DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2006-030 
 
XXXXXXXXXXXXX 
xxxxxxxxxx, LT 
   

 

 
 

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 Chair docketed the 
case  on  December  16,  2005,  upon  receipt  of  the  completed  application  and  military 
records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated August 31, 2006, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The  applicant  asked  the  Board  to  place  her  military  record  before  a  special 
Reserve Program Administrator (RPA)1 lieutenant commander (LCDR) selection board.  
She alleged that the calendar year 2005 LCDR RPA selection board2 that considered her 
record  was  not  constituted  as  required  by  law  or  Coast  Guard  policy.      The  RPA 
selection board convened on September 6, 2005.   
 
 
The  applicant  alleged  that  the  2005  RPA  LCDR  selection  board  was  illegal 
because only two of the five members were RPAs.   She stated that three of five should 

                                                 
1  RPAs  are  Coast  Guard  Reserve  officers  who  are  assigned  to  extended  active  duty  to  organize, 
administer,  recruit,  instruct,  or  train  Coast  Guard  Reserve  components.    See  Article  1.B.3.a.  of  the 
Personnel Manual.  
2  Also referred to as the promotion year 2006 [PY2006] selection board. 

have  been  RPAs,  as  required  by  Article  14.A.12.b.  of  the  Personnel  Manual.    This 
provision states as follows: 
 

A  board  convened  to  consider  RPAs  for  promotion  to  the  next  higher 
grade shall consist of five or more officers serving in or above the highest 
grade to which the board may recommend officers for promotion.  Three 
members  shall  be  RPAs.    If  enough  are  not  available  to  satisfy  this 
requirement,  Commander  (CGPC-opm)  may  reduce  the  number  of  RPA 
members, but the board must have at least one RPA.  If no Reserve officer 
serving  on  active  duty  is  senior  to  all  officers  under  consideration, 
Commander  (CGPC-opm)  may  recall  to  active  duty  a  retired  Reserve 
officer or one serving on inactive duty senior to all officers the board will 
consider to serve on the board. 

 
 
The applicant argued that there were more than enough available RPAs to satisfy 
the requirement that three of the five members on the selection board be RPAs.  In this 
regard, she alleged that there were a total of twelve RPA captains eligible to serve on 
the  RPA  selection  board.    Six  were  RPA  active  duty  captains  that  she  referenced  by 
name, including one of two who actually served on the RPA selection board.  (The other 
RPA who actually served on the selection board is not included in the applicant's total 
of those eligible for the 2005 board.  She alleged that this officer was ineligible for the 
2005 board because he served on the 2003 board that considered the record of an officer 
who  was  also  before  the  2005  selection  board  for  promotion  to  the  same  grade.)  The 
other  six  officers  that  she  stated  were  eligible  to  serve  on  the  selection  board  were 
retired RPA captains that the Coast Guard could have recalled to active duty for service 
on  the  selection  board,  rather  than  calling  a  drilling  reservist  to  active  duty.    She 
referenced  each  of  the  retired  RPAs  by  name.    The  applicant  argued  that  the  Coast 
Guard's decision not to appoint any of the eleven RPAs that she claimed were eligible to 
serve on the selection board was arbitrary, capricious, or contrary to law.  In this regard, 
she argued that the Court of Appeals for the Federal Circuit held in Godwin v. United 
States, 33 F.3d 1374 (Fed. Cir. 2003) that the Correction Board's decision upholding the 
Coast  Guard's  determination  that  a  soon-to-retire  RPA  officer  was  "not  available"  to 
serve on the RPA selection board was arbitrary, capricious, or contrary to law. 
 
 
The applicant compared the RPA selection board to the admiral selection in that 
there are a limited number of senior admirals available for service on admiral selection 
boards.    She  stated  that  admirals  are  ordered  to  serve  on  selection  boards  without 
regard  to  their  availability  due  to  their  limited  numbers.    She  argued  that  the  Coast 
Guard  should  order  RPAs  to  serve  on  selection  boards  in  the  same  manner  that  it 
directs admirals to serve on admiral selection boards.   
 
 
As  mentioned  above,  the  applicant  alleged  that  the  calendar  year  2005  RPA 
selection board also violated 14 U.S.C. § 252 and Article 14.A.10.b. because one member 

of the selection board had served on a previous board (the calendar year 2003 selection 
board)  and  had  reviewed  the  record  of  an  officer  who  was  before  the  2005  captain 
selection  board.    She  stated  that  Article  14.A.10.b.  of  the  Personnel  Manual  states  in 
pertinent part:  "… No officer may be a member of two successive boards convened to 
consider officers of the same grade for promotion."  She named the candidate (a CDR, 
not the applicant) whose record was reviewed by the member who sat on both the 2003 
and  2005  selection  boards.    The  applicant  acknowledged  that  the  selection  board 
member did not serve on two successive boards, but she argued the intent of the law 
was to allow anyone going before the selection board to be on a level playing field.   She 
stated that the CDR was not on a level playing field because one of the members of the 
2005 selection board had considered him for promotion to captain in 2003.    
  
 
 
The  applicant  further  alleged  that  the  RPA  selection  board  was  unfairly 
constituted because the opportunity of selection for the RPA LCDR selection board was 
inaccurate  and  not  in  accordance  with  Coast  Guard  regulation.      In  this  regard,  she 
argued that the selection board used an incorrect opportunity of selection.    She quoted 
the following from Article 5.A.6.e.2. of the Personnel Manual: 
 

The  opportunity  of  selection  at  each  grade  will  compare  to  that  grade's 
opportunity during the most recent ADPL selection board.  The computed 
opportunity  of  selection  for  each  grade,  lieutenant  and  above,  shall  be 
determined    as follows: 
 
If RPAs going before the selection board include only first-time candidates 
and those who once failed of selection for promotion to the grade being 
considered, the percentage is the total number of ADPL officers selected 
for promotion, divided by the total number of ADPL officers considered 
for promotion to that grade in the ADPL zone plus the number of officers 
above  the  ADPL  zone  who  have  been  once  not  selected.    Fractions  of  a 
percentage shall be rounded to the next higher number. 

 

The applicant argued that for LCDR RPAs the opportunity for selection should 
have been a minimum of 77% and not 71.4%.  The applicant calculated that 77% times 7 
RPA  LCDRs  that  were  considered  by  the  selection  board  equaled  5.39,  which  she 
rounded  to  6.    She  stated  that  in  accordance  with  Article  5.A.6.e.2.  of  the  Personnel 
Manual fractions of a percentage are rounded to the next higher number.  She argued, 
therefore, that based on her calculation, 6 of 7 LCDR RPAs should have been selected 
rather than 5 of 7.   The applicant's figure of 77% opportunity of selection was derived 
as follows: 

 
The total number of  ADPL officers selected for promotion for the [2005] 
LCDR selection board was 234 (includes in zone an above zone).  The total 
number  of  ADPL  officers  considered  for  promotion  to  that  grade  in  the 

ADPL  zone  was  267  (in  zone  only).    The  number  of  officers  above  the 
ADPL zone who have been once not selected was 37.  (Out of the 54 above 
zone, 37 were not selected only once).  Therefore, 234 divided by 267 plus 
37 equals 76.9% or 77% (234/(267+37)  . . .    
 
The  applicant  stated  that  the  opportunity  of  selection  for  the  ADPL  LCDRs 
before  the  calendar  year  2005  selection  board  was  86%  and  for  RPA  LCDRs  it  was 
71.4%,  which  she  suggested  denoted  the  unequal  treatment  of  RPAs.    She  stated  that 
section  276  of  title  14  of  the  United  States  Code  provides  that  as  nearly  as  possible, 
under regulations established by the Secretary, RPAs will be selected and promoted in 
the same manner and will be afforded equal opportunity for promotion as officers of 
the corresponding ADPL.  
  

VIEWS OF THE COAST GUARD 

 

On  May  18,  2006,  the  Judge  Advocate  General  (JAG)  submitted  an  advisory 
opinion recommending that the Board deny the applicant’s request.  In this regard, the 
JAG stated that the applicant failed to carry the burden of production and persuasion in 
showing that the Coast Guard committed a legal error by having only two RPA officers 
on the calendar year 2005 RPA selection board.  

 
The JAG noted that the regulation states that at least three members of the RPA 
selection board should be RPAs.  However, if enough RPAs are not available to satisfy 
this requirement, CGPC may reduce the number of RPAs to not less than one.  The JAG 
stated that since the Personnel Manual does not define availability, the determination of 
whether an RPA is available is within the discretion of Coast Guard officials.  In this 
regard, the JAG offered the following: 

 
(3)  In  the  case  at  hand,  CGPC  had  seven  RPAs  at  the  rank  of  Captain 
serving on active duty who were eligible to serve on the selection board.  
CGPC  determined  that  five  of  them  were  unavailable  for  the  following 
reasons:  One officer had operational commitments at her command; three 
officers  were  involved  in  response  operations  following  Hurricane 
Katrina;  and  one  officer  had  operational  commitments  in  support  of 
Operations Iraqi Freedom; the two remaining RPAs served as members of 
the selection board.   
 
(4) Applicant claims that the discretionary determination made by CGPC 
regarding  the  unavailability  of  the  five  eligible  RPAs  was  arbitrary, 
capricious, or contrary to law.  She cites the Court's holding in Godwin v. 
United  States,  338  F.3d  1374  (Fed.  Cir.  2003)  in  support  of  her  argument, 
yet provides no analysis to explain the relevance of that case to her alleged 
error.   

 
(5) Contrary to Applicants assertion, the Godwin case supports the legality 
of  CGPC's  decision  regarding  the  availability  of  RPAs  for  the  [calendar 
year 2005] selection board.  In Godwin, the Coast Guard determined that 
ten of the twelve eligible RPA officers on active duty were not available to 
serve as members of the Py94 (promotion year 1994) RPA Selection Board 
for  the  following  reasons:    Three  officers  served  on  the  previous  year's 
board;  one  officer  was  being  considered  for  continuation  by  the  same 
selection board; one officer's record was inadequate; two officers were too 
junior and classmates of the candidate being considered by the board; two 
officers had schedule conflicts; and one officer was scheduled to retire.  Id. at 
1378.  The court found only one of the six reason used by the Coast Guard 
to  determine  availability  to  be  arbitrary,  capricious,  or  contrary  to  law.  
The court held that the "Coast Guard's determination that a soon to retire 
RPA  officer  was  "not  available"  to  serve  was  arbitrary,  capricious,  or 
contrary  to  law[,]  because  the  reason  was  inconsistent  with  PERSMAN 
Art. 14.A.12b. Id. at 1379.  If allowed to stand, the reason used by the Coast 
Guard could have resulted in a situation where a retired or inactive RPA 
officer might be used as a board member instead of a soon-to-retire RPA 
on active duty. Id. at 1379.  In the case at hand, CGPC's decision that five 
officers  were  unavailable  because  of  operational  commitments  was  not 
arbitrary,  capricious,  or  contrary  to  law,  because  it  was  consistent  with 
[Article 14.A.12.b. of the Personnel Manual].   

 
 
The  JAG  also  stated  that  the  applicant  failed  to  prove  that  the  Coast  Guard 
committed an error by having the same officer serve on the calendar year 2003 and the 
calendar year 2005 selection boards.  The JAG argued that none of the authorities cited 
by the applicant to prove this allegation applies to RPA selection boards.   
 
 
In this regard, the JAG stated that Article 14.A.10.b. of the Personnel Manual that 
prohibited  officers  from  serving  on  two  successive  selection  boards  applies  only  to 
ADPL  boards.      He  noted  that  in  the  Godwin  case  the  Coast  Guard  relied  on  this 
provision for finding three RPAs unavailable because they had served on the previous 
year's board, even though the provision does not apply to RPAs.  In the case at hand, 
the  JAG  stated  that  the  officer  in  question  served  on  the  2003  and  2005  RPA  boards, 
rather than on the previous years board. The JAG stated that Article 14.A.12.b. of the 
Personnel Manual applies to RPAs and it contains no provisions against officers serving 
on two successive RPA selection boards.  Moreover, the JAG noted that Paragraph 4.b. 
of  Commandant  Instruction  1401.1,  entitled  "Coast  Guard  Active  Duty  Officer 
Promotion Boards" clearly states that RPAs "are governed by 14 U.S.C. § 276, and so are 
not covered by this instruction (emphasis added)."   
 

 
The JAG stated that the applicant failed to prove that the Coast Guard committed 
legal  error  with  respect  to  the  opportunity  of  selection  to  LCDR  by  the  2005  RPA 
selection  board.    The  JAG  stated  that  absent  strong  evidence  to  the  contrary, 
government officials are presumed to have carried out their duties correctly, lawfully, 
and in good faith.  Arens v. United States, 969 F.2d at 1037.  The JAG stated that Coast 
Guard  officials  calculated  the  opportunity  of  selection  for  the  2005  ADPL  board  as 
stated  in  a  memorandum  from  the  Commander,  Coast  Guard  Personnel  Command 
(CGPC),  attached  as  Enclosure  (1)  to  the  advisory  opinion,  which  stated  in  pertinent 
part as follows: 
 

There were 267 officers in zone on the LCDR ADPL Board.  Since the RPA 
board had one above zone officer who had failed selection only once, all 
ADPL  officers  that  had  failed  selection  once  were  included  in  the 
calculations.  This number was 45.  The number set forth by the applicant 
of 37 is incorrect.  {Note:  The number of above zone candidates is not published 
to  the  field  at  large,  nor  is  it  published  in  any  ADPL  promotion  board  results 
message.}    The  number  to  select  was  234.    Therefore,  234  divided  by  the 
sum  of  267  plus  45  (312)  equals  75  percent  computed  opportunity  of 
selection.   

 
 
The JAG stated that the applicant used the wrong authority in determining the 
number  of  RPAs  who  may  be  selected  by  the  calendar  year  2005  selection  board.  
According  to  the  JAG,  the  correct  provision  of  the  Personnel  Manual  for  this 
determination  is  Article  5.A.6.f.  of  the  Personnel  Manual,  which  states,  "[i]n  applying 
the computed percentage, a fraction of five-tenths or greater shall be counted as a whole 
number."  The JAG stated that the provision of the Personnel Manual, Article 5.A.6.e.2., 
cited  by  the  applicant  is  used  to  determine  the  opportunity  of  selection  and  not  the 
number to of RPAs to be selected.  
 
 
The JAG concluded the advisory opinion by stating that the applicant had failed 
to prove that the Coast Guard committed an error or injustice in her case and therefore 
it was not necessary to reach the issue of whether her failures of selection for promotion 
to LCDR should be removed.  
 
 
CGPC's  memorandum,  which  is  part  of  the  advisory  opinion,  offered  the 
following  explanation  as  to  the  membership  of  the  calendar  year  2005  RPA  selection 
board, which met on September 6, 2005: 
 
-Until September 1, 2005, there were three RPAs slated to be members of the board. 
 
-On  September  1,  2005,  one  of  the  RPAs  scheduled  to  serve  on  the  selection  was 
directed to proceed to in support of Hurricane Katrina response operations and was not 
available to serve on the selection board. 

 
-There were four other RPAs on active duty at the rank of captain but were unavailable 
to serve on the selection board for the following reasons:  one was unavailability due to 
operational  commitments  at  her  command  in  Hawaii;  one  was  unavailable  due  to 
operational  commitments  in  the  Middle  East  in  support  of  Operation  Iraqi  Freedom; 
and two were unavailable due to Hurricane Katrina response efforts.  
 
-Since  the  RPAs  discussed  above  were  unavailable,  the  Coast  Guard  sought  to  use  a 
Reserve officer on active duty.  There was only one qualified Reserve captain serving 
under an extended active duty agreement at the time of the board.  He was determined 
to  be  unavailable  due  to  operational  commitments  at  his  foreign  duty  assignment  in 
Mexico.   
 
-Therefore, a captain who drilled in the Ready Reserve was brought on active duty to 
serve on the RPA selection board.   
 
-On  September  6,  2005,  the  RPA  selection  board  membership  consisted  of  two  RPAs, 
two ADPL officers, and one Reservist.   
 
 
GCPC  stated  that  Coast  Guard  policy  does  not  specify  that  a  Reserve  officer 
should be recalled from retirement prior to using one on inactive duty.  CGPC further 
stated  that  there  is  no  prohibition  against  a  member  sitting  on  a  board  who  has 
previously  considered  a  candidate,  but  that  the  member  cannot  sit  on  two  successive 
boards.  The member of the selection board about which the applicant complains, sat on 
the 2003 and 2005 boards.  CGPC argued these were not successive boards.   
 
 
stated the following: 
 

With  respect  to  the  calculations  for  the  opportunity  of  selection,  again  CGPC 

There were 267 officers in zone on the LCDR ADPL board.  Since the RPA 
board had one above zone officer who had failed selection only once, all 
ADPL  officers  that  had  failed  selection  once  were  included  in  the 
calculations.  This number was 45.  The number set forth by the applicant 
of  37  is  incorrect.    {Note:    the  number  of  above  zone  candidates  is  not 
published to the field at large, not is it published in any ADPL promotion 
board  results  message.}    The  number  to  select  was  234.    Therefore  234 
divided  by  the  sum  267  plus  45  (312)  equals  75  percent  computed 
opportunity of selection.   
 

  * 

 

* 

 

* 

Per 5.A.7.f. the calculated percentage of 7 percent is multiplied by the total 
number of officers that the board may consider in and above zone, which 
is 7 in the present case.  75 percent of 7 is equal to 5.25.  Per the second 

sentence of 5.A.7.f., a fraction of .5 or greater shall be counted as a whole 
number.  Since .25 is not greater than .5, the number to select is rounded 
down from 5.25 to 5.   

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On July 7, 2006, the BCMR received the applicant's reply to the advisory opinion.  
The  applicant  reasserted  that  the  regulation  required  that  three  members  of  the  RPA 
selection board be RPAs.  The applicant recognized that the regulation also allowed for 
this number to be reduced to at least one if enough RPAs were not available and that 
the Coast Guard could recall retired Reserve officers to active duty or Reserve officers 
serving on inactive duty to active duty to serve on the RPA board, as long as they were 
senior to all officers being considered.   
 
 
The applicant stated, however, that the intent of the policy is to have a majority 
of the selection board members be RPAs because of their familiarity with the duties and 
responsibilities of an RPA, as well the RPA culture.  She argued therefore that it would 
have been more compatible with the intent of the policy to recall to active duty some of 
the  six  retired  RPAs  rather  than  having  ordered  a  drilling  reservist  to  active  duty  to 
serve on the selection board.   
 
 
The applicant restated her argument that the calendar year 2005 RPA selection 
board was illegally constituted because one of its members served on the board in 2003 
and had considered one of the candidates who was also before the 2005 selection board.  
She stated that the Coast Guard's argument that 14 U.S.C. § 252 does not apply to RPAs 
but only to the ADPL is incorrect.  This provision of the law states "no officer may be a 
member of two successive [ADPL] selection boards convened to consider officers of the 
same grade for promotion."  The applicant argued that the provision does apply to RPA 
selection boards because such officers are on the ADPL list.  The applicant further stated 
that the intent of Coast Guard policy is to ensure that all officers are on a level playing 
field, as evidenced by the fact that the Coast Guard does not make a distinction between 
above and in zone officers.  However, she argued the playing field was not level in the 
case  of  one  officer  before  the  calendar  year  2005  board  because  a  member  of  the 
selection had considered him for promotion to the same grade in 2003. 
 
 
The  applicant  stated  that  she  compared  the  calendar  year  2004  ADPL  LCDR 
candidate list with the calendar year 2005 ADPL LCDR candidate list and arrived at 37 
officers  who  had  failed  once.  (In  contrast,  the  Coast  Guard  stated  that  there  were  45 
officers on the ADPL in this category who were considered by the 2005 ADPL board).     
 

The  applicant  also  stated  that the  officers  before  the  2005  RPA  LCDR  selection 
board were not afforded equal selection opportunity for promotion with the officers on 
the  2005  ADPL  LCDR  selection  board,  as  required  by  14  U.S.C  §  276.    The  applicant 

stated this provision of the law governs RPAs and states as follows:  "Officers who are 
not included on the active duty promotion list may be promoted under regulations to 
be  prescribed  by  the  Secretary.    These  regulations  shall,  as  to  officers  serving  in 
connection  with  organizing,  administering,  recruiting,  instructing,  or  training  the 
reserve components, provide as early as practicable, that such officers will be selected 
and  promoted  in  the  same  manner  and  will  be  afforded  equal  opportunity  for 
promotion as officers of the corresponding grade on the active duty promotion list." 
(Emphasis added by applicant.)  In this regard, the applicant stated that based on her 
calculation, the opportunity of selection for promotion to LCDR for RPAs in 2005 (71%) 
was  not  comparable  to  the  opportunity  of  selection  for  the  ADPL  (86%).    Therefore, 
according to the applicant, RPAs were treated differently than ADPL officers.   
 
 
The applicant further argued that RPAs are treated differently because there is 
no continuation board for those officers who are twice passed over for promotion to the 
next higher grade.  The applicant submitted an email from the Chief of Reserve Affairs 
addressing some improvements to the management of the RPA Corps.  The email states 
the following in pertinent part: 
 

Another recommendation is to institute changes to the promotion system 
to  provide  a  better  opportunity  for  selection  to  LCDR,  CDR,  and  CAPT 
level.    One  of  the  principle  barriers  to  maximizing  the  opportunity  of 
selection  is  to  the  number  of  multiple  pass-over  RPAs  whose  presence 
above  the  promotion  zone  may  negatively  impact  the  opportunity  of 
selection  for  those  PRAs  within  the  zone.  As  the  document  was  being 
developed, many suggestions were made including convening an annual 
continuation  board  for  twice  passed  over  RPAs  to  evaluate  their 
performance for continued active duty service.  
 

    * 

 

* 

 

* 

At this time, I cannot divulge the exact details of the memo because the 
issues and recommendations are being rewritten  . . .   

 
 
The  applicant  concluded  her  reply  to  the  advisory  opinion  by  stating  that  she 
believed that she has established a prima facie case of a substantial connection between 
the  existence  of  an  error  and  the  Coast  Guard's  decision  not  to  promote  her.    The 
applicant  summarized  as  follows:    "I  did  show  that  the  [calendar  year  2005]  RPA 
selection  board  membership  violated  Coast Guard  regulation  [by not]  keeping  all  the 
candidates on a level playing field.  I also showed that the [calendar year 2005] selection 
board  used  the  incorrect  opportunity  of  selection  for  LCDR.    I  also  showed  that  the 
[calendar year 2005] selection board was not afforded an equal opportunity of selection 
[with] the other ADPL selection board in violation of 14 U.S.C. 276." 
 

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  failed  to  prove  that  her  failure  of  selection  for  promotion  to 
LCDR by the calendar year 2005 RPA selection board should be removed because that 
board  was  not  constituted  in  accordance  with  Article  14.A.12.b.  of  the  Personnel 
Manual. In this regard, she alleged that the Coast Guard acted capriciously, arbitrarily, 
or not in accordance with law when it determined that only two RPAs were available 
for  service  on  the  calendar  year  2005  RPA  selection  board.  Article  14.A.12.b.  of  the 
Personnel  Manual  governs  the  constitution  of  RPA  selection  boards.    This  provision 
states as follows: 
 

A  board  convened  to  consider  RPAs  for  promotion  to  the  next  higher 
grade shall consist of five or more officers serving in or above the highest 
grade to which the board may recommend officers for promotion.  Three 
members  shall  be  RPAs.    If  enough  are  not  available  to  satisfy  this 
requirement, Commander, (CGPC-opm) may reduce the number of RPA 
members, but the board must have at last one RPA.  If no Reserve officer 
serving  on  active  duty  is  senior  to  all  officers  under  consideration, 
Commander  (CGPC-opm)  may  recall  to  active  duty  a  retied  Reserve 
officer or one serving on inactive duty senior to all officers the board will 
consider to serve on the board." 
 
3.    The  evidence  of  record  established  that  there  were  seven  RPA  captains  on 
active  duty  and  therefore  eligible  to  serve  on  the  selection  board.      Because  the  RPA 
selection  board  considered  officers  for  promotion  to  LCDR,  CDR,  and  captain,  only 
captains could be members of the selection board.  

 
4.  Two of the seven RPAs on active duty served on the selection board, along 
with two ADPL officers, and one inactive duty Reserve officer called to active duty to 
serve  on  the  selection  board.    The  Coast  Guard  determined  that  the  other  five  RPAs 
were not available to serve on the selection board for the following reasons:  one RPA 
was unavailable due to commitments with IRAQI FREEDOM; one was unavailable due 
to  operational  commitments  at  her  command  in  Hawaii;  and  three  were  unavailable 
due  to  Katrina  response  assignments.      The  regulation  does  not  define  the  term 
"available" and therefore, the Coast Guard's determination of whether the officers were 
available should stand unless arbitrary, capricious, or contrary to law.   In Godwin, the 
Court accepted that nine of ten RPAs were unavailable because three had served on the 

previous year's board; one was being considered for continuation by the same selection 
board; one officer's record was inadequate; two officers were too junior and a classmate 
of  an  officer  being  considered  by  the  board;  and  two  officers  had  schedule  conflicts.  
The reasons for unavailability as determined by the Coast Guard in this case are similar 
to those accepted by the court in Godwin, and as such they are not arbitrary, capricious, 
or contrary to law.  In Godwin, the court rejected that a soon-to-retire RPA officer was 
unavailable to serve on the selection board, finding the Coast Guard's determination in 
this regard to be arbitrary, capricious or contrary to law.  The court stated that it was 
inconsistent with the regulation to recall a retired or inactive duty officer to active duty 
to serve on the board rather than assigning a soon-to-retire active duty RPA officer to 
the selection board.  However, as stated above, the reasons for the unavailability of the 
officers in this case do not conflict with the Personnel Manual and are akin to those the 
court found acceptable in Godwin. 
 

5.  The applicant has not offered any evidence to prove that the five RPAs were 
indeed  available  for  service  on  the  selection  board.  Instead,  she  argued  that  CGPC 
should have recalled one of the six retired RPA captains she identified to active duty to 
serve  on  the  selection  board  rather  than  having  ordered  a  drilling  reservist  to  active 
duty for that purpose.  In her opinion, recalling a retired reservist to serve on the Board 
would have met the intent of Coast Guard policy that a majority of the RPA selection 
board  members  be  RPA  officers.    The  applicant  overlooked  the  fact  that  where  there 
was an insufficient number of RPAs, the regulation permitted CGPC to use a Reserve 
officer  on  active  duty,  but  if  no  such  Reserve  officer  was  available,  the  regulation 
permitted the CGPC to recall a retired Reserve officer or  one serving on inactive duty to 
serve on the selection board.  According to the record, there was one Reserve officer on 
active  duty  in  the  grade  of  captain  eligible  to  serve  on  the  board,  but  he  was  not 
available  due  to  an  operational  assignment  in  Mexico.    Therefore,  CGPC  had  two 
options remaining: to recall a retired Reserve officer or order an inactive duty officer to 
active duty to serve on the selection board.  CGPC ordered an inactive duty captain to 
active duty to serve on the Board, as permitted under the regulation.  CGPC was not 
required  to  first  seek  out  a  retired  Reserve  officer  before  choosing  an  inactive  duty 
officer.    The  pertinent  portion  of  the  regulation  in  this  regard  states:    "Commander 
(CGPC-opm)  may  recall  to  active  duty  a  retired  Reserve  officer  or  one  serving  on 
inactive  duty  senior  to  all  officers  the  board  will  consider  to  serve  on  the  board."  
Moreover, there is no requirement that the retired officer be an RPA, as suggested by 
the applicant. A retired Reserve officer can also be used.  Therefore, the Board finds that 
the calendar year 2005 RPA selection board complied with the regulation by having two 
RPAs, two ADPL officers, and one inactive duty Reserve officer called to active duty for 
that  purpose.    The  Coast  Guard  also  complied  with  the  spirit  and  intent  of  the 
regulation by having a majority of the members on the selection be reserve officers, of 
which RPAs are a part.   
 

6.    The  applicant  next  argued  that  the  calendar  year  2005  RPA  selection  board 
was illegally constituted because one of its members had served on the calendar year 
2003  RPA  selection  board  that  had  considered  the  record  of  a  CDR  for  promotion  to 
captain who was also before the 2005 RPA selection board.  She argued that by doing 
so,  the  Coast  Guard  violated  Article  14.A.10.b.  of  the  Personnel  Manual,  which  states 
that no officer may serve on two successive boards convened to consider officers of the 
same  grade  for  promotion.  Successive  is  defined  as  "following  each  other  without 
interruption."  See Webster's Ninth New Collegiate Dictionary, p. 1178.   One of the RPA 
officers  on  the  2005  board  had  also  served on  the  2003  board.  The  applicant  noted  in 
Godwin  that  the  Coast  Guard  determined  that  three  RPAs  were  not  available  for  that 
year's selection board because they had served on the previous year's board.   The Board 
finds that the phrase "the previous year's board" means the one immediately preceding the 
current  one,  or  put  another  way  there  was  no  intervening  year  between  "the  previous 
year's board" and the current board for that year.  Since there was an intervening year 
between  the  2003  and  2005  boards,  the  RPA  member  about  whom  the  applicant 
complains did not serve on two successive boards.  Therefore, his membership on the 
2005 selection board was not in violation of the regulation.  In addition, the applicant's 
interpretation that a member who has served on a previous board cannot serve on any 
subsequent  boards  for  that grade  would  deny  the  Coast  Guard the  future  use  of  that 
member for selection boards of that grade no matter how many years had elapsed since 
that member first served on the selection board for promotion to that grade.  This Board 
finds it highly unlikely that Congress would tie the hands of the Coast Guard in such a 
manner. 

 
7.  The applicant further argued that the intent of the regulation that an officer 
could not serve on two successive selection boards considering officers for promotion to 
the same grade was to maintain a level playing field whether an officer was above or in 
the promotion zone.  She maintained that the Coast Guard acts to maintain this level 
field for all officers by not identifying officers above the zone to the promotion boards.  
It is reasonable to conclude, as the applicant did, that a level field might well be one of 
the  reasons  that  the  Coast  Guard  does  not  identify  officers  who  have  once  failed  of 
selection for promotion to the next higher grade.  It is also reasonable to conclude that 
by  preventing  service  on  two  successive  selection  boards  for  the  same  grade,  the 
regulation ensures that officers who fail to be selected the first time will have a second 
best opportunity before a completely new board.  However, the regulation provides no 
explanation for the provision and is a restatement of 14 U.S.C. § 252, which reads:  "A 
board convened under section 251 of this title [which speaks about selection boards for 
officers on the ADPL] shall consist of five or more officers on the active duty promotion 
list who are serving in or above the grade to which the board may recommend officers 
for  promotion.    No  officer  may  be  a  member  of  two  successive  boards  convened  to 
consider officers of the same grade for promotion." Therefore, the Board finds that the 
Coast Guard did not violate the law or regulation because the officer concerned did not 
serve  on  two  successive  boards,  although  he  had  served  on  the  selection  board  two 

years earlier in 2003.  Moreover, the applicant has not argued or offered any evidence 
that the selection board knew she was above the zone.  Therefore, the Board finds that 
she was on a level field with the other candidates in her grade who were considered for 
promotion to the next higher grade.      
 

8.  The CDR who was considered by the RPA member who served on both the 
2003 and 2005 selection boards had already failed twice (2003 and 2004) for promotion 
to captain when he came before the 2005 RPA selection board.  Therefore, he had two 
successive  opportunities  for  promotion  to  captain  before  two  different  RPA  selection 
boards.  Applying the regulation prospectively, if this CDR is before the calendar year 
2006  selection  board,  no  member  on  the  2005  selection  may  serve  on  that  selection 
board. In addition, the Board questions whether the applicant has standing to raise this 
issue since she was not the officer who was considered by the RPA member who served 
in 2003 and 2005, and therefore was not prejudiced by his service, even if it were illegal, 
which it was not.    

 
 
9.    Last,  the  applicant  has  failed  to  prove  that  the  Coast  Guard  improperly 
calculated the opportunity for selection of RPA LCDRs before the 2005 selection board.   
Article  5.A.6.e.2.  of  the  Personnel  Manual  governs  in  calculating  the  opportunity  for 
selection of RPAs.  It provides as follows: 
 

If RPAs going before the selection board include only first-time candidates 
and those who once failed of selection for promotion to the grade being 
considered, the percentage is the total number of ADPL officers selected 
for promotion, divided by the total number of ADPL officers considered 
for promotion to that grade in the ADPL zone plus the number of officers 
above  the  ADPL  zone  who  have  been  once  not  selected.    Fraction  of  a 
percentage shall be rounded to the next higher number. 
 
10.    Article  5.A.6.f.  provides  guidance  on  determining  the  number  of  RPA 
officers  to  be  selected  once  the  opportunity  for  selection  has  been  determined.    This 
provision states that  
 

[b]efore  convening  a  board  to  recommend  RPAs  for  promotion  to  any 
grade,  the  Commandant  will  determine  the  total  number  of  RPAs  who 
may be selected for that grade by multiplying the computed opportunity 
of selection by the number of RPAs in the promotion zone.  In applying 
the  computed  percentage,  a  fraction  of  five-tenths  or  greater  shall  be 
counted as a whole number. 

 

 

11.    In  the  September  5,  2005  precept,  the  Commandant  directed  the  selection 
board to select 5 of the 7 RPA LCDRs from the promotion zone.  The applicant argued 
that the Commandant should have directed the board to select 6 of the 7.  The number 

to be selected is determined by multiplying the computed opportunity of selection by 
the  number  of  RPAs  in  the  promotion  zone.    The  applicant's  computation  shows  the 
selection  opportunity  to  be  77%,  and  the  Coast  Guard  states  that  the  opportunity  of 
selection was 75%.  The only difference in the calculations of the parties is the number 
of  ADPL  officers  above  the  zone  (officer  who  had  failed  once  to  be  selected  for 
promotion to a LCDR).  The applicant stated that there were 37 officers above the zone 
and  the  Coast  Guard  stated  that  there  were  45  officers  above  the  zone.    The  parties 
agree  that  there  were  234  ADPL  LCDRs  selected  for  promotion  by  the  calendar  year 
2005 board and there were a total 267 LCDRS in the zone.   

 
12.  The  applicant  calculated  the  opportunity  for  selection  for  RPA  LCDR  2005 
selection board as follows:  234 officers selected divided by 267 officers in the zone plus 
37  above  the  zone  (304)  =  77%.    Again  using  the  applicant's  figure  to  determine  the 
number  to  be  selected,  multiply  77%  times  7  (the  number  of  RPAs  in  the  promotion 
zone) equals 5.39%.  The applicant argues that the 5.39% should have been rounded up 
to 6 under Article 5.A.6.e.2., which states that a fraction of a percentage in calculating 
the opportunity for selection shall be rounded the next higher number. The applicant is 
incorrect.    The  5.39%  should  be  rounded  down  to  5,  as  required  by  Article  5.A.6.f., 
which  states  that  "[I]n  applying  the  computed  percentage,  a  fraction  of  five-tenths  or 
greater  shall  be  counted  as  a  whole  number.  In  this  regard,  using  the  applicant's 
calculation  the  number  to  be  selected  (5.39%)  is  not  equal  to  or  greater  than  5.50%.   
Therefore,  even  if  the  applicant's  calculation  for  opportunity  of  selection  (77%)  were 
correct, it still would not have resulted in more than 5 RPA LCDRs being selected from 
the promotion zone by the 2005 RPA selection board.  

 
13.  The applicant has failed to prove that the Coast Guard violated the law or 
regulation in assigning members to the 2005 RPA selection board or that it committed 
any error with respect to that board.  Therefore, it is not necessary for the Board to reach 
the question of whether her failure should be removed.   By way of information, even if 
the  Board  had  granted  her  application,  it  would  not  have  ordered  a  special  selection 
board as requested because Coast Guard policy is not to convene such boards.   

 
14. All of the applicant's allegations have been considered by the Board, those not 
discussed with the above findings and conclusions are considered to be not dispositive 
of this case.   

 
15.  Accordingly, the applicant’s request should be denied.  

 
 
 

 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
 

The  application  of  LT  XXXXXXXXXXXXXXXX,  USCGR,  for  correction  of  her 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 
 
 

 
 
 

 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 

 
 Elizabeth F. Buchanan 

 

 

 

 
 
 Adrian Sevier 

 

 

 

 
 Thomas H. Van Horn