DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2009-135 
 
xxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxx   

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 April  30,  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  January  28,  2010,  is  approved  and  signed  by  the  three  duly 

 

 

 

APPLICANT’S REQUEST AND ALLEGATIONS  

 

The applicant, a chief yeoman (YNC; pay grade E-7) in the Coast Guard, asked the Board 
to expunge an annual Enlisted Employee Review (EER) he received for the period October 1, 
2004, to September 30, 2005, when he was assigned as the Chief of Administration and the Ser-
vicing  Personnel  Office  (SPO)  of  Sector  Xxxxxx,  and  asked that “any possible advancements 
possibly affected by this [disputed] EER be restored to me.”   

 
The  applicant  alleged  that  his  Sector  Commander  and  commanding  officer,  CAPT  Y, 
abused his authority by marking the applicant as not recommended for advancement on the dis-
puted EER.  He alleged that CAPT Y’s decision was “based on false accusations brought against 
me by the Dep[uty] Sect[or] Commander, [CDR X],” that these “accusations were racially moti-
vated on the part of [CDR X,] and that the appeal process [he] went through was a farce.” 

 
The applicant alleged that as a result of the disputed EER his name was removed from the 
chief warrant officer eligibility list (CWO list).  On March 14, 2006, a special board convened to 
consider  reinstating  him  on  the  CWO  list.    In  that  board’s  report,  dated  May  25,  2006,  he 
alleged,1  the  board  noted  that  many  of  the  criticisms  of  his  performance  in  the  disputed  EER 
appeared to be contradicted by the findings of a District Administrative Officer who visited his 
unit, by the results of a Maintenance and Logistics Command (MLC) Compliance Visit, and by 
the performance evaluation prepared by his command in recommending him for appointment to 
CWO.  The applicant also noted that when he left Sector Xxxxxx, he received a Letter of Com-
                                                 
1 The applicant did not submit a copy of the board’s report. 

mendation  for  his  “outstanding  performance  of  duty,  meritorious  service,  and  upholding  the 
highest traditions of the United States Coast Guard” as the SPO supervisor, including the evalua-
tion period for the disputed EER.  The applicant alleged that the disputed EER “was significantly 
impacted because of incorrect information, conjecture, and prejudice.”   

 
The applicant further stated that on September 26, 2008, he was visiting the Pay and Per-
sonnel Center and spoke to CDR A, a Senior Equal Opportunity Advisor, about what had hap-
pened at Sector Xxxxxx.  CDR A reviewed the applicant’s EER appeal and record and sent him 
the following email: 

 
It appears that there were other reasons that were not documented to show how your performance 
took a dive for the period of then [CDR X’s] time at your command and the immediate rebound as 
soon as she departed.  A lot did not add up.  The CAPT should have handled it better, however.  
To  give  you  an award for superior performance for a period that covers the time [CDR X] had 
indicated you were such a poor performer (which report the CAPT endorsed) befuddles me.  I am 
sorry for the apparent poor leadership and what it has cost you.  Actually that is what the CAPT 
should have written to you and in addition, offer to testify to get the marks removed from your 
record.  Anyway, that was my take on what you gave me. 

 

SUMMARY OF THE RECORD 

 

On March 3, 1992, the applicant enlisted in the Coast Guard as a seaman.  Because he 
had previously served in the U.S. Marine Corps for more than seven years, his active duty base 
date is August 2, 1984.  The applicant entered the yeoman (administrative) rating. 

 
Before arriving at Sector Xxxxxx, the applicant was a first class yeoman (YN1) serving 
as the Administrative Officer for xxxxxxxxxxxxxx.  The applicant received marks of 5, 6, and 7 
on his EERs for this service (see Enclosure A) and advanced to YNC on June 1, 2003. 

 
On  August  1,  2003,  the  applicant  reported  to  Sector  Xxxxxx  to  serve  as  the  Chief  of 
Administration and the SPO with eight active duty and reserve subordinates providing admin-
istrative support to 218 personnel assigned to eight Xxxxxx and xxxxxxx units.  On his first EER 
in this position, for the period ending September 30, 2004, the applicant received one mark of 4, 
ten marks of 5, twelve marks of 6, and one mark of 7 in the performance categories,2 and he was 
recommended for advancement.  This EER was completed on October 28, 2004, and entered into 
the Coast Guard’s Direct Access database by the Deputy Sector Commander, CDR X, on Octo-
ber 29, 2004 (see Enclosure B). 

 
On February 9, 2005, the MLC Compliance Assist Team evaluated the Sector Xxxxxx 
Administrative Division and found it to be “satisfactory or better” in all areas.  The report identi-
fied the following areas needing attention: 

 

•  Members’ training information had not been entered in the Direct Access database. 
•  Documentation of non-judicial punishments had not been properly processed. 
•  An alcohol incident had not been properly documented in a member’s record. 

                                                 
2 Coast Guard enlisted members are evaluated in a variety of performance categories on a scale of 1 (worst) to 7 
(best).  They also receive marks for conduct (satisfactory or unsatisfactory) and for advancement (recommended or 
not recommended).  

•  A member incurring a drug incident had not received screening. 
•  Members email addresses had not been entered in Direct Access. 

 
On March 7, 2005, the Sector Commander, CAPT X, supported the applicant’s request 
for appointment to CWO by signing a non-numerical evaluation with highly laudatory descrip-
tions of his work (see Enclosure C).  CAPT X transferred from Sector Xxxxxx in June 2005 and 
was succeeded by CAPT Y. 

 
From September 19 to 21, 2005, a District administrative officer visited Sector Xxxxxx 
to assess the SPO.  His report, dated October 1, 2005, identified several problems (see Enclosure 
D).  The officer concluded that his “overall impression is that the SPO is adequately staffed but 
certainly not overstaffed.  They appear to be doing a good job and working hard.” 
 

The  disputed  EER  covers  the  applicant’s  performance  from  October  1,  2004,  through 
September  30,  2005,  and  is  the  second  that  he  received  while  assigned  to  Sector  Xxxxxx.   It 
bears an electronic date stamp indicating that it was completed on October 28, 2005.  The EER 
also shows that on October 31, 2005, the Sector Commander, CAPT Y, counseled the applicant 
about the EER and signed it but that the applicant refused to sign it.  CDR X entered the EER 
into the Direct Access database the same day.   

 
The disputed EER contains a mark of “not recommended for advancement” and “below-
standard” marks of 3 in seven performance categories: Directing Others, Responsibility, Setting 
an Example, Integrity, Adaptability, Professional/Specialty Knowledge, and Administrative Abil-
ity.  In addition, he received average marks of 4 in ten categories:  Working with Others, Devel-
oping  Subordinates,  Evaluations,  Loyalty,  Professional  Development,  Organization,  Using 
Resources, Monitoring Work, Stamina, and Communicating; and above-standard marks of 5 in 
another  seven  categories:  Work-Life  Sensitivity/Expertise,  Health  and  Well-Being,  Respecting 
Others, Human Relations, Safety and Occupational Health, Military Bearing, and Customs and 
Courtesies.  The seven below-standard marks and the mark of not recommended for advance-
ment are each supported by a paragraph of explanation of how the applicant’s performance did 
not meet the command’s expectations (see Enclosure E). 

 
In addition, the Sector Commander signed a three-page Page 7 dated October 31, 2005 
(see Enclosure F), which the applicant refused to sign, to explain the EER mark of non-recom-
mended for advancement and advise the applicant how he could regain a recommendation for 
advancement, as required by the Personnel Manual. 

 
On  November  14,  2005,  the  applicant  appealed  the  marks  on  the  disputed  EER.    He 
alleged that it had been “significantly impacted due to incorrect information/conjecture, dispro-
portionately  low  marks  for  the  particular  circumstance,  and prejudice.”  The applicant alleged 
that two other chiefs at Sector Xxxxxx had received timely EERs signed by the Acting Deputy 
Commander,  but  his  had  been  delayed  until  the  Deputy  Commander,  CDR  X,  returned  to  the 
unit, which showed that CDR X “singled me out causing unwarranted prejudice.”  The applicant 
alleged that the majority of the below-standard ratings he received “directly from the Approving 
Official (AO)” had been “identified as areas needing improvement during the first quarter of the 
marking  period,  October  through  December  2004.”    However,  he  alleged  that  he  was  never 
warned or formally counseled in writing that his performance was below standard or that his rec-

ommendation for advancement was in jeopardy.  The applicant stated that he did receive “infor-
mal  feedback  from  time  to  time;  and  issues  concerning  my  performance  were  immediately 
addressed and followed up by my supervisors on an occasional basis.”  He stated that he ensured 
that all concerns about his performance were “immediately resolved” and so he is “perplexed by 
the low marks given by the AO without the benefit of prior counseling.”  He also explained why 
he  believes  he  deserved  higher  marks  in  each  of  the  categories  in  which  he  received  a  below 
standard mark (see Enclosure G). 

 
The applicant included with his EER appeal the MLC Compliance Team report from Feb-
ruary 2005; the District administrative officer’s report dated October 1, 2005; a statement signed 
by a CWO F, who was chief of the Electronic Support Detachment on Xxxxxx; and several email 
messages from the applicant’s supervisor, SKCS X, and CDR X: 
 

•  On December 23, 2004, the applicant sent CDR X an ALCOAST announcing an upcom-
ing CWO selection board.  CDR X forwarded the ALCOAST to the applicant’s supervi-
sor,  SKCS  X,  saying  “Please  make  your  recommendation  to  the  CO.    You  both  know 
where I stand.  Not sure how the fact that he was recommended for advancement on his 
evals impacts this decision.  The question is, if he were to be selected for CWO, would 
you want him to fill the newly created CWO Admin billet.  Let me know your decision so 
I can process the request out of my Direct Access worklist.” 

•  On December 27, 2004, SKCS X sent the Sector Commander an email recommending 
that the applicant be allowed to compete for appointment to CWO.  SKCS wrote that the 
applicant “has made mistakes in the past and one should not be held to such a standard 
that making mistakes is condemning.  One who is afraid of making mistakes cannot lead 
with confidence & no one is perfect.  YNC, with my help, is striving to improve the cus-
tomer service in PERSRU and Admin.  If he simply did not learn from mistakes, then I 
surely would not put my name to a positive recommendation.  [He] is trying and that is all 
I ask for as his Dept Head.” 

•  On January 6, 2005, the applicant sent the command a notice that because of the upcom-
ing MLC Compliance inspection, the PERSRU would close at 2:00 p.m. each day so that 
the administrative staff could prepare for the inspection.  On January 28, 2005, CDR X 
sent an email to SKCS X stating that she had stopped by the PERSRU that day and over-
heard a very loud discussion behind the closed doors and that when she stopped by later, 
the door was locked.  She stated that she understood there was some emotional turmoil 
within the unit because the applicant had filed a civil rights complaint against her; that the 
staff might need “some downtime” because of the upcoming inspection; and that she had 
defended the office’s shortened open hours “from several disgruntled staff members”; but 
that granting liberty to the whole office under the circumstances might send a “conflicting 
message” that others would not understand.  CDR X told SKCS X that in spite of what he 
and the applicant thought, she made “every effort to support the PERSRU and it becomes 
increasingly difficult to defend them against the almost daily complaints and comments I 
get from staff members about their service quality, accuracy, and timeliness.  It is par-
ticularly frustrating to hear that [the applicant] tells everyone I have no compassion when 
he is so unaware of my efforts to support him and his staff.  I consult DXX Admin staff 
on  a  regular  basis  for  guidance  on  how  to  handle these challenges that we face in our 
PERSRU  and  they  have  been  very  supportive.    They  are  aware  of  the  situation  in  our 

PERSRU and it is well documented which may be to my benefit should the complaint 
process go formal.  I will continue to support the PERSRU and work with them by pro-
viding feedback I receive so they can continue to improve service.  I share this with you 
in the hope that you will understand my challenging position.” 

•  On January 31, 2005, SKCS X advised CDR X, regarding the applicant’s discrimination 
complaint against her that he did “tell YNC that you inform me when he has done good 
work on some occasions, but it is much more powerful when it comes from you.  He is 
afraid of you, even if I tell him that you mean well. … Lately, YNC has communicated to 
me that he is afraid that when the CO and I depart that you are going to fire him or hurt 
his ability to get advanced in some way.  He needs your confidence, even if it is just a one 
liner and not to be followed by correcting him in the same breath.  You said in the email 
below that there are disgruntled staff members (this bothers me greatly), but I have yet to 
hear or read feedback in the customer service inbox indicating so.  I ask that in the future 
you direct them to see me or take one minute to fill out the customer service card.  Force 
those who want to be helped to help themselves.  As Logistics Department head, I believe 
they (YNs) are working hard and I do my best to show you with customer service feed-
back  cards  I  receive  (no  negative  feedback  as  of  yet).    Know  that  YNC  wants  you  to 
believe in him and he may just need for you to throw him a bone ... every now and then.  
CDR, you do great work and I respect you greatly but to be honest, you are much more 
critical with him then anyone else under this command.  I am trying to bring YNC and his 
staff out of this deep hole they are in and I ask that you see and comment more on the 
other 90% of the things they do right.  YNC is trying and I know you can see his attempt 
to impress you, can’t you?  How can I help this situation?”  After sending this email to 
CDR X, SKCS X sent it to the Sector Commander and then forwarded that email to the 
applicant. 

•  On  February  3,  2005,  SKCS  X  sent  the  Sector  Commander  another  email  stating  that 
“[a]fter discussions with the XO [CDR X] and in her emails, I have come to a conclusion.  
The XO is working hard to justify why YNC should not have received a positive recom-
mendation from either of us.  I see a lot of effort in her part to bring forward the negative 
issues and not focus more on the positives with YNC and his Shop.  I have spoken to her 
but  want  to  make  you  aware  of  my  thoughts.    I  am  forwarding  issues  that  have  been 
resolved and in doing so, will assist in removing some bad light from over YNC’s shop.  
YNC  is  unhappy  and  does  not  understand  why  she  continues  to  be  so  critical  but  that 
seems to be her style.”  SKCS X sent the applicant a copy of this email later that morning. 
•  The  applicant  submitted  emails  showing  that  the  Sector  was  notified  by  email  in  July 
2004 that the latest COLA survey would result in a two-point decrease in the COLA for 
Sector personnel, which “equates to approximately $50.”  In response, MCPO I, the Dis-
trict Command Master Chief, asked for more information on the effect of this decrease on 
Sector personnel, and he was advised in an email also sent to the applicant and two others 
that the law did not allow the COLA rate of current personnel to be “grandfathered.”  On 
March 10, 2005, CDR X sent the applicant an email directing that “[a]ny further action/ 
information on this issue [the COLA survey] should be directed to me.  Do not contact 
COMNAVXXX directly.  While you may have valid concerns regarding your workload 
and this task, these issues need to be addressed internally.  The USN staff members are 
completing this survey based on feedback from USCG personnel with the perception that 
the  results  of  the  last  survey  did  not  accurately  reflect  current  costs.    COMNAVXXX 

warned us this would be a huge undertaking.  Since our comments initiated this additional 
survey, we will find a way to complete it to their satisfaction.  [Applicant]: Develop a 
plan  for  [the  Acting  Deputy  Commander’s  approval  next  week].    I’d  also  like  to  re-
emphasize  my  philosophy  on  relationships,  particularly  external  relationships  with 
organizations like COMNAVXXX.  It takes a lot of work to build organizational rela-
tionship so we need to ensure we don’t allow frustrations with a particular issue to tear 
them down. … We are in this together so let’s find a way to accomplish what needs to be 
done.” 

•  CWO F stated that in April 2005, CDR X advised him that the applicant had been locked 
out of his work station by the District’s Electronic Support Unit in xxxxx.  CWO F was 
told that the applicant had been locked out because he had introduced a chain letter into 
the network.  CWO F stated that the applicant had received the email at his work station 
and forwarded to his personal email address.  When the applicant opened it on his home 
computer, he had forwarded it to a distribution list that included several Coast Guard and 
Department of Defense email addresses.  The applicant told CWO F that he had put only 
one  Coast  Guard  email  address  on  the  distribution  list  but  that  “others  had  been 
erroneously  added  by  an  option  to  add  all  incoming  addresses  to  his  distribution  list.”  
CWO F stated that the incident was caused by a simple oversight and that the applicant is 
a very trustworthy person with “the highest level of integrity.”  Regarding the functioning 
of  the  SPO,  CWO  F  stated  that  “initially  it  was  lacking.    But  several  improvements, 
including extended hours and intervention by the logistics department head SKCS [X], 
resulted in a much improved SPO.” 

•  On May 19, 2005, SKCS X sent CDR X an email asking her to send complainers to the 
chief of the department at issue rather than reacting to complaints and taking action her-
self.  He stated that her tendency to try to resolve the complaints herself frustrated the 
department  heads  and  encouraged  complainers  to  take  their  complaints  directly  to  her 
rather than to the department heads. 

•  On August 29, 2005, the Navy Housing Referral Supervisor on Xxxxxx advised the new 
chief of the Logistics Department, LT X, who replaced SKCS X, that according to the 
Navy’s expert, Mr. M, Sector Xxxxxx was responsible for administering the Temporary 
Lodging Assistance (TLA) allowance for its own members and that if the Coast Guard 
wanted to do so, it could implement its own policy based on the Navy instruction, as a 
local Air Force unit did.  LT X responded that the Coast Guard had to follow the Navy’s 
lead and that she did not understand why Mr. M had stated that the Coast Guard could do 
whatever it wants to with regard to TLA.  The Navy supervisor stated that Mr. M said he 
had no jurisdiction over the Coast Guard’s TLA policy, only that of the services under the 
Department of Defense. 

The Sector Commander, CAPT Y, forwarded the applicant’s EER appeal to the District 
Commander on November 28, 2005.  In his endorsement (see Enclosure H), CAPT Y stated that 
he did not agree with the applicant’s claim that the marks in the EER were disproportionately 
low  or  based  on  incorrect  information,  prejudice,  or  discrimination.    He  stated  that  he  had 
received positive and negative input about the applicant’s performance from a variety of sources 
and that the marks were appropriate.  CAPT Y stated that the applicant had “received extensive 
feedback regarding his performance throughout the annual evaluation period via email as well as 
numerous counseling sessions,” and noted that the applicant had actually requested less frequent 

feedback.  He stated that the disputed EER had been prepared properly and timely and that he 
himself had counseled the applicant about the EER.  He stated that following a visit from the 
District staff, the applicant “was directed to initiate the process improvements he raises in para-
graph #9 of his appeal.  The initial efforts showed great promise.  However, in spite of direction 
to continue that effort, little further progress has been made.”  Regarding the applicant’s inappro-
priate email, which caused his computer to be locked, CAPT Y stated that the problem was that 
the applicant “clearly provided conflicting statements to unit staff members regarding this inci-
dent.”  Regarding the applicant’s claim that many of his office’s problems were “systemic prob-
lems” in the Coast Guard’s software, CAPT Y stated that the Sector contacted CGPSC about this 
claim and received the following response: 

 
The “system” does not cause these problems.  Overseas entitlements are complex.  If transactions 
are entered into the pay and personnel system correctly, everything works fine.  However, if the 
SPO enters transactions incorrectly, it can be very difficult and time consuming to undo the errors 
and make the member’s account right. 
 
My pay team supervisors report that they have tried to help your YNC on many occasions, giving 
him  the  correct  steps  for  entering  transactions  to  avoid  problems  for  your  members.    Pay  team 
supervisors  also  report  that  even  after  having  been  provided the proper advice/procedures, your 
YNC has a reputation for not following their direction and doing it his way rather than the right 
way. 
 
CAPT Y stated that the applicant did not personally initiate the out-of-cycle review of the 
COLA for Xxxxxx but conducted research and facilitated the effort at the direction of the unit’s 
Command  Senior  Chief,  SKCS  X  and  MCPO  I,  “whose  tenacity  and  persistence  drove  the 
review process to fruition.”  CAPT Y noted that the emails submitted by the applicant to support 
his  claim  that  he  initiated  the  COLA  review  actually show that the staff was reprimanded for 
complaining to the Navy about having to complete the COLA survey.  In addition, the command 
cadre of other Xxxxxx-based units and the yeoman detailer “have expressed their frustration in 
working with [the applicant] because of his perceived inability or unwillingness to provide/rec-
ommend a proper course of action.  Because of this perception, customers have expressed their 
desire not to work with [him].  This situation shifts the workload either to the junior members of 
the  SPO  or  up  the  chain  of  command  to  the  Logistics  Department  or  Deputy  [Sector  Com-
mander].”    CAPT  Y  concluded  that  the  applicant’s  EER  appeal “substantiates several reasons 
why  unsatisfactory  marks  were  assigned  [in  the  EER]:    unsubstantiated/unsupported  claims; 
information misunderstood and/or misrepresented in a less than concise manner; and [the appli-
cant’s] repeated contention that he is not responsible for any of the acknowledged shortcomings 
in the Sector’s Admin. Division/SPO.” 

 
On November 30, 2005, the chief of the Officer Boards Section of the Personnel Com-
mand notified CDR X of pending board action to remove the applicant from the CWO eligibility 
list.  CDR X forwarded the notification to a lieutenant commander to be forwarded to the appli-
cant  with  an  explanation  of  the  steps  the  applicant  should  take  to  submit  information  to  the 
board. 

 
On  December  5,  2005,  the  applicant  sent  an  email  to  CAPT  X  alleging  that  his 
supervisor, LT X, had recommended that he receive good marks on the disputed EER but that 
CDR X had thrown out LT X’s recommendations and had had LCDR N, who was the Acting 
Sector Commander in CDR X’s absence, prepare the EER with below standard marks based on 

information  from  CDR  X.    The  applicant  stated  that  CDR  X  had  abused  her  power.    He 
acknowledged that the PERSRU had “had issues” in the beginning but alleged that things had 
“changed drastically” since January 2005; that they had recently had five consecutive error-free 
pay cycles; and that his office had “great working relationships with all our customers and tenant 
commands.” 

 
On December 7, 2005, SKCS X sent an email to the applicant stating that the applicant’s 
2004 EER had taken “longer than the rest of the chiefs because there [were] long discussions on 
my assessment of your quality of work.”  SKCS X also stated that it was the applicant who had 
initiated out-of-cycle review of the OCONUS COLA for Xxxxxx with assistance from [a master 
chief petty officer]. I simply pushed with help from [MCPO I].”  SKCS X stated that the appli-
cant “did great work for Logistics when I was there.  You made mistakes but learned from them, 
as we all do.” 

 
On December 8, 2005, the applicant emailed CAPT X and asked him to contact the Dis-
trict Chief of Staff on his behalf concerning the applicant’s EER appeal.  CAPT X responded and 
wrote that he had spoken with the District Chief of Staff the day before and “provided him an 
overview of my personal observation of your performance, the improvements to the SPO, and 
most importantly, I described your character, outstanding leadership, excellent appearance/mili-
tary bearing, and your great potential for future service to the Coast Guard.  It was well received.  
I tried to balance out the negative personal theme of your current performance review.  This is a 
delicate position for me as I must respect and do not wish to interfere in the current leadership 
and executive decision-making process at Sector Xxxxxx.  I do believe that you are a great CPO 
and very capable YNC and I wish you continued success in your excellent service to the CG.” 

 
Also on December 8, 2005, the applicant submitted additional information regarding his 
EER appeal.  He asked that CAPT X, who was the Sector Commander until June 2005, be con-
tacted and asked about the applicant’s performance.  The applicant alleged that the marks rec-
ommended by his supervisor, LT X, had been disregarded.  The applicant noted that he had pre-
viously  complained  about  a  hostile  work  environment  and  requested  “minimal  contact  from 
[CDR X].”  He stated that the daily criticism he had received from her had “created undue stress 
and duress” and “undermined [his] credibility and leadership.”  The applicant stated that some of 
the  errors  for  which  he  was  blamed  resulted  from  “systemic  problems  with  Direct  Access,” 
including double payments for days on which members crossed the International Date Line.  The 
applicant stated that he had advised the Personnel Service Center (PSC) that the system was con-
tributing to a large number of the SPO’s pay problems, but “they refused to acknowledge these 
problems  existed.”    However,  he  was  vindicated  when  the  PSC  “admitted  in  writing  that  the 
system failed to correctly process pay-related items.”  The applicant attached emails concerning 
two members’ overpayments and how “the system” overpaid the members; how the T-PAX pay 
system handles per diem allowances for members crossing the International Date Line; and how 
one Sector member’s travel claim had been paid but payment of another member’s claim would 
have to wait until “the system is fixed” and able to process travel claims correctly. 

 
On  December  15,  2005,  CDR  X  sent  an  email  to  the  applicant  reminding  him  that 
although he had 21 days from November 30, 2005, to submit information to the board, the CO, 
CAPT Y, was going on leave the next day, December 16, 2005.  Therefore, unless the applicant 
submitted  his  information  that  day,  the  endorsement  forwarding  his  submission  to  the  board 

would  be  prepared  by  her,  as  Acting  CO,  rather  than  CAPT  Y.    CDR  X  stated,  “As  you  can 
imagine, I do NOT want to be put in this situation given the allegations made against me. … 
Strongly  suggest  that  any  submission  is  carefully  reviewed  as  both  of the previous statements 
[EER appeal memoranda] contained errors (repeated sentences, typos, misused words, incorrect 
grammar) that seems contrary to the purpose of convincing readers that the performance has been 
assessed inaccurately and unfairly.” 

 
On December 15, 2005, the applicant submitted a letter to the board asking to be retained 
on the chief warrant officer eligibility list based on his impeccable service, skills, and dedication. 

 
On December 19, 2005, CDR X sent an email to the Officer Boards Section of the Per-
sonnel Command asking whether the applicant’s package had been received and was being proc-
essed in a timely manner.  She asked for written confirmation because the applicant was very 
concerned.  The chief of the section acknowledged receiving the applicant’s package and stated 
that it would be presented to the board. 

 
The applicant’s EER appeal was denied and his name was removed from the chief war-

rant officer eligibility list. 

 
On July 28, 2006, the applicant received a Letter of Commendation3 for his performance 
upon  completing  his  tour  of  duty  as  Chief  of  the  Sector  Xxxxxx  SPO  and  Administration 
Division (see Enclosure I).   
 

VIEWS OF THE COAST GUARD 

On August 26, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted an 

 
 
advisory opinion recommending that the Board deny the applicant’s request.   
 

The JAG argued that the applicant has failed to submit evidence showing that he was a 
target of racial bias or that “but for” the alleged bias he would have received a better EER in 
2005.    He  argued  that  the  applicant  has  submitted  insufficient  evidence  to  overcome  the  pre-
sumption of regularity accorded the disputed EER and his chain of command. 
 
 
The JAG attached to the advisory opinion a memorandum on the case prepared by the 
Coast Guard Personnel Service Center (CGPSC).  CGPSC stated that there is no evidence of bias 
in this case or of error or injustice in the disputed EER. 
 
 
CGPSC  further  stated  that  the  emailed  comments  of  CDR  A  to  the  applicant  dated 
September 26, 2008, “have no bearing on this case … and only represent the personal opinions 
rendered by [CDR A] based on input received from the Applicant.” 
 

                                                 
3 A Letter of Commendation is issued “for an act or service resulting in unusual and/or outstanding achievement,” 
and it is the lowest award for personal achievement issued by the Coast Guard.  U.S. COAST GUARD, COMDTINST 
M1650.25D, MEDALS AND AWARDS MANUAL,  Chap. 2.A.11. and Encl. (22) (May 2008). 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On  September  1,  2009,  the  Chair  sent  the  applicant  a  copy  of  the  views  of  the  Coast 

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

APPLICABLE REGULATIONS 

 
Article  10.B.1.b.  of  the  Personnel  Manual  in  effect  in  September  2005  (COMDTINST 
M1000.6A, Change 39) states that “[e]ach commanding officer/officer in charge must ensure all 
enlisted  members  under  their  command  receive  accurate,  fair,  objective,  and  timely  employee 
reviews. To this end, the Service has made enlisted performance criteria as objective as possible, 
within the scope of jobs and tasks enlisted personnel perform.”  

 
Article 10.B.2.b.11.c. of the Personnel Manual states that a rating chain for an enlisted 
member consists of a Supervisor, Marking Official, and Approving Official.  Article 10.B.4.c. 
states  that  an  enlisted  member  is  evaluated  by  a rating chain to provide a “built-in check and 
accountability system to ensure supervisory personnel are aware of the importance of employee 
reviews and give them incentive to be totally objective and accurate.”  Rating chain members are 
required to review and correct any inconsistencies found in an EER “when considering an indi-
vidual’s performance compared to the written standard” and “[h]old the next lower supervisory 
level accountable for their employee reviews.”  Article 10.B.4.c.2.   

 
Article 10.B.5.a.1. states that members in pay grade E-7 (chief petty officers) on active 
duty receive regular, annual EERs at the end of each September.  Article 10.B.4.a.4. states that 
each unit must ensure that an EER is completed, including the EER counseling sheet signed by 
the applicant, no more than 21 days after the end of the evaluation period.  Article 10.B.5.a.3. 
states that “[r]egular employee reviews may not be delayed.  The unit rating chain is responsible 
for ensuring complete reviews are acknowledged by the evaluee and completed within CGHRMS 
not later than 30 days after the employee review period ending date.” 

 
Article 10.B.4.c.3. states that the Supervisor must “clearly communicate goals and accept-
able standards of performance to the evaluee before and throughout the marking period.”  How-
ever, Article 10.B.4.b. states that an enlisted member is ultimately responsible for “[f]inding out 
what  is  expected  on  the  job,”  “obtaining  sufficient  feedback  or  counseling[,]  and  using  that 
information  in  adjusting,  as  necessary,  to  meet  or  exceed  the  standards.”    Article  10.B.2.b.8. 
states the following regarding performance feedback during an evaluation period: 

 
No specific form or forum is prescribed for performance feedback. Performance feedback - formal 
or informal - actually occurs whenever an evaluee receives any advice or observation from a rating 
official on their performance or any other matter on which they may be evaluated. Performance 
feedback can occur during a counseling session, particularly during a mid-period session, through 
on-the-spot comments about performance, or at the end of the employee review period. Each eval-
uee  must  be  continuously alert for the “signals” received in one of these ways from the rating 
chain. If the signals are not clear, the evaluee must ask the rating chain for clarification. 

 

Article 10.B.4.c.4. states that the Marking Official reviews the marks recommended by 
the Supervisor and discusses with the Supervisor any recommendations considered inaccurate or 
inconsistent with the member’s actual performance.  The Marking Official may return the EER to 

the Supervisor for additional justification or support for any of the recommended marks.  The 
Marking Official forwards the EER to the Approving Official, who under Article 10.B.4.c.5. of 
the manual is responsible for ensuring that there is the “[o]verall consistency between assigned 
marks and actual performance/behavior and output”; that the evaluee is counseled and advised of 
the  appeal  procedures;  and  that  the  EER  is  submitted  on  time.    The  Approving  Official  must 
review the Marking Official’s recommended marks and discuss any recommendations considered 
inaccurate or inconsistent with the evaluee’s actual performance.  The Approving Official may 
return an EER to the Marking Official for additional justification or support for any mark.   

 
After  approving  the  EER,  the  Approving  Official  forwards the EER to the Supervisor, 
who counsels the evaluee about his marks.  Article 10.B.4.c.5.f.  The Approving Official must 
ensure that the EER is completed and entered into the Coast Guard’s database no more than 30 
days after the end of the evaluation period.  Article 10.B.4.c.5.g.  However, Article 10.B.4.a.4. 
states that the unit must ensure that “employee reviews are completed, including the signed coun-
seling sheet, not later than 21 days after the end of the employee review period ending date.” 

 
Article 10.B.6.a.5. of the Personnel Manual states that rating officials must mark evaluees 
against the written standards on the EER form.  Article 10.B.6.a.6. states that a mark of 4 “repre-
sents the expected performance level of all enlisted personnel.  Normally, a single, isolated event, 
either positive or negative, should not drastically affect the marks assigned” on an EER.  Article 
10.B.6.a.7. states that a mark of 4 is an average mark indicating that the evaluee met “all the 
written performance standards for this level and none in the ‘6’ level.”  A mark of 5 is above 
average and means that the evaluee met “all the written performance standards in the ‘4’ level 
and at least one of those in the ‘6’ level.”  A mark of 3 is below standard and means that that the 
evaluee  “[d]id  not  meet  all  the  written  performance  standards  in  the  ‘4’  block.”    Article 
10.B.2.a.1. requires the rating chain to include supporting remarks in an EER for any numerical 
mark of 1, 2, or 7; an unsatisfactory conduct mark; or a non-recommendation for advancement. 

 
Article 10.B.7.2. of the Personnel Manual states that a recommendation for advancement 
means that “[t]he member is fully capable of satisfactorily performing the duties and responsi-
bilities of the next higher pay grade.”  A mark of not recommended means that “[t]he member is 
not  capable  of  satisfactorily  performing  the  duties  and  responsibilities  of  the  next  higher  pay 
grade.”  Article 10.B.7.4. states that the Approving Officials’ recommendation about advance-
ment “is final and may not be appealed.  However, if the Approving Official learns new informa-
tion  and  decides  to  change  the  recommendation,  they  should  follow  the  procedures  in  Article 
10.B.10.b.” 

 
Article  10.B.9.a.2.  of  the  Personnel  Manual  states  that  the  EER  appeal  process  allows 
members to seek review of marks that they believe are disproportionately low or based on incor-
rect information, prejudice, or discrimination.  However, a recommendation against advancement 
may  not  be  appealed.    Article  10.B.9.b.  states  that  before  filing an official appeal, an evaluee 
should request an audience with his rating chain to discuss the EER.  If not satisfied with the 
results of that meeting, the evaluee “must submit the appeal within 15 calendar days … after the 
date they signed the acknowledgment section of the counseling sheet for the disputed employee 
review.  …  If  appealing  more  than  15  calendar  days  …  after  the  date  the  member  signed  the 
employee review acknowledgment section, the member must explain the circumstances that did 
not allow or prevented him or her from submitting the appeal within the prescribed time limit.” 

 
Article 10.B.10.b.1. of the Personnel Manual states that “Approving Officials are author-
ized  to  change  any  mark  they  assigned  to  members  still  attached to the unit if the Approving 
Official receives additional information that applies to the particular employee review period.” 

 
 
Chapter 3.A.1.a. of the Equal Opportunity Manual (EOM) states that every member of the 
Coast Guard deserves to be treated with dignity and respect and to work in an environment free 
of discrimination.  Chapter 3.A.3.a. of the EOM states that “[a]lthough the statutory prohibitions 
against  discrimination  in  civilian  employment  do  not  apply  to  members  of the uniformed ser-
vices, it is the Coast Guard’s policy to provide its military members equal opportunity during 
their  military  service  and  access  to  the  rights,  responsibilities,  and  privileges  of  such  service, 
regardless of: race; color; religion; sex; national origin; or participation in EO related activities.”  

 
Chapter 3.A.4. of the EOM defines “discrimination” as “as any action prohibited by law, 
Executive Order, regulation, or policy in which members of a category or group of individuals are 
treated differently from members of another category or group,” and the prohibited discriminatory 
bases for military members are listed as race, color, religion, sex, national origin, and reprisal. 

 
Chapter 5.B.15. of the EOM outlines the Coast Guard’s “Informal Complaint Program” 
for members who bring issues of discrimination to the attention of the command, also known as 
“aggrieved persons.”  It states that an aggrieved person should notify his CO or OIC of her griev-
ance through the chain of command within 45 days of the alleged incident of discrimination.  If 
the complaint is not resolved to his satisfaction, the CO or OIC shall arrange for the aggrieved 
person to meet with a civil rights counselor, who shall make an informal inquiry and attempt to 
resolve the matter informally before advising the aggrieved person of his right to file a formal 
complaint. 

 
The Commandant’s Equal Opportunity Statement in COMDTINST 5350.21D states the 

 
following in pertinent part: 
 

All Coast Guard personnel—military, civilian, auxiliary—shall be treated with respect. The Coast 
Guard prohibits all forms of discrimination that violate law or policy in any action affecting our 
personnel, … Our goal is to recruit, retain, train and deploy a highly capable, diverse and flexible 
workforce; ensure that all people are given fair and equal treatment in personnel decisions; evalu-
ate  personnel  based  on  their  job  performance;  provide  advancement  and  retention  opportunities 
based  on  demonstrated  performance  and  potential;  and  take  prompt,  appropriate,  and  effective 
measures to enforce this policy and to ensure personal accountability. Every Commander, Com-
manding Officer, Officer-in-Charge, and supervisor is to be personally committed to and responsi-
ble for fair and equal treatment of all Coast Guard personnel and those with whom we interact. We 
must  be  a  model  organization  that  ensures  no  unlawful  discrimination  in  recruitment,  selection, 
assignment,  retention,  training,  or  general  treatment  of  any  member  of  the  Coast  Guard.  T.  H. 
COLLINS Admiral, U. S. Coast Guard 

 

FINDINGS AND CONCLUSIONS 

 
 
military record and submissions, the Coast Guard’s submissions, and applicable law: 

The Board makes the following findings and conclusions on the basis of the applicant’s 

1. 

2. 

3. 

The Board has jurisdiction over this matter under 10 U.S.C. § 1552(a).  Although 
the application was not filed within three years of when the applicant received the disputed EER, 
it is considered timely because the applicant has been serving on active duty.4   
 

The applicant alleged that the low marks and non-recommendation for advance-
ment  in  his  EER  for  the  annual  evaluation  period  ending  September  30,  2005,  are  erroneous, 
unjust, and a product of racial discrimination and asked the Board to remove the disputed EER 
from his record.  Under Article 10.B.1.b. of the Personnel Manual, “[e]ach commanding officer/ 
officer in charge must ensure all enlisted members under their command receive accurate, fair, 
objective, and timely employee reviews.”  The Board begins its analysis in every case by pre-
suming that the disputed information is correct as it appears in the record, and the applicant bears 
the burden of proving by a preponderance of the evidence that it is erroneous or unjust.5  For the 
reasons discussed below, the Board finds the applicant has failed to meet his burden of proof.   
 
The  applicant  submitted  insufficient  evidence  to  prove  that  the  disputed  EER 
 
resulted from racial discrimination.  He submitted evidence showing that SKCS X and CAPT X 
evaluated  his  performance  during  the  evaluation  period  for  the  disputed  EER  more  favorably 
than did CDR X and CAPT Y, but nothing in the record supports his claim that the lower opin-
ions of his performance in October 2005 sprang from racism rather than the rating chain mem-
bers’ honest, professional assessments of his work and ability to perform well at a higher grade.  
The applicant attempts to support his claim of racism with CDR A’s email dated September 26, 
2008, stating that it “appears that there were other reasons that were not documented to show 
how your performance took a dive for the period of then [CDR X’s] time at your command and 
the  immediate  rebound  as  soon  as  she  departed.”    However,  CDR  A’s  vague  statements  and 
opinions are not evidence of racism.  The Board notes that although the applicant alleged he had 
suffered a hostile work environment during the evaluation period, he apparently did not file a 
formal  complaint  after  CDR  X  agreed  to  channel  her  feedback  through  his  supervisor.    The 
record  supports  his  allegation  that  CDR X criticized his performance, but the record does not 
support his claim that her criticism resulted from racism rather than actual problems with his per-
formance. 
 
 
The record shows that the applicant received a very good EER in 2004 for his first 
year as a YNC and Chief of Administration at Sector Xxxxxx.  CDR X was on the rating chain 
that prepared that 2004 EER.  However, the record also shows that significant problems with the 
applicant’s performance were discovered in the fall of 2004 and continued throughout much of 
the  evaluation  period.    The  statements  of  CAPT  X  and  SKCS  X,  both  of  whom  left  Sector 
Xxxxxx in July 2005, show that they felt that the applicant’s errors should not be documented by 
low  EER  marks  or  impede  his  advancement  because  he  was  learning  from  his  mistakes.  
However, CDR X and CAPT Y clearly felt that the applicant’s mistakes should be documented 
by low EER marks and that his performance was not good enough during the evaluation period to 
warrant their recommendation for advancement in October 2005. 
 

4. 

                                                 
4 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that, under § 205 of the Soldiers’ and Sailors’ Civil 
Relief Act of 1940, the BCMR’s three-year limitations period under 10 U.S.C. § 1552(b) is tolled during a member’s 
active duty service). 
5 33 C.F.R. § 52.24(b). 

5. 

In support of his claim of superior performance warranting a recommendation for 
advancement,  the  applicant  has  submitted  his  own  views  of  his  performance,  as  shown in his 
EER appeal, which was reviewed and did not cause CAPT Y or the appeal authority to amend the 
EER.  He also submitted a statement from SKCS X supporting his claim that he in some fashion 
“initiated” the COLA survey and an email from CDR X showing that he received a reprimand for 
complaints to the Navy about how much work the survey required; emails from SKCS X and 
CAPT X showing that their assessment of his performance and potential was better than that of 
CDR X and CAPT Y; a statement from CWO F reflecting the applicant’s explanation of how a 
“get rich quick” email moved from his Coast Guard work computer to the email addresses of 
many other Coast Guard and Navy members, but nothing that refutes the comments in the EER 
about his own varying explanations; emails showing that LT X was confused about the appropri-
ate source for Sector Xxxxxx’s TLA policy and that “the system” was blamed for some overpay-
ments; and an end-of-tour Letter of Commendation he received in July 2006.  This evidence is 
insufficient to refute the numerous, substantive comments in the EER supporting the low marks 
or to persuade the Board that CAPT Y was mistaken in his assessment of the applicant’s perform-
ance.  It is clear that, had SKCS X and CAPT X not been transferred in the summer of 2005, the 
applicant would likely have received a substantially better EER, but there is insufficient evidence 
in  the  record  for  the  Board  to  conclude  that  their  assessment  of  the  applicant’s  performance 
during the evaluation period and readiness for advancement was more accurate than that of CDR 
X and CAPT Y.  The applicant has not proved by a preponderance of the evidence that his 2005 
rating  chain  failed  to  exercise  their  best  professional  judgment  or  to  assess  his  performance 
during the evaluation period and readiness for advancement accurately in the disputed EER. 

 
6. 

 
The applicant alleged that his counseling about his 2004 EER was delayed until he 
returned to Xxxxxx from Chief Petty Officer Academy in December 2004.  The copy of this EER 
submitted by the applicant shows that it was completed on October 28, 2004, and entered in the 
database on October 29, 2004.  It may be, as the applicant alleged, that he did not receive coun-
seling about this EER until December 2004 because he was away attending Chief Petty Officer 
Academy that fall.  However, the marks and comments on the 2004 EER are very good, and he 
has not shown how he was harmed by any delay in being advised about that EER.  The record 
shows that CAPT Y counseled the applicant about the disputed EER on October 31, 2005, which 
is ten days after the 21-day deadline for EER counseling under Article 10.B.4.a.4. of the Person-
nel Manual.  However, the applicant has not shown how he was harmed by this ten-day delay.  
Moreover, the Board has long held that lateness, per se, is insufficient to justify removal of an 
otherwise valid performance evaluation.6  
 
 
 
 
 

Accordingly, the applicant’s request should be denied. 

7. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
6 See, e.g., CGBCMR Docket Nos. 2008-076, 2008-035, 2005-053, 2004-041, 2003-110; 2002-015; 43-98; 183-95 
(Concurring Decision of the Deputy General Counsel Acting Under Delegated Authority); and 475-86. 

The application of xxxxxxxxxx, USCG, for correction of his military record is denied.  

ORDER 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 

 
 
 Robert S. Johnson, Jr. 

 

 

 
 Randall J. Kaplan 

 

 

 

 

 
 
 Thomas H. Van Horn