DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2001-080 
 
 
   

FINAL DECISION 

 
ANDREWS, Deputy Chair: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was commenced on April 25, 2001, upon the 
BCMR’s receipt of the applicant’s request for correction. 
 
 
members who were designated to serve as the Board in this case. 

This  final  decision,  dated  May  16,  2002,  is  signed  by  the  three  duly  appointed 

 

 
 

 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

The applicant asked the Board to remove a form CG 3307 (page 7), dated March 
27,  199x,  that  contains  negative  criticism  of  his  job  performance  from  his  military 
record.  
 

The applicant alleged that the page 7 was erroneous and unjust and had blocked 
his appointment to the rank of chief warrant officer (CWO).  He alleged that he was not 
aware that the page 7 was in his record until after he was ranked quite low on the CWO 
appointment list and checked his record to discover why.  He alleged that, at the time 
the page 7 was presented to him for acknowledgment and signature, he was promised 
that it would not be placed in his permanent record. 

 
The  applicant  alleged  that  on  March  14,  199x,  his  supervisor1  asked  him  to 
explain the status of various work that had previously been assigned to him on a work 
                                                 
1    Enlisted  members  are  evaluated  by  a  rating chain, which consists of a supervisor, who recommends 
evaluation marks; a marking official, who assigns the marks; and an approving official, who approves the 
EPEF.    All  three  members  of  the  rating  chain  also  indicate  on  the  EPEF  whether  they  recommend  the 
member for advancement to the next pay grade.  Personnel Manual, Article 10-B-4.d. 

list.  The applicant showed him the list and began to explain the status of each assign-
ment.  He alleged that his supervisor became angry, stood up, and began shouting at 
him.  He alleged that because his supervisor became “verbally abusive” and would not 
listen to his explanations, the applicant left the room and left the unit for about an hour.  
When he returned, he went to his marking official, a CWO who headed the department, 
and explained what had happened with his supervisor. 

 
The  applicant  alleged  that  on  March  15,  199x,  his  supervisor  placed  him  on 
report for three charges, but they were dropped after a quick investigation by the unit’s 
executive officer. 

 
The applicant alleged that his supervisor then prepared an Enlisted Performance 
Evaluation Form (EPEF) and the negative page 7 for him in “an attempt to document 
any and all performance flaws, all of which were completely unsubstantiated and with-
out merit.”  The EPEF was required because he was being transferred to another unit.  
He alleged that when his supervisor showed him the page 7 and a draft EPEF with very 
low  marks,  he  “appealed”  them.    However,  the  revised  version  was  also  “unaccept-
able,” and so he “appealed” to his commanding officer (CO), who was the approving 
official on his rating chain.  The applicant alleged that the third and final EPEF, which 
he found “marginally acceptable,” was prepared by his marking official.   

 
The applicant alleged that, when his marking official initially asked him to sign 
the page 7 that his supervisor had prepared, he refused.  However, after the marking 
official assured him that “nothing would happen and it would not be submitted to my 
military  record,”  the  applicant  agreed  to  sign  it.    The  page  7,  which  is  signed  by  the 
applicant and his supervisor, appears in his military record as follows: 

and 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 

report 

to 

 
Your performance lacked vigor and persistence.  The following are examples of critical 
assignments which you did not complete: 
 
•  Following through after xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 
•  Completion of worklist on establish[ed] due date. 
•  Adjustment of both xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 
supervisor 
•  Failure 

updated 

keep 

on 

•  Plan and execute the organization of xxxxxxxxxxxxxxxxx. 
 
You were directed both verbally and written to accomplish these items.  Your explanation 
for  the  inability  to  complete  the  worklist  was  “NO  TIME.”  However,  you  still  took 
advantage  of  the  liberal  liberty  policy  which  the  command  established  prior  to  ship’s 
homeport change. 
 
Your total performance onboard [the cutter] has ranged from marginal to unsatisfactory.  
When asked why the worklist was not completed during a meeting with the [supervisor] 
on  14  March,  your  professional  behavior  and  military  bearing  was  inappropriate  and 
unacceptable.  You threw paperwork at the [supervisor] and left the unit without author-
ization.    You  experience  difficulty  making  transitions  from  one  job  to  another,  and  in 
adjusting to changes in procedures and schedule.  You have been counseled in this area 

by  the  [supervisor]  and  the  [executive  officer]  in  the  past  with  negative  results.    With 
careful observation of your professional skills and leadership, and in light of these recent 
events, my position is that you are not capable of satisfactorily performing the duties and 
responsibilities of the next higher paygrade. 
 
The applicant alleged that the work described in the first, third, and fifth bullets 
on the page 7 was assigned to his supervisor by the marking official before the appli-
cant  reported  to  the  unit.    Therefore,  he  alleged,  the  fact  that  those  tasks  remained 
uncompleted was the supervisor’s responsibility. 

 
The applicant alleged that the jobs listed on the worklist mentioned in the second 
bulleted item were not completed because the applicant was busy completing “100% of 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx  and  100%  of  the  xxxxxxxxxxxxxxxxxxxxxxxxx” 
and  taking  care  of  “unforeseen  xxxxxxxxxxxxxxxxxxxxxxxx.”    He  alleged  that  these 
tasks took priority over those on the worklist because they were “essential in keeping 
the cutter operational.”  Moreover, he alleged, most of the items on the worklist were 
accomplished. 

 
Regarding  the  criticisms  at  the  fourth  bullet,  the  applicant  alleged  that  he 
ordered the items but was told by the manufacturer that they were out of production 
and  would  not  be  available  for  four  months.    Therefore,  he  alleged,  the  delay  had 
nothing  to  do  with  his  reporting  and  monitoring  ability.    He  further  alleged  that the 
xxxxxxxxxxxxxxxxxxxxxxx could not be installed because of manufacturing errors, and 
“[t]ime would not allow the manufacturing of a new xxxxxxxxxxxxx prior to the change 
of homeport, so therefore I was unable to see this project completed.”  

 
The  applicant  alleged  that  the  liberal  liberty  policy  was  established  to  allow 
members time to move, since the cutter was changing homeports.  He alleged that he 
“made every attempt to complete the work list” and reported his progress to his super-
visor daily, but could not complete it because of his other, more important jobs. 

 
The applicant alleged that the EPEF he received in November 199x better reflects 

the quality of his work and proves that his performance at the unit was above average. 
 

SUMMARY OF  THE APPLICANT’S RECORD 

 

 
On April 27, 1981, the applicant enlisted in the Coast Guard.  He completed boot 
camp and attended A school to become a petty officer.  He was advanced to third class 
petty officer in 1982, to second class in 1985, and to first class in 1990. 
 
 
On  May  8,  199x,  the  applicant  reported  to  the  unit  where  he  received  the  dis-
puted page 7 while still a first class petty officer.  On an EPEF he received in November 
199x, he was awarded seven marks of 6, eight marks of 5, and seven marks of 4 in the 

various  performance  categories.  2    He  was  recommended  for  promotion  by  all  three 
members of his rating chain. 
 
 
Prior to the applicant’s transfer on April 2, 199x, a second and final EPEF dated 
March 20, 199x, was prepared by the same rating chain.  This EPEF has five marks of 6, 
four  marks  of  5,  nine  marks  of  4,  and  two  marks  of  3  in  the  categories  “Monitoring 
Work,” which is described as the “degree to which this member identified what needed 
to be done, set priorities, and kept supervisor informed,” and “Directing Others,” which 
is described as the “effectiveness of this member in influencing and guiding others in 
the  completion  of  tasks.”    The  applicant  received  a  mark  of  “not  recommended”  for 
advancement from his supervisor and marks of “progressing” from his marking official 
and approving official, the CO.  The approving official also noted that the applicant had 
been  formally  counseled  regarding  the  two  performance  categories  for  which  he 
received marks of 3.  The page 7 disputed in this case documents that counseling.  There 
is no evidence in the record that he appealed the EPEF. 
 
 
the total 64 xxxxxxx tasks listed, 40 are marked complete and 24 are not. 
 
 
The  applicant’s  subsequent  record  reflects  outstanding  dedication  and  job  per-
formance.  He has received several marks of 7 on his EPEFs and highly laudatory page 
7s.  On July 1, 1997, over a year after the disputed page 7 was entered in his record, he 
was advanced to chief petty officer.  He received an Achievement Medal for his work at 
another unit from June 1997 through April 2000.  However, a CWO Appointment Board 
that convened on June 19, 2000, rated the applicant among the bottom one-sixth of all 
the candidates for a xxxxxxxxxx CWO position. 
 

The applicant submitted the “xxxxxxxxxx Worklist” mentioned in the page 7.  Of 

The Chief Counsel alleged that to prove his case, the applicant must overcome a 
strong presumption that his rating officials acted correctly, lawfully, and in good faith 
in making their evaluations.  Arens v. United States, 969 F.2d 1034, 1037 (1992); Sanders v. 
United  States,  594  F.2d  804,  813  (Ct.  Cl.  1979).    To  overcome  the  presumption  of 
regularity,  he  alleged,  the  applicant  must  provide  “clear,  cogent,  and  convincing 
evidence to the contrary.”  Muse v. United States, 21 Cl. Ct. 592, 601 (1990).  

 
 
The Chief Counsel stated that the applicant’s rating chain was required to pre-
pare and submit the disputed page 7 under Articles 10-B-7.a(4) and 5-C-16.a of the Per-
sonnel Manual.  Those articles, he argued, require a page 7 entry in the record to docu-
ment  counseling  whenever  the  member  has  been  marked  “not  recommended”  for 
                                                 
2  Enlisted members are marked on a scale of 1 to 7 (7 being best) in various categories of performance.  

VIEWS OF THE COAST GUARD 

On September 25, 2001, the Chief Counsel of the Coast Guard submitted an advi-

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

advancement  or  “progressing”  by  the  approving  official  of  the  EPEF.    Moreover,  he 
stated, under Article 10-B-10.a(3), the approving official’s mark regarding advancement 
is not appealable.  Therefore, the inclusion of the page 7 in the applicant’s record was 
required whether or not he signed it or appealed the EPEF.   
 
 
The  Chief  Counsel  stated  that  there  is  no  evidence  to  support  the  applicant’s 
allegation that his marking official promised him that the page 7 would not be entered 
in his record.  Moreover, he stated, even assuming the applicant’s allegation is true, his 
marking official had no authority to prevent the page 7 from being entered in the appli-
cant’s record as it was required by regulation.  The Chief Counsel further stated that the 
applicant was not obligated to sign the page 7 and that he could have registered his dis-
agreement with its contents by refusing to sign it. 
 
 
The  Chief  Counsel  also  stated  that,  although  the  applicant  discussed  the  EPEF 
with  members  of  his  rating  chain,  he  never  submitted  a formal appeal to the Appeal 
Authority under the provisions of Article 10-B-10.b(1)(b).  He stated that the applicant’s 
explanation  as  to  why  he  failed  to  complete  the  work  on  the  list  should  have  been 
included  in  a  formal  appeal  of  the  EPEF  to  give  his  rating  chain  the  opportunity  to 
reconsider the evaluation and the page 7. 
 
 
The Chief Counsel observed that both the marking official, who was the appli-
cant’s department head, and the approving official, who was the CO, apparently agreed 
with the supervisor’s evaluation of the applicant.  He concluded that the applicant had 
failed to overcome the presumption of regularity. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On September 26, 2001, the BCMR sent a copy of the Chief Counsel’s advisory 
opinion to the applicant and invited him to respond within 15 days.  In response to a 
request  from  the  applicant, the BCMR granted him a 90 day extension of the time to 
respond.  However, no response was ever received. 
 

 

RELEVANT REGULATIONS 

 

Article  10-B  of  the  Personnel  Manual  (COMDTINST  M1000.6A)  governs  the 
 
preparation  of  EPEFs.    Article  10-B-1.b.  states  that  “[e]ach  commanding  officer  must 
ensure all enlisted members under their command receive accurate, fair, objective, and 
timely evaluations.” 
 
 
 
Under Article 10-B-4.d(3), when preparing an EPEF, the supervisor assigns rec-
ommended performance marks for each performance category, indicates whether he or 
she  recommends  the  member  for  advancement,  and  forwards  the  draft  EPEF  to  the 
marking official.  Under Article 10-B-4.d(4), the marking official reviews the draft EPEF 
and  discusses  with  the  supervisor  “any  recommendations  considered  inaccurate  or 

inconsistent  with  the  actual  performance  of  an  evaluee.”    The  marking  official  then 
assigns  the  final  performance  marks,  indicates  whether  he  or  she  recommends  the 
member for advancement, and forwards the EPEF to the approving official. 
 
 
Under  Article  10-B-4.d(5),  the  approving  official  reviews  the  EPEF  to  ensure 
“overall  consistency  between  assigned  marks  and  actual  behavior/output”  and  to 
ensure  that  “evaluees  are  counseled  and  advised  of  their  appeal  procedures.”    The 
approving official may return an EPEF for revision if he or she thinks any marks are 
inaccurate.  Otherwise he or she signs the EPEF, concurring in the marks assigned by 
the  marking  official,  and  indicates  whether  he  or  she  recommends  the  member  for 
advancement. 
 
 
Under Article 10-B-7.a(4), “[i]f the decision of the Approving Official is “Not Rec-
ommended” or “Progressing,” the member must be counseled on the steps necessary to 
earn a recommendation.  See section 5-C-16a. for guidance on the requirements for com-
pleting [a page 7].”  Article 5-C-16.a. provides that “[w]hen a member otherwise eligible 
for advancement is not recommended by his/her commanding officer, that action shall 
be supported by a [page 7] entry in the enlisted Personnel Data Record.”  Commandant 
Instruction 1000.14A, which governs the preparation of page 7s, provides that page 7s 
prepared “to document counseling related to enlisted evaluations  … must be placed 
inside  the  original  Enlisted  Performance  Evaluation  Form  …  and  forwarded  to  [the 
Military Personnel Command] for review.” 
 
 
recommendation is final.” 
 
 
Under  Article  10-B-10.b.,  a  member  dissatisfied  with  an  EPEF  should  first 
“request an audience with the rating chain to verbally express the concerns which could 
lead to a written appeal.”  If the member is still not satisfied, he may appeal the per-
formance  marks  on  an  EPEF  (but  not  a  negative  recommendation  for  advancement) 
within 15 days of receiving a copy of the approved EPEF.  Upon appeal, a member’s 
commanding officer may raise assigned marks as requested by the member.  Otherwise, 
the appeal must be forwarded to the Appeal Authority with an endorsement containing 
“specific examples of demonstrated performance that warranted the assigned marks.”  
Article 10-B-10.b(2)(e).   
 

Under Article 10-B-7.a(5), the “Approving Official’s decision on the advancement 

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 appli-
cable law: 
 
 
of title 10 of the United States Code.  The application was timely. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

1. 

 
 
The applicant alleged that the content of the disputed page 7 was errone-
ous and unjust.  Although the work list he submitted shows that 40 of 64 tasks had been 
completed, this does not prove that his rating chain was wrong to have expected him to 
have completed more or all of the tasks.  The applicant also alleged that some of the 
incomplete tasks mentioned on the page 7 had been assigned to his supervisor before he 
came on board.  However, he did not prove that his supervisor erred or committed any 
injustice  in  delegating  those  tasks  to  him.    Furthermore,  he  did  not  prove  that  his 
supervisor  did  not  take  into  account  unexpected  delays  when  he  prepared  the  EPEF 
and page 7. 
 
 
If  the  applicant’s  other  work  truly  prevented  him  from  completing  the 
tasks  cited  on  the  work  list  and  page  7,  the  quickest  and  most  effective  avenue  of 
redress was a written appeal through his rating chain.  However, the record indicates 
that he failed to exercise his right to appeal under Article 10-B-10 of the Personnel Man-
ual.  
 
Absent strong evidence to the contrary, the Board must presume that the 
 
applicant’s rating officials acted correctly, lawfully, and in good faith in making their 
evaluations.  Arens v. United States, 969 F.2d 1034, 1037 (1992); Sanders v. United States, 
594 F.2d 804, 813 (Ct. Cl. 1979).  The applicant has failed to provide sufficient evidence 
to overcome the presumption of regularity.  Moreover, although he made many allega-
tions, he has not submitted sufficient evidence to prove by a preponderance of the evi-
dence that the content of the disputed page 7 was erroneous or unjust. 
 
 
The  applicant  alleged  that  his  marking  official  promised  him  that  the 
page 7  would  not  be  included  in  his  record.    However,  he  submitted  no  evidence  to 
support the allegation.  Moreover, as the Chief Counsel pointed out, Articles 10-B-7.a(4) 
and 5-C-16.a. of the Personnel Manual required that the page 7 be placed in his military 
record  with  the  EPEF  as  a  result  of  the  “progressing”  mark  he  received  from  the 
approving official, his CO.  
 

4. 

5. 

6. 

Accordingly, the applicant’s request should be denied. 

2. 

3. 

 

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

ORDER 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Robert C. Ashby 

 

 

 

 
 
David H. Kasminoff 

 

 

 
Sherri L. Pappas 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 
record is denied.