DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-265 
 
Xxxxxxxxxxx 
xxxxxxxxxxx   

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 case after receiving the 
completed application September 30, 2010, 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  June  16,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant,  a  lieutenant  (LT)  in  the  Reserve,  asked  the  Board  to  remove  from  his 
record his Officer Evaluation Report (OER) covering his service from October 1, 2005, to Octo-
ber 31, 2006, when he was assigned to a Naval Coastal Warfare Squadron (NCWS).  The appli-
cant  alleged  that  the  OER  was  completed  inaccurately  and  unjustly  and  that  he  was  recently 
denied an extended active duty contract by the Personnel Service Center (PSC) because of it.   
 
The applicant stated that when first assigned to the NCWS, he was put in the Intelligence 
 
Department  and  did  pre-deployment  work  for  three  months  before  the  NCWS  deployed  to 
Xxxxx.  Upon arrival in Xxxxx, however, the commodore of the squadron, CAPT X, assigned 
him  to  Xxxxx,  15  miles  south  of  the  naval  base,  to  live  and  work  as  a  liaison  to  the Army 
command there.  Because the officer housing at the camp was filled, he stayed in the enlisted 
barracks.  His supervisor was an Army lieutenant colonel, LTC X, who lived at the naval base, 
and every morning the applicant commuted from Xxxxx to the naval base to report to LTC X and 
CAPT X. 
 
 
The applicant stated that on April 13, 2006, he was in the barracks when an intoxicated 
Army  private (E-4)  entered and punched him in the chest.  Alcohol is illegal in Xxxxx.  The 
applicant evaded the private and reported the incident to camp security and the Criminal Inves-
tigations Division (CID), who arrested the private.  He also reported the incident to LTC X and 
CAPT X the next morning.  The private was punished by the termination of his weapons quali-

fication, restriction to living quarters, suspension of his advancement, required alcohol counsel-
ing, and documentation of his misconduct in his military record. 
 
 
The applicant stated that when the private was punished, he immediately requested trans-
fer back to the naval base because he feared for his safety and wanted to live in proper officer 
quarters.  After CAPT X denied this first request, the applicant received threats and had his per-
sonal property destroyed, so he submitted another request, but CAPT X insisted that he stay at 
the camp.  Therefore, the applicant contacted  a  military legal  aide at the camp  and CDR F, a 
Navy  legal  advisor,  for  advice.    CDR  F  scheduled  a  meeting  with  the  applicant,  LTC  X,  and 
CAPT X, and the applicant was allowed to move back to the naval base four months after his 
arrival in Xxxxx, reassigned to the Intelligence Division under the supervision of CDR Y, and 
assigned to officer berthing. 
 
 
The applicant alleged that there are several errors in the disputed OER, which documents 
his performance while assigned to the NCWS.  He complained that he received a below-average 
mark of 3 for “Adaptability”1 from his second supervisor, CDR Y, based on his performance as 
liaison to the Army camp even though CDR Y was not in his chain of command when he was 
assigned to the camp.  The applicant argued that CDR Y did not have sufficient information to 
judge his performance at the camp and that he should not have been marked down because a 
drunk private assaulted him. 
 
The applicant also alleged that the mark of his reporting officer,2 CAPT X, in the third 
 
spot on the comparison scale3 denoting him as a “fair performer” on the disputed OER is errone-
ous  and  unjust.   The  applicant  alleged  that  CAPT  X  made  a  mistake  because  the  comparison 
scale  on  a  Navy  fitness  report  is  different  than  the  comparison  scale  on  a  Coast  Guard  OER, 
where a mark of 3 is not satisfactory and will prevent his opportunities for promotion and active 
duty assignments. 
 
 
The applicant pointed out that in preparing the reviewer’s page, a Coast Guard officer, 
CDR X, assigned him a mark in the fourth spot on the comparison scale, denoting a “good per-
former,”  and  recommended  him  for  promotion.    The  applicant  alleged  that  the  difference 
between CAPT X’s and CDR X’s marks and comments sent a confusing message to OPM, and 
someone at OPM told him that he was not selected for an EAD contract because of the negative 
impression created by the disputed OER. 
 

                                                 
1  Coast  Guard  officers  are  evaluated  on  numerous  aspects  of  their  performance,  such  as  “Adaptability,” 
“Teamwork,” “Responsibility,” and “Professional Competence,” on a scale of 1 (worst) to 7 (best). 
2 Each Coast Guard officer is evaluated by a rating chain of three superior officers:  a supervisor, who is normally 
the  person  to  whom  the  officer  reports  on  a  daily  basis;  a  reporting  officer,  who  is  normally  the  supervisor’s 
supervisor; and a reviewer, who reviews the OER to ensure consistency and compliance with regulations and who 
may add a page of comments to the OER.  Personnel Manual, Article 10.A.2.e.1.e. 
3  The  comparison  scale  is  not  numbered  but  contains  seven  possible  marks  from  the  first  (“Performance 
unsatisfactory for grade or billet”) to the seventh (“BEST OFFICER of this grade”).  The OER form instructs the 
reporting officer to complete the comparison scale by comparing the officer to all of the other officers of the same 
rank whom the reporting officer has known throughout his career. 

 
The applicant also alleged that when any officer reviews the summary of his numerical 
marks in the Coast Guard’s Direct Access database, it is CAPT X’s erroneous comparison scale 
mark of 3 that shows up, instead of CDR X’s mark of 4.  He alleged that because CDR X raised 
his comparison scale mark from 3 to 4, the 4 should appear in the summary of his marks. 
 

The applicant alleged that after he was denied an extended active duty contract, he spoke 
to someone in the Officer Personnel Management branch of the PSC on September 2, 2010, who 
pointed out the problems in the OER and told him that the OER caused him not to receive an 
active duty contract and might prevent him from being promoted in the future.  The applicant 
also alleged that, as a reservist, he does not have regular access to Coast Guard files, computers, 
documents, or contacts. 

 
In support of his allegations, the applicant submitted a copy of the disputed OER; a copy 
of a summary page from the Direct Access database showing only his reporting officer’s marks; 
and an email he wrote to the PSC on September 7, 2010, in which he said that he understood that 
the negative OER was a contributing factor in his failure to receive an extended active duty con-
tract; that his OER reviewer had changed his comparison scale mark from the third spot to the 
fourth spot; that the OER “sends a conflicting message”; and that he would follow proper proce-
dures to rectify the OER.  
 

SUMMARY OF THE RECORD  

 

The disputed OER, which was validated by the PSC on April 13, 2007, is attached.  In the 
various performance dimensions, the applicant received one mark of 3 (for “Adaptability”) and 
twelve  marks  of  4  from  his  supervisor,  Coast  Guard  CDR Y.    The  criteria  for  the  numerical 
marks  for  “Adaptability”  that  appear  on  an  OER  form  are  reproduced  below  with  the  mark 
assigned by the applicant’s supervisor, a 3, filled in: 
 

Adaptability 
Ability to 
modify work 
methods in 
response to 
new 
information, 
changing 
conditions, 
political 
realities, or 
unexpected 
conditions. 

1 
 
 
 
 
 

 

Unable to gauge 
effectiveness of work, 
recognize political realities, 
or make adjustments when 
needed.  Overlooked or 
screened out new 
information.  Overreacted or 
responded slowly to change 
in direction or environment.  
Ineffective n ambiguous, 
complex, or pressured 
situations. 

 

3 
 
 
 
 
 
 

Receptive to change, new 
information, and technology.  
Effectively used benchmarks 
to improve performance and 
service.  Monitored progress 
and changed course as 
required.  Effectively dealt 
with pressure and ambiguity.  
Facilitated smooth 
transitions.  Adjusted 
direction to accommodate 
societal trends or political 
realities. 

5 
 
 
 
 
 
 

Rapidly assessed and adjusted 
to changing conditions, political 
realities, new information and 
technology.  Very skilled at 
using and responding to 
measurement indicators.  
Championed organizational 
improvements.  Effectively 
dealt with extremely complex 
situations.  Turned pressure 
and ambiguity into constructive 
forces for change. 

 

7 
 
 
 
 
 
 

 

 
 
The  supervisor  supported  this  mark  of  3  with  the  following  comment:    “Assignment 
proved extremely challenging; … unable to resolve organizational issues w/ army supervisors; 
interpersonal skills fully challenged w/ conflict w/ enl soldier; realigned goals and reassigned to 
Intel  Dept  for  remainder  of  deployment.”    Most  of  the  other  OER  comments  written  by  the 
supervisor are not critical, but he also included the following comments in the Leadership Skills 
section of the OER:  “Required asst from supervisor to solve numerous low level BO [boarding 

officer] sched/pers problems; readjusted leadership approach; achieved complete independence 
from oversight. … Challenged in theater by weapon conditions boarding procedures; outspoken 
critic of AOR specific policies; worked through difficult issues w/ supervisor; achieved suitable 
solution.” 
 
 
The applicant’s reporting officer, Navy CAPT X, assigned him four marks of 4 and one 
mark of 5 (for “Responsibility”) in the various performance dimensions and a mark in the third 
spot on the comparison scale, which means that in comparison with all of the other lieutenants 
CAPT X has known throughout his career, he found the applicant to be a “fair performer, recom-
mended for increased responsibility.”  CAPT X included many non-critical comments in his sec-
tion of the OER, but also wrote the following: 
 

 

VIEWS OF THE COAST GUARD 

On February 2, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted 

 
 
an advisory opinion in which he recommended that the Board deny relief in this case.   
 
 
The JAG alleged that the applicant has not submitted sufficient evidence to rebut the pre-
sumption that the disputed OER is fair and accurate and that his rating chain “carried out their 
duties fairly and objectively by accurately marking the applicant in accordance with the Coast 
Guard Personnel Manual.”  The JAG stated that the comment page and extra comparison scale 
mark provided by the reviewer, CDR Y, were required by the Personnel Manual and are reviewed 

Concur  with  supervisor  comments.    [The  applicant]  has  had  a  personally  challenging  tour  with 
Naval  Coast  Warfare.    He  was  initially  given  the  opportunity  to  work  directly  with  Army 
SECFOR  & supervise 45 enlisted personnel ISO  OIF.  He  was provided opportunity to receive 
mentoring to solve interpersonal issues w/ Army but elected for reassignment back to NCW Intel 
Dept.  He has been a contributing member of the NCW Intel Dept … 
 
Aligned priorities w/ command after multiple mentoring sessions; reacted to supervisor’s concern 
for new boarding procedures and training; … 
 
[The applicant] has performed adequately as an Intel Officer and lead Top Side Boarding Officer. 
…  personally  challenged  by  the  integrated  military  environment;  personally  elected  to  be  reas-
signed out of the position and reverted back to the Intel Department. … Challenged by the com-
plexities  of  joint  military  environment;  will  achieve  success  w/  proper  focus,  dedication,  and 
teamwork.  With time & continued hard work on improving interpersonal skills, he will be ready 
for promotion with his peer group. 

 

Because CAPT X is a Navy officer, the reviewer, Coast Guard CDR X, was required to 
add a separate page with comments and an additional comparison scale mark to the OER.  CDR 
X assigned a mark of 4 on the comparison scale, which means that in comparison with all of the 
other lieutenants CDR X has known throughout his career, the applicant is a “good performer; 
give tough, challenging assignments.”  CDR X also wrote the following comment:  “Concur with 
reporting officer marks and comments.  [The applicant], though challenged in the joint military 
environment, provided solid performance when reassigned as the intelligence officer.  Personal 
adjustments made within the period allowed [the applicant] to move beyond reassignment and 
provide positive results and aid the unit execute their missions.  [He] is recommended for promo-
tion with peers.” 

in conjunction with the rest of the OER when an officer’s record is considered by a promotion 
board or an assignment officer. 
 

The JAG adopted the findings and analysis provided in a memorandum on the case pre-
pared by the PSC.  The PSC argued that the application is untimely and that the applicant had 
access to his military record “via a regular computer.  Most importantly, Applicant has been on 
Active  Duty  Operational  Support  orders  for  a  total  of  466  days  from  24 Aug[ust]  2007  to  30 
Sep[tember] 2010 which makes the claim of unable to access CG documents or contacts a false 
statement.”   

 
With regard to how the disputed OER is summarized in the Direct Access database, the 
PSC stated that the database correctly shows all of the numerical marks assigned by the appli-
cant’s supervisor and reporting officer.  The PSC noted that promotion boards and assignment 
officers and panel review the entire OER, not just the numerical marks in the Direct Access sum-
mary. 
 
 
The PSC stated that it review indicated that “[a]ll policies and procedures that govern the 
Officer Evaluation System were followed with regard to the applicant’s OER from 01 Oct[ober] 
2005 to 31 Oct[ober] 2006 and are reflected accurately in the applicant’s Personnel Data Record 
and in Direct Access.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On  February  16,  2011,  the  Chair  sent  the  applicant  a  copy  of  the  views  of  the  Coast 

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

APPLICABLE REGULATIONS 

 
Article 10.A. of the Personnel Manual governs the preparation of officers’ OERs.  Article 
10.A.1.b.1. states that “Commanding officers must ensure accurate, fair, and objective evalua-
tions are provided to all officers under their command.”   Article 10.A.4.c.4. instructs supervisors 
to assign marks and write comments for the first thirteen performance categories on an OER as 
follows  (nearly  identical  instructions  appear  in Article  10.A.4.c.7.  for  reporting  officers,  who 
complete the rest of the OER): 
 

b.  For each evaluation area, the Supervisor shall review the Reported-on Officer’s performance 
and qualities observed and noted during the reporting period.  Then, for each of the performance 
dimensions, the Supervisor shall carefully read the standards and compare the Reported-on Offic-
er’s  performance  to  the  level  of  performance  described  by  the  standards.   The  Supervisor  shall 
take care to compare the officer’s performance and qualities against the standards—not to other 
officers and not to the same officer in a previous reporting period.  After determining which block 
best describes the Reported-on Officer’s performance and qualities during the marking period, the 
Supervisor fills in the appropriate circle on the form in ink. 

•   •   • 

d.    In  the  “comments”  block  following  each  evaluation  area,  the  Supervisor  shall  include  com-
ments  citing  specific  aspects  of  the  Reported-on  Officer’s  performance  and  behavior  for  each 
mark that deviates from a four.  The Supervisor shall draw on his or her observations, those of any 
secondary supervisors, and other information accumulated during the reporting period. 
 

 e.    Comments  should  amplify  and  be  consistent  with  the  numerical  evaluations.    They  should 
identify specific strengths and weaknesses in performance.  Comments must be sufficiently spe-
cific to paint a succinct picture of the officer’s performance and qualities which compares reasona-
bly with the picture defined by the standards marked on the performance dimensions in the evalu-
ation area.  Mere repetition or paraphrasing of the standards is not sufficient narrative justification 
for below or above standard marks. 

•   •   • 

g.  A mark of four represents the expected standard of performance. Additional specific perform-
ance observations  must be included  when an officer has been assigned a  mark of  five  or six to 
show how they exceeded this high level of performance. … 
 
 
Article 10.A.2.g.2.a. states that when an officer’s supervisor changes during an evaluation 
period for an OER, the departing supervisor leaves the new supervisor a draft evaluation cover-
ing the period of observation for the new supervisor to consider when preparing the OER. 
 

Article 10.A.4.c.8.a. of the Personnel Manual states that to complete the comparison scale 

[t]he  Reporting  Officer  shall  fill  in  the  circle  that  most  closely  reflects  the  Reporting  Officer’s 
ranking of the Reported-on Officer relative to all other officers of the same grade the Reporting 
Officer has known. NOTE: This section represents a relative ranking of the Reported-on Officer, 
not necessarily a trend of performance. Thus, from period to period, an officer could improve in 
performance but drop a category. 

Article 10.A.2.f.2. of the Personnel Manual describes the duties of an OER reviewer as 

on an OER, 
 

follows: 
 

 

 

 

 

a.  Ensures the OER reflects a reasonably consistent picture of the Reported-on Officer’s perfor-
mance and potential. 
 
b.    Adds  comments  as  necessary,  using  form  CG-5315  (series),  that  further  address  the  perfor-
mance and/or potential of the Reported-on Officer  not otherwise provided by the  Supervisor or 
Reporting Officer. For any officer whose Reporting Officer is not a Coast Guard commissioned 
officer,  member  of  the  Coast  Guard  Senior  Executive  Service  (SES),  or  a  USPHS  flag  officer 
serving  with  the  Coast  Guard,  Commandant  (CG-11),  the  Reviewer  shall  describe  the  officer’s 
“Potential” and include an additional “Comparison Scale” or “Rating Scale” mark. The compari-
son scale is not to be completed unless the Reviewer comments are mandatory. 

c.  Ensures the Supervisor and the Reporting Officer have adequately executed their responsibili-
ties under the OES. The Reviewer shall return an OER to the Reporting Officer to correct errors, 
omissions, or inconsistencies between the numerical evaluation and written comments. However, 
the Reviewer may not direct in what manner an evaluation mark or comment be changed (unless 
the comment is prohibited under Article 10.A.4.f.). 

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: 
 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.   

1. 

2. 

3. 

Under 10 U.S.C. § 1552(b) and 33 C.F.R. § 52.22, an application to the Board 
must be filed within three years after the applicant discovers, or reasonably should have discov-
ered, the alleged error or injustice.  The disputed OER was validated by the PSC for entry in the 
applicant’s record on April 13, 2007, and his application was not received until September 30, 
2010.  However, according to the PSC, the applicant has served on active duty for a total of 466 
days between August 24, 2007, and September 30, 2010.  Therefore, his  application is timely 
because the Board’s three-year statute of limitations is tolled whenever a member is serving on 
active duty.4 
 

The applicant asked the Board to correct his military record by removing his OER 
for the period October 1, 2005, to October 31, 2006.  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  When challenging an OER, an applicant 
cannot  “merely  allege  or  prove  that  an  [OER]  seems  inaccurate,  incomplete  or  subjective  in 
some sense,” but must prove that the disputed OER was adversely affected by a “misstatement of 
significant hard fact,” factors “which had no business being in the rating process,” or a prejudi-
cial violation of a statute or regulation.7 

 
4. 

 
5. 

The applicant has submitted insufficient evidence to overcome the presumption of 
regularity accorded the disputed OER and his rating chain.8  He alleged that his mark of 3 for 
“Adaptability” is erroneous and unjust because the supervisor who prepared the OER, CDR Y, 
was not his supervisor while he served as the liaison to the Army at Xxxxx, and the comments 
show that the mark of 3 was based on that service.  However, under Article 10.A.2.g.2.a. of the 
Performance  Manual,  when  an  officer’s  supervisor  changes  in  the  middle  of  an  evaluation 
period, the new supervisor receives input from the past supervisor and may base marks and com-
ments in an OER on the officer’s performance under the past supervisor.  Therefore, the fact that 
CDR Y was not the applicant’s supervisor when he served as the liaison to the Army does not 
render marks and comments based on his performance as the liaison erroneous or unjust because 
CDR Y presumably based his marks and comments, at least in part, on input from LTC X, who 
was the applicant’s supervisor while he worked as the liaison. 

The applicant alleged that the mark of 3 for “Adaptability” is unjust because he 
was marked down for objecting to his assignment to Xxxxx after he was punched by a private 
and  received  threats.    Several  comments  in  the  OER,  however,  show  that  the  mark  of  3  was 
based primarily on problems he had working with his Army supervisors, not on his reaction to 
                                                 
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). 
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). 
7 Hary v. United States, 618 F.2d 704, 708 (Ct. Cl. 1980), cited in Lindsay v. United States, 295 F.3d 1252, 1259 
(Fed. Cir. 2002). 
8 33 C.F.R. § 52.24(b); Arens, 969 F.2d at 1037. 

the  private’s  assault  and  threats.    The  comments  show  that  the  applicant  was  an  “outspoken 
critic” of many policies and required “multiple mentoring sessions.”  The Board finds that the 
applicant has not proved by a preponderance of the evidence that the mark of 3 he received for 
“Adaptability” is erroneous or unjust.9  

The applicant alleged that  CAPT X’s mark in the third spot on the comparison 
scale, denoting him as a “fair performer,” is erroneous because it was assigned by a Navy officer 
more familiar with Navy  fitness reports, wherein a mark of 3 is an average mark, rather than 
below  average.10    However,  the  fact  that  Navy  fitness  reports  are  very  different  from  Coast 
Guard OERs and use a different scale does not prove that CAPT X did not intend to mark the 
applicant as a “fair performer” on the comparison scale.  Navy performance evaluations do not 
have comparison scales, and the applicant has not shown that CAPT X assigned the applicant a 
mark in the third spot on the comparison scale while mistakenly believing it to be a better mark.   

 
6. 

 
7. 

 
8. 

The applicant alleged that  CAPT X’s mark in the third spot on the comparison 
scale is erroneous because it was raised by the Coast Guard officer who served as his reviewer, 
CDR X.  However, when a reviewer adds a page with comments and a comparison scale mark to 
an OER, he is not changing the evaluation of the supervisor or reporting officer but adding a 
third  point  of  view  to  the  OER.    Under  Article  10.A.2.f.2.  of  the  Personnel  Manual,  an  OER 
reviewer is not allowed to change the marks or comments of a supervisor or reporting officer, but 
he may add a page with his own assessment to the OER, and when the reporting officer is not a 
commissioned  Coast  Guard  officer,  a  member  of  the  Coast  Guard  Senior  Executive  Service 
(SES),  or  a  USPHS  flag  officer  serving  with  the  Coast  Guard,  Commandant  (CG-11),  the 
reviewer is required to do so.  The applicant’s reviewer, CDR X, expressly stated in the OER that 
he concurred with the supervisor’s and reporting officer’s marks and comments.  CDR X’s deter-
mination on the comparison scale that, in comparison with all of the lieutenants that CDR X had 
met in his career, the applicant was a “good performer” does not contradict CAPT X’s determi-
nation that the applicant was merely a “fair performer” in comparison with all of the lieutenants 
CAPT X had known throughout his career.  The Board finds that the applicant has not proved by 
a preponderance of the evidence that the mark of 3 he received from his reporting officer on the 
comparison scale is erroneous or unjust or that the addition of the reviewer’s page to the OER 
creates confusion or prejudices his record when it is reviewed by promotion boards or assign-
ment panels or officers. 

The applicant alleged that it is unfair that the marks summary page in the Direct 
Access  database  reflects  the  comparison  scale  mark  he  received  from  his  reporting  officer, 
instead of the mark his reviewer made.  It is unfortunate that the Direct Access summary page 
does not include both comparison scale marks when there are two marks, which is not normally 
the case.  However, because the entire OER is provided to and presumably reviewed by promo-

                                                 
9 For the purposes of the BCMRs, “‘[i]njustice’, when not also ‘error’, is treatment by the military authorities, that 
shocks the sense of justice, but is not technically illegal.” Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976).  The 
Board has authority to determine whether an injustice exists on a “case-by-case basis.” Docket No. 2002-040 (DOT 
BCMR, Decision of the Deputy General Counsel, Dec. 4, 2002).   
10 Navy officers are rated on a five-point scale, instead of a seven-point scale, in just seven performance categories, 
and receive a mark on a promotion scale ranging from “significant problems” to “early promote.”  See NAVPERS 
1610/2 (Rev. 3-02). 

tion boards and assignment panels  and officers,  the applicant has not shown that he has  been 
unfairly prejudiced by the database form. 

 
9. 

Accordingly, the applicant’s request that the disputed OER be removed from his 
record should be denied because he has not proved by a preponderance of the evidence that it is 
erroneous or unjust.  He has not shown that the OER was adversely affected by a “misstatement 
of significant hard fact,” factors “which had no business being in the rating process,” or a pre-
judicial violation of a statute or regulation.11   
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
11 Hary, 618 F.2d at 708. 

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

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Donna M. Bivona 

 

 

 
 Bruce D. Burkley 

 

 

 
 Randall J. Kaplan 

 

 

 

 

 

 

 

 

 

 

 

 

 

record is denied.