DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                 BCMR Docket No. 2001-023 
 
 

 

 
 

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 January 11, 2001, 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  November  15,  2001,  is  signed  by  the  three  duly 

 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant,  a  lieutenant  commander  (LCDR;  pay  grade  O-4)  in  the  Coast 
Guard, asked the Board to correct his record to show that he was selected for promotion 
to the rank of commander (CDR) by the selection board that met in 1996.  He alleged 
that a 10-year-old letter advising him of his first failure of selection to the rank of lieu-
tenant (LT) was improperly in his record when it was reviewed by the CDR selection 
boards that met in 1996 and 1997.  He alleged that if the LT failure of selection letter had 
not been in his record, he would have been selected for promotion to CDR in 1996.  He 
asked the Board to backdate his CDR date of rank to the date it would have been had he 
been selected for promotion by the board that met in 1996 and to award him back pay 
and allowances. 
 
 
The applicant alleged that the LT failure of selection letter was removed from his 
record in April 1998, before the CDR selection board met that year.  Although he again 
failed  of  selection  in  1998  and  1999  after  the  letter  was  removed,  he  alleged  that  the 
presence of the letter in his record in 1996 and 1997 “caused lesser effort to be placed by 
those boards on my value for promotion.”  The CDR selection board that met in July 
2000 selected the applicant for promotion, XXXXXXXXXXXXXX. 

 
 
The  applicant  submitted  a  copy  of  the  LT  failure  of  selection  letter,  which  is 
dated February 10, 1986.  It advised him that his name was not on the list of officers 
selection for promotion to LT.  
 

SUMMARY OF THE APPLICANT’S RECORD 

 
 
The applicant graduated from the Coast Guard Academy and was commissioned 
an  ensign  on    X  X,  XXXX.    He  was  assigned  to  a  cutter  and  promoted  to  lieutenant 
junior grade on July 7, 1982.  However, he received a few poor evaluations, with many 
scores  of  2  and  3  (on  a  scale  of  1  to  7,  with  7  being  best).    In  XXXX,  he  became  an  
XXXXXX  at  XXXXXX  and  his  evaluations  improved,  with  mostly  marks  of  4  and  5.  
However, he failed to be selected for promotion to LT by the selection board that met in 
1985,  and  the  February  10,  1986,  form  letter  advising  him  that  he  was  not  on  the 
promotion list was erroneously entered in his record. 
 
 
The applicant’s performance continued to improve, and he began to earn many 
marks  of  6.    In  1986,  he  was  selected  for  promotion,  and  he  was  promoted  to  LT  on 
December 1, 1986.  As an LT, the applicant continued to earn good marks of 4, 5, and 6 
and received a Commendation Medal for his work.  In  X X, XXXX, he left the XXXXXX 
and began serving XXXXXXXXXXXXXXXXXXXXXXXXX XXX at a XXXXXXXX office.  X  
X X X X X X X X X X X X X X X X X X X X X X X X X X.  X X X X X XX X X X X X X X X X 
X X X X X X X X X X X X X X X X X X X X X.  He received a comparison scale mark of 3 
for  his  first  evaluation  as  a  marine  inspector  although  his  marks  in  the  various 
performance  categories  were  all  4s,  5s,  and  6s,  with  one  7  for  “professionalism.”  
However, upon leaving this position in X  XXXX, he received an Achievement Medal. 
 
 
The applicant was selected for promotion in 1991 and promoted to LCDR on July 
1, 1992.  X X X X X X X X X X X X X X.  He was awarded a Navy Commendation Medal 
for this work.  X X X X X X X X X X X X X.  X X X X X X X X X X X X X X.  He earned 
primarily marks of 5 and 6, with a few 4s and 7s in the early and mid 1990s.  However, 
he failed of selection for promotion to CDR in 1996 and 1997 even though his reporting 
officer had “strongly recommended” him for promotion and he had received a second 
Coast Guard Commendation Medal in 1995 and an Achievement Medal in May 1997.  
His record contained the February 10, 1986, letter when it was reviewed by the selection 
boards in 1996 and 1998. 
 
In  April  1998,  the  February  10,  1986,  letter  was  removed  from  the  applicant’s 
 
record.    He  received  a  third  Commendation  Medal  in November 1998.  However, he 
failed of selection in the summer of 1998 and again in 1999, even though the letter was 
not  in  his  record  and  he  continued  to  receive  strong  evaluations.    In  May  2000,  he 
received an annual evaluation with all marks of 6 and 7 and a comparison scale mark of 

5.1  He was selected for promotion by the selection board that met in the summer of 
2000. 
 

                                                 
1  The comparison scale is not actually numbered.  However, as with the performance categories, there are 
seven  possible  marks.  Officers  are  supposed  to  be  marked  in  comparison  with  all  other  officers  of  the 
same  rank  known  to  the  reporting  officer.  In  this  row,  a  “5”  means  the  applicant  was  rated  to  be  an 
“excellent performer; give toughest, most challenging leadership assignments.” 

VIEWS OF THE COAST GUARD 

 
Advisory Opinion of the Chief Counsel of the Coast Guard 
 
 
On May 29, 2001, the Chief Counsel of the Coast Guard submitted an advisory 
opinion  in  which  he  recommended  that  the  Board  deny  relief  in  this  case  for  lack  of 
proof.   
 
 
The  Chief  Counsel  admitted  that  the February 10, 1986, letter was erroneously 
present  in  the  applicant’s  record  when  it  was  reviewed  by  the  CDR  selection  boards 
that met in 1996 and 1997.  He submitted an affidavit from the captain who served as 
the chief of the Officer Boards, Promotions and Separations Branch of the Coast Guard 
Personnel  Command  (CGPC)  indicating  that  the  letter  was  found  in  the  applicant’s 
record in April 1998 and removed.  However, the Chief Counsel argued that applicant 
has  not  proved  that  the  presence  of  the  letter  prejudiced  him  before  those  selection 
boards or caused his failures of selection.  He argued that the fact that the applicant con-
tinued to fail of selection for promotion to CDR in 1998 and 1999 even after the letter 
was  removed  from  his  record  proves  that  the  letter  did  not  cause  his  failures  of 
selection in 1996 and 1997.  Therefore, the Chief Counsel argued, the applicant has not 
proved that any “nexus” existed between the presence of the letter in his record and his 
failures of selection in 1996 and 1997 and is not entitled to relief under Engels v. United 
States, 678 F.2d 173 (Ct. Cl. 1982).  

 
The  Chief  Counsel  included  with  his  advisory  opinion  a  memorandum  on  the 
case by CGPC.  The memorandum, he alleged, “provides some compelling rationale” 
for the applicant’s failures of selection in 1996 and 1997. 
 
Memorandum of the Coast Guard Personnel Command 
 
 
CGPC pointed out that the applicant was selected for promotion to LT in 1986 
and to LCDR in 1991 even though the February 10, 1986, form letter was in his record 
when it was reviewed by those selection boards.  CGPC stated that the letter was in his 
record when it was reviewed by the CDR selection boards in 1996 and 1997 and that it 
was removed in April 1998.  However, the applicant failed of selection to CDR in 1998 
and 1999 even though the letter was no longer in his record. 
 
 
CGPC pointed out that selection boards are supposed to focus primarily on the 
officers’ performance evaluations during the preceding seven years.  Therefore, when 
the applicant was considered for promotion in 1996 and 1997, a performance evaluation 
for the period December 1, 1989, through June 4, 1990, on which he received a compari-
son mark of 3 would have been among those most carefully considered by the selection 
boards.    CGPC  also  opined  that  the  applicant’s  evaluations  from  1995  through  1998 
were “not as high as expected for someone serving in a command cadre position at a 

small unit.  That assignment was his chance to stand out from his peers, and he did not 
fully rise to the occasion.” 
 
CGPC also stated that the applicant may have been passed over for selection in 
 
1996 and 1997 because he did not quickly develop a “career specialty.”  After his first 
tour  ended  with  a  poor  evaluation  with  2s  and  3s,  he  was  assigned  to  serve  as  an 
XXXXXXXXX at XXXXXXXX.  Therefore, while his peers were developing career tracks, 
he  was  not  because  recruiting  and  admissions  is  not  considered  a  career  specialty.  
CGPC  alleged  that,  with  the  comparison  mark  of  3  and  no  well  developed  career 
specialty, the applicant “would most definitely not have been selected for commander 
[in 1996 and 1997], even if the letter had been removed from this record.” 
 
 
Finally, CGPC stated that the opportunity for selection to the rank of CDR was 
71% in 1996, 71% in 1997, 72% in 1998, 75% in 1999, and 80% in 2000.  Therefore, his 
chances  for  promotion  in  2000  were  much  better  than  in  previous  years  not  only 
because of his stronger evaluations and more developed career specialty, but because 
the overall opportunity for promotion had significantly improved.   

On May 31, 2001, the BCMR sent the applicant a copy of the Coast Guard’s views 

and invited him to respond within 15 days.  The applicant responded on June 11, 2001. 

 
The  applicant  stated  that  he  disagreed  with  the  Chief  Counsel  and  was  disap-
pointed  with  the  disparaging  and  disrespectful  tone  of  CGPC’s  memorandum.    He 
stated that CGPC’s reliance on the comparison mark of 3 he received in 1990 to explain 
his failures of selection was unjustified because in that evaluation his marks in the per-
formance categories were all 4 or above and he received a mark of 7 in the performance 
category “professionalism.”  He alleged that when he received this evaluation with the 
inconsistent  comparison  mark  of  3,  his  mentors  advised  him  that  a  selection  board 
would notice the inconsistency between the performance category marks and the com-
parison scale marks.  He alleged that the selection board did notice the inconsistency 
since  he  was  selected  for  promotion  to  LCDR  in  1991.    Therefore,  he argued, the old 
comparison  mark  of  3  would  not  have  prejudiced  the  1996  and  1997  CDR  selection 
boards against him.    

 
The  applicant  alleged  that  CGPC  was  wrong  to  raise  the  subject  of  his  career 
path, especially since he could not choose his own assignments.  He alleged that he was 
chosen  to  serve  as  an  XXXXXX  at  XXXXXX  because  of  his  good  performance  on  the 
cutter  and  his  race  (African  American)  and  that  he  stayed  focused  and  earned  a 
Commendation  Medal  because  he  believed  that  you  should  “bloom  where  you  are 
planted.” 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

 

 

The applicant alleged that the February 10, 1986, letter was “the dominant dis-
criminator” in his record and that it “tipped the scales” and prevented his selection in 
1996 and 1997. 
 

FINDINGS AND CONCLUSIONS 

  
1. 

 
 
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 Board has jurisdiction concerning this matter pursuant to section 1552 

 The applicant has proved by a preponderance of the evidence that, when 
his military record was reviewed by the CDR selection boards in 1996 and 1997, it con-
tained a copy of a February 10, 1986, form letter informing him that he had not been 
selected for promotion by the LT selection board that met in 1985.  The Chief Counsel 
has admitted that such letters are not supposed to appear in officers’ military records 
when they are reviewed by selection boards. 

2. 

Under  Engels  v.  United  States,  678  F.2d  173,  176  (Ct. Cl.  1982),  when  an 
applicant has proved that his military record was in error when it was reviewed by a 
selection  board,  the  Board  must  answer  the  following  two  questions  to  determine 
whether  he  is  entitled  to  have  the  failure  of  selection  removed  and  his  promotion 
backdated:  First, was his record prejudiced by the error in the sense that it appeared 
worse than it would have in the absence of the error?  Second, even if there was some 
such prejudice, is it unlikely that he would have been selected for promotion in August 
1999 in any event?  

 
3. 

 
4. 

 
 

 
 

For the following reasons, the Board finds that the presence of the Febru-
ary 10, 1986, form letter in the applicant’s record did not make his record appear signifi-
cantly worse than it would have without the letter: 

a) 

The  letter  was  more  than  ten  years  old.    Selection  boards  are 

instructed to focus upon only the most recent seven years of an officer’s record. 

b) 

The  letter  was  a  form  letter  with  no  negative  information  other 
than a statement indicating that the applicant was not selected for promotion to LT in 
1985.  His 1985 failure of selection was a fact that any selection board member would 
know just by observing how long he had served in the rank of lieutenant junior grade, 
which  is  information  readily  available  in  other  documents  in  his  military  record.  
Therefore, the letter did not inform the selection board members of anything that they 
could not learn from other sources in his record. 

 
 

 
5. 

 
6. 

c) 

 The  applicant  was  selected  for  promotion  to  LT  in  1986  and  to 
LCDR in 1991 despite the presence of the letter in his record.  As time passed, the signi-
ficance  of  the  letter  is  likely  to  have  diminished,  while  his  performance  evaluations 
improved. 

The Board also finds that, even if the letter had not been in the applicant’s 
record in 1996 and 1997, it is unlikely that he would have been selected for promotion in 
any event.  This is supported by the fact that in 1998 and 1999, the applicant still failed 
of  selection  even  though  (a)  the  letter  had  been  removed  from his record; (b) he had 
received  stronger  performance  evaluations  and  medals;  and  (c)  he  had  developed  a 
longer track record in a career field.   

Accordingly,  the  applicant  has  not  proved  that  the  February  10,  1986, 
letter caused his failures of selection in 1996 and 1997, and his request should be denied. 

 
 
is denied. 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

The application of XXXXXXXXXXXXXXXXX, for correction of his military record 

ORDER 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 

 
Harold C. Davis, M.D. 

 

 

 

 
Gareth W. Rosenau 

 

 

 

 
Gloria Hardiman-Tobin