DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2004-041 
 
Xxxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
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 docketed on December 22, 2003, 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 October 13, 2004, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

 

The applicant asked the Board to correct his Enlisted Employee Review (EER) for 
the period ending November 30, 2002 (EER-1), to show that he was recommended for 
advancement, or, if not, to expunge the evaluation entirely.  He also asked the Board to 
expunge from his military records the EER he received for the period ending May 31, 
2003 (EER-2).  

 
With  respect  to  the  mark  of  “Not  Recommended”  that  appears  on  EER-1,  the 
applicant alleged that his rating chain1 assigned him this mark simply because he had 
recently been advanced to E-6 and was therefore not qualified for advancement to E-7— 
not because they thought he was incapable of satisfactorily performing the duties and 
responsibilities  of  the  next  higher  pay  grade.  He pointed out that, if his rating chain 
had found him incapable, they should have counseled him on that fact, and they should 
have prepared required administrative entries for his record to document his loss of his 

                                                 
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 EER.  All three members of the rating chain also indicate on the EER whether they recommend the 
member for advancement to the next pay grade.  A member cannot be advanced if his Approving Official 
does not recommend it.  PM Article 10.B.4.c. 

command’s  recommendation  and  to  document  counseling  about  the  steps  he  would 
need to take to regain the recommendation.  He alleged that they did not do so. 

 
In  support  of  this  allegation,  the  applicant  submitted  a  copy  of  the  EER  form, 
which  has  instructions  that  state  that  a  member  should  not  be  recommended  for 
advancement “if, in the view of the rating official, the individual is not capable of satis-
factorily performing the duties and responsibilities of the next higher pay grade,” and 
that a member should be recommended for advancement “if, in the view of the rating 
official,  the  individual  is  fully  capable  of  satisfactorily  performing  the  duties  and 
responsibilities of the next higher pay grade.  This block may be checked irrespective of 
the individual’s qualification or eligibility for advancement.” 
 
 
With  respect  to  EER-2,  the  applicant  alleged  that  his  rating  chain  “completely 
failed to meet its responsibilities outlined in [Personnel Manual Article] 10.B.4.d.”2  He 
alleged  that  he  was  never  provided  the  original  counseling  sheet,  he  never  signed  it, 
and  EER-2  was  not  completed  within  21  days  of  the  end  of  the  evaluation  period.  
Moreover, he alleged, his Supervisor failed to counsel him on the contents of the evalua-
tion, and his Approving Official failed to ensure that he review EER-2 in the CGHRMS 
database.  He also alleged that his rating chain “failed to afford [him] the opportunity to 
appeal” EER-2 because they did not inform him of his right to appeal and did not offer 
him an opportunity to speak with the Approving Official. 

SUMMARY OF THE RECORDS 

 

 

On August 20, 1996, the applicant enlisted in the Coast Guard.  On the same day, 
he signed a document in acknowledgement of having been counseled about the Coast 
Guard’s drug policies.  On April 15, 1998, he was assigned to serve on a cutter as a tele-
communications specialist third class (TC3/E-4).  On October 1, 1999, he advanced to E-
5.  On April 1, 2002, he advanced to E-6.   

 
On  his  EER  for  the  six-month  period  ending  November  30,  2002  (EER-1),  the 
applicant  for  the  first  time  was  not  recommended  for  advancement,  although  he 
received no below-average numerical marks in the various performance categories and 
received  several  high  marks.    The  Coast  Guard  submitted  a  copy  of  EER-1,  dated 
January 13, 2003, with the following explanation by the Approving Official: 

 
[The applicant] has never held a supervisory, or leadership type position[.  T]herefore I 
do not feel he is ready for responsibility of the next higher pay grade.  He needs to fill a 
billet that would expose him to the skills that are required to make leadership decisions.  
At  this  time,  [he]  has  not  completed  the  end  of  course  test  nor  the  practical  factors  for 
advancement to E-7.  It should be noted that this is not a negative reflection on the mem-
ber or the work ethic shown during this marking period.  [He] has great potential, talents 

                                                 
2  During the period in question, there was no Article 10.B.4.d. in the Personnel Manual.  It appears that 
the applicant is referring to a prior version of the manual that was no longer in effect when the EERs were 
prepared.    However,  many  of  the  provisions  to  which  the  applicant  refers  are  still  in  effect,  though 
revised and renumbered.  The rating chain’s duties are now elaborated in PM Article 10.B.4.c.   

and abilities that will be of great use to this organization.  However, just having knowl-
edge of a position does not make someone ready to lead.  [He] needs to gain leadership 
maturity and responsibility that can only be gained by having a supervisory or manage-
ment position within his field of training.  This recommendation should not have a nega-
tive impact on the member’s career but should have the opposite effect.  By holding [him] 
back  now,  he  will  be  better  prepared  and  this  will  allow  him  to  become  an  even  more 
effective resource for the Coast Guard in the future. 
 
The record before the Board contains no copy of this written counseling with the 
applicant’s  signature  to  show  that  his  Supervisor,  a  chief  warrant  officer,  actually 
counseled him about the non-recommendation for advancement 

 
On  May  27,  2003,  while  still  assigned  to  the  cutter,  the  applicant  underwent 
urinalysis for the use of illegal drugs.  On June 3, 2003, he signed a sworn affidavit in 
which  he  admitted  to  having  smoked  marijuana  on  several  occasions.  Because  of  the 
allegations  against  him,  the  applicant  lost  his  security  clearance  and  was  assigned  to 
different work.  On August 8, 2003, the applicant was charged with violating the Uni-
form  Code  of  Military  Justice  by  having  smoked  marijuana  “on  multiple  and  diverse 
occasions.” 

 
On November 14, 2003, the applicant was discharged under “other than honor-
able conditions” because of his drug abuse.  “For the Good of the Service” is the narra-
tive reason for separation on his discharge form (DD 214).3  His reenlistment code is RE-
                                                 
3  Under  the  Separation  Designator  Code  Handbook,  the  narrative  reason  for  separation  of  a  member 
discharged with a KFS separation code should be “Triable by Court Martial.” 

 
On June 17, 2003, the applicant’s rating chain prepared EER-2 for the six-month 
period  that  ended  on  May  31,  2003.    In  EER-2,  the  applicant  received  several  high 
marks, but he also received poor marks of 2 (on a scale of 1 to 7, with 7 being best) in the 
performance  categories  of  “Responsibility,”  “Setting  an  Example,”  and  “Integrity”;  a 
mark of 3 for “Loyalty”; an unsatisfactory conduct mark; and a mark of “Not Recom-
mended  for  Advancement.”    His  Approving  Official  wrote  in  explanation  of the con-
duct  mark  that  “[a]llegations  arose  during  the  marking  period  indicating  that  [the 
applicant] was involved in illegal drug use.  While the investigation continued past the 
end  of  the  marking period, all indications are that the member did indeed use illegal 
drugs during this marking period.”  The Approving Official also wrote an explanation 
for each mark of 2 and the non-recommendation for advancement, in accordance with 
Article  10.B.2.a.1.  of  the  Personnel  Manual.    He  indicated  that  the  poor  marks  were 
based on “credible eyewitness accounts” of the applicant’s drug use.  The Approving 
Official noted that he was not recommending the applicant for advancement because of 
the allegations of drug use under investigation. 

 
As  with  EER-1,  however,  the  record  before  the  Board  contains  no  copy  of  this 
written counseling with the applicant’s signature indicating that his Supervisor actually 
counseled him about the non-recommendation for advancement, unsatisfactory conduct 
marks, and low performance marks. 

4 (ineligible).  His separation code is KFS, which denotes a voluntary discharge when 
the  member  is  separated  “for  conduct  triable  by  court  martial  for  which  the  member 
may voluntarily separate in lieu of going to trial.” 

 
On  January  29,  2004,  the  Discharge  Review  Board  reviewed  the  applicant’s 
request for an upgraded discharge and unanimously recommended that his request be 
denied.  The Commandant approved the recommendation.4 
 

                                                 
4  The applicant has not asked the BCMR for any relief with respect to his discharge. 

VIEWS OF THE COAST GUARD 

On May 4, 2004, the Judge Advocate General (TJAG) of the Coast Guard submit-

 
 
ted an advisory opinion recommending that the Board deny the applicant’s request.   
 
 
TJAG  argued  that  the  applicant  “is  estopped  from  alleging  error  or  injustice 
regarding his disputed EERs where he has failed to perfect an appeal of those marks.”  
He alleged that although members may not appeal an Approving Official’s lack of rec-
ommendation for advancement, the applicant could have appealed his low numerical 
marks in the second disputed evaluation but “made a conscious decision not to appeal 
his second set of marks.”   
 

TJAG argued that the applicant’s “assertion that he was prevented from appeal-
ing this set of marks is simply not credible.  As a first class petty officer arguing that he 
was ready to be promoted to chief, Applicant was, or should have been, well versed in 
the marks appeals process.  By reviewing the application of one who has failed to make 
use of an established appeals process, the Board would effectively eviscerate the regula-
tory scheme implemented by Article 10 [of the Personnel Manual].”  TJAG also alleged 
that,  “in  the  absence  of  a  completed  appeal,  it  is  submitted  that  the  Board  is  without 
proper jurisdiction to consider this application.”  In addition, he alleged that the Board 
“should deem any issue not raised through this process to be waived, absent proof of 
compelling circumstances that prevented Applicant from raising such issues within the 
service’s EER appeal system.” 
 
Regarding the merits of the case with respect to the lack of recommendation for 
 
advancement on EER-1, TJAG argued that the evidence of record shows that the appli-
cant’s command “made a reasoned decision that Applicant lacked sufficient experience 
in  leadership  to  assume  the  duties  of  a  chief  petty  officer.”    Regarding  EER-2,  TJAG 
argued  that  “[a]lthough  the  Coast  Guard  expects  full  compliance  with  administrative 
guidelines [concerning performance evaluations], failure to meet those guidelines does 
not  create  an  entitlement  on  the  part  of  Applicant  to  have  an  otherwise  valid  EER 
expunged.    To  do  so  would  be  to  exalt  form  over  substance.”    TJAG  argued  that  the 
marks in the EER-2 were appropriate and that the applicant has submitted no evidence 
to  prove  that  they  were  inappropriate.    TJAG  argued  that  the  applicant’s  evidence  is 
“insufficient  to  overcome  the  strong  presumption  of  regularity  afforded  his  military 
superiors.” Arens v. United States, 969 F.2d 1034, 1037 (1992); Sanders v. United States, 594 
F.2d 804, 813 (Ct. Cl. 1979). 
 

TJAG based his recommendation in part on a memorandum on the case prepared 
by the Coast Guard Personnel Command (CGPC).  CGPC pointed out that the applicant 
was voluntarily discharged at his own request in lieu of standing trial by court-martial.  
CGPC  also  submitted  an  email  message  dated  April  21,  2004,  from  the  applicant’s 
Approving Official, a commander who was the Executive Officer of the cutter: 

 

Regarding [EER-1], my recollection on why he was not recommended was due to his lack 
of  leadership  experience  and  supervisory  skills.    While  his  performance  overall  was 
average  to  above-average  at  the  E-6  level,  he  had  not  yet  demonstrated  the  ability  to 
lead/mentor  others  at  the  E-7  level.    Prior  to  being  assigned  a  NOT RECOMMENDED 
mark,  [the  applicant]  and  another  NOT  RECOMMENDED  petty  officer  met  with  the 
Division’s CPO mess to ascertain the E-6s’ understanding of the role of a CPO within the 
Coast  Guard.    My  recollection  of  the  feedback  on  [the  applicant]  was  that  he  was  still 
young  and  needed time to gain leadership/supervisory experience so he would have a 
foundation upon which to lead as a future CPO. … It should be noted that [he] was not, 
at this period, “Otherwise eligible for advancement”.  Thus, the requirement to prepare a 
CG3307 (ART 10.B.7.3) was not applicable. …  
 
As  for [EER-2], allegations arose about illegal drug using during the evaluation period.  
An  ongoing  CGIS  investigation  continued  past  the  end  of  the  evaluation  period  but  all 
indications  at  the  end  of  the  evaluation  period  were  that  the  member  had  used  illegal 
drugs.  Based upon the serious allegations and the informal finding of CGIS at that stage 
in  their  investigation  (while  not  completed),  I  decided  that  [the  applicant]  was  NOT 
RECOMMENDED for advancement. 
 
CGPC  also  submitted  an  email  conversation  between  CGPC,  the  Approving 
Official, and the applicant’s Supervisor, a chief warrant officer.  In an email dated April 
29, 2004, CGPC asked the Approving Official if the applicant was ever counseled about 
the disputed evaluations.  The Approving Official responded the same day and stated 
that his “recollection was that [the Supervisor] did go over the marks with [the appli-
cant] and the reason it sticks in my mind is because at the time, [the applicant] no longer 
had  access  to  our  classified  space  and  [the  Supervisor]  had  to  trek  across  base  to  the 
other  bldg  where  [the  applicant]  temporarily  worked  in  order  to  complete  the  marks 
process (i.e. counseling).”  On May 3, 2004, the Supervisor responded to CGPC as fol-
lows:    “If  my  memory  serves  me  correctly,  I  found  [the  applicant]  over  in  the  admin 
building (bldg xx).  As with every other time I did marks with him, he reviewed them, 
and then I counseled him on them.  Then he signed them.  [The Approving Official’s] 
recollection is correct.” 

 
CGPC stated that the record shows that the Approving Official did not recom-
mend  the  applicant  for  advancement  on  EER-1  for  appropriate  reasons  “within  the 
spirit  of  the  purpose  of  the  advancement  recommendation  process”  and  that  the 
Approving Official exercised proper authority and discretion in making this decision.  
With respect to EER-2, CGPC admitted that “some deadlines established for the process 
were not met” but argued that a missed deadline does not make an evaluation errone-
ous or unjust.  CGPC argued that the applicant has not proved that the missed dead-
lines cause him any harm. 

 
CGPC stated that the emails of the Approving Official and Supervisor contradict 
the applicant’s claim that he was not counseled about EER-2 but that “even if we accept 
the  Applicant’s  assertion  that  he  was  never  counseled,  his  claim  of  ignorance  of  the 
appeal process in the absence of counseling for this specific EER is not credible.  During 
his  career,  he  was  evaluated  numerous  times,  and  presumably  counseled  numerous 
times,  concerning  his  long-standing  right  to  appeal  an  EER.”    Furthermore,  CGPC 

argued that any appeal would have been unsuccessful given the charges of misconduct 
against the applicant. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
Both on May 6 and on August 17, 2004, the BCMR sent copies of TJAG’s advisory 
opinion and CGPC’s memorandum to the applicant and invited him to respond within 
30 days.  No response was received. 

 

APPLICABLE REGULATIONS 

 
Personnel  Manual  (PM)  Article  5.C.f.b.  requires  members  competing  for 
advancement to pay grade E-7 to have “served on continuous active duty in the Coast 
Guard in pay grade E-6 during the entire two years immediately preceding the terminal 
eligibility date.” 

 
PM Article 10.B.7.2.a. states that a member should be marked as recommended 
for advancement on an EER when “[t]he member is fully capable of satisfactorily per-
forming the duties and responsibilities of the next higher pay grade.  The rating chain 
should  choose  this  entry  regardless  of  the  member’s  qualification  or  eligibility  for 
advancement.”  PM Article 10.B.7.2.b. provides that a member should be marked as not 
recommended for advancement on an EER when he “is not capable of satisfactorily per-
forming the duties and responsibilities of the next higher pay grade.” 

 
PM  Article  10.B.2.a.1.  provides  that  “[s]upporting  remarks  are  required  to  be 
submitted along with the employee review, up through the marking chain to address 
the future leadership potential of all enlisted personnel, E-6 and above, and for any rec-
ommended marks of 1, 2, or 7, unsatisfactory conduct mark, or loss of recommendation 
for advancement.” 

 
PM Article 10.B.4.a.4. states that the unit must ensure that EERs “are completed, 
including  the  signed  counseling  sheet,  not  later  than  21  days  after  the  end  of  the 
employee review period ending date.  If an evaluee refuses to sign the counseling sheet, 
a unit representative should so state in the evaluee’s signature block and sign the state-
ment prior to transmitting the completed EER to HRSIC.  The unit provides the evaluee 
the original counseling sheet.”   

 
Previously,  the  signed  documentation  of  counseling  was  retained  in  the  mem-
ber’s  record.    For example, PM Article 5-C-16.a. used to state 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 Personal Data 
Record.”  However, on July 15, 2002, the Commandant issued ALCOAST 354/02, which 
amended  the  Personnel  Manual  to  have  such  written  comments  included in the EER, 
instead  of  being  prepared  on  page  7s  as  administrative  entries  for  the  members’  Per-
sonal Data Records. 

 
PM Article 10.B.4.c.3.f. states that the Supervisor must “counsel[] the evaluee on 
the  employee  review  after  the  Approving  Official’s  action.  …    The  Supervisor  is 
required  to  ensure  the  evaluee  is  provided  with  a  printed  counseling  sheet  and 
acknowledges  receipt  by  obtaining  their  [sic]  signature.”    The  BCMR  staff  asked  the 
Coast Guard if copies of signed counseling sheets are supposed to be retained by the 
rating chain when the originals are given to the member pursuant to Article 10.B.4.a.4. 
and was told that they are not.  The Coast Guard referred the BCMR to its on-line EER 
instructions, which discuss the recent policy change as follows: 
 

The member should be given the original counseling receipt.  He/she will use this as the 
basis  for  an  appeal.    The  appeal  period  begins  on  the  date  the  member signs the form.  
Commands  are  not  required  to  keep  a  copy  of  the  counseling  receipt  since  the  appeal 
process is driven by the member and the marks will be captured in the system. …  If the 
member reviews the receipt, signs off, and then notices that the marks entered in the sys-
tem  are  not  the  same  as  [those  on]  the  counseling  receipt,  he/she  should  approach  the 
command so the data can be corrected. 

 

PM Article 10.B.4.c.5.g. states that the Approving Official ensures that complete 
EERs are processed “in sufficient time to permit them to be reviewed by the evaluee[s] 
through  CGHRMS  self  service  not  later  than  30  days  following  the  employee  review 
period ending date.” 

 
PM Article 10.B.9.a. permits a member to appeal the numerical marks on an EER 
but not the recommendation for advancement.  Article 10.B.9.b.2. provides that a unit’s 
commanding officer “must ensure all enlisted persons are aware of their right to appeal 
under this Article.”  Article 10.B.9.b.1. provides that before submitting a written appeal, 
a member should request an audience with the rating chain, including the Approving 
Official, to see if the objection to the EER may be resolved, and that a written appeal 
must be submitted within 15 days of the date the member signs the completed EER. 
 

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: 
 
 
 

The application was timely filed. 

1. 

2. 

TJAG argued that the applicant’s failure to appeal his EER left the Board 
without  jurisdiction  over  his  request.    TJAG  offered  no  authority  to  support  his 
position, except for his interpretation of the Board's rule at 33 C.F.R. § 52.13(b), which 
states  that  “[n]o  application  shall  be  considered  by  the  Board  until  the  applicant  has 
exhausted  all  effective  administrative  remedies  afforded  under  existing  law  or 
regulations,  and  such  legal  remedies  as  the  Board  may  determine  are  practical, 
appropriate  and  available  to  the  applicant.”    (Emphasis  added.)    In  Avocados  Plus  v. 

3. 

4. 

Veneman, 370 F.3d 1243, 1248 (D.C.C. 2004), the court stated “[w]hile the existence of an 
administrative  remedy  automatically  triggers  a  non-jurisdictional  exhaustion  inquiry, 
jurisdictional exhaustion  requires  much  more.    In  order  to  mandate  exhaustion,  a 
statute must contain ‘”sweeping and direct” statutory language indicating that there is 
no  federal  jurisdiction  prior  to  exhaustion.’”5    The  Board's  rule  does  not  contain 
“sweeping and direct” statutory language divesting it of jurisdiction due to a failure to 
exhaust administrative remedies.  Therefore, the Board finds that even if the applicant 
did not exhaust an effective administrative remedy, the Board still has jurisdiction over 
his case under 10 U.S.C. § 1552.   
 
 
TJAG argued that the Board should deny relief because the applicant did 
not  appeal  his  EERs.    Under  PM  Article  10.B.9.a.,  the  applicant  was  not  allowed  to 
appeal the non-recommendations for advancement in EER-1 and EER-2. Therefore, the 
provisions  for  appealing  EER  numerical  marks  in  Article  10.B.9.  do  not  constitute  an 
administrative remedy for the allegedly erroneous non-recommendations for advance-
ment.   
 
 
Under  PM  Article  10.B.9.a.,  the  applicant  could  have  appealed  the 
disputed numerical marks in EER-2 within 15 days of the day he signed the counseling 
sheet.    However,  there  is  no  signed  counseling  sheet  in  the  record,  and  the  applicant 
alleges  that  he  was  never  counseled.    Morever,  many  more  than  15  days  have  now 
passed, and the chance to appeal the marks in EER-2 under Article 10.B.9.a. is no longer 
available or practical.  The Board's policy is that exhaustion of administrative remedies 
has  occurred  in  situations  where  a  remedy  existed  but  is  no  longer  available  or 
practical.  The Board's policy is consistent with its rule at 33 C.F.R. § 52.13(b) and with 
congressional intent.  The Board believes a blanket denial of applications in the absence 
of an appeal under Article 10.B.9.a., as suggested by TJAG, would be a violation of its 
responsibility under 10 U.S.C. § 1552.  The Board notes that the only limitation Congress 
placed on filing an application with the BCMR is the three-year statute of limitations, 
and  it  even  allowed  that  to  be  waived  in  the  interest  of  justice.    Can  an agency com-
pletely divest an active duty or former service member of review by the BCMR when 
Congress did not do so?  We think not.  As the Supreme Court stated in McCarthy v. 
Madigan,  503  U.S.  140,  144  (1992),  “Of  ‘paramount  importance'  to  any  exhaustion 
inquiry is congressional intent.”6  
 
  
In light of the above considerations, the Board finds that the applicant has 
exhausted all practical and effective administrative remedies now available to him.  The 
Board will therefore consider his request on the merits. 
 
 
The  applicant  alleged  that  he  received  a  mark  of  not  recommended  for 
advancement on EER-1 only because he had recently advanced to E-6 and so was not 
                                                 
5 Avocados Plus v. Veneman, 370 F.3d 1243, 1248 (D.C.C. 2004) (citing Weinberger v. Salfi, 422 U.S. 749, 757 
(1975)). 
6 McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (citing Patsy v. Board of Regents of Florida, 457 U.S. 496, 501 
(1982)). 

5. 

6. 

7. 

yet qualified for advancement to E-7 under PM Article 5.C.f.b.  However, in EER-1, the 
applicant’s  Approving  Official  wrote  a  reasonable  explanation  for  his  decision  not  to 
recommend the applicant for advancement.  Moreover, his explanation indicates that he 
found that the applicant was not “fully capable of satisfactorily performing the duties 
and responsibilities of the next higher pay grade,” as required by PM Article 10.A.7.2.a.  
Therefore, although there is not a signed counseling sheet with the Approving Official’s 
comments in the record, the preponderance of the evidence in the record indicates that 
the  Approving  Official  assigned  the  mark  of  not  recommended  in  accordance  with 
Article 10.A.7.2.a. and not merely because the applicant was not qualified for advance-
ment under Article 5.C.f.b.  The applicant has not proved that the mark is erroneous or 
unfair. 
 
 
The applicant alleged that he was never counseled about the mark of not 
recommended for advancement on EER-1.  Absent evidence to the contrary, the Board 
presumes that the applicant’s rating officials acted correctly, lawfully, and in good faith 
in  making  their  evaluations.7    No  signed  copy  of  the  counseling  sheet  appears  in  the 
applicant’s  military  record,  but  this  is  to  be  expected  since  the  Coast  Guard  has 
amended the Personnel Manual to require the Supervisor, under Article 10.B.4.a.4., to 
give the original signed counseling sheet to the member, rather than retaining it for the 
military  record,  as  was  previously  done.    Therefore,  the  lack  of  a  signed  counseling 
sheet in a military record is no longer probative of whether the member was properly 
counseled.    However,  the  record  contains an email from the applicant’s Supervisor, a 
chief warrant officer, dated May 3, 2004, in which he states that he always counseled the 
applicant whenever he “did marks” for him.  Moreover, even assuming, arguendo, that 
the applicant was not counseled about the not recommended mark in EER-1, he has not 
proved  that  he  was  harmed  by  the  (alleged)  failure  to  counsel  him.    The  Approving 
Official has stated that the mark of not recommended in EER-2 was based not on the 
same reasons as the mark in EER-1, but upon the illegal drug use to which the applicant 
admitted.    Therefore,  assuming  the  applicant  was  not  counseled,  the  Board  is  not 
persuaded  that  proper  counseling  about  the  not  recommended  mark  in  EER-1  could 
have resulted in better marks in EER-2. 
 
 
The  Board  notes  that  EER-1  was  apparently  completed  on  January  13, 
2003,  more  than  21  days  after  the  end  of  the  reporting  period.    Although  PM  Article 
10.B.4.a.4 requires that EERs be completed within 21 days of the end of the period, the 
Board finds that lateness, per se, is insufficient to justify removal of an otherwise valid 
EER,  and  the  applicant  has  not  proved  that  he  was  harmed  by  the  apparent  untime-
liness of EER-1. 
 
 
The applicant alleged that he was not counseled about the negative marks 
in EER-2.  As stated in finding 7, pursuant to PM Article 10.B.4.a.4., the lack of a signed 
counseling sheet in a military record is no longer probative of whether the member was 
properly counseled.  However, the rating chain clearly prepared the required counsel-

8. 

9. 

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

10. 

11. 

12. 

ing sheets, as they were included in the copy of EER-2 that was apparently completed 
on  June  17,  2003.    Moreover,  both  the  Approving  Official  and  the  Supervisor  have 
stated in emails that the applicant was counseled about this EER.  Though not signed, 
their emails include common details concerning the Supervisor having to cross the base 
to another building to counsel the applicant because he had been moved due to the loss 
of  his  security  clearance.  Therefore, despite the applicant’s allegation and the lack of 
signed counseling sheets, the Board finds that the preponderance of the evidence in the 
record indicates that the applicant was properly counseled about the negative marks in 
EER-2. 
 
 
The applicant alleged that EER-2 was not completed within 21 days of the 
end of the reporting period, as required under PM Article 10.B.4.a.4.  The only copy of 
EER-2 in the record before the Board is dated June 17, 2003, which was within 21 days 
of May 31, 2003—the end of the reporting period for EER-2.  Therefore, the applicant 
has not proved that EER-2 was prepared untimely.  Moreover, assuming arguendo that 
the applicant could produce evidence of untimeliness, as stated in finding 8, the Board 
finds  that  lateness,  per  se,  is  insufficient  to  justify  removal  of  an otherwise valid EER, 
and  the  applicant  has  not  proved  that  he  was  harmed  by  the  alleged  untimeliness  of 
EER-2. 
 
 
The applicant complained that his Approving Official failed to ensure that 
he review EER-2 in CGHRMS.  Under PM Article 10.B.4.c.5.g., the Approving Official 
must ensure that complete EERs are processed in sufficient time to permit members to 
review  them  in  CGHRMS  within  30  days  of  the  end  of  the  reporting  period.    The 
Approving Official is not required to ensure that the member actually reviews each EER 
in CGHRMS.  Furthermore, as with the 21-days deadline, the Board finds that lateness, 
per se, is insufficient to justify removal of an otherwise valid EER, especially when that 
lateness has caused no harm to the member. 
 
 
The applicant alleged that his rating chain failed to inform him of his right 
to speak to his Approving Official regarding EER-2 and to appeal it in accordance with 
PM Article 10.B.9.  Article 10.B.9.b.2. provides that a unit’s commanding officer “must 
ensure all enlisted persons are aware of their right to appeal under this Article.”  Absent 
evidence to the contrary, the Board presumes that the applicant’s commanding officer 
acted correctly, lawfully, and in good faith.8  Moreover, the applicant was an E-6 with 
almost seven years of experience in the Coast Guard.  The Board does not believe that 
he could have been unaware of his right to speak to his Approving Official and appeal 
the numerical marks in EER-2.  Assuming, arguendo, that he was unaware of his rights 
under Article 10.B.9., he has not proved how he was harmed; he has not shown that any 
appeal  he  might  have  made  could  have  resulted  in  better  marks  in  EER-2,  given  the 
illegal acts to which he had admitted on June 3, 2003. 
 
 

 Accordingly, the applicant’s request should be denied. 

13. 

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

 
 
 
 
 

 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 
 

The  application  of  former  xxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of 

ORDER 

 
 

 
 
his military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Julia Andrews 

 

 

 

 
 
 Nancy L. Friedman 

 

 

 
 Kathryn Sinniger