DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-186 
 
  
   

 

 
 

FINAL DECISION 

 
AUTHOR:  Ulmer, D. 
 
 
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  application  was 
docketed on September 14, 2004, upon receipt of the applicant’s completed application 
and military records. 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  May  19,  2005,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  by  removing  an 
administrative remarks page1 (page 7) dated November 19, 1999, from his record. He 
further  requested  that  the  Board  remove  his  2002  and  2003  failures  of  selection  for 
promotion to lieutenant commander (LCDR). The applicant also requested backdating 
of  his  date  of  rank,  with  back  pay  and  allowances,  if  he  is  selected  for  promotion  to 
LCDR by the first board to consider him based on a corrected record.  (The applicant 
was selected for promotion to LCDR by the 2004 selection Board.) 
 
The Disputed Page 7 
 

                                                 
1   An administrative remarks page provides a means of recording miscellaneous entries, which are not 
recorded  elsewhere  in  a  Personnel  Data  Record  (PDR).    Administrative  Remarks  entries  are  made  to 
document counseling or to record any other information required by current directives, or considered to 
be of historical value.  Section 10.A. of the Pay and Personnel Manual (HIRSICINST M1000.6A) 

The  applicant's  record  contains  the  following  copy  of  a  page  7  with  the 

  
commanding officer's  (CO's) signature: 
 
"Entry Type:  Performance and Discipline (P&D-8) 
"Reference:  Section 8-B and 8-M, Personnel Manual, (M1000.6 (series)) 
"Responsible Level:  Unit 
"Entry: 
 
"19NOV99:  Necessary article of the Uniform Code of Military Justice (UCMJ), and the  
Code of Conduct explained this date as required by sections 8-B and 8-M, 
 
 
Personnel Manual, COMDTINST M1000.6 (series) 
 

 
 

APPLICANT’S ALLEGATIONS 

 
 
The  applicant  alleged  that  the  references  to  Article  8-B  (civil  arrests  and 
convictions) and Article 8-M (Support of Dependents) of the Personnel Manual on the 
page  7  created  the  erroneous  impression  in  his  record  that  he  had  encountered 
problems in these areas that required corrective counseling by the CO.  The applicant 
stated that he has never been arrested or convicted and that he did not have dependents 
at the time the page 7 was entered into his record.   
 

In addition, he argued that the page 7 is in error because it does not document 
the  unit  wide  training  on  inappropriate  personal  relationships,  as  direct  by  the  CO.   
According  to  the  applicant,  two  enlisted  individuals  were  taken  to  non-judicial 
punishment (NJP) for having an inappropriate romantic relationship.  At the NJP each 
claimed that they were not aware of the rules.  The applicant stated that the CO decided 
to  have  everyone  assigned  to  the  cutter  sign  a  copy  of  a  page  7  to  be  placed  in  the 
military  record  stating  that  he  or  she  had  been  counseled  on  the  contents  of  the 
Personnel  Manual  regarding  personal  relationships.    He  stated  that  the  page  7  in  his 
record is not the one he reviewed and signed because it does not contain his signature.   

 
The applicant argued that the disputed page 7 made his record appear as if he 
was involved in an adverse event, when in fact, no such incident occurred.  Therefore, 
his record as it appeared before the 2002 selection board was unfair and the page 7 was 
also the reason he was not selected for promotion to LCDR by the 2003 selection board. 
The  applicant  recognized  that  it  is  difficult  to  prove  a  negative,  but  stated  that  his 
officer  evaluation  reports  [OERs]  show  good  to  excellent  performance  with 
recommendations  for  promotion.    He  stated  that  he  received  the  Coast  Guard 
Achievement  Medal  for  his  performance  during  the  same  period  that  the  challenged 
entry was made.  The applicant further stated as follows: 
 

The references in the challenged form are errors.  The Precept for the 2002 
[LCDR] Board . . . compounds the effect of the error by emphasizing that 

the  requirements  for  selection  are  related  to  "personal  example"  of 
adherence  to  "honor,  respect,  and  devotion  to  duty."    The  errors  in  the 
challenged  form  appear  to  say  that  [the  applicant]  does  not  conform  to 
this standard.  Moreover, the February 2004 ALCGPERSCOM message  . . 
. reports that the Promotion Selections Boards are making decisions based 
on  evaluation  of  key  areas  of  performance,  particularly:    adherence  to 
policy on interpersonal relationships . . . and personal finances . . . These 
are areas directly related to the erroneous entries on the challenged form.   
 
 

 

VIEWS OF THE COAST GUARD 

 
On  January  24,  2005,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  the  applicant’s 
request. 
 
 
The JAG stated that the applicant failed to carry his burden of production and 
persuasion and did not show that the page 7 was improperly entered into his record.  In 
this regard, he stated that the applicant had offered no evidence that the Coast Guard 
committed an error or injustice.  He stated that to the contrary, the record shows that 
the page 7 was prepared in accordance with the governing regulation at that time.  He 
stated that: 
 

Commandant  Instruction  1000.14A,  Preparation  and  Submission  of 
Administrative Remarks (CG-3307) was in effect at the time the page 7 in 
question  was  prepared.    That  instruction  provided  specific  guidance  for 
the completion of each type of Coast Guard Form 3307 entry.  The [page 7] 
dated 19 November 1999 in the applicant's record conforms exactly to the 
guidance  in  Commandant  Instruction  1000.14A.    .  .  .    According  to  that 
instruction,  a  member  receiving  the  particular  entry  of  which  Applicant 
complains is not required to sign an acknowledgement statement . . . Had 
the page 7 entry been meant to document misconduct, it would have been 
prepared differently and would have required applicant's signature.   

 
 
The  JAG  stated  that  the  applicant's  speculation  that  the  selection  board  would 
not  know  the  true  intent  of  the  form  and  infer  that  it  was  placed  in  the  applicant's 
record  because  of  suspected  misconduct  is  not  supported  by  the  evidence  and  is 
contrary  to  the  presumption  of  regularity  afforded  the  Coast  Guard.    He  stated  that 
selection  boards  are  instructed  in  their  precept  to  confine  themselves  to  matters  of 
record and not to act on hearsay or rumor.  "It would be completely inappropriate for 
the Board to assume that the presence in Applicant's record of a page 7 documenting 
unit-wide  training  and  prepared  in  accordance  with  governing  instructions  was 

erroneously  interpreted  by  two  promotions  boards  as  evidence  of  the  applicant's 
misconduct." 
 
The  JAG  stated  that  the  following  evidence  in  the  applicant's record  may  have 
 
led the two selections boards to properly decide that the applicant was not among those 
"best qualified" for promotion to LCDR: 
 

Prior to the 2003 [LCDR] board, the applicant received three [OERs], each 
covering a one-year period for service as Engineer Officer aboard [a Coast 
Guard cutter].  There is a decline in several performance dimensions from 
the  first  evaluation  of  the  tour  and  the  second.    The  same  commanding 
officer  served  as  reporting  officer  for  both  evaluations.    The  third 
evaluation on [the cutter] shows improvement in some areas, but declines 
in three performance dimensions (Evaluations, Judgment, and Health and 
Well being) . . .  
 
An additional, and most significant, area of the officer evaluation is block 
nine.    In  this  block,  the  reporting  officer  compares  the  individual 
evaluated with all the other officers of that grade they have known in their 
career.  Applicant's marks in block nine shifted downward from a mark of 
excellent  performer  to  a  mark  of  good  performer  between  his  first  and 
second evaluation aboard [the cutter].  This downward shift came late in 
Applicant's  service  as  a  [LT],  and  Applicant  remained  at  the  lower 
number, even with a  new [CO] in the applicant's third year as Engineer 
Officer.  
 
With a stated opportunity selection of 88% during both the 2002 and 2003 
lieutenant  commander  selection  boards,  there  was  a  requirement  to  not 
select 93 and 127 candidates respectively.   Although the deliberations of a 
selection board are confidential and the exact reason(s) Applicant was not 
selected  each  year  are  known  only  by  the  members,  Applicant's 
downward  trend  in  marks  and  the  overall  comparison  scale  decrease  to 
good performer as documented by two reporting officers provide a much 
more  rational  explanation  for  Applicant's  failures  to  select  than 
Applicant's assertion that they were caused solely by a properly prepared 
page 7 documenting unit training.   

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  January  27,  2005,  the  BCMR  sent  the  applicant  a  copy  of  the  views  of  the 
Coast Guard, to which he responded on February 28, 2005.  The applicant did not agree 
with the advisory opinion.  
 

 
The applicant acknowledged that on the surface, the page 7 appears to have been 
properly  prepared,  but  he  continued  to  argue  that  its  content  is  erroneous  due  to 
incorrect references to sections of the Personnel Manual and UCMJ that were allegedly 
explained  to  the  applicant.    He  stated  that  the  Coast  Guard  ignored  the  applicant's 
sworn statement that the subject of the unit training was inappropriate relationships not 
civil  convictions  and  non-support  of  dependents.    The  applicant  pointed  out  that  his 
affidavit is the only testimonial evidence in the case.   
 
 
With  respect  to  his  allegation  that  the  page  7  was  not  inserted  into  everyone's 
record as directed by the CO, the applicant stated that the Coast Guard has access to 
these records and could have  checked them to determine whether they contained the 
same page 7.  Since no such evidence was submitted the reasonable conclusion is that 
the Coast Guard cannot refute the applicant's statement in this regard, and the Board is 
free to draw reasonable inferences from the evidence submitted.   
 
 
The applicant argued that the error in the content of the page 7 occurred because 
it  was  taken  verbatim  from  the  example  provided  for  preparing  page  7's  in 
COMDTINST  1000.14A,  without  making  the  necessary  modifications  to  reflect  the 
direction of the CO.   
 
 
The applicant asserted that the page 7's inference that his conduct required the 
CO to explain to him the unacceptability of "Civil Arrest and Conviction" and failure of 
"Support  of  Dependents"  is  certainly  shocking  to  any  reasonable  sense  of  justice.  He 
stated that the errors, which created the injustice, merit correction.   
 
 
With respect to the request for removal of his failures of selection, the applicant 
stated  that  under  United  States  v.  Engels,  678  F.2d  173  (Ct.  Cl.  1982),  it  need  not  be 
proven 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.  
  

APPLICABLE LAW 

 
Personnel Manual (COMDTINST M1000.6A) 
 
 
From  February  2,  1997  to  the  present,  the  Personnel  Manual  contained  a 
discussion of the Code of Conduct and the UCMJ under Article 8-A, a discussion of civil 
arrest  and  conviction  under  Article  8-B,  and  a  discussion  of  support  of  dependents 
under  Article  8-M.    Prior  to  February  2,  1997,  Article  8-B  discussed  the  UCMJ  and 
Article 8-M discussed Code of Conduct for Member of the United States Armed Forces.   
 
Provisions in Effect in 1997 and Forward 
 

Article 8.A.4.a. states that the Code of Conduct for members of the United States 

 
Armed Forces shall be explained to each member upon entry into active duty. 
 
Article  8.A.4.b.  states  that  Article  137  (UCMJ)  and  sexual  and  homosexual 
 
conduct  policies  shall  be  explained  upon  entry  onto  active  duty  and  again  after  the 
member has completed six months of active duty, and periodically thereafter, including 
upon reenlistment.  It further provides that for Article 137 briefings only, an entry will 
be made on a page 7 in the member's Personnel Data Record.      
 

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  submissions,  and 
applicable 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 under Detweiler v. Pena, 
38 F.3d 591, 598 (D.C. Cir. 1994) (holding that section 205 of the Soldiers’ and Sailors’ 
Civil Relief Act of 1940 “tolls the BCMR’s limitations period during a servicemember’s 
period of active duty”). 
 

2.  The applicant requested an oral hearing before the Board.  The Chair, acting 
pursuant to 33 C.F.R. § 52.31, denied the request and recommended disposition of the 
case without a hearing.  The Board concurs in that recommendation. 
 
 
3.    By  virtue  of  the  CO's  signature,  the  page  7  appears  to  have  been  properly 
placed in the applicant's record to document unit wide training on a particular issue.  
The dispute is  whether the contents of the disputed page 7 accurately reflect the unit 
wide training as directed by the CO.   
 
4.  The  applicant's  statement  alone,  albeit  sworn,  does  not  persuade  the  Board 
 
that  the  page  7  should  be  removed  from  the  applicant's  record  because  it  does  not 
reflect training on inappropriate romantic relationships as allegedly directed by the CO.  
Even  if  the  CO  had  directed  that  page  7s  documenting  training  on  inappropriate 
relationships  be  placed  in  the  records  of  all  members  of  the  unit,  such  would  not 
establish  that  he  did  not  authorize  the  disputed  page  7  be  placed  in  records  to 
document training on the UCMJ and Code  of Conduct.   The training documented by 
the entry -- Code of Conduct and UCMJ training -- is permissible under the Personnel 
Manual and training on the subject matter is required.  However, the page 7 contains an 
inconsistency because it references Articles of the Personnel Manual that do not discuss 
Code of Conduct and UCMJ training.  
 

 
5.  The body of the page 7 states that the  "necessary articles of the Uniform Code 
of  Military  Justice  .  .  .  and  the  Code  of  Conduct  explained  this  date  as  required  by 
sections 8-B and 8-M, Personnel Manual . . ." However, under the Personnel Manual as 
it existed on November 19, 1999, Articles 8-B discusses civil arrest and convictions and 
Article  8-M  discusses  support  for  dependents.    Article  8-A  discusses  the  UCMJ  and 
Code of Conduct training.  So, it is clear that the page 7 references to Article 8-B and 
Article 8-M of the Personnel Manual are not correct.   
 

6.  The correct reference for the training documented by the page 7 is Article 8-A 
of the Personnel Manual, which discusses the Code of Conduct and the UCMJ training.  
Specifically, Article 8.A.4.b. reads as follows: 
 

Both  Article  137  and  sexual  and  homosexual  conduct  policies  shall  be 
explained  again  after  the  member  has  completed  six  months  of  active 
duty, and periodically thereafter, including upon reenlistment.  For Article 
137  [UCMJ]  briefings  only,  an  entry  will  be  made  on  an  Administrative 
Remarks Sheet, CG-307, in the members Personal Data Record.   

 
 
7.    Prior  to  February  3,  1997,  Article  8-B  and  8-M  of  the  Personnel  Manual 
referenced the Code of Conduct and the UCMJ.  However on February 3, 1997, Change 
26 to the Personnel Manual revised Article 8, and the discussion about the UCMJ and 
Code of Conduct training were relocated to Article 8-A from Article 8-B and 8-M; and 
the  content  dealing  with  civil  arrests  and  convictions  was  moved  to  Article  8-B  from 
Article  8-C,  and  the  content  dealing  with  support  of  dependents  was  moved  from 
Article 8-G to 8-M.   
 
 
8.    The  Coast  Guard  argued  that  the  page  7  was  prepared  as  required  by 
COMDTINST  1000.14A  (Preparation  and  Submission  of  Administrative  Remarks).  
However,  the  Coast  Guard  seemingly  relied  on  a  sample  page  7  entry  documenting 
Code of Conduct and UCMJ unit training contained in Enclosure (5) to the instruction 
as  issued  on  April  17,  1995.      Apparently,  COMDTINST  1000.14A  was  issued  before 
Change  26  to  the  Personnel  Manual  and  was  not  updated  until  April  27,  2000.    The 
current version of this instruction revised the sample Page 7 to show Article 8.A. as the 
reference for documenting unit wide training on the UCMJ and the Code of Conduct.    
 
 
9.  In light of the above, the page 7 contains a minor error by referencing Articles 
8-B and Article 8-M of the Personnel Manual.  Therefore, the question is  whether the 
applicant was prejudiced before the 2002 and 2003 LCDR selection boards by this error.  
To resolve this issue, the Board must apply the test set out in Engels v. United States, 678 
F.2d 173, 175-76 (Ct. Cl. 1982).  In Engels the Court of Claims held that, if the Board finds 
that an officer’s record contained an error when it was reviewed by a selection board, 
the Board should decide whether the officer’s failure of selection for promotion should 
be removed by answering 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?”  
 
 
10.    The  Board  finds  that  the  applicant's  record  did  not  appear  worse  than  it 
would have in the absence of the error.  Therefore the applicant suffered no prejudice 
when his record was reviewed by the 2002 and 2003 selections boards.  In this regard, 
the explanation for the training documented by the page 7 would have been the same; 
however  the  reference  would  have  been  to  Article  8-A  rather  than  8-B  and  8-M.  The 
point is that the page 7 reflects that the unit, including the applicant, received training 
on the UCMJ and the Code of Conduct on November 19, 1999.  Civil arrest, conviction, 
and support of dependents is not discussed anywhere in the explanation of the page 7.  
As the Coast Guard stated, if the applicant had received personal counseling in these 
areas, he would have been required to acknowledge the page 7 with his signature.  His 
signature was not required on the disputed page 7 because it was a unit wide training 
entry.  In addition, the Board notes that the reference line on the page 7 does not state 
the  words  "arrest  and  civil  convictions"  or  "support  of  dependents".      It  merely 
references "Section 8-B and 8-M, Personnel Manual." 
 
 
11.  Documenting unit wide training on page 7s occurs frequently in the Coast 
Guard.  Certainly, if the applicant had required personal counseling on civil arrest and 
convictions and/or support of dependents, it would have been reflected in the marks 
and  comments  on  his  OERs,  which  it  is  not.    The  applicant's  OERs  reflect  average  to 
above  average  performance,  with  recommendations  for  promotion.  Accordingly,  the 
Board finds that the applicant's record did not appear worse than it would have in the 
absence of the error and that he suffered no prejudice before the 2002 and 2003 selection 
boards.  The Board's finding in this regard is supported by the fact that the applicant 
was selected for promotion to LCDR in 2004 with the page 7 in his record.   
 

12.  Since the Board has determined that the error on the page 7 is of a minor and 
harmless  nature,  no  corrective  action  will  be  ordered.    Accordingly,  the  applicant’s 
request should be denied.  
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
 
 
 

The application of _______________________, for correction of his military record 

ORDER 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 

 

 
 William R. Kraus 

 

 

 
 Dorothy J. Ulmer 

 

 

 
 George A. Weller 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

is denied.