DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-101 
 
XXXXXXXXXXXXXXX 
xxxxxxxxxxxxx, CDR  
   

 

 
 

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 April 29, 2005, 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 March 8, 2006, is signed by the three duly appointed 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  as  follows:    "(1) 
Expunge  from  his  record  the  2003  non-selection  for  promotion  to  Commander;  (2) 
Adjust  his  date  of  rank  as  a  Commander  to  01  September  2004;  (3)  Award  him  the 
appropriate back pay and allowances corresponding to a 01 September 2004 promotion 
to  Commander,  for  those  drills  and  active  duty  days  served  since  that  date  as  a 
Lieutenant  Commander  (LCDR);  (4)  Offer  him  the  opportunity  to  integrate  into  the 
regular  forces;    (5)  If  he  integrates,  award  him  the  rank-appropriate  active  duty  back 
pay and allowances and active duty credit for the periods he was demobilized, as if he 
was serving on active duty on those days." 
 

BACKGROUND 

 

The applicant graduated from the Coast Guard Academy and was commissioned 
 
as a regular officer in the grade of ensign on May 24, 1989.  He served continuously on 

active  duty  until  voluntarily  resigning  his  commission  on  August  4,  2001,  having 
attained the rank of LCDR.   
 

On  August  5,  2001,  the  applicant  accepted  a  Reserve  commission  in  the  same 
grade, LCDR.  He served in the Individual Ready Reserve (IRR) until June 24, 2002.  On 
May 21, 2002, the applicant signed a three-year active duty agreement, which called for 
active duty service to begin June 25, 2002 and terminate on June 30, 2005.  The contract 
stated that the applicant would remain on active duty for the term of the contract unless 
the Coast Guard agreed to a request by the applicant to be released from the active duty 
obligation, or until the applicant was involuntarily released after review by a board of 
officers.    The  agreement  further  stated,  "A  Contractor  who  is  involuntarily  released 
from active duty prior to the expiration of the period of service under this agreement 
[limited  exceptions  noted],  is  entitled  to receive  an  amount  equal  to  one  month's  pay 
and  allowances  multiplied  by  the  unexpired  number  of  years  remaining  under  this 
agreement.    Such  amount  to  be  in  addition  to  any  pay  and  allowances,  which  [the 
applicant] may otherwise be entitled to receive . . ." 

 
On August 3, 2003, the applicant was considered for promotion to CDR on the 
ADPL,  but  was  not  selected  for  promotion  to  that  grade.      In  February  2004,  the 
applicant filed a request with the Personnel Records Review Board (PRRB) challenging 
the two officer performance reports (OERs) discussed below.   

 
On May 18, 2004, the applicant was voluntarily released from active duty back 
into the Reserve, as evidenced by a DD Form 214, having served one year, ten months, 
and twenty-four days of his three-year active duty agreement.  On August 2, 2004, he 
was selected for promotion to CDR by the inactive duty promotion list (IDPL) Reserve 
Board. Subsequently, the applicant was involuntarily recalled to active duty on August 
9, 2004, and served until March 31, 2005.    
 
PRRB Proceedings 

 

The applicant's requests before this Board are based on the relief granted to him 

 
on May 17, 2004, by the PRRB.  
 
Contested OER No. 1 
 
Prior  to  corrective  action  by  the  PRRB,  the  OER  for  the  period  June  9,  2001  to 
 
August 4, 2001 (hereafter referred to as the terminal leave OER), covering only 57 days 
of terminal leave, was marked as a "Detachment of Officer" OER, with all performance 
categories  marked  as  non-observed.    Block  2.,  description  of  duties  contained  the 
following comments:  "Legal Advisor, Office of Law Enforcement.  Report submitted for 
continuity  only.    [The  applicant]  on  leave  the  entire  period  in  conjunction  with  his 
release from active duty." 

 

The  applicant  asked  that  the  terminal  leave  continuity  OER  be  expunged  from 
his record and that the time covered by that OER be reflected in the regular OER for the 
period August 1, 2000 to June 8, 2001 by changing the end date of the regular OER to 
August  4,  2001.      He  also  asked  that  the  occasion  for  the  regular  OER  be  changed  to 
"Detachment of Officer" and the commendation medal dated June 19, 2001 be attached 
to the regular OER. 
 
 
The  PRRB  granted  the  applicant's  request  and  concluded  that  two  OERs  (the 
regular  OER  and  the  terminal  leave  continuity  OER)  incorrectly  accounted  for  the 
applicant's performance during what  personnel policy dictated should have been one 
reporting period, from August 1, 2000 to August 4, 2001.   
 
Contested OER No. 2 
 
 
The applicant challenged the OER for the period August 5, 2001 to June 24, 2002 
(hereafter referred to as the IRR OER).  Prior to corrective action by the PRRB, this OER 
showed  CG  Group  Moriches  as  the  applicant's  unit,  was  marked  as  a  detachment  of 
officer  OER,  showed  non-observed  performance  marks,  and  contained  the  following 
comment  in  block  2.,  description  of  duties:    "Reserve  Officer:    Report  submitted  for 
continuity only.  Member did not drill with unit during the reporting period.  Member 
transferred 2002/06/24 to begin 3 year Extended Active Duty contract."  
 
The Applicant asked the PRRB to remove the Reserve OER and replace it with a 
 
new continuity OER for the same period, to include a corrected reporting date of May 
16, 2002 rather than August 5, 2001 and to enhance the comment "Member did not drill 
with  unit  during  the  reporting  period"  in  block  2.,  description  of  duties  with  the 
following: 
 

Report  is  for  continuity  purposes  only.    Chronology:    05Aug01-MBr 
accepted  Reserve  Commission.    06  Aug01  -  Mbr  began  Actively  seeking 
RSV  assignment  via  cognizant  ISC  (FOT).    18DEC01  -  Not  having  been 
assigned  a  RSV  billet,  Mbr  submitted  EAD  request  via  nearest  unit  CO 
(GP  Moriches).    28  March02  -  Never  having  been  assigned  a  RSV  billet, 
Mbr issued 3 year EAD orders to report in July to GP LA-LB.  16 May02 - 
ISC  (FOT)  admin-assigned  MBR  to  GP  Moriches  for  processing  of  EAD 
PCS  paperwork/advances.    24Jun02  -  Mbr  began  EAD  service  and  PCS 
travel.    04Jul02  -  Mbr  reported  to  Extended  Active  Duty  as  Ops  at  GP 
LALB.   

 

The PRRB removed the IRR OER and replaced it with a new IRR continuity OER 
that showed the IRR as the applicant's unit, showed annual/semiannual as the occasion 
for  the  OER,  and  revised  comments  in  block  2.,  description  of  duties  as  follows:  

"Submitted  for  continuity  purposes  only  IAW  Article  10.A.3.a.5.a.    ROO  is  in  IRR.  
Chronology:  05 Aug 01 - Member Accepted Reserve Commission.  16 May 02 - Member 
administratively  assigned  to  CG  GP  Moriches.    25  Jun02  -  member  entered  into  EAD 
contract.    IDT  drills  scheduled:    0/0;  ADT:0/0;  ADSW:  0  days."    The  PRRB  did  not 
change the starting date as requested by the applicant. 

 
 
In  granting  relief on  the  IRR OER,  the  PRRB  found  that  the OER  contained  an 
incorrect reporting date and discovered upon further review that it was prepared by the 
wrong rating chain. Apparently, CG Moriches should not have prepared an OER at all 
because the applicant was still in the IRR even though he was administratively assigned 
to Coast Guard Moriches for a portion of the reporting period.  With respect to these 
errors the PRRB stated, "[the applicant] has met his burden of presenting evidence of 
clear  material  errors  of  objective  fact."    The  PRRB  further  concluded  that  the 
"Description  of  Duties"  on  the  Reserve  OER  "could  be  subject  to  misinterpretation  by 
any  selection  board  and  should  be  replaced."    Elaborating,  the  PRRB  stated  that 
although  the  description  of  duties  as  written  in  the  OER  is  permissible,  for  those 
unfamiliar with Reserve policy, particularly as it relates to an IRR officer, the comment 
could  be  misinterpreted  as  the  applicant  alleged.    The  applicant  alleged  the  original 
comment could have been misinterpreted as him being AWOL during drills.  

  

APPLICANT’S CURRENT ALLEGATIONS 

 
 
The  applicant  alleged  that  his  2003  ADPL  failure  of  selection  for  promotion  to 
CDR should be removed from his record.  He argued that the circumstances of his non-
selection  by  the  2003  ADPL  board,  the  record  correction  by  the  PRRB,  and  his 
subsequent  selection  for  promotion  by  the  2004  IDPL  selection  board  satisfy  the  two-
step  standard  set  out  in  Engels  v.  United  States,  68  F.2d  173,  175  (Ct.  Cl.  1982),  for 
determining whether an officer is entitled to relief for being wrongfully passed over for 
promotion.  The applicant stated that in Engels the Court articulated that standard to 
be:   
 

Applicant "must first show that the service committed a legal error.  For 
those cases, like this one, in which the challenge rests on defective OERs 
or an incomplete or inadequate military record, the next question for us is 
whether the error is causally linked with the passover [sic] - in summary 
terms, was it prejudicial or harmless?" 

 
 
The  applicant  stated  that  once  error  has  been  established,  in  order  to  prevail, 
Engels requires that he makes a prima facie showing of a causal connection between the 
error  and  the  failure  of  selection.    In  making  this  point,  he  continued  to  quote  from 
Engels, as follows:   
 

On the second step-the causal nexus- * * * plaintiff [here the applicant], to 
prevail,  must  make  at  least  a  prima  facie  showing  of  a  substantial 
connection between the error and the passover [sic].  But the end-burden 
of persuasion falls to the Government to show harmlessness-that, despite 
the  plaintiff's  prima  facie  case,  there  was  no  substantial  nexus  or 
connection.  Engels at 175.  

  
 
The  applicant  stated  that  in  evaluating  whether  a  causal  link  or  nexus  exists 
between the error and the failure of selection, the Engels Court subdivided this step into 
two prongs, applying 
 

two separate but interrelated standards:  First, was the claimant'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 he would have been promoted in any event?  
Engels at 176 citing e.g., Hary v. United States, 618 F.2d 704, 710 (Ct. Cl. 
1976).   

 
 
With respect to the above standard, the applicant argued that he has shown by a 
preponderance of the evidence, as concurred in by the PRRB, that his record contained 
errors when the 2003 ADPL selection board considered it.  In support of this contention, 
he quoted from the Findings of the PRRB decision that the terminal leave OER for the 
period  June  9,  2001  to  August  4,  2001,  "conflicted  with  Personnel  Manual  policy  on 
accounting for terminal leave," and concluded that "[t]wo OERs incorrectly accounted 
for  applicant's  performance  during  what  Personnel  Policy  dictates  as  one  reporting 
period [from August 1, 2000 to August 4, 2001].  The applicant further stated that the 
PRRB found that the IRR OER for the period August 5, 2001 to June 24, 2002, "conflicts 
with Personnel Manual Policy for continuity OERs" and concluded 
 

"Applicant is correct in his assertion that the OER was not properly prepared 
in accordance with OER guidance describe [in the Personnel Manual].  He 
has met his burden of presenting evidence of clear, material errors of objective fact  
. . . In addition, as a result of staff review of  his request to the PRRB, the 
Board finds material error in submittal of a report by the wrong reporting chain." 
. . .  [Emphasis in applicant's brief].   

 
 
The applicant further alleged that the PRRB recognized that he did not have "a 
substantially and complete and fair record" before the 2003 selection.  In this regard, he 
quoted  the  following  from  Horn  v.  United  States.    671  F.2d  1328,  1330  (Ct.  Cl.  1982) 
citing Sanders v. United States, 594 F.2d 804, 814 (Ct. Cl. 1979): "Regulations prescribe 
that OERs are to be objective and prepared in a certain way.  If a particular officer's OER 
has  not  been  so  prepared  and  that  defect  could  have  resulted  in  his  nonselection  for 
promotion followed by discharge, this is legal and factual error and an injustice to the officer 

as well."   Sanders at 814 [emphasis added by applicant]. The applicant stated that the 
PRRB conceded that the IRR OER "could have resulted in [his] nonselection," because it 
could  have  been  misinterpreted  as  an  accusation  that  the  applicant  was  AWOL  from 
drills at Group Moriches, when in fact, as a member of the IRR, he was not assigned to 
drill at all.   
 
 
In  applying  the  first  prong  of  the  Engels  test  to  determine  prejudice,  the 
applicant  argued  that  he  has  shown  that  his  record  before  the  2003  ADPL  selection 
board looked worse than it would have in the absence of the errors.  In this regard, he 
argued that the IRR OER comment "member did not drill with unit during the reporting 
period" in the block 2. (description of duties) combined  with the inaccurate reporting 
date, was subject to misinterpretation by a promotion board.  As previously stated, he 
argued  that  one  could  infer  that  he  was  AWOL  during  this  period.      He  argued  the 
following  PRRB  opinions,  conclusions,  and  recommendations  support  his  contention 
that  the  uncorrected  IRR  OER  made  his  record  appear  worse:  "[f]or  those  unfamiliar 
with OER policy as it applies to Reserve officers, particularly to IRR officer who have no 
training requirement, [the comment] could be misinterpreted as the applicant claims";  
and "the description of duties on [the uncorrected OER] as written could be subject to 
misinterpretation by any selection board and should be replaced."  
 
 
In addition, the applicant contended that the terminal leave OER covering only 
57 days of terminal leave created unnecessary white space in his record.  He argued that 
conventional wisdom holds that the unnecessary white space has the potential for being 
misinterpreted, giving unfavorable implications to a promotion board.  He stated that 
the  Chief,  Reserve  Personnel  Management  Division  of  the  Coast  Guard  Personnel 
Command confirmed his assessment of "white space" by writing an article in the Coast 
Guard Reservist magazine indicating that commands should "endeavor 'to prepare an 
OER  that  is  substantive,  minimizes  white  space  .  .  .  and  yet  still captures  meaningful 
impact.'"  The applicant argued that he has  shown that the alleged extraneous "white 
space" caused his record to appear worse before the 2003 ADPL selection board.   
 
 
With respect to the second prong of the Engels test, the applicant argued that it is 
not  unlikely  that  he  would  have  been  promoted  in  any  event  by  the    2003  ADPL 
selection board with a corrected record and the Coast Guard cannot carry its burden of 
proving otherwise.  In support of his contention, he offered the following proof:  (1) he 
was considered by a selection board based on a record that the Coast Guard admitted 
contained prejudicial error; (2) he was passed over for promotion by that board; (3) the 
Coast Guard corrected his record by removing or repairing the prejudicial errors; and 
(4)  he  was  selected  for  promotion  by  the  first  board  to  consider  him  based  on  a 
corrected record.    
 
  
Moreover,  the  applicant  stated  that  it  is  an  indisputable  fact  that  his  corrected 
record was strong enough to earn selection for promotion to CDR, as evidenced by his 

actual selection after his record was corrected.   In addition he argued that the second 
selection had a lower "stated in-zone opportunity for selection" and a lower "actual in-
zone opportunity for selection" than the first board.  The actual opportunity of selection 
for the first (ADPL) board was 69.9%% and the actual opportunity of selection for the 
second  (IDPL)  board  was  62.5%.    Therefore,  the  applicant  argued  that  he  overcame 
greater  odds  in  being  selected  by  the  second  board  than  those  selected  by  the  first 
board.        He  argued  again  that  his  actual  selection  by  the  second  board  constitutes  a 
prima facie showing that his selection by the first board (with an untainted record) was 
not improbable.   
 
 
The applicant stated that this is an unusual case that calls for integration into the 
regular  forces,  in  addition  to  the  other relief  listed  on  page  one of  this  decision.      He 
noted the differences in pay between that of a retired active duty officer and a retired 
reserve officer.  The applicant explained the basis of his request for his integration in the 
regular Coast Guard as follows:   
 

At the time of the first promotion board, Applicant was a reserve officer 
serving  on  an  extended  active  duty  contract.    When  the  Coast  Guard 
Personnel Command wrote to inform Applicant of his recall to active duty 
under  that  contract,  it  also  notified  him  that  "[I]f  selected  for  promotion 
under  a  best-qualified  criterion  on  the  ADPL,  you  will  be  offered  the 
opportunity  to  integrate  and  remain  on  active  duty  as  a  permanent 
regular officer" . . .   Applicant was no longer serving under that contract 
when he was selected for promotion by the second board, and therefore 
has never been afforded the opportunity to integrate.   

 
 
The applicant argued that to make him whole, the Board should grant his request 
for integration in addition to the usual relief granted upon the removal of his failure of 
selection.  He stated that the U.S. Court of Claims has "said that where an applicant has 
convinced a correction board to correct his record it must not grant him 'half-a-loaf' of 
relief.  He must be made whole.'  Sanders at 813."' 
 
Overview of the Applicant's Military Record 
 
The applicant graduated from the Coast Guard Academy with a degree in Civil 
 
Engineering and was commissioned as an ensign on May 23, 1989.  As an ensign he was 
assigned to a Coast Guard cutter as a deck watch officer, and in addition also served at 
different  times  as  communications  officer  and  administrative  supply  officer.    Most  of 
his ensign performance marks were above average (with 4 being an average mark).   As 
a  lieutenant  junior  grade  (LTJG),  he  served  as  the  combat  systems  officer  on  a  Coast 
Guard cutter.  His performance marks were mostly 6s and 5s with an occasional 4 or 7.    
 

From May 22, 1993, through July 31, 1996, the applicant was attending law school 
 
and  received  non-observed  duty  under  instruction  OERs  (DUINS).  Comments  by  the 
reviewer on the DUINS OERs tout his successful law school career.  The last one noted 
that he graduated and passed the bar in 1996.  Subsequently, he earned three additional 
LT  OERs.    His  marks  on  these  three  OERs  consisted  of  mostly  5s  and  6s,  with  an 
occasional 4 or 7.  He is described in these OERs as "an exceptionally capable and well 
rounded CG officer."   
 

The applicant had three observed LCDR OERs prior to the 2003 ADPL selection 
board.  The first two were earned prior to his release from active duty and contained no 
performance  marks  below  5.    The  comments  were  of  equally  high  caliber.    One 
reporting  officer  wrote,  "Advice  implicitly  trusted  at  all  levels"  Another  wrote,  "He 
earned my full trust and confidence" and assisted in "reduc[ing] FOIA backlog by 30%."  
He  was  highly  recommended  for  promotion  in  each  OER.  Prior  to  the  2003  ADPL 
selection board, the applicant earned one observed OER after returning to active duty 
on June 25, 2002, under an active duty contract.  In that OER, the reporting officer stated 
that  the  applicant's  "[h]igh  initiative  is  unmatched,"  that  he  had  "high  intellect  and 
sound  judgment,"  and  that  he  was  "enthusiastic  and  hard  working."    The  reporting 
officer  recommended  the  applicant  for  promotion  to  CDR  with  the  best  of  his  peers, 
integration  back  into  the  regular  forces,  and  selection  to  senior  service  school.    The 
applicant's  record  contained  three  Coast  Guard  Commendation  Medals  and  a  Navy 
Achievement Medal.  
 

VIEWS OF THE COAST GUARD 

 
 
On  September  14,  2005,  the  Judge  Advocate  General  (JAG)  of  the Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  the  applicant’s 
request.  He also asked the Board to accept the comments from the Commander, Coast 
Guard  Personnel  Command  (CGPC)  attached  as  Enclosure  (1)  as  part  of  the  Coast 
Guard's advisory opinion. 
 
 
The  JAG  argued  that  the  applicant  failed  to  make  a  prima  facie  showing  of  a 
substantial connection between the error and the non-selection because the errors in the  
applicant's  record  involved  technical  administrative  corrections  to  the  accounting  of 
time not observed and not the substance of the applicant's record. The JAG stated the 
applicant has failed to carry his burden of proving a nexus between the alleged error 
and his failure to be selected.  The JAG stated that the test for determining whether a 
substantial connection exists between the error and the non-selection was established in 
Engels v. United States, 678 F.2d 173 (Ct. Cl. 1982).  In that case, the Court required that 
two questions be answered to establish the "substantial connection or Nexus" between 
the error or injustice and the applicant's failure of selection.  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 he would have been promoted in any event. Id at 176.   In answer to these 
questions in this case, the JAG offered the following:  
 

(a) Applicant's record prior to the changes does not appear worse than it 
does  in  the  absence  of  the  technical  administrative  corrections.    The 
corrections made to Applicant's record all address the accounting for time 
not observed.  The corrections do not, in any way, change the substance of 
Applicant's  record;  therefore  Applicant's  record  is  the  same  both  before 
and after the technical corrections.   As stated in the precept for the PY04 
Selection  Board  the  four  factors  that  a  selection  board  considers  when 
developing  the  selection  criteria  are:    performance,  professionalism, 
leadership,  and  education.    These  factors  are  set  out  in  greater  detail  in 
Personnel  Manual  COMDTINST  M1000.6A  Art.  14.A.3.    The  focus  on 
performance is also prevalent throughout the Commandant's  Guidance to 
the PY04 Officer Selection Board (stating "By the time officers compete for 
promotion to these ranks [O-5 and O-6], they are generally top performers 
in  specialty.")    The  technical  corrections  to  Applicant's  record  do  not 
change  the  substance  of  Applicant's  record  --  the  documentation  of 
Applicant's performance is exactly the same.  Applicant's record was not 
prejudiced by the administrative error accounting for time not observed; 
the  substance  of  his  record  does  not  appear  any  different  after  the 
correction of the administrative errors.   
  
(b) It is unlikely that Applicant would have been promoted by the PY04 
Active Duty Commander Selection Board even with the technical changes 
reflecting  time  not  observed.        First,  Applicant's  statistical  analysis  is 
flawed.  Applicant asserts that the opportunity for selection in the PY 05 
Reserve  CDR  Selection  Board  was  lower  than  that  of  the  PY  04  Active 
Duty  CDR  Selection  Board.    However  .  .  .  the  comparison  is  inaccurate.  
The Reserve Selection Boards, unlike the Active Duty Selection Boards, do 
not distinguish between in-zone and above-zone candidates.    When this 
distinction is taken into account, the opportunity for selection before the 
PY04  Active  Duty  CDR  Selection  Board  is  lower  than  the  PY05  Reserve 
CDR  Selection  Board.    Second,  as  stated  above,  the  technical  corrections 
made to Applicant's record only amend the manner in which the time not 
observed is recorded in applicant's record.  The changes do not affect the 
substance of Applicant's record nor do they change the fact that Applicant 
has  unobserved  time  due  to  terminal  leave  when  resigning  active  duty 
commission and his time in the IRR  . . .  It is most likely that applicant's 
record before the PY04 Active Duty CDR Selection Board was burdened 
by  Applicant's  voluntary  decision  to  leave  active  duty  and  his  time  not 
observed while in the IRR.  These facts are not changed by the manner in 
which the time is recorded in Applicant's record.   

 
 
According to CGPC, applicant's use of his selection by the PY 05 IDPL as proof 
that the errors cited by the PRRB prejudiced his record before he ADPL board is flawed 
for the following reasons: 
 
"a.    Best-qualified  boards  base  selections  on  the  strength  of  an  individual's  record 
relative  to others  considered  by  that  same  board    .  .  .  And  while  they  operate  within 
legal and policy limits set in a precept, each board devises its own selection criteria and 
its  members  are  legally  bound  by  their  oath  to  maintain  the  confidentiality  of  their 
deliberations.  Each board's results therefore cannot be compared to other boards within 
the same component, and certainly not between the Active and Reserve Components.  
The  PY04  ADPL  CDR  board  considered  officers  who,  in  the  predominant  number  of 
cases,  served  continuously  365  days  per  year  over  a  14-year  period.    Reserve  boards 
consider officers who, by the nature of their Reserve status, typically accrue far fewer 
periods of unbroken, active duty service.   
 
"b.    While  it  is  not  unusual  for  Reserve  officer  records  to  include  continuity  OERs  in 
Reserve selection boards, it is more unusual for their Regular counterparts to do so at 
ADPL boards.  In PY 05, when applicant competed successfully for CDR on the Reserve 
selection board, nine out of 40 Reserve officers had at least one continuity OER in their 
record -- 22.5% of the in-zone Reserve CDR board population.  While comparable data 
on PY04 ADPL CDR board candidates is not available, the number is believed to be far 
below the 22.5% registered by the PY 05 Reserve board to which applicant refers.   
 
"c.    Unlike  ADPL  boards,  Reserve  boards  do  not  distinguish  in-zone  and  above-zone 
board populations:  both types of officer are considered "in the zone" on Reserve boards, 
and opportunity of selection is based on this consolidated number.  If the PY 05 Reserve 
zone methodology were applied to the PY04 ADPL CDR board, the rate of selection for 
in-zone  plus  above-zone  ADPL  officers  would  have  been  52.5%.    At  52.5%,  the  PY04 
ADPL CDR board reflected a statistically lower opportunity for selection than did the 
FY05 Reserve CDR board, which selected 62.5% Reserve officers from within the zone 
…" 
 
CGPC concluded that even if the applicant's record, corrected by the PRRB, had 
 
gone before the PY04 ADPL CDR selection board, his selection for CDR on the ADPL 
was  still  improbable.      CGPC  noted  that  the  applicant's  voluntary  decision  to  leave 
active duty in 2001 and his failure to perform paid or unpaid duty while assigned to the 
IRR  would  have  sharply  distinguished  his  record  from  ADPL  peers  on  a  highly 
competitive ADPL board.  Applicant's record, burdened by 10 months, 21 days with no 
observable  performance  in  the  IRR  placed  him  at  a  disadvantage  relative  to  his 
continuously serving active duty peers at the PY04 ADPL CDR selection board.  While 
errors  in  the  applicant's  record  did  exist,  their  effect  was  harmless:    it  was  the  10 
months, 21 days of time "not observed" in the IRR that likely resulted in his failure of 

selection, and not the erroneously prepared continuity OER documenting just 57 days 
of terminal leave.    
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On November 30, 2005, the BCMR received the applicant's reply to the views of 
the Coast Guard.  He disagreed with the Coast Guard that the errors identified by the 
PRRB  were  merely  technical.    He  characterized  them  as  material.    In  this  regard,  he 
stated  that  the  PRRB concluded  that  the  applicant  "has  met  his  burden  by  presenting 
evidence of clear, material errors of objective fact" and "as a result of staff review of his 
request to the PRRB, the Board finds material error " in that the OERs were prepared by 
the wrong rating chain.   Further, the applicant stated that the PRRB concluded that the 
errors "could be misinterpreted" and "as written, could be subject to misinterpretation 
by any selection board and should be replaced."   
 

With respect to a causal connection between the error and his failure of selection, 
the applicant again pointed to the PRRB conclusion in support of his argument that the 
errors caused his record to appear worse than it would have in the absence of the errors.  
The  applicant  also  stated  that  the  Coast  Guard  completely  ignored  the  issue  that  the 
unnecessary "white space" created by the terminal leave OER had on the appearance of 
his record.  The applicant stated that although the Coast Guard recognized the correct 
standard in testing for prejudice (whether the record appeared worse), it attempted to 
change  that  standard  by  stating,  "the  substance  of  the  applicant's  record  was  not 
changed  by  the  corrections."    According  to  the  applicant,  "Whether  the  changes  are 
substantive (or technical, or accounting, or administrative) is not the legal issue.   The 
issue  is  whether  the  record  appeared  worse  before  the  corrections  were  made."    The 
applicant stated that his claims are based upon improper inclusion of prejudicial "white 
space" via the terminal leave OER and the inclusion of a mischaracterizing phrase in the 
IRR OER that was susceptible to misinterpretation by the promotion board.   

 
The applicant stated that the author of CGPC's program input also served on the 
PRRB.  He argued that that person should not be allowed to abandon his prior findings 
of prejudice and take on a new position; nor should the Board permit the Coast Guard 
to  avoid  its  previous  admissions  and  concessions  of  the  prejudice  resulting  from  the 
errors  in  this  case.    He  argued  that  he  has  met  his  burden  of  proving  prejudice  by 
showing that his record appeared worse than it would in the absence of the errors.  The 
applicant  further  asserted  that  he  has  provided  sufficient  evidence  to  prove  that  his 
selection before the PY04 ADPL board was not unlikely and that the burden now shifts 
to the Coast Guard to show that it is unlikely that he would have been promoted with 
an untainted record.    

 
In  this  regard,  the  applicant  argued  that  the  Coast  Guard  has  presented  no 
evidence to prove its claim that it is unlikely that he would have been promoted in any 

event.  In addition, he noted that the Coast Guard did not thoroughly discuss his fifteen 
years  of  service,  including  his  thirteen  years  of  active  duty,  his  top  performance,  his 
tours  afloat  and  ashore  and  his  legal  assignments.    Rather,  he  stated  that  the  Coast 
Guard  mischaracterized  his  first  year  in  the  Reserve  by  stating  that  he  performed  no 
duty when in fact he earned 15 gratuitous points and 41 active duty points for a total of 
56 points, equating to a satisfactory year of service.1   

 
The  applicant  also  challenged  the  Coast  Guard's  assertion  that  a  promotion 
board will view his time away from active duty negatively.  The applicant stated that 
the Coast Guard has programs that permit temporary separation, such as the temporary 
separation  for  up  to  two  years  to  "pursue  growth  or  other  opportunities  out  side  the 
service",  detailed  in  Article  12.f.  of  the  Personnel  Manual.    Having  such  programs 
illustrates that boards will not automatically cast temporary separations in a negative 
light.  He stated, "When a promotion board evaluates [his] expertise and potential for 
continued success within the legal specialty, the experience he gained in his time away 
from active duty may be considered a benefit, rather than the burden that the [advisory 
opinion] suggests." 

 
The  applicant  stated  that  the  Coast  Guard's  assessment  of  the  presence  of 
continuity OERs in records is flawed.  He stated that Coast Guard endeavors to show in 
its  opinion  that  continuity  OERs  are  rare  among  active  duty  officer  records  and  their 
presence  would  work  against  an  officer's  likelihood  of  promotion  on  the  ADPL.  
"Though  the  [Coast  Guard]  may  be  over  stating  the  rarity,  its  effort  does  serve  to 
illustrate  the  colloquial  prejudice  against  'white  space"'.    With  respect  to  the  Coast 
Guard's contention that the IRR continuity OER, even in its correct form would work 
against the applicant, the applicant stated there is a major difference between a blank 
OER that was improperly created, and improperly included in the record and one that 
by regulation properly accounts for unobserved time.  The applicant disagreed with the 
Coast Guard's assertion that the percentage of active duty officers with continuity OERs 
is "far below" that of reservists.    

   
The applicant stated that the advisory opinion contains a mistake of policy when 
it says that one board cannot be compared with another.  He stated that Article 7.A.7. of 
the  Personnel  Manual  states  that  a  failure  of  selection  of  a  Reserve  officer  serving  on 
active  duty  or  inactive  duty  shall  count  for  all  purposes  as  a  failure  of  selections.    In 
comparison,  he  states  that  14  USC  §  728(d)  states  that  a  failure  of  selection  for 
                                                 
1    The  applicant's  retirement  points  statement  dated  November  22,  2002  states  that  the  applicant 
performed  no  duty  between  8/8/2001  through  8/7/2002.    It  also  shows  that  the  applicant  earned  15 
gratuitous points, also known as membership points, which are awarded to each member of the Ready 
Reserve.  The retirement points statement shows further that the applicant earned 44 active duty points.  
The  active  duty  points  were  earned  from  June  25,  2002  through  August  7,  2002,  under  the  applicant's 
active duty contract.   For the period covered by the IRR OER, 8/5/2001 to 6/24/2002, the applicant did 
not perform any Reserve duty.     

promotion to the next higher grade occurring under the subchapter (Reserve) or under 
chapter  11  [regulars]  of  this  title  shall  count  for  all  purposes.    He  argues  that  both 
Congress and the Coast Guard treat these board results as equivalents for all purposes.   

 
In objecting to the Coast Guard's assessment of his 2004 release from active duty 
as  voluntary,  the  applicant  stated  that  his  decision  was  made  after  "mild  duress" 
through  calls,  emails  and  a  letter  appealing  to  him  to  volunteer to  shift  from  EAD  to 
ADSW,2  as  the  Coast  Guard  Personnel  Command's  goal  was  to  achieve  100% 
participation.  The  emails  offered  by  the  applicant  show  that  the  Coast  Guard  indeed 
asked  reservists  on  extended  duty  contracts  to  accept  administrative  assignment  to 
ADSW  and  the  goal  of  having  100%  participation.    However,  information  in  these 
emails noted that the change was an administrative one and would not interrupt active 
service,  pay,  leave,  or  credit  toward  an  active  duty  retirement.    The  applicant  also 
submitted a February 24, 2004 letter to CGPC entitled "REQUEST FOR RELEASE FROM 
ACTIVE DUTY AGREEMENT."  He noted that he had been extended the opportunity 
to be transferred to ADSW status at his current unit for a period of 140 days or more 
followed by an additional EAD contract.  He thanked the Coast Guard for its efforts in 
developing the offer but declined it.  He further stated in his letter the following:  "I am 
making  this  request  because  in  my  private  capacity  as  an  attorney  and  businessman, 
I've been presented with certain professional opportunities in South Florida upon which 
I desire to capitalize in a timely manner  . . . If the Coast Guard is in need of active duty 
service in South Florida, . . . I would be willing to evaluate an offer along those lines.  
Otherwise,  please  consider  this  to  be  a  plain  request  for  release  from  our  21  May  02 
active duty agreement."   
 
 

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. 

 
2.  The applicant is seeking the removal of his 2003 ADPL failure of selection for 
promotion to CDR and other relief.  It is the applicant's burden to prove the existence of 
an error in his record when the ADPL selection board reviewed it and to make a prima 

                                                 
2   Article 3.A.4.a. of the Reserve Policy Manual defines Active Duty Special Work (ADSW) as a category 
of active duty other than for training to support either an active component  or Reserve component.   It 
provides  the  necessary  skilled  manpower  assets  to  temporarily  support  existing  or  emerging 
requirements.     

facie showing of a nexus between the error and his failure to be selected for promotion, 
at which point the burden shifts to the Coast Guard to show that it is unlikely that the 
applicant would have been promoted in any event.    

 
3.    The  Board  agrees  with  the  applicant  that  the  approved  PRRB  decision  is 
persuasive proof that his record contained errors when the 2003 ADPL selection board 
reviewed it.  In this regard, the PRRB directed that the applicant's record be corrected 
by removing the terminal leave continuity OER and by removing and replacing the IRR 
continuity  OER.    With  respect  to  the  terminal  leave  OER,  the  PRRB  concluded  that 
under personnel policy the 57 days of terminal leave should have been accounted for in 
the prior regular OER by extending the reporting period for the regular OER from June 
8, 2001 to August 4, 2001 and by changing the designation of that OER from "annual-
semi/annual" to "detachment of officer."  

 
4.  The PRRB also removed and replaced an IRR continuity OER for the period 
August  5,  2001  to  June  24,  2002.    The  PRRB  found  that  the  removed  OER  had  been 
prepared  by  the  wrong  rating  chain  and  the  comments  in  block  2.,  "description  of 
duties" were not consistent with Article 10.A.3.a.5.a of the Personnel Manual.  A new 
IRR  continuity  OER  was  prepared  showing  the  applicant  to  be  a  member  of  the  IRR 
rather  than  Coast  Guard  Moriches  and  designating  "annual/semiannual"  as  the 
occasion  for  the  OER.    Further,  the  comments  in  block  2.,  description  of  duties  were 
revised  in  the  new  OER  as  follows:  "Submitted  for  continuity  purposes  only  IAW 
Article 10.A.3.a.5.a.  ROO is in IRR.  Chronology:  05 Aug 01 - Member accepted Reserve 
Commission.    16  May  02  -  Member  administratively  assigned  to  CG  GP  Moriches.  
25Jun02 - [member] entered into EAD contract.  IDT drills scheduled:  0/0; ADT:0/0; 
ADSW:  0  days."    (The  comment  on  the  removed  OER  read:  "Reserve  Officer:    Report 
submitted  for  continuity  only.    Member  did  not  drill  with  unit  during  the  reporting 
period.  Member  transferred  2002/06/24  to  begin  3  year  extended  Active  Duty 
Contract.")  With respect to the comments in the removed OER, the PRRB stated that 
although the description of duties as written in the original OER was permissible, for 
those  unfamiliar  with  Reserve  policy,  particularly  as  it  relates  to  an  IRR  officer,  the 
comment could have been misinterpreted as the applicant having been AWOL during 
drills, as he alleged. 
 

5. The errors having been established, the Board must now decide whether there 
was a causal connection between the applicant's 2003 ADPL failure of selection and the 
errors  corrected  by  the  PRRB.    In  determining  whether  a  nexus  existed  between  the 
error  and  the  applicant’s  failure  of  selection  for  promotion,  the  Board  applies  the 
standards set out in Engels v. United States, 230 Ct. Cl. 465 (1982).  In Engels, the United 
States  Court  of  Claims  established  two  "separate  but  interrelated  standards"  to 
determine the issue of nexus.  The standards are as follows:  "First, was the claimant'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 he would have been promoted in any event?”  Id. at 470. 
 

6.    The  Board  is  not  persuaded  by  the  applicant's  argument  that  the  57-day 
terminal  leave  OER  removed  by  the  PRRB,  caused  his  record  to  appear  worse  by 
creating unnecessary "white space."  The Board notes that the PRRB did not find that 
the applicant had suffered an injustice by the inclusion of the extra OER in his record; 
rather, it found that the 57 days accounted for in the terminal leave OER should have 
been included in the prior regular OER.  Moreover, the Personnel Manual envisioned 
the presence of "white space" in a record by permitting continuity OERs, which account 
only for time.  Continuity OERs contain only administrative data and an explanation for 
the OER in block 2., description of duties. They do not contain evaluated performance 
marks  or  comments.  Article  10.A.3.a.  of  the  Personnel  Manual  states  that  continuity 
OERs may be submitted in cases where an OER is required but full documentation is 
impractical,  impossible  to  obtain  or  does  not  meet  officer  evaluation  system  goals. 
Therefore,  the  term  "white  space"  is  more  appropriate  when  discussing  substantive 
OERs.    Partially  filled  comment  blocks  in  substantive  OERs  may be  interpreted  as  an 
officer  having  few  accomplishments  during  a  reporting  period.    However,  the 
Personnel  Manual  even  allows  for  this  "white  space"  by  not  mandating  that  a  rating 
chain  completely  fill  each  comment  block  in  an  observed  substantive  OER.    Articles 
10.A.4.c.4.d. & g. and 10.A.4.c.7.d. of the Personnel Manual only require comments for 
each mark that deviates from a 4.    

 
7.  Although the terminal leave OER was erroneous, it did not create the kind of 
"white space"" discouraged by the Coast Guard. Nor is the Board persuaded that having 
the  erroneous  57-day  terminal  leave  OER  in  the  applicant's  record  worsened  it.    The 
erroneous  OER  contained  no  evaluation  marks  or  comments,  but  noted  that  the 
applicant had received the Coast Guard Commendation Medal dated June 19, 2001 and 
the  United  States  Commendation  medal  dated  July  13,  2000,  and  November  10,  1998, 
which  was  information  favorable  to  the  applicant.    Accounting  for  the  57  days  of 
terminal leave on a separate continuity OER was harmless error.  
 

8.  With respect to the erroneous IRR continuity OER, which was removed and 
replaced by the PRRB, the applicant argued that it caused his record to appear worse 
because  the  comment  in  block  2.,  "member  did  not  drill  with  unit  during  reporting 
period," could have been misinterpreted as an accusation that he was AWOL from drills 
at Group Moriches, when in fact he was not assigned to drill at any unit.  In support of 
this  contention,  he  asserted  that  the  Coast  Guard,  through  the  PRRB's  opinions  and 
conclusions,  conceded  that  the  comment  worsened  his  record  by  opining  that  "[f]or 
those unfamiliar with  OER policy as it applies to Reserve officers, particularly to IRR 
officers who have no  training requirement, [the comment] could  be misinterpreted as 
the applicant claims";  and concluding that "the description of duties as written [on the 

removed OER] could be subject to misinterpretation by any selection board and should 
be replaced."  
 
9.    The  Board  is  not  persuaded  that  the  PRRB  opinions  and  conclusions  are 
 
admissions  by  the  Coast  Guard  of  what  effect,  if  any,  the  errors  on  the  removed  IRR 
OER might have had on the applicant's failure before the 2003 ADPL selection board.  
In  this  regard,  the  PRRB  was  not  asked  to  decide,  nor  could  they,  whether  the 
applicant's  failure  of  selection  should  be  removed  since  the  removal  of  failures  of 
selection,  back  dating  dates  of  rank,  reinstatement  to  active  duty, and  awarding  back 
pay are not within purview of the PRRB.  Therefore, any comments made in the PRRB 
decision cannot be taken as persuasive proof of a matter that is beyond their authority 
to decide. The Board disagrees with the PRRB opinion that "[f]or those unfamiliar with 
OER  policy  as  it  applies  to  Reserve  officers,  particularly  to  IRR  officers  who  have  no 
training  requirement,  [the  comment  in  the  removed  OER]  could  be  misinterpreted  as 
the applicant  claims [that he was AWOL]" and its  conclusion that  the "Description of 
Duties" on the [erroneous continuity OER . . . could be subject to misinterpretation by 
any  selection  board  .  .  ."    In  this  regard,  the  Board  notes  that  the  2003  CDR  ADPL 
selection board was composed of senior Coast Guard officers holding a rank no lower 
than CDR (O-5) and as such these officers should have been familiar with the Reserve 
and its various components and policies.  In addition, the applicant, or any reservists, 
who failed to perform obligated drills and did not reschedule or make up those drills 
would  have  that  negative  information  documented  in  an  OER  or  elsewhere  in  the 
military record.  The PRRB findings go only to establishing an error in the applicant's 
record that required corrective action to the challenged OERs.   

 
10.  Despite the above findings and for reasons discussed herein, the Board finds 
that the corrected IRR continuity OER made the applicant's record appear only slightly 
better  than  it  did  with  the  erroneous  IRR  OER.    The  applicant's  military  record 
appeared  better  because  the  revised  OER  showed  the  applicant  was  a  member  of  the 
IRR for the entire reporting period rather than a member of a drilling unit, Coast Guard 
Moriches.    The  corrected  OER  clarified  that  the  applicant  had  no  assigned  drills, 
whereas  the  erroneous  OER  stated  only  that  he  did  not  drill  with  unit  Coast  Guard 
Moriches.  Further, it provided a chronology of events during the year covered by the 
OER, such as the applicant's acceptance of his Reserve commission on August 5, 2001, 
his  administrative  assignment  to  a  unit  on  May  16,  2002,  and  his  commencement  of 
travel and service under his three-year active duty contract on June 24, 2002. 
 
 
11.    Although  the  minor  errors  resulted  in  slight  prejudice  to  the  applicant's 
record, he has not made a prima facie showing of a substantial connection between the 
minor errors in his record and his failure to be selected by the 2003 ADPL board.  In this 
regard, he relied on the fact that the IDPL board selected him for promotion after his 
record was corrected.  However, the applicant's overall record of performance remained 
virtually  the  same  before  and  after the  corrections  by  the  PRRB.   While  the  applicant 

argued that the comment in block 2. of the removed OER could have been interpreted 
as him having been AWOL from drills, we would point out that the rating chain made 
no such comment in that OER.  In fact the comment read as follows:  "Reserve Officer: 
Report submitted for continuity only.  Member did not drill with unit during reporting 
period.  Member transferred 2002/0624 to begin 3 year extended Active Duty Contract."  
The Board fails to see how this comment could have reasonably been a significant factor 
in the applicant's non-selection for promotion by the 2003 ADPL board. In Engels, the 
plaintiff  established  that  his  record  would  have  been  substantially  improved  if  a 
defective  substantive  OER  had  been  removed  and  a  favorable  substantive  evaluation 
letter  had  been  included  in  his  record  prior  to  consideration  by  the  selection  board.   
The  errors  in  the  applicant's  record  were  of  a  minor  administrative  type  and  do  not 
come close to those described in Engels. 
 

12.  However, even if the applicant had made a prima facie case of a connection 
between the error and his 2003 failure of selection, the Board finds that it is unlikely that 
he would have been promoted in any event. In reaching this finding, the Board agrees 
with the advisory opinion that the corrections to the applicant's record did not in any 
way change the caliber of his above-average performance.  The ADPL selection board 
considered  and  saw  a  performance  record  that  was  unchanged  by  the  corrections 
ordered  by  the  PRRB.    In  this  regard,  we  note  that  the  applicant's  record  showed  an 
officer  who  graduated  from  the  Coast  Guard  Academy  and  became  a  regular  Coast 
Guard officer.  He served successfully both afloat and ashore.  He was selected for the 
law  education  program  and  spent  three  years  attending  law  school.    He  had  a  very 
successful law school career and graduated and passed the bar in 1996.  His subsequent 
LT OERs were well above average, consisting mostly of 5s and 6s, with only two 4s.  He 
is described in these OERs as "an exceptionally capable and well rounded CG officer."  
The  record  shows  that  he  had  three  observed  LCDR  OERs  prior  to  the  2003  ADPL 
selection board.  The first two were well above average and earned prior to his release 
from active duty in 2001.  He had no marks below 5 and the comments were of equally 
high  caliber.    One  reporting  officer  wrote,  "Advice  implicitly  trusted  at  all  levels." 
Another  wrote  "He  earned  my  full  trust  and  confidence"  and  assisted  in  "reduc[ing] 
FOIA backlog by 30%."  He was highly recommended for promotion in each OER.  The 
applicant  earned  one  observed  OER  after  returning  to  active  duty  on  June  25,  2002, 
under  an  active  duty  contract.    In  that  OER,  the  reporting  officer  stated  that  the 
applicant's  "[h]igh  initiative  is  unmatched,"  that  he  had  "high  intellect  and  sound 
judgment"  and  that  he  was  "enthusiastic  and  hard  working."    The  reporting  officer 
recommended  the  applicant  for  promotion  to  CDR  with  the  best  of  his  peers, 
integration  back  into  the  regular  forces,  and  selection  to  senior  service  school.    In 
addition,  the  applicant's  record  contained  all  medals  and  awards  to  which  he  was 
entitled  as  well  as  his  resignation  of  his  regular  commission  with  an  effective  date  of 
August 4, 2001.  The record also showed his acceptance of a Reserve commission in the 
same grade (LCDR) on August 5, 2001 and his three-year active duty contract.  As the 
Coast Guard argued, the applicant's ADPL failure of selection probably resulted from 

his recent resignation of his regular commission rather than the minor administrative 
errors in the continuity OERs.    
 

13.    Since  the  applicant's  performance  record  was  virtually  unchanged  by  the 
corrections made by the PRRB, factors other than the minor corrections by the PRRB, 
probably explain his subsequent selection in 2004 by the IDPL board.  For instance, the 
applicant was selected for promotion by the IDPL (Reserve) promotion board and not 
by a subsequent ADPL (active duty) promotion board. As such the applicant was not 
required  to  compete  in  2004  with  regular  officers  who  served  continuously  on  active 
duty  365  days  per  year,  twenty-four  hours  per  day  and  therefore  had  more  of  an 
opportunity  to  showcase  their  skills  and  potential  than  most reservists  who  normally 
perform one weekend drill per month and short periods of active duty. At the time the 
applicant was considered by the ADPL board, he had only three observed LCDR OERs, 
whereas his active duty counterparts, who had spent four to five years in grade, had at 
least that many LCDR OERs in which to demonstrate their performance and potential 
for  serving  in  the  next  higher  grade.  Reservists  are  valuable  members  of  the  Coast 
Guard, but more often than not their active duty service is broken service, just like the 
applicant's.  Therefore,  it  is  difficult  for  a  reservist  who  may  be  on  an  active  duty 
contract, and therefore on the ADPL, to compete successfully on a best qualified basis 
with regular active duty officers.   

 
While  the  applicant  argued  that  there  is  no  difference  between  the  IDPL  and 
ADPL selection boards because each is a best qualified board and both operate under 
the  same  or  similar  precepts,  the  fact  is  they  are  separate  boards.  Active  duty  and 
Reserve are different components of the Coast Guard under Title 14 of the United States 
Code;  they  have  separate  personnel  policy  manuals;  and  the  selection  boards  are 
convened  separately  and  at  different  times  for  each  component.  Articles  5.A.2.  of  the 
Personnel  Manual  and  7.A.3  of  the  Reserve  Policy  Manual  mandate  that  the 
Commandant maintain  separate lists of ADPL and IDPL officers from which officers on 
a particular list compete for promotion only against each other.  For further emphasis in 
recognition  of  the  difference  between  the  ADPL  and  IDPL,  COMDTINST  1401.5A. 
issued on April 28, 2005, gives Reserve officers serving on extended duty the option of 
returning to the IDPL to compete against other reserve offices rather than remaining on 
the ADPL  list, after which a new EAD contract can be executed.  If the active duty and 
Reserve components were not separate and distinct, there would be no logic in holding 
separate selection boards.   

 
Additionally,  the  applicant's  improved  performance  record  was  probably 
instrumental  in  his  subsequent  selection  by  the  2004  IDPL  board.  At  the  time  the 
applicant  was  considered  by  the  2004  IDPL  selection  board,  he  had  earned  another 
highly  favorable  OER  with  marks  of  6s  and  7s  and  a  recommendation  for  immediate 
promotion to CDR.  
 

14.    Although  there  is  no  way  to  know  for  certain  why  the  applicant  was  not 
selected  for  CDR  by  the  ADPL  board  because  deliberations  are  secret,  the  Board  is 
persuaded  that  he  had  a  complete  performance  record  that  fairly  described  his  skills, 
leadership,  professionalism,  and  education,  as  required  by  law.    The  corrected  IRR 
continuity OER adds nothing, either negatively or positively, to these essential elements 
considered  most  important  by  a  selection  board.  See,  Article  14.A.3.  of  the  Personnel 
Manual. Accordingly, the Board finds that it is unlikely that the applicant would have 
been promoted in any event by the 2003 ADPL board with a corrected record.   

 
15.  Even if the Board were to remove the applicant's non-selection by the 2003 
ADPL  board,  it  would  not  grant  any  of  the  other  relief  requested  by  the  applicant 
because he voluntarily left active duty before he would have been promoted if selected 
by the ADPL board.  In fact, the applicant was released at his own request.  In arguing 
for back dating of his rank, for back pay and allowances, integration, and constructive 
service credit as if selected by the 2003 ADPL board, the applicant quotes the following 
from  Sanders  v.  United  States,  594  F.2d  804,  814  (Ct.  Cl.  1979):    When  "[r]egulations 
prescribe that OERs are to be objective and prepared in a certain way[, if] a particular 
officer's  OER  has  not  been  so  prepared  and  that  defect  could  have  resulted  in  his 
nonselection for promotion followed by discharge, this is legal and factual error and an 
injustice to the officer as well."   However, the Court is not speaking about a voluntary 
discharge.  In fact, the Court stated in Sanders, "The predicate for recovery  . . . is the 
invalidity  of  plaintiff's  termination.    Only  if  the  authority  to  terminate  plaintiff  was 
improperly exercised can he recover."  Id. at 309.   Moreover, in Osborn v. United States, 
47  Fed.  Cl.  224  (2000),  citing  Thomas  v.  United  States,  42  Fed.  Cl.  449,  452  (1998),  the 
Court of Federal Claims stated that when a plaintiff has retired by choice, "it follows as 
a  matter  of  logic  that  his  final  separation  and  retirement  were  not  unlawful  and, 
consequently, he is not entitled to reinstatement to active duty."  In Tippett v. United 
States, 185 F.3d 1250, 1255 (Fed. Cir. 1999), the United States Court of Appeals for the 
Federal  Circuit  stated  that  if  that  plaintiff's  discharge  was  involuntary  and  improper, 
his statutory right to pay was not extinguished, but if his discharge was voluntary, his 
right to pay ended upon discharge and he would not have retained a statutory right to 
compensation.  The applicant's loss of any pay and other benefits were the result of his 
own actions, not those of the Coast Guard.   

 
16.  The applicant offered emails from Coast Guard personnel in an attempt to 
show that his early release from active duty was due to duress from the Coast Guard, 
on  reservists  like  himself,  to  accept  a  temporary  administrative  change  in  their  duty 
status  from  extended  active  duty  to  ASDW.    The  emails  show  that  the  Coast  Guard 
asked  reservists,  including  the  applicant,  on  extended  duty  contracts  to  accept 
administrative assignment to ADSW, but stated that the change in status would occur 
whether or not the reservists expressed acceptance.  However, the emails also show that 
in  answering  members'  questions  about  the  change,  the  Coast  Guard  stated  that 
accepting  a  change  to  ASDW  would  not  interrupt  active  service,  pay,  leave,  or  credit 

toward  an  active  duty  retirement.    The  Coast  Guard  offered  the  applicant  an 
opportunity  to  remain  on  active  duty  and  he  chose  not  to  accept.    The  fact  that  the 
applicant disliked the alternative offered and chose to ask for release from active duty 
does not cause his release to be involuntary.  See Longhofer v. United States, 29 Fed. Cl. 
595  (1993).    Apparently,  after  failing  to  engineer  a  transfer  from  his  then  current 
California assignment to Florida, the applicant submitted a February 24, 2004 letter to 
CGPC entitled "REQUEST FOR RELEASE FROM ACTIVE DUTY AGREEMENT."  He 
noted that he had been extended the opportunity to be transferred to ADSW status at 
his  current  unit  for  a  period  of  140  days  or  more  followed  by  an  additional  EAD 
contract.    He  thanked  the  Coast  Guard  for  its  efforts  in  developing  the  offer  but 
declined  it.    He  further  stated  in  his  letter  the  following:    "I  am  making  this  request 
because  in  my  private  capacity  as  an  attorney  and  businessman,  I've  been  presented 
with  certain  professional  opportunities  in  South  Florida  upon  which  I  desire  to 
capitalize in a timely manner  . . . If the Coast Guard is in need of active duty service in 
South Florida, under terms . . . I would be willing to evaluate an offer along those lines.  
Otherwise,  please  consider  this  to  be  a  plain  request  for  release  from  our  21  May  02 
active duty agreement."   

  
 
The Board sees no way that the applicant's letter can be interpreted as anything 
but  a  voluntary  request  for  termination  of  his  active  duty  contract  and  release  from 
active  duty.      Therefore,  since  the  applicant  was  not  wrongfully  released  from  active 
duty, he would not be entitled to a date of rank adjustment or back pay and allowances, 
as  if  selected  by  the  2003  ADPL  selection  board.    Moreover,  the  applicant  certainly 
would  not  be  entitled  to  integration  because  a  best-qualified  ADPL  selection  board 
never  selected  him  (subsequent  to  the  resignation  of  his  regular  commission).  Under 
Article  1.A.8.  of  the  Personnel  Manual,  the  integration  of  Reserve  officers  requires 
selection by a best qualified ADPL selection board.  The applicant admitted in his brief 
that  he  was  told  that  he  would  be  expected  to  integrate  if  he  were  selected  for 
promotion to CDR by a best-qualified ADPL board. He was never so selected.   
 
17.  The applicant made several other complaints that are not addressed within 
 
these findings and conclusions because they are either without merit or not dispositive 
of this case.   
 
 
 
 

18.  Accordingly, the applicant's request should be denied.   

The  application  of  CDR  xxxxxxxxxxxxxxxxxx,  USCGR,  for  correction  of  his 

ORDER 

 

military record is denied. 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 Philip B. Busch 

 

 

 
 George J. Jordan 

 

 

 
 
 Adrian Sevier