DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-081 
 
Xxxxxxxxxxxxxxxxxx 
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FINAL DECISION 

This proceeding was conducted under the provisions of section 1552 of title 10 and sec-
tion 425 of title 14 of the United States Code.  The Chair docketed the case upon receiving the 
completed application on January 11, 2010. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated December 30, 2010, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 
 
The applicant, who at the time of application was a lieutenant junior grade (LTJG/O-2) in 
the Reserve, asked the Board to remove from his record a form CG-3307 (“Page 7”) dated May 
26,  2006,  which  he  received  as  an  ensign  in  the  regular  active  duty  Coast  Guard  assigned  to 
Sector Xxxxxxx in  Xxxxxxx, Xx.  He also  asked that  the Board remove a memorandum  dated 
June 30, 2009, regarding his possible discharge from the Reserve on June 30, 2010, if he failed 
of selection for promotion again in 2009, and to  
 

  place  him  on  active  duty  in  the  regular  Coast  Guard  as  an  LTJG  retroactive  to  July  1, 

2007;  

 

  allow him to remain on active duty long enough to be considered for selection for promo-
tion  by  two  active  duty  promotion  list  (ADPL)  LT  selection  boards  with  the  Page  7 
removed from his record; 
if selected for promotion by the first such board, backdate his LT date of rank to what it 
would have been had he been selected for promotion in July 2007; and 
if not selected for promotion by either ADPL LT selection board, promote him to LT in 
the  Reserve  from  the  promotion  list  resulting  from  the  inactive  duty  promotion  list 
(IDPL) LT selection board, which he was already on. 

 

 
  
As an alternative, the applicant asked the Board to return him to active duty as a Reserve 
officer on an  extended active duty contract  for enough time to  compete twice for promotion  to 
LCDR on the ADPL and, if selected, to apply for integration into the regular Coast Guard. 
 

 

 

The applicant alleged that the disputed Page 7 was erroneously prepared in lieu of a spe-
cial officer evaluation report (OER) pursuant to Article 10.A.3.c. of the Personnel Manual.  He 
stated that his command should have prepared a special OER, instead of the Page 7, and that this 
error has negatively affected his career.  He explained that although he has been selected for pro-
motion to lieutenant (LT) with the Page 7 in his record, it may prevent him from being selected 
for promotion to lieutenant commander (LCDR) because, whereas LCDR selection boards do not 
see  an  officer’s  OERs  as  an  ensign,  they  do  see  all  Page  7s  in  an  officer’s  record.    Therefore, 
LCDR  selection  boards  will  not  see  his  good  ensign  OERs,  but  they  will  see  the  Page  7.    He 
argued  that  this  result  is  unfair  and  prejudicial.    He  submitted  a  copy  of  the  disputed  Page  7, 
which states the following: 
 

[Applicant],  your  performance  in  recent  weeks  has  shown  that  you  are  not  progressing  in  your 
development as an officer.  Three specific incidents in the past week have made it apparent to me 
that you are not progressing adequately in your professional development. 
 
1.  At the recent Sector [name redacted] Officer in Charge conference, which was attended by all 
Sector Officers and Officer’s in Charge, you were noticeably over an hour late.  Additionally, you 
were  the  first  to  depart.    As  a  commissioned  officer  all  of  your  actions  will  be  scrutinized  by 
others.  Your late arrival and early departure were noticed by all. 
 
2.  At the conference, two OIC’s  voiced their displeasure in  not  having the  Command distribute 
the three hundred hour club awards.  You had been previously tasked with ensuring the CO got to 
all  the  units  to  distribute  their  awards.    You  reported  to  your  department  head  that  the  CO  had 
made trips to all the units that were receiving the awards and that he had presented them.  This was 
clearly  untrue.    At  this  point,  I  do  not  believe  you  intentionally  lied;  rather  I  think  you  failed  to 
stay  on  top  of  this  project.    Either  way,  your  mismanagement  of  this  project  embarrassed  both 
your department head and the CO. 
 
3.  Upon your return from the OIC conference, you found that the Sector had been directed to con-
duct a boarding on an HIV [high interest vessel].  Although you did a fine job in ensuring the ves-
sel was boarded, you failed to inform any of the command that an armed HIV boarding was being 
conducted until after completion of the boarding. 
 
In short, [applicant], occurrences such as these are all too common in your performance and have 
come to be an expectation, rather than an exception.  A key element in leadership is to “learn from 
the experience” of both your actions and those around you.   Thus far you have not demonstrated 
that you are learning from your own experiences. 
 
Another  aspect  of  a  good  leader  is  introspection,  so  as  you  depart  this  weekend  for  Boarding 
Officer  School,  I  am  directing  you  to  take  a  hard  look  at  who  you  are  as  an  officer,  and  more 
importantly at who you want to be as an officer.  You will have five weeks to explore this question 
and  upon  your  return,  the  significant  change  out  in  Command  Cadre  will  offer  you  the  perfect 
opportunity to turn over a new leaf and begin to excel as an officer in the Coast Guard.  I am cer-
tain that you are capable of accomplishing this.  

 
The  applicant  also  noted  that  the  Deputy  Sector  Commander  who  signed  the  Page  7  in 
 
2006 was then-CDR, now LT Herbert M. Hamilton, who as a captain in 2009 was charged with 
31 specifications of adultery,  fraternization, disobeying direct  orders, and fraud.  The  applicant 
argued that these charges are very clear evidence of extremely bad judgment, ethics, and morals 
and call into question LT Hamilton’s “ability to  ever attempt to hold others accountable to any 
standards that he himself was not keeping.”  He noted that one of the petty officers with whom 
LT Hamilton had an affair claimed that he routinely discussed disciplinary matters with her.  (On 

 

 

July 1, 2010, in lieu of going to trial and pursuant to a pre-trial agreement, Hamilton was allowed 
to retire in the rank of lieutenant with a general discharge, a punitive letter of reprimand,  and a 
$9,577 forfeiture as non-judicial punishment awarded at an Admiral’s mast at which he admitted 
to 27 of the charges against him.) 
 

In  support  of  these  claims,  the  applicant  submitted  a  charge  sheet,  dated  November  3, 
2009, showing that then-Captain Hamilton was charged with, inter alia, having adulterous affairs 
with  three  enlisted  members,  using  his  Government  telephone  for  sending  sexual  messages, 
downloading sexually explicit material on his Government computer, making false official state-
ments to investigators, committing sodomy, filing a false travel claim for $160.79, photograph-
ing  sex  acts,  calling  the  command  center  while  engaged  in  sex,  attempting  to  defame  another 
member by communicating adverse information to an assignment officer and future supervisor, 
transmitting  photographs  of  his  genitalia,  asking  a  petty  officer  to  transmit  photographs  and 
video of masturbation to  him, asking a petty officer to  destroy evidence,  discussing the perfor-
mance of commissioned officers with a petty officer, and discussing the non-judicial punishment 
of enlisted members with a petty officer.  Most of the charges concerned offenses that occurred 
in  2007,  2008,  and  2009  in  Alaska,  California,  Illinois,  Louisiana,  and  Mississippi.    However, 
five  charges  cite  dates  in  2004,  2005,  and  2006  and  one  cites  Xxxxxxx  as  the  location  for  his 
transmission  of  romantic  text  messages  to  a  woman  not  his  wife  between  November  2004  and 
June  2005.    The  applicant  also  submitted  copies  of  news  articles  about  the  case  and  a  Coast 
Guard press release noting that the investigation had revealed that Captain Hamilton “had inap-
propriate relationship with several women, including officer and enlisted Coast Guard members, 
and civilians, over a period of more than 13 years.” 
 
 
The applicant stated that his supervisor, CDR X, told him that the disputed Page 7 “was a 
way  to  document  performance  that  might  otherwise  be  missed”  because  his  semiannual  OER 
dated March 31, 2006, had already been sent to the Personnel Command and because he would 
soon have an entirely new rating chain due to transfers among the command cadre. 
 
The applicant alleged that the proper way to document performance that is notably differ-
 
ent from an officer’s performance in a prior evaluation period is to prepare a special OER.  He 
alleged that the Page 7 is highly prejudicial and that, although he has already been selected  for 
promotion to lieutenant, it will harm his chances for selection for promotion to lieutenant com-
mander.    The  applicant  stated  that  he  was  unable  to  appeal  the  Page  7  pursuant  to  Article 
14.B.2.a. of the Personnel Manual because he was not told about his right to appeal and because 
his rating chain transferred to new units while he was away at Boarding Officer School in June 
2006.    The  applicant  stated  that  he  did  not  dispute  the  Page  7  when  he  received  it  “due  to  my 
inexperience, only saying that the command was doing what they thought was right, while dis-
agreeing with the premise, and feeling that since we were all about to go our separate ways that 
there was nothing I could do about it.”  He asked whether he was supposed to appeal the Page 7 
to his new rating chain.   
 

The  applicant  also  noted  that,  whereas  an  officer  may  rebut  an  OER  by  submitting  an 
OER  Reply  for  inclusion  in  his  record,  there  is  no  way  to  rebut  a  Page  7  in  one’s  record.    He 
stated that the only way he can mitigate the damage caused by the Page 7 is to discuss it in his 
letters to  selection boards although he did not  do so when he  was  a  candidate for selection for 

 

 

promotion to LT because “the time between the Page 7 and the LT selection board was signifi-
cant and I had felt that my record had moved positively beyond the performance indicated.” 
 
 
Regarding the accusations in paragraph 1 on the Page 7, the applicant stated that he was 
late to the OIC conference because, LT D (then an ensign), who was giving him a ride, picked 
him up late.  Moreover, he alleged that the first hour of the conference as scheduled was a break-
out session he was not supposed to attend, and that he and LT D were “actually less than an hour 
late from a time when our presence was required, and our presentations were not scheduled until 
later  that  afternoon,  after  lunch.    However,  unbeknownst  to  [LT  D]  and  me,  at  the  start  of  the 
conference, the CO changed the morning schedule to cancel the break-out session, so when we 
walked in we appeared over an hour late.”  Moreover, the applicant’s own presentation was can-
celed by the CO so that the attendees could play golf.  He alleged that he left the conference at 
the same time that most of the attendees left to play golf. 
 
Regarding the accusations in paragraph 2 on the Page 7, the applicant alleged that the CO 
 
had  recently  been  hospitalized  for  two  weeks  following  surgery  and  could  not  visit  the  Sector 
small boat stations to hand out the awards.  Therefore, most were delivered to the OICs to distri-
bute themselves.  The applicant denied having told CDR X that the CO had delivered all of the 
units to hand out the awards.  He stated that he told CDR X that “the CO had visited all the units 
that  he  intended  to  visit,  as  per  the  CO’s  direction,  and  that  I  had  handed  out  the  rest  of  the 
awards to the Officers in Charge to distribute themselves, also as per the CO’s direction.”  The 
applicant  explained that after he had to  tell  two  OICs who  were expecting a visit  from  the CO 
that the CO would not  be visiting, they  “expressed displeasure at  not  having the CO visit  their 
units.  The situation was handled as best  it could  be  considering the CO’s condition  and direc-
tions to me.  If there was any mismanagement on my part, it was in not making it crystal clear to 
[CDR  X]  what  the  CO  had  directed,  as  [the  applicant]  worked  with  [the  CO]  directly  on  the 
matter.  This is particularly galling to me, as when this subject was brought up at the conference, 
the CO remained mute and let me take the brunt of the two Officers in Charge displeasure.” 
 
Regarding the third paragraph of the Page 7, the applicant stated that upon his return from 
 
the OIC conference, he did board an HIV “after very short notice.  The Sector Command Center 
was fully briefed and aware that the boarding was taking place and had communications with the 
boarding team, of which I was the highest ranking member, although I was not even a Boarding 
Officer  at  that  point,  only  a  Boarding  Team  Member.”    The  applicant  admitted  that  he  did  not 
brief the command directly as the highest ranking member of the Response Department present 
that day until after the boarding, but stated that it was an honest error since he had “relied on the 
Command Center, which in retrospect had no requirement to brief the boarding.” 
 
 
The applicant alleged that he was given the Page 7 because the command cadre “wanted 
to play ‘gotcha’ on their way out the door.”  He stated that CDR X gave it to him unsigned at the 
end of his  last day before he departed for a month to  attend  Boarding Officer School,  and that 
Captain Hamilton, who later signed it, never counseled him about it.  In support of his request, 
the applicant submitted a memorandum signed by CDR X who wrote the following: 
 

1.    I  am  writing  the  DHS  Board  for  Correction  of  Military  Records  (BCMR)  on  behalf  of  [the 
applicant’s] request for relief in removing from his record a CG-3307, dated May 26, 2006, which 
he received while I was his supervisor at Sector Xxxxxxx. 

 

 

 
2.    The  CG-3307  was  initiated  by  me  as  his  direct  supervisor,  and  while  I  stand  by  the  remarks 
therein,  I  feel  that  at  this  point  the  CG-3307  is  wrongly  prejudicial  to  [the  applicant’s]  career.  
[He] received the CG-3307 as an Ensign; by capturing performance via a CG-3307, it will be seen 
by  LCDR  and  above  promotion  boards  while  as  per  [COMDTINST  1410.2,  Documents  Viewed 
by Coast Guard Officer Promotion and Special Boards], Ensign OERs are masked.  In effect, this 
Ensign  CG-3307  will  be  seen  by  future  promotion  boards,  while  Ensign  OERs  for  performance 
from the same review period will not be.  I feel that this is unfair. 
 
3.  Although at the time, I believe the CG-3307 was appropriate, I did not intend for the CG-3307 
to remain in his record longer than the OERs that cover the same period.  Therefore, I recommend 
that the BCMR grant [the applicant’s] request and remove the CG-3307 from his record. 
 
4.  Thank you for consideration of this information. 

 
 
The applicant also asked the Board to contact LT D for a verbal statement about what he 
knows about the facts related in paragraphs 1 and 3 of the disputed Page 7.  The applicant stated 
that LT D “is uncomfortable with giving a written statement, despite assurances that the BCMR 
process is outside Coast Guard control, but he is willing to give a verbal statement.”  The appli-
cant  submitted  an  email  from  LT  D,  who  agreed  to  be  contacted  by  telephone  regarding  the 
applicant’s case “if the Board sees fit to contact [him].” 
 
 
The  applicant  also  alleged  that  his  OER  for  the  period  ending  March  31,  2010,  was 
signed by a LTJG who prepared the OER as “supervisor” but who never actually supervised him 
in  any way since  CDR  X, who signed the  OER as  “reporting officer” was his  only supervisor.  
However, the applicant did not ask the Board to remove the OER from his record. 
 
 
Finally, the applicant argued that the Board should remove his failures of selection from 
his record and reinstate him because the circumstances of his case meet the Engels test in that the 
erroneous Page 7 prejudiced his record before the selection boards and that it is not unlikely that 
he would have been promoted had the Page 7 not been reviewed by those boards. 
 

SUMMARY OF THE RECORD 

 
 
On August 19, 2003, the applicant enlisted in the Coast Guard.  On December 15, 2004, 
after  attending  Officer  Candidate  School,  he  was  commissioned  an  ensign  in  the  Reserve  and 
began serving on an extended active duty (EAD) contract.  He was assigned to Sector Xxxxxxx 
as an Assistant Response Officer  and on his  first  OER, dated September 30, 2005, he received 
fifteen  marks  of  4  and  three  marks  of  5  in  the  various  performance  categories,1  a  mark  in  the 
third spot on the comparison scale,2 and a recommendation for promotion “with peers.”   

                                                 
1  In  OERs,  officers  are  evaluated  in  a  variety  of  performance  categories,  such  as  “Professional  Competence,” 
“Teamwork,” and “Judgment,” on a scale of 1 to 7, with 7 being best.  An average mark of 4 is the expected level of 
performance.    The  supervisor  assigns  the  marks  for  the  first  13  performance  categories,  and  the  reporting  officer 
assigns the last 5 marks.   

2  The  reporting  officer  usually  makes  a  written  recommendation  about  promotion  and  completes  a  “comparison 
scale”  on  which  he  compares  the  reported-on  officer  to  all  other  officers  of  the  same  grade  whom  the  reporting 
officer has known throughout his career.  The 7 possible marks on the comparison scale are  “unsatisfactory” for the 
first spot; “a qualified officer” for the second spot; “one of the many competent professionals who form the majority 

 

 

 

On his second OER, dated March 31, 2006, the applicant received eleven marks of 4 and 
seven marks of 5 in the various performance categories, a mark in the third spot on the compari-
son scale, and his reporting officer’s comment that he had been selected for promotion to LTJG 
and  was  “[s]teadily  progressing  towards  [a]  strong  recommendation  for  LT.”    This  OER  is 
signed  by  the  Assistant  Chief  of  Response  as  supervisor;  CDR  X,  the  Chief  of  Response,  as 
reporting officer; and the Sector Commander as the reviewer. 
 
 
On May 26, 2006, the applicant received the disputed Page 7, the text of which appears 
on page 2, above.  On June 15, 2006, he was promoted to LTJG.  On July 7, 2006, he completed 
a five-week Boarding Officer Course. 
 
 
On his third OER, dated July 31, 2006, the applicant received six marks of 4 and twelve 
marks of 5, a mark in the fourth spot on the comparison scale, and a recommendation for promo-
tion  “with  his  peers.”  This  OER was signed by  the new Assistant Chief of Response, the new 
Chief of Response, and the new Deputy Sector Commander. 
 
 
On his fourth OER, dated January 31, 2007, the applicant received three marks of 4 and 
fifteen marks of 5 in the various performance categories, a mark in the fourth spot on the com-
parison scale, and a recommendation for promotion “with peers.”   
 

On his  fifth  OER, dated June 15, 2007,  the applicant received ten marks of 4 and eight 
marks of 5 in the performance categories; a mark in the third spot on the comparison scale; and a 
recommendation for promotion “with peers.”  The Chief of Response noted that he “remains on 
course  with  his  development  as  a  dependable  junior  officer.    [He]  aggressively  pursued  and 
eventually completed his Boat Forces PQS, thus earning the temporary insignia.  With additional 
concentration  on  communication  and  professionalism  skills,  [he]  will  soon  evolve  into  a  more 
capable  junior  officer  that  can  work  independently  and  free  of  command  cadre  intervention.”  
The applicant was not selected for promotion to lieutenant in 2007. 
 
 
On July 8, 2007, the applicant reported for law enforcement duty at a District office.  On 
his OER dated January 31, 2008, he received one mark of 4, ten marks of 5, and seven marks of 
6 in the various performance categories, a mark in the fifth spot on the comparison scale, and a 
strong recommendation for promotion.  On his OER dated June 30, 2008, he received one mark 
of 4, five marks of 5, and twelve marks of 6 in the performance categories; a mark in the fifth 
spot on the comparison scale; and a strong recommendation for promotion “with best of peers.”  
However, he was not selected for promotion in 2008 and was therefore unable to integrate into 
the regular Coast Guard and slated for discharge on June 30, 2009.   
 

The  applicant’s  last  OER  is  dated  February  1,  2009,  and  marks  his  release  from  active 
duty because he had twice failed of selection for promotion to lieutenant.  He received ten marks 
of 5 and eight marks of 6 in the performance categories, a mark in the fourth spot on the com-
parison scale, and a strong recommendation for promotion in the Reserve. 

                                                                                                                                                             
of this grade” for the third, fourth, and fifth spots; “an exceptional officer” for the sixth spot; and “a distinguished 
officer” for the highest, seventh spot. 

 

 

 
On June 18, 2009, the Reserve informed the applicant that he would be discharged from 
the  Reserve  as  of  June  30,  2009.    On  June  29,  2009,  the  applicant  submitted  a  request  to  be 
retained in the Reserve so that he could be considered for promotion by the next IDPL LT selec-
tion board.  The applicant described his operational experience on active duty and his desire to 
serve in  the Reserve.   On June 30, 2009, the applicant’s request  for retention was approved so 
that  he  could  compete  once  more  for  promotion  to  LT  on  the  IDPL.    The  memorandum  states 
that  if  he  was  not  selected  for  promotion  to  LT  in  2009,  he  would  be  discharged  from  the 
Reserve  as  of  June  30,  2010.    However,  the  applicant  was  selected  for  promotion  to  LT  as  a 
Reserve officer, and he was promoted on January 16, 2010. 

 

VIEWS OF THE COAST GUARD 

On  June  3,  2010,  the  Judge  Advocate  General  (JAG)  submitted  an  advisory  opinion  in 

 
 
which he recommended that the Board deny relief in this case.   
 
 
The JAG argued that the applicant “has failed to prove his chain of command committed 
error or an injustice regarding documentation of substandard performance via [the disputed Page 
7].”    He  stated  that  the  applicant  “provided  no  evidence  to  refute  the  validity  of  the  CG-3307 
(Page 7) documenting [his] substandard performance.” 
 

The JAG also claimed that the preparation of the Page 7 was proper in accordance with 
Enclosure  (6)  of  the  Pay  and  Personnel  Procedures  Manual  (PPPM)  and  that  the  applicant’s 
claim  that  he  should  have  been  counseled  on  a  special  OER  instead  of  on  a  Page  7  is  without 
merit since an officer does not get to dictate how he is counseled.  The JAG noted that the Page 7 
should have been denoted as a “Performance and Discipline” entry, rather than an “Administra-
tive” entry but that “the slight deviation regarding the Entry Type should be considered harmless 
error  at  best.”    The  JAG  stated  that  the  applicant’s  “attempts  to  highlight  CAPT  Hamilton’s 
issues are not dispositive of the issues involved in this particular case.” 
 

The  JAG  also  adopted  the  facts  and  analysis  provided  by  the  Personnel  Service  Center 
(PSC) in a memorandum attached to the advisory opinion.  The PSC also recommended that the 
Board deny relief.  The PSC stated that the fact that adverse performance may be reported on a 
special OER does not mean that a command cannot document it on a Page 7 instead.  The PSC 
states that Page 7s are used to  

 
capture  positive  or  negative  performance  or  conduct  for  both  enlisted  and  officers.  …  In  this 
instance  the  CG-3307  was  issued  to  the  applicant  placing  him  on  notice  that  he  was  “not  pro-
gressing  in  your  development  as  an  officer.”    The  disputed  CG-3307  was  signed  by  the  Deputy 
Sector Commander, CDR Hamilton (likely because the Sector Commander  was out of the office 
on convalescent leave as indicated by the Applicant in his supporting documents).  The documen-
tation of this sub-par performance was initiated by the applicant’s Reporting Officer, [CDR X].  In 
his current statement to the BCMR, [CDR X] states, “I stand by the remarks therein …”   

 
 
The PSC also disagreed with the applicant’s claim that his performance should have been 
documented on a special OER.  The PSC stated that a failure to progress as an officer—the sub-
ject of the Page 7—does not meet the criteria for a disputed OER.  “The CG-3307 does not rise 
to the level of notably different performance whereby a major personnel decision would be made 

 

 

(e.g., to remove or re-assign the member to another unit).”  The PSC argued that the decision to 
counsel  the  applicant  on  a  Page  7,  rather  than  entering  a  negative  special  OER  in  his  record, 
likely benefited him because his subsequent OER from his new rating chain was positive.  The 
PSC  stated  that  had  the  rating  chain  provided  the  information  to  the  new  rating  chain  as  OER 
input, the incidents  would likely have been documented in  his  next  regular OER, which would 
not  have  been  masked  from  future  selection  boards  because  his  next  OER  was  an  LTJG  OER.  
The  PSC  also  noted  that  the  command  had  the  option  of  preparing  an  OER  when  CDR  X,  the 
reporting officer on the applicant’s rating chain, departed the unit in June 2006. 
 
 
The PSC stated that the decision to mask ensign OERs from consideration by LCDR and 
higher  selection  boards  was  intended  to  allow  ensigns  to  take  “grow  and  intelligent  risks”  and 
was based on a belief that “minor mistakes made during [an officer’s first year and one-half of 
duty] should not adversely affect officers later in their careers.”  The PSC stated that the remarks 
on the Page 7 were not intended to prejudice him but to place him on notice that he needed “to 
correct his performance to succeed as an officer and leader of which the applicant’s subsequent 
OER did show improvement.”   
 
 
The PSC further stated that although CDR X initiated the Page 7, he was subordinate to 
the issuer of the OER, Captain H, and “has no authority to override the issuer’s decision whether 
to issue or retain the document in the member’s record.  While the applicant has raised questions 
… of integrity regarding the issuer of the Administrative Remarks based on recent events, he has 
not established that the person failed to execute his duties in this matter diligently.” 
 
 
through the chain of command and that the applicant failed to appeal the Page 7. 
 

The PSC noted that Article 14 of the Personnel Manual allows officers to appeal Page 7s 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  September  2,  2010,  the  applicant  responded  to  the  views  of  the  Coast  Guard.    He 
noted that the PSC supported his claim that if his performance had been documented on a special 
OER, instead of the Page 7, the special OER would not be seen by LCDR selection boards.  He 
also noted that the command could have documented his conduct on either a special OER or an 
optional OER prepared upon the departure of his reporting officer in June 2006.   
 

The applicant stated that he is not arguing that the command could not counsel him on a 
Page 7  “but  that the way  in  which it went  about using it was wrong.  A  CG-3307 was used to 
capture  performance  that  was  different  from  the  previous  marking  period  because  my  rating 
chain was departing; that is the purpose of a special OER.”  He alleged that while issuing a Page 
7 “is not against policy, writing a special OER is policy, and the command did not do that.  The 
timing  of  the  CG-3307  effectively  prevented  its  appeal  through  the  chain  of  command.”    The 
applicant also denied that his supervisor would have been able to pass input for his next OER to 
his next rating chain. 
 
The applicant stated that he did not appeal the Page 7 because he did not know one could 
 
do  so  and  because  his  entire  rating  chain  left  the  unit  while  he  was  away  at  Boarding  Officer 
School.  He stated that of the entire command cadre, only LCDR B remained when he returned 

 

 

to the Sector from the school.  He alleged that in counseling him about the Page 7, CDR X told 
him  that  he  could  “overcome”  it  but  did  not  tell  him  that  he  could  appeal  it.    Because  he  was 
given the Page 7 on the evening of the last day that he and all the members of his rating chain 
would be present at the unit, he “would have been forced to appeal it to a different chain of com-
mand.”  Any such appeal would have put his new rating chain in an awkward position and would 
not have given them a good first impression of him.  In support of these allegations, the applicant 
submitted an email from a chief yeoman who reported that a database showed that the lieutenant 
who had signed his OER as supervisor left the unit in August 2006; that CDR X who supervised 
him but signed his OER as reporting officer left the unit in June 2006; that LT (then CDR) Ham-
ilton left the unit in June 2006; and that the CO left the unit in July 2006. 
 

Regarding  his  claims  about  LT  Hamilton’s  integrity,  the  applicant  submitted  a  1,400+ 
page transcript of witnesses’ testimony at LT Hamilton’s Article 32 hearing.  He argued that LT 
Hamilton’s crimes show that he had little integrity and that, had the CO not been bedridden, the 
CO would have been the one to decide and might not have signed the Page 7.   
 
 
The  applicant  argued  that  the  Page  7  should  be  removed  from  his  record  for  the  same 
reason that ensign OERs are masked from selection boards.  He argued that he is being unduly 
burdened  by  having  the  Page  7  in  his  record  because  the  text  is  “a  rebuke  cloaked  in  positive 
language; its issuance virtually guaranteed that I would not be picked up for LT/O-3, at least on 
the ADPL.”  He also argued that CDR X and the Deputy Sector Commander acted inconsistently 
with the Personnel Manual in preparing the Page 7 and that the timing of the Page 7 unjustly and 
erroneously prevented him from appealing it.   
 

Regarding  paragraph  1  of  the  Page  7,  the  applicant  submitted  statements  from  other 
members, which he  alleged show that his  arrival  and departure times from  the CIO  conference 
did  not  warrant  written  counseling on  the matter.   LCDR B stated that the applicant  was sche-
duled  to  give  a  presentation  at  11:00  and  although  he  was  not  present  when  the  conference 
began, he “arrived well ahead of his originally scheduled presentation time.”  She also stated that 
the applicant did not leave early but stayed for the communal lunch and left with the other non-
golfing conference participants when the CO opted to end the conference early to allow golfing.  
LCDR B further stated that there was a poor command climate and she “witnessed some spiteful 
behavior.”    She  remembers  hearing  CDR  X  and  then-CDR  Hamilton  at  one  point  discussing 
whether  to  give  the  applicant  a  Page  7  but  alleged  that  they  concluded  in  the  discussion  that  a 
Page 7 “was not the appropriate action.”  She alleged that they should have given the applicant 
an optional OER instead and that the rating chain’s departure from the unit deprived the appli-
cant  of  the  opportunity  to  appeal  the  Page  7.    She  stated  that  the  applicant  “is  an  exemplary 
officer who was not treated fairly by a command generally known for its unfairness.”  BMCS P 
wrote  that  the  first  day  of  the  OIC  conference  was  ended  early  to  allow  people  to  play  golf.  
CWO  M  stated  that  the  golf  that  had  been  planned  for  the  second  day  of  the  conference  was 
rescheduled to the first day because of the weather forecast. 
 
 
Regarding paragraph 2 of the Page 7,  the applicant  repeated his  allegations that the CO 
had told him he had visited all of the units he intended to and that the applicant should mail out 
the rest.  The applicant stated that although he has contacted the CO for a statement, the CO has 
not responded to his request.  He alleged that the problem was not mismanagement on his part, 

 

 

but the CO’s lack of communication with the other command cadre on the issue.  The applicant 
submitted a statement from an OIC, who wrote that he was displeased when the awards arrived 
in the mail “with no note or any correspondence or communication that they would not be pre-
sented by the Sector Xxxxxxx Commander or in his absence his representative.”  He knew that 
other  units  had  received  their  awards  via  the  Sector  Commander  since  it  was  a  Sector  award.  
The  OIC  noted  that  his  unit  is  only  45  minutes  from  the  Sector.    He  stated  that  he  could  not 
remember the applicant ever calling him about the awards. 
 
 
Regarding paragraph 3 of the Page 7, the applicant stated that he was the senior officer on 
the boarding team that day who “took the risk of quickly gathering up a Boarding Team at the 
last minute to ensure that the Security Boarding took place.”  However, he was not the Boarding 
Officer (BO) because he had not yet attended Boarding Officer School.  He stated that it was the 
BO’s duty to contact the Command Center and the command cadre.  He submitted the Sector’s 
guidance, which states, “The BO has the responsibility of coordinating the boarding … The BO 
will also notify the Sector OPCEN and the Response Dept Head when the boarding team departs 
for the boarding.”  The applicant stated that it was the responsibility of the BO and the Command 
Center to notify the command, but they failed to do so.  The applicant submitted a database print-
out showing that a boarding took place “on the 24th of May, two days before the CG-3307 was 
issued to [him]” and that the BO for the boarding was an MST1.  The applicant admitted that as 
the senior commissioned officer on the boarding team, he should have ensured that either the BO 
or the Command Center notified the command, but he stated, when he realized after the fact that 
the  notifications  had  not  been  made,  he  took  responsibility  and  called  CDR  X.    He  asked  the 
Board to note that although “by regulation and law, it was not [his] responsibility,” he “stepped 
up and took action when called for and responsibility for a mistake perhaps not [his] own.  The 
intelligent  risk  [he]  engaged  in  was  ensuring  that  the  security  boarding  took  place  at  the  last 
minute, and [he’s] still glad [he] organized the boarding.” 
 
 
In support of these allegations, the applicant also submitted a copy of the Sector boarding 
program guidance.  Paragraph 5.a. states that a dispatch form must identify the BO and the team 
members and must be approved by the Captain of the Port.  It states that the BO “has the respon-
sibility of coordinating the boarding” and “will also notify the Sector OPCEN and the Response 
Dept Head when the boarding team departs for the boarding.” 
 

 
The  applicant  concluded  by  repeating  his  claims  that  because  he  could  not  appeal  the 
Page  7  given  the  departure  of  his  rating  chain,  that  CDR  X  should  have  counseled  him  on  an 
OER instead, and that the principle that requires masking of ensign OERs should also apply to 
Page  7s,  but  that  since  the  Page  7  is  not  masked  under  Coast  Guard  policy,  the  Board  should 
order the Coast Guard to remove it from his record.  He alleged that he has “shown conclusively 
that 1/3 of the allegations in the CG-3307 are false,” cast “reasonable doubt about the other 2/3 
of the allegations,” and proved that the officer who signed the Page 7 “was motivated throughout 
his  career  by  reasons  other  than  public  service  and  was  an  unsatisfactory  officer  in  multiple 
ways.” 
 
 
The  applicant  submitted  an  email  from  someone  at  the  unit  who  stated  that  “there  was 
 
guidance  from  the  top  as  to  the  mission  we  needed  to  accomplish  and  even  when  we  met  the 
mission’s requirements nothing was enough to overcome the command’s judgment if  you were 

 

 

not within the ‘in’ circle.  We received little or no feedback on performance until we received the 
OER  and  if  you  received  any  feedback  it  wouldn’t  be  a  straight  answer  that  could  help  you 
improve or know where you stood.”  He also stated that CDR X, the Response Department Head, 
supervised the applicant.  
 
 
The applicant also submitted an email from the lieutenant who signed his OER as super-
visor, who stated that he did not supervise the applicant but he “supervised some of  your tasks 
and provided OER input” to CDR X. 
 

SUMMARY OF APPLICABLE REGULATIONS 

 

Article  10.A.1.c.5.  of  the  Personnel  Manual  states  the  following  regarding  performance 

feedback during an evaluation period: 
 

No specific form or forum is prescribed for performance feedback except for ensigns and lieute-
nants  (junior  grade).    Performance  feedback  occurs  whenever  a  subordinate  receives  advice  or 
observations related to their performance in any evaluation area. Performance feedback  can take 
place  formally  (e.g.,  during  a  conference)  or  informally  (e.g.  through  on-the-spot  comments).  
Regardless  of  the  forum,  each  officer  should  receive  timely  counseling  and  be  clear  about  the 
feedback received.  If the feedback is not fully understood, it is the Reported-on Officer’s respon-
sibility to immediately seek clarification and the rating chain’s responsibility to provide it. 
 
Chapter  10.A.  of  the  Personnel  and  Pay  Procedures  Manual  (PPPM;  HRSICINST 
M1000.2A) states that form “CG-3307 [a Page 7] provides a means of recording miscellaneous 
entries,  which  are  not  recorded  elsewhere  in  a  Personnel  Data  Record  (PDR).    Administrative 
Remarks entries are made to  document counseling, or to  record  any other information  required 
by current directives, or considered to be of historical value.” 

 
Article 10.A.3.c.1. of the Personnel Manual states the following regarding special OERs: 
 
Special  OERs.  The  Commandant,  commanding  officers,  higher  authority  within  the  chain  of 
command  and  Reporting  Officers  may  direct  these  reports.    The  circumstances  for  the  Special 
OER  must  relate  to  one  of  the  situations  described  in  subsections  a.  through  e.  The  authorizing 
article listed below should be cited in Section 2 of the OER along with a brief description of the 
circumstances which prompted the OER’s submission. … 
 
a. A special OER may be completed to document performance notably different from the previous 
reporting  period,  if  deferring  the  report  of  performance  until  the  next  regular  report  would  pre-
clude  documentation  to  support  adequate  personnel  management  decisions,  such  as  selection  or 
reassignment.  This report should not normally reflect performance that is reportable under Article 
10.A.3.c.1.b.  Notably changed performance is that which results in marks and comments substan-
tially different from the previous reporting period and results in a change in the Section 9 compari-
son or rating scale.  This OER counts for continuity. 
 
b. A special OER is required after an officer is found guilty of a criminal offense … 
 
ALCOAST  214/03,  issued  on  May  9,  2003,  announced  that  “active  duty  and  Reserve 
promotion  boards  will  no  longer  view  any  ensign  OER  at  LCDR  and  above  promotion  boards 
beginning with promotion year 2004.  The LTJG and LT selection boards will continue to view 
entire records including ensign OERs.” 

 

 

 

 
Article 14.B.1.a. of the Personnel Manual states the following: 
 
The  Coast  Guard  maintains  many  types  of  personnel  records,  such  as  …  and  Administrative 
Remarks, CG-3307.  Although those who prepare these records strive to ensure that each is accur-
ate, occasional mistakes do occur.  Additionally, in some instances, an entry may have been made 
accurately, but the member disputes the facts or circumstances upon which it is based.  This sec-
tion provides  general information about the administrative  methods available for seeking correc-
tion of Coast Guard personnel records. 
 
Article 14.B.2.a. states the following about appealing Page 7s and other entries: 

If a member believes a personnel record entry is unfair, an appeal through the member’s chain of 
command usually is the simplest and fastest means for seeking correction or deletion of the entry.  
The level in the chain of command to which the appeal should be directed is dependent upon all of 
the circumstances.  As an example, for a member who receives an Administrative Remarks, CG-
3307 from his or her division chief documenting purported 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. authorizes members to  apply to  the Personnel  Records Review Board to 
seek correction of a military record such as a Page 7 within a year of the date it is entered in a 
member’s record. 

  

FINDINGS AND CONCLUSIONS 

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

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

1. 

The Board has jurisdiction concerning this matter pursuant  to  10 U.S.C.  § 1552.  
Although  the  application  was  not  filed  within  three  years  of  the  applicant’s  discovery  of  the 
alleged  error  or  injustice,  it  is  considered  timely  because  it  was  filed  within  three  years  of  the 
applicant’s discharge from active duty.3   
 

2. 

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.4   
 

3. 

The  applicant  alleged  that  the  disputed  Page  7,  dated  May  26,  2006,  should  be 
removed from his record because it was signed by an officer who has since retired in disgrace; 

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

 

 

because  the  information  should  have  been  documented  in  an  OER  instead  of  on  a  Page  7; 
because  the  timing  of  the  Page  7  prevented  him  from  appealing  it;  because  it  contains  factual 
errors;  because  his  supervisor  supports  his  request  to  remove  it;  and  because,  had  the  same 
information been documented in an OER instead of on a Page 7, it would not be seen by lieute-
nant  commander  and  higher  selection  boards.    The  Board  begins  its  analysis  in  every  case  by 
presuming that the disputed information in the applicant’s military record is correct as it appears 
in his record, and the applicant bears the burden of proving by a preponderance of the evidence 
that the disputed information is erroneous or unjust.5 Absent evidence to the contrary, the Board 
presumes  that  Coast  Guard  officials  and  other  Government  employees  have  carried  out  their 
duties “correctly, lawfully, and in good faith.”6  

 
4. 

The  applicant  has  proved  that  the  Page  7  was  signed  by  an  officer  who  was 
involved in numerous adulterous affairs, several with subordinates, and who admitted to most of 
the charges against him at an Admiral’s mast in 2010.  However, the applicant has not shown any 
specific connection between the charges against LT Hamilton and the performance documented 
on the Page 7, and he has not shown that LT Hamilton had any reason to be biased against him.  
The  Board  finds  that  the  charges  against  LT  Hamilton  do  not  cast  any  particular  doubt  on  the 
validity of the Page 7. 

 
5. 

The applicant admitted that the command was authorized to document his coun-
seling on a Page 7 but argued that it was unfair to do so since it could have been documented on 
an OER.  The command had recently prepared a regular OER for the applicant, dated March 31, 
2006, and his reporting officer, CDR X, assigned him a below-average mark in the third spot on 
the comparison scale.  CDR X presumably counseled the applicant about his performance in giv-
ing him the OER but initiated the Page 7 a few weeks later  when three incidents occurred in  a 
single week that showed the applicant was “not progressing in [his] development as an officer.”  
The Board finds that, under such circumstances, it was not erroneous or unjust for CDR X and 
then-CDR  Hamilton  to  document  the  applicant’s  lack  of  progress  on  a  Page  7  rather  than  an 
OER.  In this regard, the Board notes that a special OER or another OER with a mark in the third 
spot on the comparison scale would have been just as if not more prejudicial to the applicant’s 
chance of being selected for promotion to lieutenant. 

 
6. 

The applicant alleged that the Page 7 was unjust because it was given to him just 
before he left the unit to attend Boarding Officer School and just before his chain of command, 
through which he could have appealed the Page 7, was transferred to other units.  He also alleged 
that CDR X told him that he could “overcome” the Page 7 but did not tell him he could appeal it.  
However,  the  timing  of  the  Page  7  was  determined  by  the  applicant’s  performance  during  the 
week before he received it, and given the prevalence of email, the Board is not persuaded that the 
timing  prevented  him  from  appealing  it.    Nor  does  the  Board  believe  that  the  applicant  was 

                                                 
5 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)).   
6 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
 

 

 

unaware that members of a command may seek rectification of perceived injustices through their 
COs. 

 
7. 

The applicant alleged that the three incidents cited on the Page 7 as examples of 
how  he  was  not  progressing  as  an  officer  are  erroneous.    With  regard  to  the  first  example,  he 
proved that he did not arrive late for his own scheduled presentation and he proved that the after-
noon  sessions  were  postponed  due  to  the  weather  forecast  and  that  he  left  the  hotel  with  other 
non-golfers.  However, he did not prove that he was not “noticeably over an hour late” in arriv-
ing at the conference or that he was not “the first to depart” the conference.  With regard to the 
second example, the applicant alleged that miscommunications caused the OICs’ displeasure and 
that the CO ignobly failed to support him when the OICs complained about the handling of the 
awards at the conference.  However, the statement of the OIC submitted by the applicant shows 
that the OIC received the awards in the mail without any communication or explanation from the 
applicant.  With regard to the third example, the applicant has shown that it was the official duty 
of the first class petty officer who was a certified Boarding Officer to notify the command of the 
armed  boarding  before  it  occurred,  but  he  has  not  shown  that  he  was  not  remiss  in  his  own 
responsibilities as the most senior officer present and as the officer who organized the boarding.  
Moreover, the Board notes that although CDR X now supports the applicant’s request to remove 
the  Page  7,  he  does  not  do  so  based  on  any  alleged  inaccuracies  but  on  the  effect  the  Page  7 
might  have on the applicant’s career in  the future.   In his  statement on behalf of the applicant, 
CDR X stated that he “stand[s] by the remarks” in the Page 7.  The Board finds that the applicant 
has failed to prove by a preponderance of the evidence that the comments in the Page 7 are erro-
neous or unjust. 

 
8. 

Because  the  applicant  has  not  proved  that  the  Page  7  contains  any  erroneous  or 
unjust  statement  or that the command erred in  opting to  document the counseling on a Page 7, 
instead of an OER, there are no grounds for removing any of the applicant’s failures of selection 
for promotion to LT or for reinstating him on active duty since he was released from active duty 
due to his non-selection for promotion.  He has not proved that his record contained any inaccur-
acy when it was reviewed by the LT selection boards that did not select him for promotion.  The 
Board notes that even if the command had opted to document the applicant’s performance on an 
OER, rather than a Page 7, the information in the OER would have been seen by the LT selection 
boards. 
 
9. 

The applicant also asked the Board to remove the Page 7 from his record to pre-
vent any possible future harm to his career.  Under ALCOAST 214/03, boards selecting officers 
for promotion to LCDR and higher grades do not see ensign OERs.  The applicant argued that, 
based  on  the  reasoning  that  justifies  the  masking  of  ensign  OERs,  the  performance  counseling 
that he received as an ensign on the Page 7 should also be masked from LCDR and higher selec-
tion boards and that the only way to mask a Page 7 is to remove it.  CDR X, who initiated the 
Page 7, supported the applicant’s request to have the Page 7 removed because “it will be seen by 
LCDR  and  above  promotion  boards  while  …  Ensign  OERs  are  masked.  …    I  feel  that  this  is 
unfair. … Although at the time, I believe the CG-3307 was appropriate, I did not intend for the 
CG-3307 to remain in his record longer than the OERs that cover the same period.”  The Coast 
Guard noted that CDR X did not sign the Page 7 and that the officer who did sign it is unavail-
able to comment.  More persuasively, the Coast Guard argued that the performance about which 

 

 

the applicant was counseled did not warrant a special OER under the Personnel Manual and that, 
if  the  performance  had  been  included  on  the  applicant’s  next  OER,  instead  of  on  a  Page  7,  it 
would not be masked from review by any selection board because the applicant was promoted to 
LTJG on June 15, 2006, and an LTJG’s OERs are not masked.   

 
10. 

The Board agrees that a special OER was not warranted under Article 10.A.3.c.1. 
of  the  Personnel  Manual  since  the  Page  7  was  documenting  a  lack  of  progress  that  was  not 
inconsistent with the mark in the third spot on the comparison scale on the applicant’s March 31, 
2006, OER.   In addition,  the Board notes that because the applicant  was promoted to  LTJG on 
June 15, 2006, any regular (non-special) OER that documented the problems noted on the Page 7 
would have been an LTJG OER and so would not have been masked from any selection boards.  
In fact, the applicant’s next regular OER was dated July 31, 2006, after his promotion to LTJG.  
Because he had received a regular OER on March 31, 2006, he was not entitled to another one 
before July 31, 2006, and the command’s decision to counsel him on a Page 7 was not improper 
nor even less proper than counseling him on an OER.  The Coast Guard’s policy is to mask only 
ensign  OERs,  not  Page  7s  documenting  counseling,  and  the  applicant  himself  decided  not  to 
discuss the Page 7 in his communication to the  LT selection boards because he  believed it was 
too old to matter.  While he failed of selection for LT on the ADPL with the Page 7 in his record, 
these failures of selection are attributable to his mediocre OERs, especially his OER dated June 
15,  2007.    In  light  of  all  these  facts,  the  Board  finds  that  the  applicant  has  not  proved  that  the 
Page 7 must be removed to ensure fair competition for promotion to LCDR. 

 
11. 

The  applicant  asked  the  Board  to  remove  a  memorandum  dated  June  30,  2009, 
regarding his possible discharge from the Reserve on June 30, 2010, if he failed of selection for 
promotion again in 2009.  He has not submitted anything to show that the memorandum is erro-
neous or unjust. 

 
12. 
 

Accordingly, the applicant’s request should be denied. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 
 

 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCGR,  for  correction  of  his 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Julia Andrews 

 

 
 
 Darren S. Wall 

 

 
 Kenneth Walton 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

military record is denied.