DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                        BCMR Docket No. 2009-082 
 
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FINAL DECISION 

 

 
 

 

This is a proceeding under 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 applicant’s 
completed application on February 4, 2009, 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 September 24, 2009, is approved and signed by the three duly 

APPLICANT’S REQUEST 

 
 
The applicant, who was a marine science technician, third class (MST3), when he filed 
his application,1 asked the Board to correct his record by correcting or removing his semi-annual 
enlisted  employee  review  (EER)  for  the  period  ending  September  30,  2007,  which  was  com-
pleted on December 5, 2007, and a negative Page 7 (administrative counseling form CG-3307)2 
dated October 1, 2007.  The disputed Page 7, which is signed by the applicant and by two lieu-
tenants—LT O and LT R—from his  Coast Guard and Navy chains of command, respectively, 
states the following: 
 

01 OCT 07  You are being counseled concerning your responsibility to keep both chains of com-
mand informed of your foreign travel and cautioned against attempting to undermine the authority 
of the two commands of which you are a part. 
 
In  December  2006  you  were  permitted  to  go  TAD  [temporary  additional  duty]  to  Germany  for 
weather 
the  previous  verbal  pre-requisite  given  by 
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xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx  of  being  qualified  in  your  main 

training  despite  not  meeting 

                                                 
1 The Coast Guard’s Direct Access database indicates that the applicant recently left the MST rating to attend “A” 
School to transfer to the Intelligence Specialist rating as an IS3. 
2 A Page 7 (form CG-3307, “Administrative Remarks”) may be used to document counseling provided to a service-
member  or  any  other  positive  or  negative  noteworthy  event  that  may  occur  during  a  member’s  military  career.  
HRSICINST M1000.2A, Encl. (6). 

duty station at the National Ice Center (XXX or Navy command).  You led your CG command to 
believe that the XXX was in favor of your TAD and vice versa.  Following your training, you were 
told that going back to Germany for training or similar professional development that was clearly 
more personal in nature would not be considered as it was not particularly beneficial for the Navy 
command [to which] you are assigned nor the Coast Guard. 
 
You were verbally counseled that before you would be authorized TAD orders you were to meet 
two pre-requisites.  First, check with the XXX to see if there was any additional training that you 
could complete to help with your imagery analysis skills.  Second, ensure the TAD would further 
your  professional  development  as  a  MST.    No  administrative  action  nor  adverse  marks  were 
entered amongst this confusion in an attempt to give you the benefit of the doubt. 
 
Despite  this,  you  submitted  a  foreign  travel  request  form  stating  your  intentions  to  go  TAD  to 
Germany for weather training in June 2007.  Furthermore, you submitted this request to CG-221 
without  routing  it  through  your  command  at  xxxxxxx  [XXXX],  disregarding  every  prerequisite 
required of you by this office and that of your tenant command at the XXX. 
 
You are reminded that when seeking to visit a foreign country on leave you must seek advance 
permission  from  your  Coast  Guard  chain  of  command  in  accordance  with  Personnel  Manual, 
COMDTINST M1000.6A, Article 7.A.  When you asked the XXX about your foreign travel you 
were told to go through the CG because the CG held your security clearance.  You submitted a for-
eign travel intent form to CG-221 in June but failed to inform your command at HQ that you would 
be departing on leave to a foreign country until 4 days prior to your scheduled departure.  Such late 
notice is not in keeping with seeking advance permission as required by COMDTINST M1000.6A, 
Article 16.J.1.a. or appropriately using your chain of command. 
 
Your actions undermined the authority of both commands and showed a lack of responsible deci-
sion making.  You failed to act in the manner of an experienced third class petty officer.  This is 
the first formal step being taken by this command to document, and more importantly, correct any 
further indiscretion on your part. 

 

 
 
The disputed EER contains numerical marks on a scale of 1 (worst) to 7 (best) in twenty-
five performance categories, including one “excellent” mark of 6, nine “above average” marks of 
5, fourteen “average” marks of 4, and one “below standard” mark of 3 for the performance cate-
gory “Integrity.”  The EER also contains a conduct mark of “satisfactory” and an advancement 
mark of “not recommended for advancement.”  The only name that appears on the EER is that of 
the Approving Official, who was the Commanding Officer of the XXXX.  The mark of 3 for 
“Integrity” is supported by the following written comment: 
 

During the marking period, [the applicant] took advantage of his unique position as the sole CG 
representative to a Navy command by attempting to undermine the authority of both commands.  
[He]  attempted  to  undermine  the  authority  of  both  commands  by  requesting  permissive  TAD 
orders to Germany from his Navy command and another CG Headquarters office despite specifi-
cally being told by his parent CG Headquarters command that he was not to go TAD to foreign 
country or weather station unless he could demonstrate a need for such training by the Navy or 
CG.  Not only did [he] fail to meet prerequisites for approval of general TAD training, but he still 
attempted to gain authority to go TAD to a foreign country to do weather training when he com-
pleted  a  Notification  of  Foreign  Travel  form  in  July  of  2007.    [The  applicant]  did  this  without 
informing  his  parent  CG  Headquarters  command  of  such  a  request.    [He]  abused  the  previous 
benefit  of  the  doubt  he  had  been  given  when  he  had  been  allowed  to  go  TAD  to  Germany  for 
similar  weather  training,  which  was  more  of  a  personal  benefit,  in  January  07  and  caused  both 
commands to question his integrity. 

The mark of “not recommended for advancement” on the EER was supported by the fol-

 
lowing written comment: 
 

[The applicant] is not recommended for advancement as a result of his failure to display the integ-
rity  and  honesty  that  is  expected  of  a  second  class  petty  officer.    [Comments  for mark of 3 for 
“Integrity” included here.]  Additionally, [the applicant] must do a better job at representing the 
CG as part of a willing partnership at this unique joint Navy, NOAA, and CG command.  [He] has 
given the impression that he does not want to be part of the command at the XXX and this has 
reflected poorly upon the CG.  [He] must display the integrity that is expected of a third class petty 
officer by not misinforming various commands for personal gain and become a willing participant 
at the XXX command to earn a recommendation for advancement. 

 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that during the evaluation period, he was officially assigned to the 
XXXX within Inspections and Compliance Directorate at Coast Guard Headquarters.  However, 
his Commanding Officer was a Rear Admiral within the Headquarters Support Command, and 
the  policies  and  procedures  of  the  Support  Command  differed  from  those  of  the  Directorate.  
Moreover,  he  was  not  assigned  to  work  in  the  XXXX  offices  but  at  the  xxxxxx,  under  the 
command of a Navy captain.  Therefore, he alleged, the Navy prepared his EERs but never did so 
properly. 
 
 
The applicant alleged that his work required him to have access to secret and top secret 
computer systems, and access to those systems is administered by the Coast Guard’s Intelligence 
Coordination Center (ICC), which is located across the street from the XXX.  His primary duty at 
the XXX was to provide reconnaissance support to the Coast Guard’s xxxxxxxxxxxxxxxxxxxx 
xxxxxxxx).  However, the XXX’s systems could not support the top secret imagery required. 
 
 
The applicant alleged that he was not informed that he worked for the Navy until almost 
18 months after he began working at the XXX.  The applicant’s Coast Guard successor had told 
him that he worked for the XXX and was accountable to them and could disregard many of the 
Navy’s  directives  since  they  were  in  conflict  with  those  of  the  XXX.    However,  he  received 
numerous directives from the XXXX stating that the Navy was his primary chain of command.  
Yet  the  Navy’s  “authority  varied  arbitrarily  depending  on  where  tasking  was  coming  from  at 
different times throughout the year.” 
 
 
Regarding the disputed Page 7, the applicant stated his job at the XXX had certain pre-
requisite qualifications and that he had completed all except that he “lacked the essential experi-
ence.”    The  prerequisites  were  set  by  the  XXX,  not  by  the  Coast  Guard,  and  were  ultimately 
waived since he lacked only experience.  He alleged that “this requirement was not looked upon 
seriously as I was of the impression that all XXX tasking superseded any deadlines placed on me 
by the Navy.” 
 
 
The applicant alleged that whereas the Page 7 states that the XXX command was told that 
the Coast Guard would not support the training unless the Navy supported it, in fact it was the 
Navy who told the Coast Guard that the Navy would not support the training unless the Coast 
Guard was in support of it.  Moreover, the applicant alleged,  
 

[b]oth chains of command were thoroughly informed of my intentions to further my weather train-
ing as this is the main reason I joined the Coast Guard.  The assignment to the position at the XXX 
was  advertised  as  a  weather  assignment  and  requires  weather  forecaster training for a period of 
nine (9) months with the Air Force.  However, none of the skills attained are used at the XXX.  
The  Coast  guard  advertised  a  weather  career  field  and  continued  to  advertise  the  position  as  a 
weather job.  However, neither was found to be true.  Both chains of command were informed of 
my intentions to make every effort to maintain weather skills as it was my primary career goal and 
the reason for staying on active duty.  The training completed with the Air Force is far superior 
than that conducted by the Navy. 
 
At no time was I informed that further requests would not be considered but was told that it was 
not likely to get approved.  I was told by the Coast Guard chain of command that the Navy chain of 
command would have to support the training in order to be considered.  I continued to press for the 
training as my skills in weather forecasting were rapidly deteriorating. 

 
 
Regarding paragraph 3 of the Page 7, the applicant alleged that although he was told that 
additional training should be for his career development as an MST, it would have been “counter 
productive for an MST working in weather to attempt working in marine safety qualifications, as 
the career goals of the member were purely science related as the rating name misleads one to 
believe.  To expect a person to complete 9 months of extensive training only to not be able to 
develop the skills acquired is preposterous.” 
 
 
Regarding paragraph 4 of the Page 7, the applicant admitted that “no request for official 
foreign travel was submitted to either chain of command.  A Notification of Foreign Travel was 
submitted to the Special Security Office (CG-221) stating official business which was later cor-
rected  and  withdrawn  after  discussion  with  the  XXX  OPS  boss,  LT  [R],  ruled  out  any 
opportunity for this training.”  The applicant stated that the Notification of Foreign Travel form 
is not a request for travel authorization and is supposed to be submitted directly to CG-221.  Only 
leave requests and requests for temporary active duty (TAD) must go through the Headquarters 
administrative staff, and a memorandum documenting the foreign destination must go to the CO 
for approval.  The applicant alleged that neither the Navy nor the Coast Guard provided any pre-
requisites and the system is confusing.  He stated that on the four previous occasions when he has 
traveled abroad, different procedures were used each time due to inconsistent directives from the 
various chains of command and turnover on the administrative staff. 
 

Regarding paragraph 5 of the Page 7, the applicant alleged that his Coast Guard XXXX 
supervisor, LT O, informed him that the Coast Guard needed notification of his leave only to 
ensure that it was accounted for in his leave balance.  He stated that the regulations cited in the 
Page 7  “were not clearly applied as uniqueness of the position required many different proce-
dures to be followed.  These remained inconsistent, ambiguous, arbitrary.”  The applicant alleged 
that he worked through the ICC because they had all the proper forms, were familiar with the 
procedures, and needed to be informed of his travel because they held his system access. 
 
 
Regarding  paragraph  6  of  the  Page  7,  the  applicant  alleged  that  he  “showed  extensive 
thoroughness and responsibility by making sure that all things were taken care of with regard to 
foreign travel to the best of my ability.  The lack of responsibility comes on the administration of 
the position that the member is in and the numerous shortfalls and endless counts of neglect of all 
commands involved.  As a lone third class petty officer on independent duty with a high level of 
responsibility  and  little  guidance  or  support  accompanied  by  minimal  access  to  adequate 

resources and no senior enlisted guidance from the Coast Guard, I was able to successfully exe-
cute the responsibilities.” 
 
 
Regarding the disputed EER, the applicant alleged that he was not notified of the EER 
until  two  and  one-half  months  after  the  end  of  the  evaluation  period.    During  that  period,  he 
futilely took a servicewide examination for advancement.  The applicant alleged that the EER 
should be corrected or expunged because it is based on the erroneous and unjust comments in the 
Page 7. 
 
 
In support of his allegations, the applicant submitted a statement from a civilian contrac-
tor at the ICC, who wrote that the applicant “informed me of his foreign travel approximately 
mid July of 2007 as is required for ample processing time and completion of necessary security 
briefs associated with the countries visited.  [He] then cancelled the official business portion of 
his foreign travel [but] allowed the leave portion of the travel to remain.  The cancelled leave 
request was received in my office approximately 29 August 2007.” 
 
 
 The applicant also submitted a statement from a first class petty officer at the XXX, who 
wrote  that  the  applicant  “had  executed  orders  that  were  approved  in  error  when  he  was  first 
authorized to complete training on temporary duty in Germany.  As his supervisor, I did not par-
ticipate in the evaluation process that was conducted during the marking period being questioned.  
Nor was I consulted with regard to the [Page 7] he is appealing.  I understand this to be counter 
to Coast Guard Commandant Instruction, however could not be prevented due to the uniqueness 
of his position.” 
 

VIEWS OF THE COAST GUARD 

 

On  July  1,  2009,  the  Judge  Advocate  General  (JAG) of the Coast Guard submitted an 
advisory opinion in which he adopted the findings and analysis provided in a memorandum pre-
pared by the Personnel Service Center (PSC). 

 
 
The PSC recommended that the applicant’s request be denied.  The PSC noted that the 
applicant did not attempt to appeal the disputed EER, in accordance with Article 10.B.9. of the 
Personnel Manual, or seek administrative redress for the Page 7.  The PSC stated that following 
an incident in December 2006, the applicant was verbally counseled about his chain of command 
and,  in  particular,  the  appropriate  chain  of  command  and  requirements  for  requesting  TAD 
orders.  The disputed Page 7 was prepared in response to a subsequent similar incident in June 
2007. 
 
 
 The PSC stated that the Page 7 shows that the applicant failed to keep his Coast Guard 
chain of command informed and to “vet his travel through both his prescribed chains of com-
mand.”  The PSC noted that the Page 7 was signed by both his Coast Guard and Navy supervi-
sors, and that the applicant has not submitted any document that rebuts the information therein.  
The PSC stated that the Navy first class petty officer who submitted a statement for the applicant 
was “his former USN supervisor.” 
 

The PSC noted that the applicant’s own statement acknowledged his need to vet his travel 
through his chain of command and also made “it clear that he was determined to obtain weather 
training” and that he was dissatisfied with the nature of his duties at the XXX.   
 
 
Regarding the EER, the PSC stated that it does not deviate significantly from his prior 
and  subsequent  EERs.    The  PSC  submitted  a  print-out  of  all his EER marks since May 2002 
showing that, except for the mark of 3 for “Integrity” and the recommendation against advance-
ment,  the  marks  in  the  disputed  EER  are  similar  to  those  the  applicant  has  received  in  other 
EERs. The PSC alleged that the mark of 3 was substantiated by the supporting comments and 
that the EER “was properly executed by the applicant’s Coast Guard chain of command.” 
 
 
Regarding the timing of the EER, the PSC stated that although the chain of command did 
not meet the deadlines prescribed under the Personnel Manual for preparing an EER, the appli-
cant  has  “failed  to  demonstrate  an  injustice  or  compounded  error  resulting  from  this  delay  in 
counseling.”  The PSC concluded that the applicant “has not established any error or injustice 
with regards to the [Page 7] or the EER.” 
 

RESPONSE TO THE VIEWS OF THE COAST GUARD 

On July 13, 2009, the Chair sent the applicant a copy of the views of the Coast Guard and 

 
 
invited him to respond within thirty days.  No response was received. 
 

APPLICABLE REGULATIONS 

 

Article 10.B.1.b. of the Personnel Manual in effect in 2007 states that “[e]ach command-
ing officer/officer in charge must ensure all enlisted members under their command receive accu-
rate, fair, objective, and timely enlisted employee reviews.” 

 
Figure 10.B.3.1. shows that for enlisted members assigned to Headquarters units, the rat-
ing chain shall consist of a Supervisor designated by the Division Chief, who initially assigns all 
of  the  marks  on  the  EER;  the  Division Chief as the Marking Official, who reviews all of the 
marks; and an Approving Official, who is the Commanding Officer and who approves the EER 
before  it  is  entered in the Coast Guard’s database.  In addition, enlisted members may appeal 
their EER marks (except for the advancement recommendation) up to the Assistant Commandant 
over their division. 

 
Article 10.B.4.c.3. states that a Supervisor “[g]athers all written and oral reports on the 
evaluee’s  performance  [and]  [a]scertains  the  status  of the evaluee's performance qualifications 
for next higher pay grade” before completing an EER with supporting comments and forwarding 
it to the Marking Official no later than nine days before the end of the evaluation period.   

 
 
Article 10.B.4.c.4. states that a Marking Official “[g]athers all written and oral reports on 
the  evaluee’s  performance”;  reviews  the  EER;  and  “has  the  authority  to  return  the  employee 
review to the Supervisor for further justification or support for any marks.”  The Marking Offi-
cial  forwards  the  EER  to  the  Approving  Official  no  later  than  five  days  after  the  end  of  the 
evaluation period. 
 

 
Article  10.B.4.c.5.g.  states  that  an  Approving  Official  “[g]athers  all  written  and  oral 
reports on the evaluee’s performance”; ensures that the marks are consistent with performance; 
“has the authority to return the employee review to the Supervisor for further justification or sup-
port for any marks”; and forwards a completed EER to the Supervisor to counsel the member so 
that the process is completed and the EER is entered in the database within thirty days of the end 
of the evaluation period. 
 

Under Articles 10.B.2.a.1. and 10.B.6.b.1., any numerical mark of 1, 2, or 7, an unsatis-
factory conduct mark, or a recommendation against advancement must be supported by a written 
comment.  Article 10.B.7.1. states that when making an advancement recommendation, the eval-
uators should consider not only past performance but also “the member’s potential to perform 
satisfactorily the duties and responsibilities of the next higher pay grade, qualities of leadership, 
and adherence to the Service’s core values.” 
 
 
Article 10.B.9.b states that before appealing an EER, a member “should request an audi-
ence with the rating chain to verbally express any concerns that could lead to a written appeal.”  
If the member is unsatisfied with the rating chain’s response, the member may submit a written 
appeal of the EER through his CO to the Appeal Authority within 15 days of receiving counsel-
ing on the EER or with an explanation of why the 15-day deadline was not met.  However, Arti-
cle  10.B.9.a.3.  states  that  “[t]he  recommendation  for  advancement  portion  on  the  employee 
review may not be appealed.” 
 

Article  14.B.2.a.  states  that  a  member  may  seek  correction  of  an  entry  in  his  military 
record through his chain of command.  As an example, the article states that for “a member who 
receives an Administrative Remarks, CG-3307 from his or her division chief documenting pur-
ported substandard watchstanding, an appeal through the division chief and the executive officer 
to  the  commanding  officer  should  suffice.    (This  appeal  may  be  in  the  form  of  a  so-called 
‘Request  Mast’  pursuant  to  Article  9-2-3,  Coast  Guard  Regulations,  COMDTINST  M5000.3 
(series).)”    Article  14.B.3.  provides  the  regulations  of  the  Personnel  Records  Review  Board 
(PRRB), which has authority to correct members’ records during the year after their entry. 
 
 
Article 4.G. contains regulations concerning TAD travel orders.  Article 7.A.2.h. states 
that Article 16.J. applies to members’ requests to travel to foreign countries while on personal 
leave.  Article 16.J.1.a.1. states that “[e]xcept as provided below, personnel desiring to visit for-
eign countries must obtain advance permission.” 
 

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.  
The application was timely because it was filed within three years of the applicant’s discovery of 
the alleged error or injustice in his record, as required under 10 U.S.C. § 1552(b). 

1. 

 

2. 

The Board finds that the applicant has exhausted his administrative remedies, as 
required by 33 C.F.R. § 52.13(b), because there is no other currently available forum or proce-
dure provided by the Coast Guard for correcting the alleged error or injustice that the applicant 
has not already pursued.  Although the applicant apparently did not appeal the EER marks; pur-
sue a request mast about the Page 7; or challenge either document through the PRRB, the appli-
cant’s  failure  to  exhaust  these  potential  administrative  remedies  in  2007  does  not  negate  the 
Board’s mandate under 10 U.S.C. § 1552 to remove errors and injustices found upon the applica-
tion of a member within three years of their discovery.  However, an applicant’s failure to pursue 
administrative remedies is evidence that the Board may consider in deciding whether disputed 
records are erroneous. 

4. 

 The applicant requested an oral hearing before the Board.  The Chair, acting pur-
suant 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.3   
 

The applicant alleged that his EER for the evaluation period ending September 30, 
2007,  and  the Page 7 dated October 1, 2007, are erroneous and unjust.  The Board begins its 
analysis  in  every  case  by  presuming  that  the  disputed  information  in  the  applicant’s  military 
record is fair and accurate, 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 con-
trary, the Board presumes that military officials and other Government employees have carried 
out their duties “correctly, lawfully, and in good faith.”5 

The applicant has not overcome the presumption of regularity with respect to any 
part of the Page 7 dated October 1, 2007.  The Page 7 is signed by superior officers from both his 
Coast Guard and Navy chains of command at the XXXX and the XXX, respectively.  The fact 
that  a  civilian  contractor  at  the  ICC  received  notification  of  the  applicant’s  intent  to  travel 
overseas in ample time to process the notification and provide the required security briefing to 
the applicant does not refute any of the comments in the Page 7.  The applicant also submitted a 
statement from a Navy first class petty officer who stated that he had supervised the applicant at 
the XXX and was present at least during the first, December 2006 incident mentioned in the Page 
7, for which the applicant was given the benefit of the doubt.  This petty officer claimed that he 
was not consulted with regard to the Page 7.  However, he did not deny the accuracy of any com-
ment in the Page 7, and the Board knows of no rule requiring the chains of command to consult 
him when preparing the Page 7. 

 
3. 

 
5. 

 

                                                 
3 See Steen v. United States, No. 436-74, 1977 U.S. Ct. Cl. LEXIS 585, at *21 (Dec. 7, 1977) (holding that “whether 
to grant such a hearing is a decision entirely within the discretion of the Board”); Flute v. United States, 210 Ct. Cl. 
34,  40  (1976)  (“The  denial  of  a  hearing  before  the  BCMR  does  not  per  se  deprive  plaintiff  of  due  process.”); 
Armstrong  v.  United  States,  205  Ct.  Cl.  754,  764  (1974)  (stating  that  a  hearing  is  not  required  because  BCMR 
proceedings are non-adversarial and 10 U.S.C. § 1552 does not require them). 
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). 

6. 

The  applicant  argued  that  having  two  chains  of  command  with  separate  proce-
dures was so confusing that he should not be faulted for failing to follow procedures regarding 
requests for training and travel.  However, the Page 7 states that in December 2006 the applicant 
led the Coast Guard chain of command to believe that his Navy chain of command wanted him to 
get additional weather training in Germany and led the Navy chain of command to believe that 
the Coast Guard chain of command wanted him to get the training, when in fact the training was 
not necessary for his assigned duties and was simply training he desired.  Therefore, the applicant 
clearly  knew  that  to  receive  TAD  training  orders,  both  his  Navy  and  Coast  Guard  chains  of 
command  should  be  consulted.    In  addition,  the  Page  7  states  that  he  had  been  warned  that 
permission to attend any future training would have to be based on the needs of the Services—
i.e., his progress as an MST and his work at the XXX—not on his career aspiration to become a 
weather forecaster.  Yet within a few months, the Page 7 indicates, he attempted to bypass his 
Coast  Guard  chain  of  command  by  submitting  a  foreign  travel  form  required  to  attend  more 
weather training in Germany directly to CG-221 without submitting a request for authorization to 
attend  the  training  to  his  Coast  Guard  chain  of  command.    The  applicant  has  not  proved  that 
having a chain of command within XXXX while working at the XXX was so confusing that a 
petty officer who had recently been counseled on the matter and who had more than five years of 
experience would be unaware of the fact that he needed to seek permission from his Coast Guard 
chain of command if he wanted to attend training overseas.  The Board concludes that the appli-
cant has not proved by a preponderance of the evidence that the Page 7 dated October 1, 2007, is 
erroneous or unfair. 

The applicant alleged that his EER dated September 30, 2007, is erroneous and 
unjust because (a) it is based on the erroneous Page 7; (b) he had two chains of command with 
conflicting authorities and priorities and was confused about to whom he was accountable; and 
(c) the EER was prepared late.  The Board will address these arguments in order: 

(a) 

As  stated  in  findings  5  and  6,  above,  the  applicant  has  not  proved  by  a 
preponderance of the evidence that the disputed Page 7 was erroneous or unjust.  Therefore, the 
applicant  has  not  proved  that  the  low  mark  of  3  for  “Integrity”  and  recommendation  against 
advancement in the EER are based on erroneous information. 

 
7. 

 
  

 
 

(b) 

As stated in finding 6, above, the Board is not persuaded that the applicant 
was so confused by having both a Navy and Coast Guard chain of command that he was unaware 
that he needed authorization from his Coast Guard chain of command, which administered his 
billet, pay, and leave and provided his rating chain, to attend training overseas.  The applicant did 
not  name  the  members  or  titles  of his rating chain or submit anything to show that his rating 
chain was other than that published in Figure 10.B.3.1. of the Personnel Manual, and the correct 
Approving Official cited in that figure—the CO of the XXXX—is named on the disputed EER.  
Moreover, under Article 10.B.4.c. of the Personnel Manual, the rating chain members could rely 
on reports from the XXX and the XXX in preparing the marks and comments in the EER.  The 
fact that the Navy first class petty officer was not personally asked for EER input in the fall of 
2007 does not prove that the rating chain did not receive reliable and accurate information about 
the applicant’s performance from the XXX chain of command.  In addition, the Board notes that 
the  petty  officer  did  not  dispute  the  accuracy  of  the  comments  in  the  Page  7  or  the  EER.  
Therefore, the Board finds that the applicant has not proved by a preponderance of the evidence 
that he was evaluated by an invalid rating chain or that having a rating chain distinct from his 

XXX  chain  of  command  was  so  confusing  that  he  was  prejudiced  in  the  performance  of  his 
duties. 

(c) 

The applicant argued that the EER is erroneous and unjust because he was 
not counseled about it until more than two months after the end of the evaluation period.  Under 
Article 10.B.4.c.5.g. of the Personnel Manual, an EER must be completed and the member coun-
seled about it within thirty days of the end of the evaluation period.  Since the evaluation period 
ended on September 30, 2007, the applicant should have been counseled about the EER by the 
end of October, but the disputed EER he submitted is dated December 5, 2007, and he stated that 
he was not counseled until December.  Therefore, the preponderance of the evidence shows that 
the applicant’s rating chain failed to comply with the deadlines provided in the Personnel Manual 
for preparing and submitting EERs.  However, the Board has long held that delay per se is insuf-
ficient to justify removal of an otherwise valid and accurate evaluation from a member’s record.6  
The applicant has not shown how he was harmed by the rating chain’s approximately six-week 
delay in completing and counseling him about the EER.  While he apparently took the service-
wide examination for advancement during that period, the Board is not persuaded that he was 
harmed merely by taking the test.  Because the applicant has not submitted any evidence to show 
how the delay of his EER counseling harmed him, the Board finds that the rating chain’s failure 
to  comply  with  the  deadlines  under  Article  10.B.4.c.5.g. constituted a harmless administrative 
error.7 
 
 
The applicant has failed to prove by a preponderance of the evidence that his Page 
7 dated October 1, 2007, and his EER for the evaluation period ending September 30, 2007, are 
either erroneous or unjust.8 
 
 

Accordingly, the applicant’s requests should be denied. 

 
 

8. 

9. 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

                                                 
6  See, e.g., BCMR Docket Nos. 2008-076, 2005-053, 2004-041, 2003-110, 2002-015, 57-96. 
7 See FED. R. CIV. P. 61 (“Harmless Error: … At every stage of the proceeding, the court must disregard all errors 
and defects that do not affect any party’s substantial rights.”); Texas v. Lesage, 528 U.S. 18, 21 (1999) (“[W]here a 
plaintiff  challenges  a  discrete  governmental  decision  as  being  based  on  an  impermissible  criterion  and  it  is 
undisputed  that  the  government  would  have  made  the  same  decision  regardless,  there  is  no  cognizable  injury 
warranting relief”); Quinton v. United States, 64 Fed. Cl. 118, 125 (2005) (finding that harmlessness requires that 
there be “no substantial nexus or connection” between the proven error and the prejudicial record that the applicant 
wants the Board to remove or correct); Engels v. United States, 678 F.2d 173, 175 (Ct. Cl. 1982) (finding that an 
error in an officer’s military record is harmless unless the error is “causally linked with” the record the officer wants 
corrected); Hary v. United States, 618 F.2d 704, 707-09 (Ct. Cl. 1980) (finding that the plaintiff had to show that the 
proven  error  “substantially  affected  the  decision  to  separate  him”  because  “harmless  error  …  will  not  warrant 
judicial relief.”). 
8 For the purposes of the BCMRs, “‘[i]njustice’, when not also ‘error’, is treatment by the military authorities, that 
shocks the sense of justice, but is not technically illegal.” Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976). 

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

ORDER 

 

 

record is denied. 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Donna M. Bivona 

 

 

 
 
 Philip B. Busch 

 

 
 Erin McMunigal