DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                       BCMR Docket No. 2009-232 
 
xxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxx   

FINAL DECISION 

 

 
 

 

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 after receiving the 
completed  application August  20,  2009,1  and  assigned  it  to  staff  member  J.  Andrews  to  pre-
pare the decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  May  13,  2010,  is  approved  and  signed  by  the  three  duly 

 

 

APPLICANT’S REQUEST AND ALLEGATIONS 

The applicant asked the Board to correct the title of his assigned position from July 15, 
2005, to July 31, 2006, which appears in block 2 of his officer evaluation report (OER) for the 
period  April  1,  2005,  through  March  31,  2006.    He  alleged  that  although  his  record  and  the 
disputed OER show that his position was Chief of the Prevention Department, they should show 
that he was Commander of the Prevention Command.   

 
The applicant explained that during a reorganization of various commands in 2004, Sec-
tor  Miami  and  Sector  San  Juan  were  both  “stood  up”  with  Prevention  Commands,  instead  of 
Prevention  Departments,  because  of  the  very  large  amount  of  work  and  personnel  involved.  
Therefore,  the  heads  of  those  organizations  received  the  position  of  “Commander,  Prevention 
Command” within those sectors.  His own sector, Xxxxxxxx, was also large and was originally 
designated to have a Prevention Command instead of a Prevention Department.  However, before 
Sector Xxxxxxxx stood up, “the Commandant reversed his decision and eliminated Prevention 
Commands altogether.”  The decision was never explained to him. 
 
 
The applicant alleged that while he served as the Chief of the Prevention Department at 
Sector Xxxxxxxx, both Sector Miami and Sector San Juan continued to operate with Prevention 
                                                 
1  A  completed  application  includes  the  form  DD  149  prepared  and  submitted  by  the applicant and receipt of the 
applicable  military  records  from  the  National  Personnel  Records  Center  in  St.  Louis,  Missouri.    Although  the 
application was completed on August 20, 2009, his DD 149 was received on July 10, 2009. 

Commands.    He  alleged  that  his  scope  of  responsibility  was  equivalent  to  those  of  his 
counterparts at the other two sectors, but his title and level of recognition was not.  Therefore, he 
argued,  the position title on the disputed OER is unjust.  The applicant noted that had he not 
elected  to  retire  on  July  31,  2006,  the  lower  position  title  might  have  negatively  affected  his 
chance of promotion. 
 

SUMMARY OF THE RECORD 

 
 
The applicant reported to MSO Xxxxxxxx, which was part of Group Xxxxxxxx, on July 
1, 2002.  His title on his first and second annual OERs at MSO Xxxxxxxx, dated April 30, 2003 
and 2004, was “Chief, Vessel Compliance Department.”  The position description on the OERS 
shows that he led some two dozen officers, a dozen enlisted members, and two or three civilian 
employees and was responsible for administering the “commercial vessel safety program in one 
of the nation’s largest ports … for inspection/examination of vessel construction, maintenance, 
operation, manning, & equipment on all U.S. & foreign flagged vessels in port.”   
 

On  his  third  annual  OER  at  MSO  Xxxxxxxx,  dated  March  31,  2005,  the  applicant’s 
position title is noted as “Chief, Operations Prevention Dept.”  The position description shows 
that he led about two dozen officers, two dozen enlisted members, and five civilian employees 
and  was  “[r]esponsible  for  all  CG  ops  directed  at  preventing  marine  casualties,  accidents,  & 
security incidents.  Manages & oversees the regulatory/inspection/investigation/ waterways man-
agement  elements  of  the  CG’s  safety,  security,  &  environmental  protection  responsibilities  to 
ensure  compliance  in  regulated  communities  (foreign/domestic  vessels,  merchant  mariners,  & 
facilities.” 
 

The applicant’s fourth annual OER while stationed at Xxxxxxxx which was entered in his 
record on July 10, 2009, is the disputed OER in this case as it shows that he was assigned to 
Sector Xxxxxxxx and that his primary duty title was “Chief, Prevention Department (PD).”  The 
position description shows that he led about two dozen officers, four dozen enlisted members, 
five civilian employees, and two Aids to Navigation Teams.  The responsibilities listed are iden-
tical to those listed on the previous OER.  On this disputed OER, the applicant received seven 
marks of 6 and eleven marks of 7 in the various performance categories2 and a mark in the sev-
enth  spot  on  the  comparison  scale,  meaning  that  he  was  the  best  officer  of  his  rank  that  the 
reporting officer had ever known throughout his career.   
 

VIEWS OF THE COAST GUARD 

 
 
On  December  10, 2009, the Judge Advocate General  of the Coast Guard submitted an 
advisory opinion in which he recommended that the Board deny relief in this case.  In so doing, 
he adopted the findings and analysis provided in a memorandum prepared by the Personnel Ser-
vice Center (PSC).  The PSC submitted copies of three documents regarding the reorganization 
of the sectors: 
 

                                                 
2 Coast Guard officers receive numerical evaluation marks in eighteen performance categories on a scale of 1 (worst) 
to 7 (best). 

In a memorandum with the subject line, “Decision Memo:  Sector Organizational Con-
struct,”  dated  May  2,  2004,  paragraph  3  states  that  “major  internal  Sector  components”  will 
include either a “Prevention Department or Command.”  The 16-page enclosure to the memoran-
dum states the following in pertinent part: 
 

Standard Sector Command Organizational Architecture.  The creation of Sectors transforms a 
diverse array of field structures into a standard Sector Command organizational architecture, con-
sisting  of  Prevention,  Response  and  Logistics  components,  which  will  be  either  commands  or 
departments depending on specific Sector characteristics. … 
 
Span of Control.  Span of control and geographic and functional requirements determine the need 
for command authorities below the Sector level. … 
 

Prevention Department or Command 

 
Under  the  general  direction  of  the  Sector  Commander  and  the  Deputy  Sector  Commander,  the 
Chief,  Prevention  Department/Commander,  Prevention  Operations  shall  be  responsible  for  all 
Coast  Guard  operations  directed  at  preventing  maritime  casualties,  accidents  and  security  inci-
dents,  as  described  below:    [The  list  of  responsibilities  does  not  make  any  distinction  between 
those of a Chief, Prevention Department and those of a Commander, Prevention Operations.] 

 
 
In a memorandum that appears to be dated June 3, 2005, regarding the “Establishment of 
Sector  Xxxxxxxx,”  the  Commandant  approved  the  establishment  of  the  sector.    The 
memorandum states that it “[e]stablishes the department-based structure of the Sector as depicted 
in enclosure (1).”  Enclosure (1) is an organizational chart showing the components of Sector 
Xxxxxxxx,  including  the  Prevention  component,  were  designated  as  departments  rather  than 
commands. 
 

In  a  message  issued  by  the  Commandant  on  July  8,  2005,  entitled  “Operating  Facility 
Change Order (OFCO) No. 055/05:  Establishment of Sector Xxxxxxxx,” paragraph 1 states that 
“Sector  Xxxxxxxx  will  be  composed  of  a  Response  Department,  Prevention  Department  and 
Logistics Department. …  All existing missions and functions performed by Group Xxxxxxxx, 
Group Eastern Shore, and MSO [Marine Safety Office] Xxxxxxxx should be realigned under this 
new organizational structure per [the memorandum dated June 3, 2005].  This action should take 
place [no later than] 15 July 2005.” 
 
 
The PSC also submitted two statements from the applicant’s rating chain.  The captain 
who  served  as  the  Sector  Commander  and  reporting  officer  for  the  disputed  OER  stated  that 
when the sector was stood up the applicant’s assigned position title was changed from the Chief 
of  the  Operations  Prevention  Department  at  MSO  Xxxxxxxx  to  Chief  of  the  Prevention 
Department for the sector.  However, “[h]is duties were essentially unchanged with minor losses 
and additions in personnel and divisions throughout the entire assignment.  While he did profes-
sionally and expertly supervise a large group of people located in xxxxxxxxxx, his duties did not 
include the authorities and responsibilities inherent in Command.” 
 
 
The captain who served as the Deputy Sector Commander and supervisor for the disputed 
OER stated that the applicant was the Chief of the Prevention Department and his performance 
was outstanding.  He further stated that he is  
 

not familiar with the current or past command structures of Sectors Miami or San Juan.  That said, 
I  suspect  that  [the  applicant’s]  role  as  Prevention  Department  Head  at  Sector  Xxxxxxxx  was 
equivalent  to  the  Commander,  Prevention  Command  positions  at  these  two  units  as  he has sug-
gested.  A decision to retroactively designate [his] Sector xxxxxxxxxxxxx’s position a command 
billet is not one that would be made locally by his rating chain and has broader service-wide impli-
cations.  I do not concur that [he] would have been disadvantaged for promotion or assignment had 
he  remained  in  the  USCG  since  most  senior  leadership  in  the  Coast  Guard  is/was  aware  of  the 
history of Command designations for certain Sector billets. 

The PSC noted that the application may not be timely and that the applicant did not file 

 
 
an application with the Personnel Records Review Board. 
 
The  PSC  stated  that  the  job  description  in  block  2  of  the  disputed  OER  “accurately 
 
reflects the applicant’s assigned duties” during the evaluation period.  The PSC noted that the 
reporting officer stated that the applicant’s duties during the evaluation period “did not include 
the authorities and responsibilities inherent in Command.” 
 
 
The  PSC  stated  that  the  May  2,  2004,  memorandum  showed  that  Sector  Commands 
would be established with either Prevention Commands or Prevention Departments.  PSC stated 
that the Commandant’s final implementation decision was reflected in the “stand-up guidance” 
dated June 3, 2005, and July 5, 2005. 
 
 
The PSC argued that the applicant’s claim that his title as the chief of a department rather 
than the commander of a command was a disservice and could have caused him to fail of selec-
tion had he remained in the Coast Guard is not supported and speculative.  The PSC alleged that 
although  both  Group  Xxxxxxxx  and  MSO  Xxxxxxxx  were  significantly  reorganized  in  the 
creation of Sector Xxxxxxxx, “the applicant’s scope of responsibility changed minimally.  These 
changes do not equate to command level responsibilities.”  The PSC concluded that the applicant 
is not entitled to the requested relief. 
 
 
The PSC further noted, however, that there is no OER in the applicant’s record covering 
his performance from April 1 through his retirement on July 31, 2006, so his record is incom-
plete.  The PSC stated that a continuity OER should be created to cover this period. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On  December  14,  2009,  the  Chair  sent  the  applicant  a  copy  of  the views of the Coast 

Guard and invited him to respond within 30 days.  No response was received. 
 

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 submission, and applicable law: 
 
 
 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.   

2. 

Under 10 U.S.C. § 1552(b) and 33 C.F.R. § 52.22, an application to the Board 
must  be  filed  within  three  years  after  the  applicant  discovers,  or  reasonably  should  have  dis-

1. 

covered, the alleged error or injustice.  The disputed OER was entered in the applicant’s record 
on July 10, 2006, and he retired on August 1, 2006, which is when the three-year period began to 
toll.3  The Board received his DD 149 application form on July 10, 2009.  Although the applica-
tion was not completed until the Board received his military records from the National Personnel 
Records Center on August 20, 2009, the Board finds that his application was timely submitted. 
 

The applicant alleged that his position title from July 15, 2005, to July 31, 2006, 
as shown in block 2 of his final OER, is unjust.  The Board begins its analysis in every case by 
presuming that the disputed information in the applicant’s military record is correct as it appears 
in his record, and the applicant bears the burden of proving by a preponderance of the evidence 
that the disputed information is erroneous or unjust.4  Absent evidence to the contrary, the Board 
presumes  that  Coast  Guard  officials  and  other  Government  employees  have  carried  out  their 
duties “correctly, lawfully, and in good faith.”5 

3. 

The  applicant  alleged  that  his  position  title  should  be  corrected  from  Chief, 
Prevention Department to Commander, Prevention Command on the disputed OER because his 
sector  was  originally  supposed  to  have  a  Prevention  Command  when  the  sector  “stood  up,” 
instead of a Prevention Department, and because two other sectors of similar size, Sector Miami 
and  Sector  San  Juan,  operated  with  Prevention  Commands.    The  documents  submitted by the 
PSC show that each new sector was to have either a Prevention Department or Command and 
that Sector Xxxxxxxx was organized with a Prevention Department.  Therefore, the position title 
shown on the disputed OER conforms to the official designation of the applicant’s billet and is 
not erroneous. 

 
4. 

 
5. 

 
6. 

 

The  applicant  alleged  that  his  position  title  was  unfair  because  his  work  was 
substantially  similar  to  the  work  of  the  officers  who  led  the  Prevention  Commands  at  Sector 
Miami and Sector San Juan and who received the title of Commander.  However, as the appli-
cant’s reporting officer noted, Commanders of commands, like Commanding Officers, bear the 
duties and responsibilities of command in addition to those borne by department heads.  

The documents submitted by the PSC do not reveal the Commandant’s reasoning 
in  determining  why  Sector  Xxxxxxxx  should  have  a  Prevention  Department  rather  than  a 
Prevention  Command.    Assuming  that  the  applicant’s  allegation  that  the  size  of  Sector 
Xxxxxxxx is comparable to the size of Sector Miami and Sector San Juan is true, some factor 
other than size must have been the determining factor.  Apparently, the determining factor was 
never explained to the applicant, but the Board will not assume that the decision was arbitrary 
and capricious simply because the Commandant’s reasons are unknown.   

                                                 
3 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that, under § 205 of the Soldiers’ and Sailors’ Civil 
Relief Act of 1940, the BCMR’s three-year limitations period under 10 U.S.C. § 1552(b) is tolled during a member’s 
active duty service). 
4 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002, approved by the Deputy 
General Counsel, May 29, 2002) (rejecting the “clear and convincing” evidence standard recommended by the Coast 
Guard and adopting the “preponderance of the evidence” standard for all cases prior to the promulgation of the latter 
standard in 2003 in 33 C.F.R.§ 52.24(b)).   
5 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

7. 

Accordingly, the applicant’s request should be denied because he has not proved 
by a preponderance of the evidence that his position title as Chief, Prevention Department from 
July 15, 2005, to July 31, 2006, was erroneous or unjust,6 that it violated any regulation, or that it 
was a product of bias or prejudice. 

The Board notes that the PSC stated that the applicant’s record should contain a 
continuity OER covering his service from April 1 to July 31, 2006, because the applicant’s last 
OER covered his service only through March 31, 2006.  However, the applicant did not request 
this correction of his record, and he did not respond to the PSC’s recommendation in the advisory 
opinion.  Therefore, the Board will not address the matter. 

 
8. 

 
 

 

 

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
6 See Sawyer v. United States, 18 Cl. Ct. 860, 868 (1989), rev’d on other grounds, 930 F.2d 1577 (citing Reale v. 
United  States,  208  Ct.  Cl.  1010,  1011  (1976)  (finding  that  for  purposes  of  the  BCMRs  under  10 U.S.C. § 1552, 
“injustice” is treatment by military authorities that “shocks the sense of justice”). 

The application of xxxxxxxxxxxxxxxxxxx, USCG Retired, for correction of his military 

ORDER 

 
 
record is denied. 
 
 
 
 
 
 
 

 
 
 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Donna M. Bivona 

 

 

 
 Nancy L. Friedman 

 

 

 
 Dorothy J. Ulmer