DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2010-242 
XXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXX 

 

 
 

FINAL DECISION 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section  425  of  title  14  of  the  United  States  Code.    The  Chair  docketed  the  application  upon 
receipt  of  the  applicant’s  completed  application  on  September  1,  2010,  and  subsequently 
prepared the final decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  3,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATION 

 
 
 The  applicant  asked  the  Board  to  correct  his  record  by  removing  the  below  average 
marks  of  3  from  his  enlisted  employee  review  (EER)  for  the  period  ending  May  31,  2009. 
Enlisted marks range from a low of 1 to a high of 7.   The applicant alleged that his supervisor 
marked him unjustly and that he was not given an opportunity to review his marks until after his 
supervisor transferred.  The applicant alleged that he was advised that he would not be able to 
appeal the marks because the “marks were late for review.” 
 
 
The  applicant  stated  that  he  has  been  in  the  Coast  Guard  for  20  years  and  has  never 
received a performance mark lower than 4 until the May 31, 2009 EER.  He stated that the 3s in 
the performance categories of directing others, setting an example, and initiative will inhibit his 
opportunities  for  further  advancement  and  education  and  for  selection  for  warrant  officer.    In 
support of his application, he submitted copies of his other EERs.    
 

VIEWS OF THE COAST GUARD 

 
 
On September 1, 2010, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion recommending that the Board deny relief.  The JAG stated that the applicant 
has failed to prove that his supervisor and/or marking official did not provide a fair and accurate 
appraisal of his performance in the disputed EER. The JAG stated that there is no substantiated 
evidence to support the applicant’s allegations that the marks of 3 are unjust.   

 
 
Additionally, the JAG stated that the applicant has failed to prove error or injustice in the 
EER  process.    The  JAG  stated  that  the  applicant  was  provided  with  his  EER  along  with  a 
counseling receipt on August 5, 2009, and that he did not submit any evidence that he attempted 
to appeal the marks.   
 
 
The JAG attached a memorandum from the Commander, Personnel Service Center (PSC) 
and asked that the comments be accepted as a part of the advisory opinion.  PSC noted that the 
applicant  received  marks  of  3  in  directing  others,  setting  an  example,  and  initiative.    PSC 
submitted a statement from the applicant’s supervisor who refuted the applicant’s claim that he 
was not permitted to file an appeal.   In this regard, the supervisor stated that the head of the 
division would not have tolerated anyone who attempted to impede a member’s right to appeal 
his marks.  With regard to the applicant’s performance, the supervisor stated the following: 
 

[T]he applicant is a skilled, and knowledgeable Health Services Technician who 
absolutely had the potential to become an equally skilled clinician . . .  However 
[the  applicant]  refused  to  accept  any  leadership  roles  and  responsibility  while 
serving . . . at Seattle clinic.  There were numerous documented incidents of his 
demonstrated  failure  to  take  initiative  with  directing  and  instructing  junior 
personnel;  resolving  occupation  and  personnel  conflicts  with  his  subordinates; 
and taking on responsibilities expected of a First Class Petty Officer. . . .   [The 
applicant]  did  not  have  the  respect  of  his  juniors  and  this  led  to  numerous 
interventions  by  me  and  the  clinic  administrator  to  preserve  good  order  and 
discipline.   
 
Despite the challenges [the applicant] had, the leadership of the clinic made use of 
every  resource  conceivable  to  improve  his  performance.    [The  applicant]  was 
brought  before  the  Chief’s  Mess  to  ascertain  the  cause  of  his  performance 
problems and provide guidance to shore up weaknesses. He was sent to LAMS as 
an  HS1  when  it  was  discovered  he  had  never  attended.    [The  applicant]  was 
encouraged to seek out a mentor that was not part of the clinic, but he did not take 
advantage  of  this  opportunity.    Consequently,  several  of  the  senior  chiefs 
volunteered  to  work  with  [the  applicant],  and  yet  [he]  did  not  avail  himself  of 
those individuals. . . .    
 
[The applicant] has always set his priority on becoming a physician’s  assistant.  
He was quite vocal in his lack of interest in the administrative side of his rating 
and frequently made it clear that “he only wanted to treat patients.”   

PSC concluded that the Coast Guard is presumptively correct and that the applicant has 

 

failed to substantiate any error or injustice.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
applicant for a response.  The Board did not receive a reply from the applicant.   

On  December  6,  2010,  the  Board  sent  a  copy  of  the  views  of  the  Coast  Guard  to  the 

FINDINGS AND CONCLUSIONS 

 

 

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

military record and submissions, the Coast Guard's submission and applicable law: 
 
 
of the United States Code.  The application was timely.    

1.  The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

 
2.  The applicant contended, but failed to prove by a preponderance of the evidence, that 
the marks of 3 in the directing others, setting an example, and initiative categories on his EER 
for  the  period  ending  on  May  31,  2009  were  inaccurate.    The  applicant  provided  only  his 
statement  and  his  marks  from  other  performance  periods  to  prove  that  the  marks  of  3  were 
inaccurate for the period under review.  However, a written statement from his then-supervisor 
attested to the accuracy of the marks, and while the applicant’s previous and subsequent EER 
marks were not below a 4, they do not prove that the marks assigned for the period under review 
were inaccurate.  Performance can vary from period to period, and in this case the supervisor 
noted clearly that he had concerns about the applicant’s performance for the period under review.    

 
3.  The applicant alleged that he was advised that he could not appeal the marks because 
the “marks were late for review.”  Article 10.B.5.a.3. of the Personnel Manual states that the unit 
rating chain is responsible for ensuring complete reviews are acknowledged by the member and 
completed within Direct Access not later than 30 days after the end of  the enlisted employee 
review period.  In this case, the EER was not finalized within 30 days of the end of the reporting 
period.    The  period  ended  on  May  31,  2009,  and  the  applicant  did  not  receive  the  EER  for 
signature  until  August  5,  2009.      In  a  similar  case,  the  Deputy  General  Counsel  for  the 
Department of Transportation ruled in Docket No. 84-96 that “simple time delay in submission 
of  an  [evaluation  report]  does  not  by  itself  constitute  prejudicial  error.”    She  stated  that  the 
question  is  “whether  the  delay  led  to  material  inaccuracies  in  the  report,  or  otherwise  created 
errors or injustices.”   

 
4.   The applicant has not proven that the marks are inaccurate.  Nor has he shown by a 
preponderance of the evidence that the 15 days allotted under Article 10.B.9.b.1.d. for him to 
appeal  his  marks  after  August  5,  2009,  were  denied  to  him.    In  this  regard,  the  applicant 
presented no evidence that he attempted to appeal the marks; nor did he submit a statement from 
the individual who allegedly told him he could not appeal them.  Additionally, the supervisor 
stated that the head of the applicant’s division would not have permitted any interference with 
the applicant’s appeal right.   

 
5.  Therefore, the applicant has failed to prove by a preponderance of the evidence that 
his marks were inaccurate or that he was denied the right to appeal the marks.  Accordingly, the 
applicant’s request for relief should be denied.          
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

ORDER 

 

 
 

is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

The application of XXXXXXXXXXXXXXX USCG, for correction of his military record 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Andrew D. Cannady 

 

 

 
 Nancy L. Friedman 

 

 

 
 Dorothy J. Ulmer