DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-006 
 
 
   

 

 
 

FINAL DECISION 

 
ULMER, Chair: 
 
 
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  application  was 
docketed on October 27, 2003, upon receipt of the applicant’s completed application and 
military records. 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  30,  2004,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
The  applicant  asked  the  Board  to  remove  her  enlisted  performance  evaluation 
 
marks (EPEM) for the period ending October 31, 1999. She alleged that the marks are 
unjust because of "the poor leadership of my supervisor."  She stated that on July 14, 
2000, her supervisor, a chief petty officer, was removed from duty as officer-in-charge 
of  the  recruiting  office  to  which  she  was  assigned  when  she  received  the  disputed 
marks.  
 
 
Apparently  in  response  to  being  relieved  as  officer-in-charge  of  the  recruiting 
office,  the  applicant's  supervisor,  who  is  currently  retired,  filed  a  discrimination 
complaint  against  the  Coast  Guard.      The  civil  rights  investigator  assigned  to  the 
supervisor's  discrimination  complaint  asked  the  applicant  to  answer  a  set  of 
interrogatories.  In support of her BCMR application, the applicant submitted a copy of 
her answers to the interrogatories, wherein she described the following conversations 
between the supervisor and herself: 
 

[The  civilian  secretary]  and  I  were  talking  about  many  children's  books 
she  could  buy  for  her  daughters.    I  told  her  one  of  my  favorites  was  a 
classic Walt Disney book of short stories by "Uncle Remus"; one called Tar 
Baby.  [The supervisor] overheard our conversation and brought me into 
his office.  He told me how inappropriate it was to call black children "tar 
babies" and that I had an attitude against blacks.  I told him I was referring 
to  a  story  in  a  book  that  my  parents  used  to  read  to  me.    He  said, 
"Whatever excuse I need to hide the fact that I have a problem with black 
people." (Paraphrase) 
 

  * 

 

 

* 

* 
 

[The supervisor] made a comment to TC1 . . . that he noticed that we [TC1 
and I] were spending a lot of time together after hours and seemed to be 
pretty good friends.  [The TC1] said he finally had another single person 
to hang out with, and that the married couples didn't like to go out much.  
[The  supervisor]  then  asked  [the  TC1]  how  long  we  had  been  sleeping 
together and if I was any good in bed.  This was said with applicants in 
the office.  [The supervisor] had also asked [another female] if she had any 
information on that subject.   
 
[The  supervisor]  asked  me  once  while  I  was  getting  ready  for  a  school 
visit why I didn't wear any make-up.  I said that I didn't like it and I felt I 
didn't need it.  He said, "My wife wears make-up, are you implying that 
she needs it?"  I told  him for me personally I didn't like the bother.  He 
said  to  me  that  maybe  if  I  wore  a  little  make-up,  I  would  have  a  better 
chance of meeting my monthly quota; and that I would be more attractive 
to the kids in high school.   
 

  * 

 

 

* 

* 
 

I had requested to speak with someone about the way I was being treated 
and some of the things I heard [the supervisor] say to other recruiters in 
the office.  I spoke with a [MK1] (the Executive Officer at the time) about 
my  concerns,  which  were  brought  to  [the  supervisor]  instead  of  the 
Recruiting Command, as I requested. 
 
When  my  complaint  was  brought  to  the  attention  of  the  recruiting 
command, I felt it wasn't given any validity due to the page 7 I received 
and  previous  discussions  [the  supervisor]  had  about  my  performance.  
(The page 7 I received was subsequently dismissed).   
 

  * 

 

* 

 

* 

 

A review of my past and present marking periods shows I have met and 
exceeded  the  expectations  of  my  superiors.    My  marking  period  for  the 
time I was under [the supervisor's] supervision shows a dramatic decrease 
in my performance.  I believe this is due to [his] inexperience of being a 
Chief in a supervisory position  . . .  

  

 

As  further  evidence  that  the  challenged  marks  are  unjust,  she  noted  that  the 
evaluation of her performance for the period under review is much lower than any of 
her other past and current evaluations.  She noted that her evaluations, except for the 
disputed one, show that she has always met the expectations of her superiors. 

 
The applicant stated that she discovered the alleged error on May 31, 2001, and 
submitted  an  earlier  application  to  the  Board  in  August  2001.  She  stated  that  she 
received  confirmation  by  telephone  that  the  Board  had  received  that  application.  
According  to  the  applicant,  in  September  2002  she  called  the  BCMR  again  about  her 
alleged earlier application and learned that the Board's staff had apparently misplaced 
her August 2001 application, whereupon she submitted the current application. 

 

SUMMARY OF THE RECORD  

 
 
The applicant enlisted in the Coast Guard on April 6, 1992.  On March 31, 1999, 
she  reported  to  the  recruiting  office  where  she  received  the  disputed  performance 
evaluation.    On  October  31,  1999,  she  received  the  disputed  performance  evaluation.  
On April 5, 2000, she was released from active duty into the Reserve due to completion 
of required active service.   
 
Disputed Performance Evaluation 
 
The  disputed  performance  evaluation  for  the  period  ending  October  31,  1999, 
 
shows  that  the  applicant  earned the  lowest  marks  of  her  military  career.    (Evaluation 
marks  range  from  a  low  of  1  to  a  high  of  7.  A  mark  of  4  represents  the  expected 
performance  level  of  all  enlisted  personnel.)    The  applicant  was  given  two  3s  in 
leadership1,  the  lowest  of  her  career  in  this  category.    She  also  received  three  3s  in 
professional qualities factor2, the lowest of her career in this category. 
 

VIEWS OF THE COAST GUARD 

                                                 
1  According to Article 10.B.2.b.5.d. of the Personnel Manual the leadership factor "[m]easures a member's 
ability to direct, guide, develop, influence, and support others performing work." 
 
2  According to Article 10.B.2.b.5.c. of the Personnel Manual the professional qualities factor "[m]easures 
those qualities the Coast Guard values in its people." 

 
 
On  March  11,  2004,  the  Judge  Advocate  General  (TJAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  the  applicant’s 
request. 
 

TJAG observed that the applicant failed to appeal her performance marks, which 
was  her  opportunity  to  submit  documentation  in  support  of  her  allegation  of  her 
supervisor's  poor  leadership.  TJAG  stated  that  Article  10.B.9.  of  the  Coast  Guard 
Personnel Manual provides for the appeal of enlisted performance marks.  He further 
stated that according to Article 10.B.9.a.2. of the Personnel Manual, the appeals process 
is  designed  to  review  marks  that  the  member  believes  were  based  on  incorrect 
information,  prejudice,  discrimination,  or  disproportionately  low  marks  for  the 
particular circumstances. 
 
 
TJAG also noted that the applicant failed to provide a reasonable explanation for 
not appealing her marks.  TJAG said that reviewing the application of one who failed to 
make use of an established appeals process would “effectively eviscerate the regulatory 
scheme implemented by Article 10 [of the Personnel Manual].”  TJAG argued that the 
Board is without jurisdiction to consider this application in the absence of a completed 
appeal  until  the  applicant  has  exhausted  “all  administrative  remedies  afforded  under 
existing laws or regulations.”   
 

TJAG  said  that  the  applicant  alleged  "poor  leadership"  on  the  part  of  her 
supervisor,  but  failed  to  provide  any  evidence  to  substantiate  her  allegation  of  "poor 
leadership”.  The  only  evidence  she  offered  was  her  self-serving,  uncorroborated 
allegation  that  poor  leadership  caused  her  to  be  marked  erroneously.  Such  evidence, 
argued  TJAG,  is  insufficient  as  a  matter  of  law  to  overcome  the  presumption  of 
regularity afforded military superiors.  Arens v. United States, 969 F.2d 1034, 1037 (Fed. 
Cir. 1992).   

 
TJAG  submitted  with  his  advisory  opinion  an  email  between  the  Chief, 
Administrative  Support  Branch  of  the  Coast  Guard  Personnel  Command  and  a  chief 
warrant officer (CWO) who was the Northeast Sector Supervisor for the applicant's unit 
at the time of the disputed performance evaluation.  In the email, the CWO confirmed 
that  the  supervisor  was  relieved  as  recruiter-in-charge  for  general  incompetence, 
including creating a hostile work environment.  The CWO verified that she reviewed all 
enlisted  evaluations  and  forwarded  them  to  the  marking  and  approving  official,3 

                                                 
3      The  rating  chain  for  an  enlisted  member  consists  of  a  supervisor,  marking  official,  and  approving 
official.  Article 10.B.4.c.2. of the Personnel Manual states responsibility for evaluating the performance of 
enlisted personnel has been placed at several different levels.  "The evaluation begins with the evaluee's 
Supervisor and is progressively reviewed and modified, as necessary, by higher supervisory levels until 
finally  approved  by  the  Approving  Official.    Through  this  process,  the  EPES  has  a  built-in  check  and 

indicating her concurrence or non-concurrence.  The CWO stated that during the time 
in question, she recalled only one person at the applicant's unit who formally appealed 
an evaluation.  She stated that she specifically recalled counseling the applicant about 
her right to appeal her evaluation without fear of repercussions, but the applicant chose 
not  to  appeal  it.    The  CWO  also  indicated  that  the  applicant  had  encountered  some 
performance problems for which she was counseled.   

 
TJAG  also  submitted  a  copy  of  an  email  between  the  Chief,  Administrative 
Support Branch of the Coast Guard Personnel Command and the applicant.  The email 
indicates that neither the applicant nor the Personnel Support Center had a copy of the 
EPEF (Enlisted Performance Evaluation Form).  The applicant also stated that she did 
not appeal the marks because after she complained to her Command Master Chief that 
the supervisor was discriminating against her, she was told there was no such thing as 
reverse discrimination.  She stated that she felt at a loss and saw separation from the 
Coast Guard as her only option.  
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

The BCMR sent the applicant a copy of the views of the Coast Guard and invited 

 
 
her to respond.  No response was received. 
 
 
 

APPLICABLE LAW 

 
Personnel Manual (COMDTINST M1000.6A) 
 
 
Article  10.B.9.b.1.e.  of  the  Personnel  Manual  provides  that  "[t]he  member  must 
submit  the  appeal  within  15  calendar  days  (30  calendar  days  for  reservists)  after  the 
date  he  or  she  signed 
[Enlisted  Performance  Evaluation  Form] 
acknowledgment sections." 
 

the  EPEF 

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 section 1552 of 

title 10 of the United States Code.   

                                                                                                                                                             
accountability  system  to  ensure  supervisory  personnel  are  aware  of  the  importance  of  evaluations  and 
give them incentive to be totally objective and accurate." 

 

2.  The  applicant  requested  an  oral  hearing  before  the  Board.    The  Chairman, 
acting pursuant to 33 C.F.R. § 52.31, denied the request and recommended disposition 
of the case without a hearing.  The Board concurs in that recommendation. 

 
3. This current application was submitted approximately six months beyond the 

 
three-year statute of limitations. See 33 CFR 52.22. 

 
4.  However, the applicant has stated under penalty of perjury that she submitted 
an  application  to  the  Board  for  correction  of  her  record  in  2001  and  was  allegedly 
assured  by  a  member  of  the  BCMR  staff  that  the  application  had  been  received.  
Although the Board has no evidence of having received the earlier application, there is 
also no concrete evidence to disprove the applicant's contention in this regard.  Under 
the circumstances, the Board is persuaded that the applicant submitted a timely request 
for correction of her military record in August 2001.  

 
5.    The  Board  is  not  persuaded  by  TJAG's  argument  that  the  BCMR  is  barred 
from  reviewing  this  application  because  the  applicant  did  not  appeal  her  marks  as 
permitted under the Personnel Manual.  The time for a marks appeal has expired. An 
appeal of marks must be made within 15 days of receipt of the evaluation.  The end date 
for  the  performance  evaluation  was  October  31,  1999.  Therefore,  appealing  the 
evaluation was no longer available to the applicant at the time she filed her application 
with  the  Board.    The  Board  deems  that  in  situations  where  a  remedy  is  no  longer 
available, exhaustion of administrative remedies has occurred.4 

 
6.  Turning to the merits of the claim, the Board finds that the applicant has not 
shown by a preponderance of the evidence that the evaluation of her performance was 
erroneous.    While  there  is  evidence  that  the  supervisor  was  relieved  for  general 
incompetence and for creating a hostile work environment, the applicant has presented 
insufficient  evidence,  which  consisted  only  of  her  own  statement,  to  prove  that  the 
supervisor's  alleged  poor  leadership  adversely  impacted  the  evaluation  of  her 
performance.    In  addition,  the  supervisor's  evaluation  was  not  the  only  input  into  or 
review of the applicant's performance marks for the period in question.  The CWO, who 
was  the  area  supervisor  for  the  applicant's  unit,  stated  that  she  reviewed  the 
performance  evaluations  of  the  applicant's  unit  and  recommended  either  approval  or 
disapproval before forwarding them to the marking and approving officials.  The CWO 
did  not  indicate  that  she  had  any  concerns  about  the  evaluation  of  the  applicant's 
performance; however, she mentioned that the applicant had some performance issues, 

                                                 
4      The  Board  does  not  agree  with  TJAG's  position  that  the  exhaustion  of  administrative  remedies  as 
discussed in the Board's rules (33 CFR § 52.13) bars the Board from considering an application where a 
remedy was but is no longer available due to a statute of limitations.   If no current remedy is available, 
the applicant is considered to have exhausted his or her administrative remedies.   

for  which  she  was  counseled.    In  addition,  the  CWO  advised  the  applicant  of  the 
appeals process available to her if she were dissatisfied with her marks.   

 
7.    The  applicant's  more  favorable  past  and  subsequent  performance  marks  do 
not prove, by themselves, that the marks for the period under review are inaccurate, as 
performance  can  change  from  one  period  to  the  next,  particularly  when  (as  here)  the 
individual's duties have changed.  The applicant has not submitted sufficient evidence 
to show that the supervisor was particularly biased against her or that her performance 
during the evaluation period merited higher marks. 
 

  
8.    Accordingly,  the  applicant  has  failed  to  prove  an  error  or  injustice  in  her 

record and her request should be denied.  
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
 
 
 

The  application  of  XXXXXXXXXXXXXX,  USCG,  for  correction  of  her  military 

ORDER 

 

 
 

 
 

record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Philip B. Busch 

 

 

 
 Richard Walter 

 

 

 
 Suzanne L. Wilson