DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-095 
 
Xxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
 
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 BCMR docketed this 
case on April 15, 2004, upon receipt of the applicant’s completed application. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated January 13, 2005, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS  

 
 
The applicant, an ensign in the Coast Guard Reserve, asked the Board to correct 
his  record  by  expunging  his  failure  of  selection  to  lieutenant  junior  grade  (LTJG); 
ordering the Coast Guard to reconvene a selection board to consider him for promotion; 
and, if he is selected for promotion, backdate his date of rank and award him backpay 
and allowances.  
 
 
The applicant alleged that when the LTJG selection board convened on August 
25, 2003, an officer evaluation report (OER) was missing from his record.  He alleged 
that he initiated timely preparation of an OER, but his rating chain did not believe one 
was  due  until  September  2003.    However,  in  August  2003,  before  the  selection  board 
convened,  the  Coast  Guard  Personnel  Command’s  Reserve  Personnel  Management 
Division (CGPC-rpm) told his command to prepare the OER for him.  He alleged that 
the  OER  was  completed  by  his  rating  chain  on  August  22,  2003,  and  sent  by  Federal 
Express  the  same  day  to  CGPC.    However,  on  November  18,  2003,  his  commanding 
officer (CO) informed him that CGPC did not have the OER.  His executive officer (XO) 
told him that CGPC had received the OER on August 26, 2003, but had misplaced it. 

 
 
In support of his allegations, the applicant submitted a letter from his CO.  The 
CO stated that prior to August 2003, the applicant had inquired about preparation of an 
OER but was told that one was not yet required.  However, on August 20, 2003, CGPC-
rpm contacted the command and stated that an OER for the applicant was missing.  The 
CO stated that the rating chain completed the OER in two days and sent it to CGPC-
rpm  by  Federal  Express  on  August  22,  2003.    However,  on  October  23,  2003,  the 
command was informed by CGPC-rpm that the OER was still missing.  The command 
contacted Federal Express to track the package and learned that it had been signed for 
by someone at CGPC on August 25, 2003.  Since CGPC could not locate it, the command 
provided another copy.  The CO further stated that  
 

[t]he  night  before  the  November  19,  2003,  convening  of  the  LTJG  Selection  Board,  [the 
applicant]  was  contacted  by  the  Command  at  his  home  and  told  that  CGPC-RPM  still 
[had] not located his OER. … [On November 19, 2003, the] Command contacted CGPC-
RPM  and  found  that  his  package  was  misplaced  but  had  recently  been  located  and 
informed [the applicant] accordingly.  That was the last that [he] had heard regarding his 
OER and assumed that he would be on schedule for his upcoming promotion in January 
2004.   

 
However,  the  CO  stated  that on  January  5, 2004,  it  was  discovered  that the  OER  had 
never been entered in the applicant’s record.   
 
 
The applicant also submitted an affidavit by an Administrative Assistant at his 
command.    She  stated  that  the  OER  was  sent  to  CGPC-rpm  by  Federal  Express  on 
August 22, 2003; that she was told by CGPC-rpm on October 23, 2003, that the OER was 
still missing; that Federal Express advised her that it had been signed for at CGPC on 
August 25, 2003; and that she faxed another copy of the OER to CGPC-rpm on October 
23, 2003.   
 
 
The  applicant  also  submitted  a  Federal  Express  tracking  sheet,  which  confirms 
receipt of the OER package by CGPC on August 25, 2003, and a copy of the cover sheet 
by  which  the  Administrative  Assistant  faxed  the  OER  to  CGPC-rpm  on  October  23, 
2003.  The applicant also submitted a copy of the OER, which shows that he completed 
his part of it on July 15, 2003, and that it was signed by his CO on August 22, 2003.  The 
CO noted in the OER that the applicant was “highly recommended” for promotion to 
LTJG. 
 

VIEWS OF THE COAST GUARD 

 
 
On July 20, 2004, the Judge Advocate General (TJAG) of the Coast Guard submit-
ted an advisory opinion recommending that the Board grant relief in this case.  TJAG 
attached and adopted a memorandum on the case prepared by CGPC.   
 

 
CGPC stated that a date stamp on its copy of the OER shows that it was received 
by  CGPC-opm-3—which  handles  active  duty  officer  promotions  rather  than  Reserve 
officer  promotions—on  September  26,  2003,  and  that  “CGPC-rpm  validated  the  OER 
and processed it for inclusion in Applicant’s record on 28 Oct 2003.” 
 
 
CGPC stated that paragraph 1.J.4 of ALCGPERSCOM 032/03 required the appli-
cant’s command to submit an OER for him for a reporting period that began on August 
1, 2002—when the applicant received his commission—and ended on June 30, 2003, but 
the command failed to do so.  Because the OER was not entered timely in his record, 
there was no OER at all when his record was reviewed by the selection board in August 
2003.  CGPC stated that “it is likely that Applicant would have been selected for LTJG if 
his  OER  had  been  reviewed  by  the  LTJG  promotion  board.”    CGPC  noted  that  LTJG 
selection  boards  select  for  promotion  all  officers  “whose  records  indicate  they  are 
qualified to perform all duties to which they reasonably might be assigned in the grade 
for which they are being considered.”  
 
 
CGPC  recommended  that  the  BCMR  grant  the  applicant’s  request  and  that  a 
special selection board1 been convened at the “earliest practical opportunity to consider 
Applicant for promotion to LTJG.”   CGPC also recommended that, if the applicant is 
selected for promotion, his date of rank be backdated to what it would have been had 
he been selected for promotion in August 2003 and that backpay be authorized.  
 
 
Upon inquiry by the Board staff on January 6, 2005, CGPC stated that the appli-
cant was considered for promotion in November 2003, was selected for promotion, and 
was promoted to LTJG on September 29, 2004.  
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  July  20,  2004,  the  BCMR  sent  the  applicant  a  copy  of  the  Coast  Guard’s 
advisory opinion and invited him to respond within 30 days.  The applicant responded 
on July 28, 2004, indicating that he agreed with the recommended relief. 
 

FINDINGS AND CONCLUSIONS 

 

                                                 
1  Upon inquiry by the BCMR staff, TJAG stated that the advisory opinion was in error because the Coast 
Guard  has  no  regulations  for  convening  special  selection  boards.    Heretofore,  when  this  Board  has 
removed  an  officer’s  failure  of  selection,  it  has  ordered  the  Coast  Guard  to  place  the  officer’s  record 
before the next regularly convened selection board and, if he is selected for promotion, to backdate the 
applicant’s date of rank to what it would have been had he been selected for promotion by the board that 
reviewed his record when it was incomplete or erroneous. 
 

 
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 appli-
cable law: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10 of the United States Code.  The application was timely. 
 

2. 

The  applicant  has  proved  by  a  preponderance  of  the  evidence  that  the 
Coast Guard misplaced his OER and that his record therefore lacked the only OER that 
had  been  prepared  for  him  since  his  appointment  as  a  Reserve  officer  when  he  was 
considered for promotion to LTJG in August 2003.  To determine whether his failure of 
selection should be removed because his record was incomplete when reviewed by the 
August 2003 LTJG selection board, the Board must answer 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 [the applicant] would have been promoted in any event?” 
Engels  v.  United  States,  678  F.2d  173,  176  (Ct. Cl.  1982).    The  Board  finds  that  the 
applicant’s record was clearly prejudiced by the lack of the OER.  Moreover, since his 
CO had highly recommended him for promotion in that OER, it is likely that he would 
have  been  promoted.    Therefore,  the  applicant’s  failure  of  selection  in  August  2003 
should be removed from his record. 

 
3. 

The applicant has already been promoted to LTJG.  The Board’s policy in 
such cases is to backdate an applicant’s date of rank to what it would have been had he 
been  selected  for  promotion  by  the  board  that  reviewed  his  record  when  it  was 
incomplete or erroneous.2  Accordingly, this is the relief that should be granted in this 
case. 

 
4. 

 
Therefore,  the  applicant’s  record  should  be  corrected  by  removing  his 
failure of selection in August 2003.  His date of rank as a LTJG should be corrected to 
what it would have been had he been selected for promotion in August 2003, and he 
should receive any backpay and allowances due. 
 
 
 
 

 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
 

                                                 
2 See, e.g., BCMR Docket Nos. 2004-046, 2002-007, 2001-041, 2001-029, 2000-128, 2000-016, 1999-142, 1998-
073, 1998-018. 

The application of xxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCGR, for correction of his 

military record is granted as follows: 

ORDER 

 

 
 

 
 

 
 

 

 

 
 

 
 

 
 

 
 
 Nancy L. Friedman 

 
His  failure  of  selection  for  promotion  to  LTJG  by  the  Reserve  (IDPL)  selection 
board that convened in August 2003 shall be removed from his record.  His date of rank 
as  a  LTJG  shall  be  corrected  to  what  it  would  have  been  had  he  been  selected  for 
promotion  by  the  IDPL  selection  board  that  convened  in  August  2003,  and  he  shall 
receive any backpay and allowances due as a result of this correction.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 Eric J. Young 

 
 

 

 
 William R. Kraus