DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 1999-035 
 
 
   

 

 
 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section 
1552 of title 10 and section 425 of title 14 of the United States Code.  The BCMR 
docketed  this  case  on  December  16,  1998,  upon  receipt  of  the  applicant’s  com-
pleted application. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated November 18, 1999, is signed by the three duly 

RELIEF REQUESTED 

 
   
The applicant, a xxxxxxxxxxxx on active duty in the Coast Guard, asked 
the Board to correct his record to show that he was advanced to xxxxxxxxx on 
September 1, 199x and to award him back pay and allowances from September 1, 
199x,  to  May  31,  199x,  when  he  was  promoted  to  xxxxxx.    The  applicant 
explained that because he was forced to decline advancement to xxxxxx in order 
to  remain  on  the  xxxxxxxxx  list,  he  lost  over  $3,300.00  in  pay  and  benefits 
between September 1, 199x, and May 31, 199x, as well as the prestige of wearing 
the xxxxxxxx insignia, which he had worked hard to obtain. 
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that in August 199x, when he was still a xxxxxxx, he 
was simultaneously above the cutoff on the list for advancement to XXXXX and 

above the cutoff on the list for appointment to XXXXX.1  On August 199x, he was 
chosen  for  advancement  to  XXXXX  as  of  September  1,  199x.    However,  under 
Article 5.C.13.d. of the Personnel Manual (COMDTINST M1000.6A), he could not 
accept  that  advancement  unless  he  declined  appointment  to  XXXXX.    The 
applicant alleged that he requested a waiver of this policy and that his request 
received  a  strong  endorsement  from  his  command.    However,  his  request  was 
disapproved.  
 
 
The  applicant  alleged  that  the  policy  created  by  Article  5.C.13.d.  should 
not have applied to his case because none of the reasons cited for the policy were 
applicable  to  his  situation.    For  instance,  he  alleged  that  advancing  him  to 
XXXXX  before  appointing  him  to  XXXXX  would  not  have  required  the  Coast 
Guard to transfer him more than once during the year.  Normally, advancement 
to XXXXX would have caused him to be transferred, but the assignment officer 
told him that he would not be transferred if he took the advancement to XXXXX.  
Article 4.C.3.d. permits chief petty officers to be assigned to billets either above 
or below their rank, depending on the needs of the Coast Guard.  The applicant 
alleged  that  because  the  position  he  then  held  aboard  the  Coast  Guard  cutter 
Xxxxx had seen high turnover, the assignment officer had already decided not to 
transfer  him  until  the  next  transfer  season.    Therefore,  he  could  have  been 
advanced  to  XXXXX  in  September  199x  prior  to  his  appointment  to  XXXXX  in 
June 199x without causing the Coast Guard to transfer him twice in one year. 
 
The  applicant  also  argued  that  his  advancement  to  XXXXX  would  not 
 
have  hindered  “promotion  flow”  within  the  ranks  by  blocking  someone  else’s 
promotion to XXXXX because the assignment officer intended to leave him in his 
billet on the xxxxxx and had no plans to transfer him to a XXXXX billet. 
 

The applicant argued that Article 5.C.13.d. “unfairly discriminates against 
a very small number of high performing Coast Guard members who, because of 
the  timing  of  the  issuance  of  a  list,  are  unjustly  denied  promotion.    …  [T]here 
were  nine  people  who  ended  up  above  the  cutoff  on  both  the  Warrant Officer 
and Enlisted Advancement eligibility lists.  Four of these people were advanced 
prior to the issuance of [the XXXXX appointment list] and were allowed to keep 
their advancements.” 

 
 
Finally, the applicant argued that it would not have been unfair to those 
members  below  him  on  the  XXXXX  advancement  list  to  wait  to  be  promoted 
until after he had been appointed to XXXXX because he had out-scored them.  He 

                                                 
1    Appearing  above  the  “cutoff”  on  an  advancement  or  appointment  list  means  that  one  is 
guaranteed advancement or appointment to the next grade at some as yet unknown point in the 
future, usually within the next year or two. 

asked, “Why should my career be sacrificed for the benefit of those who I outper-
formed?”   
 

SUMMARY OF THE RECORD 

 
7/31/95  The results of the Service Wide Exam for promotion to XXXXX were 
announced.  The cutoff for guaranteed promotion was just 2, and the 
applicant, a XXX, was number 30 on the list. 

 
4/25/96  The Coast Guard revised the cutoff for advancement to XXXXX from 2 
to 35, thereby guaranteeing the applicant an offer of advancement to 
XXXXX. 

 
7/12/96  The Coast Guard announced the results of an appointment board for 
selection  of  XXXXXs.    The  applicant  ranked  second  on  the  list  of 
xxxxxxxxxx chosen for future appointment. 

 
8/22/96  The applicant became eligible for advancement to XXXXX on Septem-

ber 1, 199x, due to a vacancy. 

 
8/26/96  The applicant wrote a letter to the Commandant requesting waiver of 
Article 5.C.13.d. so that he might be advanced to XXXXX without giv-
ing up his place on the XXXXX appointment list. 

 
8/28/96  The  applicant’s  command  forwarded  his  request  “strongly  recom-

mending approval.” 

 
1/23/97  The commandant informed the applicant that his request for waiver 

had been denied.  The letter stated as follows: 

 
 

1.  After a thorough and careful review of your request for a waiver … we 
must disapprove your request. 
 
2.  The eligibility lists contain the names of all Coast Guard personnel who 
have  competed  for  either  advancement  or  promotion  and  could  be  either 
advanced or promoted over a set period of time as vacancies occur through-
out the Service.  [Article 5.C.13.d. of the Personnel Manual] requires person-
nel to make a career path decision once they are presented with two equally 
probable career paths.  Requiring members to commit to a career path helps 
meet  several  Service  needs,  primarily  providing  assignment  officers  a 
clearer and more up to date picture of assignment vacancies and personnel 
eligible to fill those vacancies.  If we authorized these advancements, due to 
the  [transfer]  costs  and  the  limitation  on  transferring  members  more  than 
one  time  in  a  year,  the  billet  for  which  the  member  was  advanced  might 
have  to  be  left  unfilled  with  a  member  in  the  appropriate  pay  grade.    In 

addition, requiring members to commit to a career path strengthens promo-
tion flow within the enlisted workforce.  If a member were allowed to take 
an enlisted advancement while waiting for a promotion to Warrant Officer, 
the member would in affect [sic] be occupying two billets at the same time.  
Due  to  the  legislative  ceilings  on  E-8s  and  E-9s,  the  individual  below  this 
member on the advancement list would be prevented from advancing until 
the member was promoted to Warrant Officer. 
 
3.  When [the cutoff for the XXXXX advancement list] was revised in April 
of 9x, you were guaranteed advancement to Senior Chief.  Your guaranteed 
advancement  reflected  a  vacancy  and  the  service’s  expectation  you  would 
fill that vacancy.  When [the XXXXX appointment list] was published in July 
9x,  again  your  future  promotion  to  Chief  Warrant  Officer  was  guaranteed 
based on a vacancy and the expectation you would fill that vacancy.  While 
it  may  appear  unfair  that  you  cannot  be  advanced  to  Senior  Chief  while 
awaiting  [an]  appointment  as  Warrant  Officer,  it  is  equally  unfair  for  the 
member below you waiting to advance, once you are appointed.  Therefore, 
the  needs  of  the  Coast  Guard  require  you  to  make  a  decision  as  to  your 
desired career path.  By requiring members to make these decisions we are 
better  able  to  efficiently  manage  both  the  officer  corps  and  the  enlisted 
workforce. … 

 
 

VIEWS OF THE COAST GUARD 

 
 
On October 14, 1999,  the Chief Counsel of the Coast Guard submitted an 
advisory opinion in which he recommended that the Board deny the applicant’s 
request. 
 
 
The Chief Counsel argued that the applicant’s request was “unsupported 
by  the  record  and  barred  by  regulations.”    The  Chief  Counsel  stated  that  “the 
Board  would  have  to  go  far  afield  to  conclude  that  a  Chief  Petty  Officer  with 
many  years  of  military  service  who  voluntarily  applied  to  become  a  commis-
sioned warrant officer was somehow the victim of an injustice” due to the proper 
implementation of Article 5.C.13.d. of the Personnel Manual. 
 
 
The Chief Counsel argued that the provision in Article 5.C.13.d. that pre-
vents  personnel  from  being  promoted  to  the  rank  of  chief  petty  officer,  senior 
chief  petty  officer,  or  master  chief  petty  officer  while  awaiting  appointment  to 
warrant officer is “rationally based” and based on “equity to other service mem-
bers and fiscal prudence.”  The Chief Counsel stated that the Board should defer 
to the Coast Guard’s interpretation of its own administrative regulations under 
Chevron U.S.A. Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-4 
(1984).  “[B]ecause the Applicant has failed to prove by a preponderance of the 
evidence that the Coast Guard acted arbitrarily and capriciously in establishing 
Article  5.C.13.d.  of  the  [Personnel  Manual],  the  Board  should  find  that  Article 

5.C.13.d.  …  is  a  valid  exercise  of  the  Coast  Guard’s  discretionary  authority  to 
implement workforce management regulations.” 
 
The Chief Counsel argued that the applicant voluntarily chose to compete 
 
both  for  advancement  to  XXXXX  and  XXXXX  and  that  the  regulations  was 
applied to him impartially.  “[N]o one forced him to seek this opportunity, and 
when faced with the choice of staying an enlisted member or choosing XXXXX, 
he chose XXXXX. …  His voluntary choice to seek commissioned officer status is 
neither an error or injustice.”  The Chief Counsel stated that the applicant could 
have accepted advancement to XXXXX but chose instead “the higher pay with 
greatly  increased  future  promotion  opportunities  of  Commissioned  Warrant 
Officer  status  with  the  knowledge  aforethought  that  he  had  to  live  by  the 
provisions of Article 5.C.13.d.” 
 
 
The Chief Counsel stated that the application involves a “significant issue 
of Coast Guard policy.”  Therefore, any decision by the Board other than denial 
must be reviewed by the delegate of the Secretary. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On November 2, 1999, the BCMR sent the applicant a copy of the Chief 
Counsel’s  advisory  opinion  and  invited  him  to  respond  within  15  days.    On 
November 16, 1999, the applicant responded.  He reiterated his arguments that 
the rationale behind the Coast Guard’s policy in Article 5.C.13.d. did not apply in 
his case and that the policy was unfair to him and the small number of enlisted 
members  who  find  themselves  above  the  cutoff  on  both  the  advancement  and 
appointment lists simultaneously. 
 

 
 
 

APPLICABLE LAW 

Article 5.C.13.d. of the Personnel Manual states the following: 

Personnel who have been selected for promotion to chief warrant officer, 
above  the  cutoff  on  the  XXXXX  list,  are  ineligible  for  advancement  to 
[chief petty officer, senior chief petty officer, or master chief petty officer].  
Their  names  automatically  will  be  removed  from  established  enlisted 
eligibility list 60 days after publication of the officer eligibility lists, unless 
an  individual  concerned  has  notified  Commander  …  that  they  do  not 
intend to accept the chief warrant officer appointment.  If a member who 
has  been  selected  is  to  be  advanced  to  [chief  petty  officer,  senior  chief 
petty  officer,  or  master  chief  petty  officer]  during  the  above  60  day 
window,  the  member  must  make  a  decision  at  that  time,  vice  60  days 
after publication, regarding their intentions to accept either advancement 
or appointment to XXXXX. 

 
 
Under  Article  4.C.3.d,  a  XXXXX  may  fill  the  billet  of  the  grade  below 
(XXX)  or  above  (xxxxxxxx  (XXXx)),  “when  there  are  no  qualified  [Xxxxx  or 
XXXxs] available for those assignments.” 
 

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 sec-

tion 1552 of title 10 of the United States Code.  The application was timely. 
 

2. 

The  applicant  alleged  that  the  Coast  Guard’s  decision  to  require 
him to forgo advancement to XXXXX in order to retain his guaranteed promotion 
to XXXXX under Article 5.C.13.d. was unjust.  He alleged that the requirement 
should  have  been  waived  because  none  of  the  rationale  for  the  regulation 
applied  to  his  case.    He  alleged  that  he  should  not  have  been  prevented  from 
advancing  to  XXXXX  while  awaiting  appointment  to  XXXXX  just  because  it 
might delay the advancement of members whom he had outperformed.  

 
3. 

  
4. 

 
5. 

Article  5.C.13.d.  prevents  chief  petty  officers  who  are  above  the 
cutoff  and  waiting  appointment  to  commissioned  service  as  XXXXXs  from 
accepting advancement in the enlisted ranks.  The Coast Guard has determined 
that  this  rule  decreases  the  frequency  of  transfers,  reduces  transfer  costs, 
minimizes confusion in assignments, and improves the flow of promotions in the 
enlisted ranks. 

 

The  applicant’s  argument  that  he  should  have  been  advanced  to 
XXXXX  because  he  was  not  going  to  be  transferred  and  so  the  administrative 
burdens of his advancement would have been less than usual is not persuasive.  
The Coast Guard has a strong interest in implementing its regulations uniformly 
and in advancing the careers of all its members to maintain their commitment to 
the service.   

The  applicant  argued  that  he  was  treated  unfairly  in  comparison 
with members who were advanced prior to the issuance of the XXXXX appoint-
ment list and were allowed to keep their new enlisted ranks until receiving their 
commissions.    However,  such  members  appeared  higher  on  the  enlisted 
advancement  list  than  the  applicant  and  were  advanced  before  their  names 
appeared on the XXXXX appointment list.  The Board finds it is not unjust for the 
Coast Guard to permit such members to keep their new ranks rather than both-

ering to demote them, while refusing to advance members, such as the applicant, 
who appeared lower on the advancement list and were not advanced prior to the 
issuance of the XXXXX appointment list.   

The applicant has not proved by a preponderance of the evidence 
that the Coast Guard committed error or injustice when it required him to choose 
between  advancement  in  the  enlisted  ranks  and  remaining  on  the  list  of  those 
guaranteed commissions as XXXXXs. 

Accordingly, the applicant’s request should be denied.  

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
6. 

 
7. 

 
 
 
 
 

 
 
 
 

ORDER 

 

 

The application for correction of the military record of xxxxxxxx, USCG, is 

 
 

 
 

 
 

 
 

hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
George Kuehnle, Jr. 

 

 

 
Gareth W. Rosenau 

 

 

 
Coleman R. Sachs