DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                       BCMR Docket No. 2004-115 
 
Xxxxxxxxxxxxxxx 
  xxxxxxxxxxxx 

DECISION OF THE GENERAL COUNSEL 
AS THE DELEGATE OF THE SECRETARY 

 

 
 

       
 
 

 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Date:  March 11, 2005 
 
 
 
 
 
 
 
 

 
 
 
 

 

 
 
 
 

 

 

___X__  I approve the recommended Final Decision of the Board. 

______  I disapprove the recommended Final Decision of the Board.  

___X__  I concur in the relief recommended by the Board. 

 
 
 
 
 
 

 
 
 
 
 
 

 
 
 
 
 
 

     

Joe D. Whitley 
General Counsel 
  as delegated to act on behalf of the 
  Secretary of Homeland Security 

 

DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                       BCMR Docket No. 2004-115 
 
Xxxxxxxxxxxxx 
  xxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425  of  title  14  of  the  United  States  Code.    It  was  docketed  on  May  7,  2004,  upon  the 
BCMR’s receipt of the applicant’s completed application.  The Coast Guard submitted 
an advisory opinion for the case on October 7, 2004.  The applicant was granted a one-
week extension of the time provided for responding to the advisory opinion and sub-
mitted his response on November 11, 2004. 
 
 
ed members who were designated to serve as the Board in this case. 

This final decision, dated February 10, 2005, is signed by the three duly appoint-

 

APPLICANT’S REQUEST 

 
 
The applicant asked the Board to remove three officer evaluation reports (OERs) 
covering  his  performance  from  April  1,  1999,  to  September  30,  1999;  from  October  1, 
1999,  to  January  31,  2000;  and  from  February  1,  2000,  to  May  21,  2000,1  which  he 
received  while  serving  as  a  lieutenant  junior  grade  (LTJG)  and  engineering  officer  in 
training  (EOIT)  aboard  the  cutter  Xxxxxx.    The  applicant  alleged  that  his  numerical 
marks  in  those  OERs  were  erroneously  downgraded  because  his  commanding  officer 

                                                 
1    The  applicant  previously  challenged  just  one  numerical  mark  in  the  third  disputed  OER  in  BCMR 
Docket No. 2001-094.  He alleged that the mark of 3 he received for “Health & Well-Being” should have 
been a mark of 5.  (Officers are evaluated in various performance categories on a scale of 1 to 7, with 7 
being best.)  The Board denied relief, noting that the mark of 3 was supported by a written comment that 
he  had  been  four  hours  late  to  work  one  day  because  of  his  misuse  of  alcohol.    Because  the  applicant 
alleged that did not learn that the CO had directed his reporting officer, LCDR D, to lower his OER marks 
until March 2002, the Chair found that the application met the Board’s rules for reconsideration under 33 
C.F.R. § 52.67. 

(CO), who served as the reviewer of the disputed OERs,2 was irrationally biased against 
him and ordered his supervisor and reporting officers to downgrade the marks, in vio-
lation of the Personnel Manual.   
 

The applicant alleged that, as a result of the erroneous OERs, he was passed over 
for selection to lieutenant (LT) by the selection board that convened on September 23, 
2002, when he was “in the zone” for selection.  He alleged that 95% of the officers con-
sidered “in the zone” for promotion by that selection board were selected for promotion 
and that, but for the erroneous OERs in his record, he would have been selected as well 
and  promoted  to  LT  on  October  29,  2002.    The  applicant  noted  that  because  he  was 
selected for promotion by the next LT selection board, which convened on September 
22, 2003, he was not promoted to LT until January 16, 2004—more than a year later than 
he would have been but for the erroneous OERs in his record.  Therefore, he asked the 
Board to backdate his date of rank to what it would have been had he been selected for 
promotion by the selection board that convened on September 23, 2002, and to award 
him all back pay and allowances.   

 
Finally, the applicant asked the Board to order the Coast Guard to process a pro-
posed decoration that had been initiated by his supervisor as if it had been approved by 
his CO.  
 

APPLICANT’S ALLEGATIONS 

 

The applicant alleged that almost immediately after the new CO reported aboard 
the Xxxxxx on July 10, 1999, she “developed an irrational and fixed dislike” for him.  He 
alleged  that  “she  made  no  effort  to  hide  the  feelings  and,  indeed,  openly  expressed 
them  to  [him]  and  other  members  of  the  wardroom  and  crew.”    He  alleged  that  she 
“constantly insulted, berated, and mistreated” him and “was simply incapable of fairly 
and accurately evaluating his performance.”  The applicant alleged that the rest of the 
officers and crewmembers—including his supervisor and reporting officer—held him in 
high regard.  However, contrary to Article 10.A.2.f.2. of the Personnel Manual, the CO 
“expressly ordered [his] supervisor and reporting officer to downgrade their numeric 
ratings  and  comments  on  three  of  his  OERs.”    He  alleged  that  they  complied  only 
because they were under threat of retaliation in their own OERs, which the CO would 
prepare.  Therefore, he argued, the disputed OERs “do not fairly and accurately reflect 
his performance.”   

 
The applicant alleged that his CO was biased against him because he is an Italian 
male and confident in his leadership.  He alleged that she sometimes called him “Spi-
coli“  in  reference  to  “the  dimwitted  surfer character in the movie Fast Times at Ridge-
                                                 
2 Officers are evaluated by a “rating chain” of superior officers, including a supervisor and a reporting 
officer  (normally  the  supervisor’s  supervisor),  who  assign  numerical  marks  in  the  various  performance 
categories  and  prepare  the  written  comments,  and  a  reviewer,  who  reviews  the  OER  for  accuracy  and 
consistency. 

mont  High.”    He  alleged  that  she  was  also  biased  against  another  Italian  officer—the 
Executive Officer (XO) who served as his reporting officer for the first disputed OER—
whom  she  relieved  of  command  for  alleged  insubordination  in  December  1999.    He 
alleged that the XO filed an Equal Employment Opportunity (EEO) complaint.3 

 
The  applicant  alleged  that  his  CO  tried  to  inhibit  his  career  by,  for  example, 
refusing to qualify him as deck watch officer even though he had completed the requi-
site tasks and was regarded as “the best ship-handler among the junior officers.”  He 
complained that she also refused to recognize his significant contributions in respond-
ing to and mitigating a serious flood in the cutter’s main engine room in February 2000.  
He  alleged  that  she  praised  others’  responses  even  though  he  had  taken  charge  and 
averted an ineffective response.  He alleged that his supervisor, the Engineering Officer 
(EO), drafted a personal award for him for his response to the flood but the CO refused 
to  approve  it.    He  asked  that  the  Board  order  the Coast Guard to process this award 
recommendation as if his CO had approved it. 

 
The applicant alleged that in February 2001, about thirteen months after the CO 
removed the first XO, she also removed his supervisor, the EO.  Although the Opera-
tions  Officer  (OO)  had  suffered  a  heart  attack  and  was  also  not  on  board,  the  CO 
deployed on a law enforcement patrol without an EO or OO.  When her chain of com-
mand discovered this, she was ordered to abort the mission and her command initiated 
a command climate assessment.  The applicant noted that that after this assessment, the 
CO retired even though she had been selected for promotion from commander to cap-
tain and had not yet been appointed.  He alleged that “[e]xperience suggests that she 
was ‘invited’ to retire.” 

 
The applicant alleged that the disputed OERs are “so pervasively tainted” by the 
CO’s  irrational  bias  that  “it  would  be  impossible  or  impractical  to  isolate  and  redact 
specific incorrect or unjust material.  Therefore, he asked that they be removed entirely 
and replaced with continuity reports. 

 
Finally,  the  applicant  alleged  that  the  disputed  OERs  clearly  prejudiced  his 
record before the LT selection board as they were substantially worse than the OERs he 
would have received in the absence of his CO’s bias.  He argued that an OER “is the 
single most important document in the selection [board’s] folder, citing Brooks v. United 
States, 213 Cl. Ct. 115, 120 (Cl. Ct. 1977), and Skinner v. United States, 594 F.2d 824, 831 
n.4  (Ct.  Cl.  1979).    Moreover,  he  argued  that  once  the  Board  has  found  an  error  in  a 
record, “the government bears the ultimate burden to demonstrate that the error was 
harmless.”    He  argued  that  “[i]n  the  context  of  a  promotion  case,  like  this  one,  ‘[t]he 
harmless  error  test  places  on  the  [Coast  Guard]  the  burden  of  producing  substantial 
evidence  to  demonstrate  it  would  be  unlikely  that  a  service  members  would  …  have 
                                                 
3  The applicant alleged that the Coast Guard settled the XO’s case and removed an OER from the XO’s 
record and promoted him from lieutenant commander to commander.  The applicant attached a copy of 
the decision of the Personnel Record Review Board (PRRB), which removed the XO’s OER. 

been promoted … regardless of the government error.’ Golding v. United States, 48 Fed. 
Cl. 697, 739 (2001), aff’d mem., 47 Fed. Appx. 939 (Fed. Cir. 2002), cert. denied, 123 S. Ct. 
1303 (2003); see also Christian v. United States, 337 F.3d 1338, 1344 (Fed. Cir. 2003).”  

 

STATEMENTS SUBMITTED BY THE APPLICANT 

 

Statement by the Engineering Officer, LT D 
 
 
LT  D,  who  served  as  the  applicant’s  supervisor  for  the  marking  periods  of  all 
three  disputed  OERs,  stated  that  the  applicant  was  a “very capable officer with great 
potential.”    LT  D  stated  that  soon  after  arriving  on  board,  the  CO  told  him  that  the 
applicant was “a problem that needed to be fixed.”  He stated that it was clear that the 
CO did not like the applicant “on a personal level” and “was incapable of drawing a 
line between her personal and professional opinion of him.”  He noted that the CO had 
been removed from his own rating chain because the Area Commander, a Vice Admi-
ral, was concerned about “her inability to fairly evaluate me after some serious issues 
with the way she had run her command had been brought to light.” 
 
 
LT D stated that “[s]omewhere in the chain of command, several of [the appli-
cant’s] evaluation marks in my portion of the evaluation were lowered for the period 
ending  30  September  1999”  (the  first  disputed  OER).    He  alleged  that  LCDR  D,  the 
reporting officer and XO of the Xxxxxx, told him to discuss it with the CO.  The CO told 
him that the marks he assigned had been lowered because the written comments he had 
provided  did  not  support  them.    LT  D  stated  that  he  had  the  same  problem  when 
preparing the applicant’s next two OERs in that several of the marks he assigned were 
lowered.  He stated that he complained to the new XO, LCDR B, but he would not allow 
him to discuss the matter with the CO.  He stated that he believed that, in lowering the 
marks he had assigned, the XOs or CO had violated Article 10.A.2.f.2. of the Personnel 
Manual. 
 
 
LT D further stated that, although the CO told him several times that the appli-
cant was the “best ship handler amongst the junior officers aboard the ship,” she also 
said that “she would never qualify him as a deck watch officer aboard her ship, no mat-
ter how long he remained on the bridge.”  LT D stated that the CO made it clear to the 
officers in the wardroom that she disliked the applicant.  He stated that the applicant 
was often the butt of her jokes. 
 
LT D stated that once, at 3:00 a.m., the Xxxxxx “suffered from a faulty shaft seal 
 
that allowed seawater to rapidly begin filling the ship’s engine room.”  The ship was in 
homeport and moored, but only a few of the 20 crewmembers on board were awake.  
The  applicant  awoke  due  to  a  commotion  on  deck  and  “as  the  senior  engineering 
department  representative  aboard,  took  charge  of  the  damage  control  efforts.    He 
directed  sounding  the  general  alarm  to  awaken  the  sleeping  crew,  set  up  emergency 
dewatering,  and  coordinated  the  inflation  of  the  emergency  shaft  seals.    His  efforts 

ensured that no machinery was damaged and no personnel were injured.”  LT D stated 
that,  although  he  recommended  the  applicant  for  an  Achievement  Medal,  the  CO 
refused to sign the recommendation.  She told him that she “would not sign an award 
for [the applicant] so close to the end of his tour because it would appear he was being 
awarded an end of tour award and she felt he didn’t deserve one.”  The next morning, 
the CO congratulated the crew on their response to the emergency and singled out cer-
tain individuals but did not mention the applicant. 
 
Statement by the Executive Officer, LCDR D 
 
LCDR  D,  the  XO  of  the  Xxxxxx  from  June  1998  to  December  1999  and  the 
 
reporting  officer  for  the  first  disputed  OER,  stated  that  the  applicant  was  a  “highly 
competent,  intelligent  and  superlative  performer”  who  was  also  “extremely  affable.”  
He stated that the CO “expressed a strong dislike for [the applicant] immediately upon 
assuming command” in July 1999.  He stated that at their initial meeting, she told him 
that she was “generally pleased with the caliber of the Junior Officers in the wardroom 
with the exception of [the applicant].”  He stated that the CO was “incapable of accu-
rately,  fairly  and  objectively  evaluating”  the  applicant  “due  to  her  expressed,  intense 
personal dislike of him.”  He stated that while he was working on the applicant’s OER 
for the period ending September 30, 1999, the CO “ordered [him] to lower several of the 
marks and then to change the supporting language to support the lower marks.  [He] 
specifically  remember[s]  her  ordering  me  to  lower  the  marks  in  professional  compe-
tence, directing others, teamwork, judgment and professional presence, among others.  
During  [the]  discussions,  [he]  was  able  to  persuade  her  to  rescind  her  order  to lower 
some marking areas but not others.” 
 
 
LCDR D stated that he himself had personally experienced the CO’s inability to 
provide accurate and fair evaluations.  He stated that as soon as she reported aboard, 
the  CO  “engaged  in  a  systematic  effort  to  remove  [him]”  as  XO  and  “drafted  an 
untruthful, derogatory evaluation,” which was later removed by the Personnel Record 
Review Board.4 

                                                 
4 The applicant submitted a copy of the PRRB’s decision in the XO’s case.  The decision indicates that the 
XO alleged that the CO assumed that he “was incapable of following orders from her because he was an 
Italian-American  man.    Every  action,  spoken  word,  and  non-verbal  communication  he  made  as  XO  … 
was unfairly viewed through this discriminatory lens.”  The evidence to the PRRB included a statement 
from someone who “testified that the CO stated that the XO could not take orders from a woman because 
the XO was an Italian-American man” and evidence that the CO and another officer “speculated whether 
the XOs heritage kept him from accepting orders from a senior female officer.”  Other evidence indicated 
that the XO’s reviewer later told him to file an EEO action and a BCMR application, which “will probably 
be approved” because of new information that had come to light about the leadership style of the CO and 
the “unfortunate situation onboard the [cutter] from 99/07/10 to 99/11/30.”  The PRRB concluded that, 
although  the  XO  did  not  adequately  prove  he  was  discriminated  against  because  of  his  heritage,  he 
deserved relief “in so much that the environment in which he worked was less than adequate, led to a 
hostile  environment  with  his  Commanding  Officer,  and  ultimately  resulted  in  the  Applicant’s  removal 
from the unit and the subsequent OER.” 

 
Statement by the Operations Officer, LT E 
 
LT E stated that the applicant as a “solid performer” who met “all watchstanding 
 
and  qualification  expectations.”    He stated that the applicant “was a very likable and 
personable  young  man  who  enjoyed  the  respect  and  support  of  the  crew.    He  was 
respectful at all times and practiced proper customs and courtesies.”  He stated that the 
CO  did  not  approve  of  the  applicant’s  personality  and  “therefore  had  difficulty  in 
evaluating him solely on his performance.”   
 
LT  E  stated  that  the  CO  would  berate  the  applicant  and  other  junior  officers 
 
during meals in the wardroom.  He stated that the CO treated the applicant like a child 
and once asked him not to eat in the wardroom, but later made a “large deal” about the 
fact that he was absent from the wardroom.  As a result of such treatment, LT E stated, 
the applicant rarely ate in the wardroom toward the end of his tour. 
 
Statement by LT G 
 
LT G stated that upon reporting aboard the Xxxxxx in August 1999, he realized 
 
that the CO had a “deep personal dislike” for the applicant.  He stated that she singled 
the applicant out at mealtimes, always second-guessed his work, and made derogatory 
comments about him.  LT G stated that during meals the CO would “frequently frown 
at [the applicant] and tell him to ‘shut up’ or ‘that’s enough [applicant’s first name]’ in a 
very condescending tone.”  LT G stated that he “never observed behavior [by the appli-
cant] that would warrant the ill treatment” he received from the CO.  He stated that she 
“could [not] possibly be objective in evaluating” the applicant. 
 

LT G stated that although the applicant completed all qualifications for becoming 
a deck watch officer, the CO would not allow him to sit for the qualification board and 
said that he would never get to while she was on board. 

 
LT G stated that the CO had the same personality conflict with LCDR D, the XO.  
He alleged that the CO “felt threatened or uncomfortable around competent and confi-
dent  leaders,  especially  males.”    LT  G  also  stated  that  the  applicant  had  been  highly 
regarded by the previous command of the Xxxxxx and “this was a very negative thing 
in [the CO’s] eyes” because she strongly disliked the previous command.  LT G stated 
that the CO unfairly relieved the XO from his position. 
 
Statement by LT M 
 
 
LT M, who also served in the Engineering Department, stated that the applicant 
was “highly competent, professional and effective in the discharge of his duties.”  He 
stated that soon after he reported to the Xxxxxx in 1999, he noticed that the CO had a 

“strong  personal  dislike”  of  the  applicant  and  “took  advantage  of  opportunities  to 
demonstrate her bias against him.” 
 
LT  M  stated  that  during  the  flood  of  the  engineering  room,  the  applicant  was 
 
primarily responsible for averting severe damage.  Although the duty section received 
praise and several individuals were singled out, the CO did not mention the applicant.  
LT M stated that he took this to be a direct insult to the applicant and some crewmates 
made comments to him indicating that they agreed with his assessment of her response. 
 
 
LT  M  stated  that,  in  the  wardroom,  the  CO  frequently  belittled  the  applicant, 
called him ‘stupid,’ or would ask him to leave.  He stated that “her abuse was so fre-
quent that it began to seem ‘normal’” but that it was “unprofessional and bordering on 
irrational.” 
 
Statement by the Administrative Officer, LT T 
 
 
LT T stated that as soon as she assumed command, the CO “took an obvious per-
sonal dislike” to the applicant.  “She was much harsher in her criticism; she frequently 
mocked him—both in and out of his presence—and it was clear to the whole crew that 
she did not like him personally.  During meals it seemed she went out of her way to 
make things unpleasant for [the applicant].”  LT T stated that the CO seemed to associ-
ate the applicant with the XO and the prior CO, whom she very openly disdained.  LT T 
stated that the CO’s treatment of the applicant was “unprofessional and unwarranted” 
and that he does not believe she could have been capable of objectively evaluating him. 
 

Statement by LTJG C 
 
LTJG C stated that he served on the Xxxxxx in 1999 and 2000.  He stated that the 
 
CO “treated [the applicant] unfairly on many occasions.  She often made it clear to the 
other  officers  in  the  wardroom,  that  [his]  presence  was  not  welcome”  and  “always 
made inappropriate comments both in [his] presence and in his absence.  If he didn’t 
join the wardroom during the daily meals, [the CO] would immediately let the rest of 
the wardroom know that she [would] rather not have his company during meals, and 
on more than one occasion made remarks to the entire wardroom to the effect of ‘if I 
had my way, [the applicant] would be kicked out of the Coast Guard.” 

 
LTJG C also stated that the CO impeded the applicant’s qualification as under-
way officer of the deck (OOD).  He stated that the CO announced at an evening meal 
that the applicant could not qualify even before he started the training.  He stated that 
“it  was  clear  that  [the  CO]  was  not  going  to  give  him  a  chance  to  qualify.”    LTJG  C 
stated that the CO felt threatened by confident men and “had difficulty in getting the 
crew she commanded to follow her.”  He stated that she resented it when she saw the 
crew  “respect  and  follow  one  of  her  junior  officers  more  than  they  did  herself.”    He 
stated  that  he  overheard  the  CO  say  to  another  female  officer,  “They’re  men,  if  you 
don’t yell, they don’t listen.” 

Statement by DCC M 

 
DCC  M,  who  worked  for  the  applicant  on  the  Xxxxxx,  stated  that  he  “was  an 
excellent leader and ran a very successful division.  He kept up morale and helped us 
maintain  focus  despite  working  under  a  very  hostile  command.”    He  stated  that  the 
applicant “overhauled the training system and oversaw a reorganization of the training 
teams.”    DCC  M  noted  that  the  cutter  won  a  “Battle  E”  ribbon  for  damage  control 
excellence due to the applicant’s efforts as damage control assistant. 

 
DCC  M  stated  that  he  was  “aware  of  a  general  animosity  of [the CO] towards 
[the applicant], but [he] could not see any reason for this attitude.  She frequently sin-
gled him out for ridicule and failed to acknowledge his noteworthy accomplishments.”  
DCC M stated that the applicant was a “great leader of the [damage control] division” 
and that based on his “performance and general demeanor as a junior officer, [DCC M 
could] see no reason as to why he was treated so poorly by [the CO].” 

 

 

Statement by EM1 K 
 
EM1  K,  who  served  in  the  Engineering  Department  on  the  Xxxxxx,  stated  that 
 
the applicant was a helpful leader who “put a great amount of energy and profession-
alism  in  training  the  crew  to  respond  to  ships  casualties.”    However,  when  the  CO 
reported aboard, her “new policies dealing with both operations and general shipboard 
life had a very negative effect on the crew.”  He stated that morale became very low and 

the crew seemed “beat down.”  He stated that the applicant never complained about the 
CO but that there were rumors she was treating him very unfairly. 
 

Statement by FS3 M 
 
 
FS3 M stated that he set up and served the meals in the wardroom.  He stated 
that “[o]n numerous occasions, [he] would overhear [the CO] degrade and belittle [the 
applicant],  even  to  go  as  far  as  saying  that  he  ‘wasn’t  worthy  of  being  n  the  Coast 
Guard.’ … It seemed she was constantly picking on him. … It was common knowledge 
to  the  whole  crew  how  much  animosity  she  felt  toward  him.”    FS3  stated  that  while 
being trained by the applicant in damage control, he determined that the applicant was 
“professional, knowledgeable, and very effective as a leader.  As far as [he] could see 
[the  applicant]  observed  proper  courtesies  and  was  well  respected  by  the  crew  and 
other officers.  To the best of [his] knowledge, there was never any reason to warrant 
the way he was treated.”  

 

SUMMARY OF THE RECORD 

 
 
On  May  20,  1998,  the  applicant  was  commissioned  an  ensign  upon  graduating 
from the U.S. Coast Guard Academy.  He reported to the Xxxxxx on June 24, 1998, and 
served as an engineering officer in training (EOIT) and damage control assistant (DCA).  
His rating chain for his first two OERs—which covered his service from May 20, 1998, 
to  September  30,  1998,  and  from  October  1,  1998,  to  March  31,  1999—gave  him  good 
comments and recommendations for promotion and the good numerical marks shown 
in the first two columns in the table below (OERs 1 & 2).  This first rating chain included 
LCDR D—the XO—as his reporting officer. 
 
In  the  summer  of  1999,  the  applicant’s  rating  chain  changed,  as  the  Xxxxxx 
 
received  a  new  EO  and  CO,  who  would  serve  as  his  supervisor  and  reviewer,  along 
with  his  reporting  officer,  LCDR  D.    On  the  first  disputed  OER,  which  covered  the 
applicant’s service from April 1 to September 30, 1999, he received good comments and 
the numerical marks shown in the table below (OER 3).  LCDR D noted his selection for 
promotion to LTJG and highly recommended him for promotion to LT with his peers.  
On November 20, 1999, the applicant was promoted to LTJG. 
 
 
On the second disputed OER, which covered the applicant’s service from Octo-
ber 1, 1999, to January 31, 2000, he again received good comments and a recommenda-
tion for promotion to LT with his peers.  The numerical marks he received in this OER 
(OER 4) appear in the table below.  As the CO had removed LCDR D from his position 
as XO, a new XO, LCDR B, served as the reporting officer for this OER. 
 
 
“alcohol incident.”  The required documentation states the following: 
 

On  April  10,  2000,  the  CO  counseled  the  applicant  and  documented  his  first 

1.  On 23 March 2000, you arrived over two hours late to your duties as inport Engineer-
ing Officer of the Watch (EOW) … .  By your own admission, your consumption of alco-
hol  the  night  before  was  a  major  contributing  factor  in  your  inability  to  perform  your 

appointed duties at the prescribed time.  Because of your tardiness, another EOW had to 
cover for you until you arrived.  
 
2.    In  accordance  with  [Article  20.A.2.d.  of  the  Personnel  Manual],  since  alcohol  was  a 
causative factor in your inability to perform your assigned duties, I determined that this 
was an alcohol incident and directed you to be screened for alcohol abuse on 27 March 
2000 at the UTMB Primary Care Facility. 
 
3.  The report of evaluation stated your alcohol abuse was episodic, but non-dependent.  
Therefore, you are directed to attend a minimum of six alcohol abuse counseling sessions 
during the next inport.  Also, you are hereby counseled that any further alcohol incidents 
may be justification for your dismissal from the service. 

 
 
The third disputed OER5 covered the applicant’s service from February 1, 2000, 
until the end of his tour on the Xxxxxx on May 21, 2000.  On it, he received some good 
comments, including several about his primary responsibility for the correct handling 
of the flooding of the engineering room, which “could have been catastrophic if not for 
his  quick  actions.”    However,  he  also  received  lower  marks  (see  OER  5  in  the  table 
below) and the following comments by the supervisor: “Listened well, but often missed 
intended msg”; and “Displayed cavalier attitude when late for duty … Did not take off-
going EOW’s time into consideration.”  Moreover, the reporting officer, LCDR B, wrote 
the following: 

 
  “[Performance]  has  declined this marking period mainly due to his inatten-
tion to detail, lackadaisical attitude & lack of professionalism.” 
  “[A]t times, has been unable to focus on task at hand.  Counseled numerous 
times on his lack of maturity & leadership, but has chosen to ignore the advice 
given.  [He] has the ability, but he has not fully utilized it to date.” 
  “Uniform  appearance  below  standard  during  pers  insp  …  Set  bad  example 
for  crew.    Prof  demeanor  lacking  in  several  dif  situations  …  Not  aligned  w/ 
command philosophy.”  
  “Failed to use alcohol responsibly & as a result reported 4 hours late for work 
on duty day … 1st alcohol incident.” 
  “[He]  has  the  potential  to  be  a  very  good  officer  but  fell  well  short  of  that 
potential  this  marking period.  Extremely Knowledgeable/competent DCA but 
inability to focus has greatly diminished his ability to perf at high lvl he is capa-
ble  of.    Hopefully,  [he]  has  learned  some  basic  lessons  during  this  tour,  which 
will make him a better officer & leader in the future.  However, I cannot recom-
mend  him  for  promotion  to  LT  at  this  time  due  to  his  lack  of  basic  leadership 
skills.    Recommended  for  staff  assignment  in  the  marine  safety  or  civil  eng 
fields.” 

 

 

The applicant did not exercise his right to submit replies to any of the disputed 
OERs.  Upon completing his tour on the Xxxxxx in May 2000, the applicant was trans-

                                                 
5 See footnote 1 above. 

ferred to Coast Guard Headquarters, where he became a project officer for the National 
Distress & Response System Modernization Project/Rescue 21 Acquisition Project.  In 
his first four OERs in this position, he received good comments and recommendations 
for promotion to LT and the marks shown in the table below (OERs 6, 7, 8 & 9).  The 
fourth of these OERs stated that he was “[s]trongly recommended for promotion to LT 
w/ the best of peers.”  He also received a Letter of Commendation, which is noted in 
OER 6.  However, he was not selected for promotion by the LT selection board that met 
in September 2002, when he was “in the zone.”  Of those 517 LTJGs who were “in the 
zone,” 489, or 95%, were selected for promotion to LT. 

 
For his work as a project officer, the applicant received a fifth evaluation (OER 
10), with good comments and a strong recommendation for promotion, on January 31, 
2003. He received a Team Meritorious Commendation Medal on January 13, 2003.  On 
February 1, 2003, he became the Implementation Team Leader for the Rescue 21 Acqui-
sition Project, and he received another good evaluation (OER 11) for this work on June 
30, 2003.  The applicant was selected for promotion to LT in 2003, and he was promoted 
on  January  16,  2004.    The  numerical  marks  he  received  on  these  OERs  appear  in  the 
table below.  
 

APPLICANT’S MARKS IN ELEVEN OERs FROM 5/20/98 THROUGH 6/30/03 

CATEGORYa 

Planning & Preparedness 

Using Resources 

Results/Effectiveness 
Adaptability 
Professional Competence 

Speaking & Listening 

Writing 

Looking Out for Others 

Developing Subordinates 

Directing Others 

Teamwork 

Workplace Climate 

Evaluations 

OER 

1 
5 
4 
4 
4 
5 
4 
4 
4 
4 
5 
5 
4 
4 

OER 

2 
5 
4 
5 
5 
5 
4 
4 
4 
5 
5 
6 
4 
4 

OER 

3 
5 
5 
5 
5 
6 
5 
4 
6 
6 
4 
4 
5 
5 

OER 

4 
5 
5 
5 
5 
6 
4 
4 
4 
6 
4 
4 
5 
4 

OER 

5 
4 
4 
4 
4 
5 
4 
4 
4 
5 
4 
4 
4 
4 

OER 

6 
4 
4 
5 
4 
4 
5 
4 
4 
4 
5 
5 
4 
4 

OER 

7 
4 
4 
4 
4 
4 
5 
4 
4 
4 
4 
5 
4 
4 

OER 

8 
5 
5 
5 
5 
5 
5 
5 
5 
4 
5 
6 
5 
4 

OER 

9 
5 
5 
6 
5 
5 
5 
5 
5 
5 
5 
6 
6 
5 

OER 
10 
5 
6 
6 
5 
5 
5 
5 
5 
5 
6 
6 
5 
5 

OER 
11 
6 
5 
6 
6 
6 
6 
5 
5 
5 
6 
7 
5 
5 

 

 

 

 

 

 

 

 

 

 

 

 

Initiative 

Judgment 

Respons bility 
Professional Presence 

Health & Well-Being 

6 
4 
4 
4 
4 

6 
5 
5 
4 
4 

5 
5 
6 
4 
4 

5 
5 
5 
4 
4 

4 
4 
3 
3 
3 

4 
5 
4 
5 
4 

5 
4 
5 
5 
4 

4 
5 
5 
5 
5 

7 
5 
6 
5 
6 

6 
6 
6 
6 
5 

6 
6 
6 
6 
5 

AVEb 

4.9 
4.6 
5.1 
4.7 
4.9 
4.9 
4.5 
4.5 
4.5 
5.1 
5.7 
4.6 
4.4 

 

5.5 
5.0 
5.1 
5.0 
4.6 

4.9 
5 

4.7 
5 

4.3 
4 

4.7 
4 

Average Mark in OER 
Comparison Scalec 
Note:    The  marks  of  the three disputed OERs are shaded gray.  The marks assigned and supported by LCDR B, the reporting 
officer for the second and third disputed OERs are shaded a darker gray. 
a  Supervisors fill in the marks for the first 13 categories, and reporting officers complete the remaining marks. 
b  Averages are rounded and do not include marks from shaded columns. 
c  The comparison scale is not numbered.  However, as with the performance categories, there are 7 possible marks.  Officers are 
supposed to be marked in comparison with all other officers of the same rank whom the reporting officer has known.  A mark in the 
3rd, 4th, or 5th spot on the scale means that the officer is “one of the many competent professionals who form the majority of this 
grade.” 

3.9 
3 

5.7 
5 

4.9 
4.6 

4.3 
4 

4.3 
4 

4.9 
5 

5.4 
5 

5.4 
5 

 

VIEWS OF THE COAST GUARD 

 
 
On October 7, 2004, the Judge Advocate General (TJAG) of the Coast Guard sub-
mitted an advisory opinion in which he recommended that the Board grant partial relief 
in this case by removing the three disputed OERs.  He based his decision in part on a 
memorandum on the case submitted by the Commander of the Coast Guard Personnel 
Command (CGPC). 
 
 
Commander,  CGPC,  stated  that  “there  was  a  hostile  workplace  climate  about 
USCGC XXXXXX under the command of [the CO].”  He noted that sworn affidavits by 
officers and enlisted members of the crew had shown that the CO treated the applicant 
“in a very unprofessional and biased manner.”  He took issue, however, with the allega-
tion that the CO of the Xxxxxx had violated the Personnel Manual by ordering that the 
applicant’s  marks  be  lowered.    In  this  regard,  he  submitted  affidavits  by  the  CO  and 
LCDR  B,  who  served  as  XO  and  the  applicant’s  reporting  officer  for  the  second  and 
third disputed OERs.  In her affidavit, the CO supported the negative comments about 
the applicant’s lack of professionalism and demeanor made in the third disputed OER 
and stated the following regarding the preparation of the disputed OERs: 
 

With regards to [the applicant’s] claim that I ordered or coerced the rating chain mem-
bers to downgrade numerical ratings and supporting comments in his OERs, that is un-
true and unfounded.  In the course of my responsibilities as Commanding Officer, I did 
assist all of my subordinates with the preparation of OERs.  [The applicant’s supervisor 
and both XOs] were all relatively inexperienced at writing OERs and therefore, I believed 
I  was  responsible  to  train  and  counsel  them  in  the  appropriate  methods  of  evaluating 
their subordinates.  However, most of my training, counseling, and assistance was edito-
rial in nature or assisted them in focusing on the key issues for comment.  This training 
was no more or less than I provided in other personnel related issues on the vessel. 

 
 
 

In his affidavit, LCDR B stated the following in pertinent part: 

I was the Executive Officer and Reporting Officer for [the applicant] during the [marking 
periods for the second and third disputed OERs].  During these periods, [the CO] did not 
manipulate me in any way nor did she influence the marks that I assigned.  I provided a 
fair and accurate evaluation of [the applicant’s] performance at the time. 
 
However,  when I reported onboard I observed tension between [the applicant] and the 
Commanding Officer, which increasingly got worse as time went on.  Additionally, the 
overall climate onboard was also very tense probably due to the dismissal of the Execu-
tive  Officer  who  superseded  me.    Having  said  that,  the  Commanding  Officer  never 
expressed to me any dislike for [the applicant] or in my opinion treated him unfairly.  At 
the time, [he] was a very intelligent individual, but was extremely immature and seemed 
to be unwilling to conform to military customs and practices. 

 
 
Commander,  CGPC,  noted  that,  on  the  disputed  OERs,  “[t]here  are  no  indica-
tions,  such  as  whiteouts  or  lineouts  that  would  indicate  marks  or  comments  were 
changed after signature by the Supervisor or Reporting Officer. … In all cases, the rat-
ing  officials  signed  the  OERs  denoting  that  the  marks  and  comments  were  properly 

prepared and accurately represented their views of [the applicant’s] performance.” He 
also  stated  that,  “[w]hile  [LCDR  D’s]  declaration  very  strongly  states  that  he  was 
ordered to lower marks, the fact that he was able to convince [the CO] to leave some of 
the marks as assigned suggests that she was merely holding him accountable for sup-
porting  his  assigned  marks.”    Commander,  CGPC,  stated  that  in  light  of  the  CO’s 
responsibilities and limitations under Article 10.A.2.f.2.a. of the Personnel Manual, “one 
can argue whether [she] ordered or used undue influence on the rating chain to lower 
marks on the Applicant’s evaluations, or whether she was simply fulfilling her Review-
er responsibilities in accordance with the CG Personnel Manual.  However, one cannot 
overlook the hostile workplace climate that existed during this period, and the negative 
impact that it surely had on the rating chain to present independent views.”  Because 
the  CO  “fostered  a  hostile  environment  that created personal conflict with the Appli-
cant, [she] should have been disqualified as a member of [his] rating chain,” pursuant to 
Article  10.A.2.g.  of  the  Personnel  Manual.    He  therefore  concluded  that  the  disputed 
OERs should be removed from the applicant’s record. 
 
 
Commander,  CGPC,  further  noted,  however,  that  “the  facts  surrounding  the 
Applicant’s alcohol incident are irrefutable.  By the Applicant’s own admission, his con-
sumption of alcohol the night before he arrived two hours late to his assigned duty … 
was  a  major  factor  in  his  inability  to  perform  his  appointed  duties  at  the  prescribed 
time.”  He argued that an alcohol incident is “a serious breach of professional responsi-
bility, so much so that two offenses in a member’s career normally result in expulsion 
from  the  Service.    As  such,  past  precedence  shows  that  officers  with  a  recent  alcohol 
incident on record are not very competitive at promotion boards.”  Therefore, he recom-
mended that the documentation of the alcohol incident remain in the applicant’s record 
and that his date of rank not be backdated to October 29, 2002. 
 

With respect to the applicant’s request that his supervisor’s recommendation for 
an Achievement Medal be processed, Commander, CGPC, asked the Board to deny the 
request because (a) the rules require comment or recommendation by the CO, (b) such 
recommendations must be submitted within three years, and (c) due to the delay, the 
purpose of such awards—fostering high morale, incentive, and esprit de corps—would 
not be met.  Moreover, he noted that the CO apparently did not find fit to recommend 
anyone for a decoration as a result of their response to the flooding incident. 

 
TJAG supported the recommendations of Commander, CGPC, and argued that 
“[t]here is an insufficient nexus between the OERs of which Applicant complains and 
his initial failure to select for O-3.”  TJAG noted that, under Engels v. United States, 678 
F.2d 173, 176 (Ct. Cl. 1982), when determining whether an applicant’s failure of selec-
tion for promotion should be removed, the Board must answer two questions:  “First, 
was  [the  applicant’s]  record  prejudiced  by  the  errors  in  the  sense  that  the  record 
appears  worse  than  it  would  in  the  absence  of  the  errors?    Second,  even  if  there  was 
some  such  prejudice,  is  it  unlikely  that  [the  applicant]  would  have  been  promoted  in 
any event?”  TJAG alleged that, although the applicant’s record “arguably looked worse 

than it would have absent the objectionable OERs, … it is unlikely that he would have 
been  promoted  in  any  event”  because  of  the  alcohol  incident  in  his  record,  which 
“called into question Applicant’s judgment and fitness for continued service even at his 
current  pay  grade.”    TJAG  argued  that  “it  is  unlikely  that  such  an  officer  would  be 
found  ‘best  qualified’  [for  promotion]  until  sufficient  time  had  passed  to  assure  the 
selection board that the officer was not likely to repeat his mistake.” 

 
With  respect  to  the  Achievement  Medal,  TJAG  argued  that  the  process  for 
awarding personal decorations is highly subjective and that no one is entitled to such an 
award.  TJAG argued that “the system exists not for the benefit of the individual service 
member but rather to foster morale and esprit de corps to benefit the organization as a 
whole.  No one was formally recognized for their part in the incident for which Appli-
cant  claims  entitlement  to  a  medal.    That  was  his  command’s  prerogative.”    TJAG 
argued that if the Board were to order that a recommendation for a medal for the appli-
cant be processed through an awards board, the result would “to introduce error into 
Applicant’s record, not correct it.” 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

 

 

On October 7, 2004, the Chair sent the applicant copies of the views of the Coast 
Guard  and  invited  him  to  respond  within  30  days.    The  applicant  was  granted  one 
week’s extension and responded on November 11, 2004.   

 
The applicant argued that there was a strong nexus between the disputed, erro-
neous OERs and his failure of selection in 2002.  He argued that there “can be no doubt 
that three erroneous evaluations in a row … made his record look considerably worse 
than it otherwise would have.”   

 
The  applicant  further  argued  that  once  an  error  has  been  proved,  “the  Coast 
Guard bears the ultimate burden to demonstrate that the error was harmless—i.e., that 
[he] would not have been promoted in any event.  See e.g., Christian et al. v. United States, 
337  F.3d  1338  (Fed.  Cir.  2003)  (‘end  burden  of  persuasion  falls  to  the  Government  to 
show harmlessness’) (citing Engels …) … Frizelle  v. Slater, 111 F.3d 172, 179 (D.C. Cir. 
1997) (‘government has the ultimate burden of persuasion’).”  The applicant argued that 
in  his  case,  “the  error  stands  admitted,  and  all  we  have  from  the  Coast  Guard  is  its 
unsupported assertions … that, because of a ‘documented alcohol related incident,’ it is 
unlikely that [he] would have been promoted in any event.”  He argued that because 
the Coast Guard cited no evidence for this proposition, “it is impossible for … the Board 
to test whether the Coast Guard’s assertion is accurate or merely an impression.”  The 
applicant alleged that the Coast Guard should be able to show “whether every single 
lieutenant junior grade with an alcohol incident letter in his or her record failed to select 
for promotion to the rank of lieutenant the first time around.” 

The  applicant  argued  that  the  fact  that  he  was  selected  for  promotion  in  2003 
“contradicts the Coast Guard’s claim that [he] was not competitive [in 2002] and that he 
would not likely have been promoted in any event.  Indeed, it demonstrates that a jun-
ior officer can be competitive and promoted even with a documented alcohol incident.”   

 
The applicant alleged that it “is completely inconsistent for the Coast Guard, on 
the one hand, to conclude that the commanding officer was personally biased and hos-
tile towards [him] with respect to his evaluations, but, on the other hand, to insist that 
she  was  fair  and  accurate  in  her  assessment  and  characterization  of  the  alcohol  inci-
dent.’ … The commanding officer exaggerated and mischaracterized the facts” to try to 
get him “kicked out of the Coast Guard,” which was her goal.  He also pointed out that 
the alcohol incident occurred after he “had endured nearly one year of [the CO’s] abuse 
and hostility.”  The applicant argued that although he had admitted that he was late to 
work  one  morning  after  having  consumed  alcohol  the  night  before,  he  never  agreed 
that the circumstances warranted documentation of an “alcohol incident.” 

 
The applicant also argued that it was inconsistent for the Coast Guard to admit 
that the CO was biased against him but to suggest that the Board should presume that 
she acted correctly and in good faith when she refused to process his supervisor’s rec-
ommendation for an Achievement Medal.  Moreover, the applicant pointed out, he is 
not claiming “entitlement” to the medal, as the Coast Guard alleged; he is “seeking a 
fair and impartial review of the proposed decoration.”  He argued that awarding him 
this medal would be consistent with the Board decision in BCMR Docket No. 83-826 and 
that  there  is  plentiful  evidence  of  his  actions  both  in  the  third  disputed  OER  and  the 
Coast Guard’s investigation of the flooding incident. 

APPLICABLE REGULATIONS 

 

 

Coast Guard Personnel Manual 
 
 
Article 10.A. of the Personnel Manual governs the preparation of OERs. Article 
10.A.1.b.1. of the manual in effect in 1999 and 2000 provides that “Commanding officers 
must ensure accurate, fair, and objective evaluations are provided to all officers under 
their command.”  Under Article 10.A.2.g.2.b., a CO may be disqualified from serving on 
a subordinate’s rating chain if the CO has been “relie[ved] for cause due to misconduct 
or  unsatisfactory  performance,  [is]  an  interested  party  to  an  investigation  or  court  of 

                                                 
6    In  BCMR  Docket  No.  83-82,  the  applicant  asked  the  Board  to  award  him  an  Achievement  Medal,  in 
addition to reinstating him in the Coast Guard and facilitating his advancement to E-8, with a backdated 
date of rank.  The Board found that the applicant had been wrongfully discharged for allegedly commit-
ting a homosexual act, and that he had been wrongfully denied an Achievement Medal by the Chief of 
the Personnel Division, after a chief warrant officer had recommended him for a Commendation Medal 
and an awards board had indicated that an Achievement Medal was merited.  In addition to reinstating 
the  applicant  and  granting  other  requested  relief,  the  BCMR  recommended  awarding  the  member  an 
Achievement Medal, and the recommendation was approved by the delegate of the Secretary. 

inquiry, or [in] any other situation in which a personal interest or conflict on the part of 
the  Supervisor,  Reporting  Officer,  or  Reviewer  raises  a  substantial  question  as  to 
whether the Reported-on Officer will receive a fair, accurate evaluation.” 
 

Article 10.A.4.d.4. of the Personnel Manual instructs supervisors to prepare their 
section of an OER by assigning the reported-on officers marks in the first 13 perform-
ance categories in accordance with the written descriptions of performance on the OER 
form.    Written  comments  are  to  be  added  to  support  marks  that  are  higher  or  lower 
than a 4.  Written comments are supposed to be consistent with the marks.   
 

Article 10.A.2.e.2. provides that the reporting officer completes his section of the 
OER, including the comparison scale and comments about leadership skills and poten-
tial, and “[e]nsures the Supervisor fully meets responsibilities for administration of [the 
evaluation  system].  Reporting  Officers  are  expected  to  hold  designated  Supervisors 
accountable for timely and accurate evaluations.  The Reporting Officer shall return a 
report for correction or reconsideration if the Supervisor's submission is found incon-
sistent with actual performance or unsubstantiated by narrative comments.  The Report-
ing Officer may not direct that an evaluation mark or comment be changed … .”   

 
Article  10.A.2.f.2.  provides  that  it  is  the  responsibility  of  the  reviewer  to 
“[e]nsure[] the OER reflects a reasonably consistent picture of the Reported-on Officer’s 
performance  and  potential.”    Article  10.A.2.f.2.c.  provides  that  the reviewer”[e]nsures 
the Supervisor and the Reporting Officer have adequately executed their responsibili-
ties under the OES.  The Reviewer shall return an OER to the Reporting Officer to cor-
rect errors, omissions, or inconsistencies between the numerical evaluation and written 
comments.  However, the Reviewer may not direct in what manner an evaluation mark 
or  comment  be  changed.”    Under  Article  10.A.2.f.2.d.,  the  reviewer  is  supposed  to 
“[c]ounsel  Reporting  Officers  whose  evaluation  habits  deviate  significantly  from  the 
prescribed  procedures,”  and  such  deficiencies  in  the  preparation  of  OERs  may  be 
reflected in the rating chain members’ own OERs. 
 
Article 10.A.4.g. allows the reported-on officer to file a reply to any OER, within 
 
15 days of receiving a copy of it, to “express a view of performance which may differ 
from  that  of  a  rating  official.”    The  reply  is  forwarded  up  the  rating  chain,  who  may 
respond in writing, before being entered in the officer’s record with the OER by CGPC. 
 

Article 20.B.2.d. defines an “alcohol incident” as “[a]ny behavior in which the use 
or  abuse  of  alcohol  is  determined  to  be  a  significant  or  causative  factor  and  which 
results in the member’s loss of ability to perform assigned duties, brings discredit upon 
the Uniformed Services, or is a violation of the Uniform Code of Military Justice (UCMJ) 
or  federal,  state,  or  local  laws.”    Article  20.B.2.e.  requires  that  an  alcohol  incident  be 
documented  in  a letter in an officer’s record with the results of his alcohol screening.  
Article  20.B.2.h.  provides  that  “[o]fficers  will  be  processed  for  separation  following  a 
second alcohol incident.” 

 
Article 14.A.4.d. states that the materials and paperwork furnished in personnel 
records for consideration by selection boards include such items as “ … page 7 entries, 
documentation  of  alcohol  incidents,  and  reports  of  civil  arrests,  performance  evalua-
tions, education information, and awards and discipline documentation.” 
 
Coast Guard Awards Manual 
 

Chapter 1.B.2. of the Awards Manual states the following: 
 
Military  decorations  are  awarded  in  recognition  of  individual  and/or  sustained  acts  of 
heroism, meritorious achievement or meritorious service above and beyond that ordinar-
ily expected, and which distinguish an individual or unit from among those performing 
similar  acts  or  services.  The  judicious  and  timely  use  of  personal  decorations  and  unit 
awards  provides  an  effective  means  of  fostering  high  morale,  incentive,  and  esprit  de 
corps; therefore, recommendations for military decorations and awards must be initiated 
promptly after the act or period of service being recognized, in sufficient time to ensure 
presentation before the recipient detaches from the unit at which the award was earned.  
 
Chapter 1.E.1. provides the following: 
 
The originator [of an award], if other than the commanding officer or officer-in-charge of 
the individual concerned, must forward the recommendation to that commanding officer 
for comment and/or recommendation prior to forwarding via the chain of command. To 
be  meaningful,  award  recommendations  must  be  timely.  For  oversight  purposes,  how-
ever,  recommendations  for  unit  awards  and  personal  decorations  must  be  submitted 
within  3  years  from  the  date  of  the  act  or  service.  …  If a recommendation is otherwise 
lost,  certification  by  competent authority, accompanied by a copy (or reconstruction) of 
the recommendation, will be considered. 

 

 

 

Chapter 2.A.10.a. states that a Coast Guard Achievement Medal 

is given for professional and/or leadership achievement in a combat or noncombat situa-
tion based on sustained performance or specific achievement of a superlative nature and 
shall  be  of  such  merit  as  to  warrant  more  tangible  recognition  than  is  possible  by  the 
Commandant’s  Letter  of  Commendation  Ribbon,  but  which  does  not  warrant  a  Coast 
Guard Commendation Medal or higher award. 
 

(1)  Professional  Achievement.  To  merit  the  award,  professional  achievement 
must  clearly  exceed  that  which  is  normally  required  or  expected,  considering  the  indi-
vidual grade or rate, training and experience, and must be an important contribution that 
is beneficial to the United States and the United States Coast Guard. 

 
(2)  Leadership  Achievement.  To  merit the award, leadership achievement must 
be noteworthy; be sustained so as to demonstrate a high state of development or, if for a 
specific achievement, be of such merit as to earn singular recognition for the act(s); and 
reflect most creditably on the efforts of the individual toward the accomplishments of the 
mission. 

FINDINGS AND CONCLUSIONS 

1. 

2. 

3. 

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

 
 
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 appli-
cable law: 
 
 
§ 1552.  The application was timely. 
 
 
The applicant requested an oral hearing before the Board.  The Chair, act-
ing pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition of 
the case without a hearing.  The Board concurs in that recommendation. 
 
 
 The Board agrees with the Coast Guard that the applicant has overcome 
the presumption of regularity and proved by a preponderance of the evidence that the 
CO of the Xxxxxx who served as his reviewer for the three disputed OERs was biased 
against him and treated him in a very unprofessional manner.  Although LCDR B, the 
XO  of  the  Xxxxxx  for  the  marking  periods  of  the  second  and  third  disputed  OERs, 
stated  that  the  CO  “never  expressed  to  me  any  dislike  for  [the  applicant]  or  in  my 
opinion treated him unfairly,” the statements of the XO for the marking period of the 
first disputed OER, the Engineering Officer, Operations Officer, Administrative Officer, 
and others outweigh his opinion.  Therefore, pursuant to Article 10.A.2.g.2.b. of the Per-
sonnel Manual, she should have been disqualified from serving on the applicant’s rat-
ing chain for the disputed OERs because of her personal bias.  Although two of the dis-
puted OERs are among the best he received in his early career, the applicant has stated 
that he wants all three removed from his record.  Therefore, the Board finds that they 
should be removed from his record and replaced with continuity reports. 
 
 
The Coast Guard argued that the applicant did not prove that his CO vio-
lated  Article  10.A.2.f.2.c.  of  the  Personnel  Manual  by  “direct[ing]  in  what  manner  an 
evaluation mark or comment be changed.”  In support of this position, the Coast Guard 
points to the CO’s own allegation that she worked within the bounds of her authority 
under Article 10.A.2.f.2. and LCDR B’s allegation that she did not influence the marks 
he  assigned  the  applicant  in  the  second  and  third  disputed  OERs.    However,  the 
reporting officer for the first disputed OER, LCDR D, has stated that the CO “ordered 
[him] to lower several of the marks and then to change the supporting language to sup-
port  the  lower  marks.    [He]  specifically  remember[s]  her  ordering  [him]  to  lower  the 
marks  in  professional  competence,  directing  others,  teamwork,  judgment  and  profes-
sional presence, among others.  During [the] discussions, [he] was able to persuade her 
to  rescind  her  order  to  lower  some  marking  areas  but  not  others.”   The Coast Guard 
argues that, because LCDR D was able to persuade the CO to allow him not to lower 
certain marks, their discussion did not violate Article 10.A.2.f.2. of the Personnel Man-
ual.  However, the fact that LCDR D was able to persuade the CO to allow him not to 
lower certain marks does not mean that she did not in fact direct him to lower certain 

4. 

5. 

7. 

marks.  Therefore, with respect to the first disputed OER, the Board finds that the appli-
cant  has  proved  that  the  CO  directed  his  reporting  officer  to  lower  certain  marks  in 
clear violation of Article 10.A.2.f.2 
 
 
Moreover, the applicant’s supervisor stated that during the preparation of 
all three disputed OERs, the final draft of the OER form contained several marks that 
were  lower  than  those  he  assigned  and  that  he  himself  did  not  lower  those  marks.  
Therefore,  although,  as  the  Coast  Guard  argued,  the  supervisor  may  have  ultimately 
signed the disputed OERs with the lower marks as they appear in the record, the appli-
cant has proved by a preponderance of the evidence that either his reporting officer or 
reviewer (the XO or CO) directed the lowering of certain marks in the supervisor’s por-
tion  of  the disputed OERs by lowering those marks himself or herself, in violation of 
Article 10.A.2.e.2. or 10.A.2.f.2. of the Personnel Manual.  While the regulations require 
the reporting officer and reviewer to return inconsistent OERs to the supervisor for cor-
rection,  they  also  clearly  prohibit  the  reporting  officer  and  reviewer  from  directly 
changing the OER marks assigned by the supervisor.  If, in fact, the CO and LCDR B 
found  that  the  applicant’s  marks  were  not  adequately  supported by the written com-
ments, the Personnel Manual required them to return the draft OERs to the supervisor, 
who might have decided that it was appropriate to improve the consistency by rewrit-
ing  the  comments  rather  than  by  lowering  the  marks.    The  supervisor  stated  that  he 
tried to protest the lowering of the marks he assigned in the second and third disputed 
OERs, but the reporting officer, LCDR B, rejected his protest and refused to allow him 
to take the matter to the CO.   
 
 
Therefore, the Board finds that the applicant has proved by a preponder-
ance  of  the  evidence  that  the  supervisor’s  section  of  all  three  disputed  OERs  and  the 
reporting  officer’s  (LCDR  D’s)  section  of  the  first  disputed  OER  were  prepared  with 
lower marks upon the direction of the CO in violation of Article 10.A.2.f.2. of the Per-
sonnel Manual.  Moreover, the applicant has proved that, in the absence of these viola-
tions, the disputed OERs would have contained several higher marks in those sections.  
These violations and errors provide another basis for removing the disputed OERs in 
addition to the basis stated in Finding 3, above. 
 
Under Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982), to determine 
 
whether  the  applicant’s  failure  of  selection  before  the  board  that  met  in  August  2001 
should  be  removed  because  of  the  errors  in  his  record  when  it  was  reviewed  by  that 
board, this Board must answer two questions:  “First, was [the applicant’s] record preju-
diced  by  the  errors  in  the  sense  that  the  record  appears  worse  than  it  would  in  the 
absence of the errors?  Second, even if there was some such prejudice, is it unlikely that 
[the applicant] would have been promoted in any event?”  The Engels court also held 
that, once the Board has determined that an applicant’s record before a selection board 
contained prejudicial error, the applicant “must make a prima facie case” that he would 
have been promoted absent the prejudicial error, “but the end-burden of ultimate per-

6. 

suasion lies with [the Coast Guard] to show the improbability of [the applicant’s] selec-
tion even if his record were untainted” by the errors.  Id. at 177. 

 
8. 

 
9. 

In light of the Board’s determination in Finding 6 that, in the absence of 
the violations of the Personnel Manual, the disputed OERs would have contained sev-
eral  higher  marks  in  certain  sections,  the  Board  finds  that  the  applicant’s  record  was 
clearly  prejudiced  by  the  errors.    The  statements  of  the  applicant’s  supervisor  and 
LCDR D clearly show that several of the marks in the supervisor’s section of all three 
disputed  OERs  and  in  the  reporting  officer’s  section  of the first disputed OER would 
have been higher had they not been changed by the CO.  Therefore, the Board finds that 
the first part of the Engels test is met. 

Moreover, in light of the fact that 95% of all LTJGs “in the zone” for pro-
motion  to  LT  were  in  fact  selected  for  promotion  in  September  2002,  the  Board  finds 
that  the  applicant  has  made  a  prima  facie  case  that  he  would  have  been  promoted 
absent the prejudicial error.  However, to answer the second question of the Engels test, 
the Board must consider what the applicant’s record would have contained and how it 
would have appeared to the LT selection board in September 2002 in the absence of the 
CO’s bias. 
 

10. 

The Coast Guard argued that, in the absence of the CO’s bias, the appli-
cant’s  record  would  nonetheless  have  contained  a  documented  “alcohol  incident”  on 
March 23, 2000, when it was considered by the selection board in September 2002.  The 
applicant argued that but for his CO’s bias, the incident would not have been charac-
terized as an alcohol incident, and that the documentation should not be in his record.  
The  Coast  Guard  has  admitted  that  the  CO  created  a  hostile  work  environment  on 
board the Xxxxxx and that she was particularly biased toward the applicant.  The evi-
dence of record strongly supports the applicant’s allegation that his CO was irrationally 
biased against him and specifically targeted him with undeserved criticism and unfair 
treatment by, for example, blocking his qualification as deck watch officer.  The appli-
cant’s  supervisor  (the  Engineering  Officer),  the  first  XO,  the  Operations  Officer,  the 
Administrative  Officer,  and  several  junior  officers  and  senior  enlisted  personnel  have 
stated that the CO had an unfounded but strong personal dislike for the applicant and 
that she was incapable of evaluating him objectively or treating him fairly.  The second 
XO,  although  he  continues  to  deny  the  CO’s  bias  contrary  to  the  overwhelming  evi-
dence  of record, did not mention the alcohol incident in his affidavit.  In light of this 
evidence, the Board finds that the applicant has proved by a preponderance of the evi-
dence that not only the disputed OERs but also the letter documenting the alleged alco-
hol incident, which the CO signed and entered in his record, must be considered tainted 
and suspect.   

 
11.  Moreover,  under  Article  20.B.2.d.  of  the  Personnel  Manual,  COs  have  a 
considerable  amount  of  discretion  in  deciding  whether  to  characterize  an  event  as  an 
“alcohol incident.”  In fact, under the Personnel Manual, the applicant’s CO had much 

more discretion in deciding whether to document an “alcohol incident” than she had, as 
reviewer, in helping to prepare the applicant’s OERs, which the Coast Guard has con-
ceded  should  be  removed.    The  applicant  has  proved  that  the  CO  was  very  biased 
against him and could not be objective in assessing his performance and behavior.  The 
Board finds that in all likelihood her bias strongly influenced her decision to place the 
letter documenting an alcohol incident in the applicant’s record.  Therefore, the Board 
finds that the letter should be removed from his record.  In addition, the Board finds 
that the letter should not have been in his record when it was reviewed by the selection 
board in September 2002.   

In light of the findings above, the Board finds that the applicant has met 
the second part of the Engels test in that, without the errors (the lower marks in three 
OERs and the alcohol incident) introduced in his record because of his CO’s bias, it is 
more  likely  than  not  that  he  would  have  been  among  the  95%  of  LTJGs  selected  for 
promotion to LT in September 2002.  Therefore, his date of rank as a LT should be back-
dated  to  what  it  would  have  been  had  he  been  selected  for  promotion  in  September 
2002.   

 
12. 

 
13. 

The  applicant  asked  the  Board  to  order  the  Coast  Guard  to  process  his 
supervisor’s recommendation that he receive an Achievement Medal as if his CO had 
approved it.  The supervisor apparently initiated the Achievement Medal as a result of 
the  applicant’s  critical  response  to  a  serious  flooding  incident  during  the  marking 
period  for  the  third  disputed  OER.    The  applicant’s  critical  response  to  the  flood  is 
clearly documented in the third disputed OER, which must now be removed from his 
record because of the CO’s bias.  His supervisor has indicated that the CO refused to 
process the Achievement Medal only because she disapproved of his overall perform-
ance  and  did  not  want  to  appear  to  be  awarding  that.    However,  the  applicant  has 
proved that she was biased against him and could not fairly evaluate his performance.   

 
14. 

The  Coast  Guard  argued  that  the  applicant’s  request  regarding  the  pro-
posed Achievement Medal should be denied simply because several years have passed 
and  so  one  purpose  of  the  awards  program—fostering  esprit  de  corps  by  the  timely 
rewarding of achievement—would not be met.  The Coast Guard’s argument, however, 
ignores the value of fostering the applicant’s own incentive and the very real effect such 
awards have on officers’ competitiveness before selection boards.  The Board finds that 
the  applicant  has  proved  that  but  for  his  CO’s  bias,  the  recommendation  for  the 
Achievement Medal would have been forwarded to the awards board.  Therefore, the 
Board finds that it is in the interest of justice to order the Coast Guard to process the 
proposed Achievement Medal despite the lapse of time. 

 
 
15.  Accordingly,  the  applicant’s  request  to  have  the  three  disputed  OERs 
removed from his record should be granted.  In addition, the letter dated April 10, 2000,  
documenting his first alleged alcohol incident should be removed from this record.  The 
applicant’s date of rank as a LT should be backdated to what it would have been had he 

been selected for promotion by the LT selection board that met in September 2002, and 
he should receive backpay and allowances.  Finally, the Coast Guard should process the 
applicant’s  supervisor’s  recommendation  that  he  receive  an  Achievement  Medal  as  if 
his CO had approved that recommendation and forwarded it in accordance with regu-
lation.  

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 

ORDER 

The application of xxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his military 

The letter dated April 10, 2000, documenting the alcohol incident on March 23, 

 
 
record is granted in part as follows: 
 
 
The three officer evaluation reports (OERs) covering his performance from April 
1,  1999,  to  September  30,  1999;  from  October  1,  1999,  to  January  31,  2000;  and  from 
February  1,  2000,  to  May  21,  2000,  shall  be  removed  from  his  records.    They  shall  be 
replaced with OERs prepared “for continuity purposes only.” 
 
 
2000, shall be removed from his record. 
 
 
The applicant’s date of rank as a lieutenant shall be backdated to what it would 
have  been  had  he  been  selected  for  promotion  by  the  selection  board  that  met  in 
September 2002, and he shall receive corresponding backpay and allowances. 
 
 
The Coast Guard shall process the applicant’s supervisor’s recommendation that 
he receive an Achievement Medal for his response to the flooding incident aboard the 
Xxxxxx  as 
the 
recommendation. 

if  his  commanding  officer  had  approved  and 

forwarded 

  

 
 
 
 
 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 

 

 
 James G. Parks 

 

 

 
 Dorothy J. Ulmer 

 

 

 
 Darren S. Wall