.C. § 261(d), Congress made the 
deliberations of selection boards entirely privileged; they may not be disclosed to any-
one except the board members themselves.  Therefore, the Coast Guard committed no 
error  in  refusing  to  provide  the  applicant  with  copies  of  any  of  the  selection  boards’ 
proceedings (assuming they still exist). 
 
 
The applicant made numerous allegations with respect to his treatment by 
the Coast Guard.  Those allegations not specifically addressed above are considered to 
be without merit and/or not dispositive of the case.  
 

The  Board’s  review  of  the  record  indicates  that  there  is  no  merit  in  this 

case.  Therefore, it is not in the interest of justice to waive the statute of limitations. 
 

Accordingly, the application should be denied because of its untimeliness 

7. 

8. 

9. 

and lack of merit. 
 

ORDER 

 

The application of XXXXXXXX, USCGR, for correction of his military record is 

 

denied. 
 
 
 
 
 

 

 

 

 

 

 

 
 
 
 

 
 
 
 

  

 
 

 

 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 

 
Barbara Betsock 

 

 

 
George J. Jordan 

 

 

 
 
John A. Kern