DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2008-035 
 
xxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxx   

FINAL DECISION 

 
This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title  14  of  the  United  States  Code.   The Chair docketed the case on December 7, 2007, upon 
receipt of the applicant’s completed application, and assigned it to staff member J. Andrews to 
prepare 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  August  14,  2008,  is  approved  and  signed  by  the  three  duly 

 

 
 

 

APPLICANT’S REQUEST AND ALLEGATIONS  

 

The  applicant,  a  first  class  port  security  specialist  (PS1;  pay  grade  E-6)  in  the  Coast 
Guard  Reserve,  asked  the  Board  to  expunge  his  performance  marks in the Enlisted Employee 
Reviews (EERs) he received for the periods ending May 31, 2004, and November 30, 2004.  The 
applicant  stated  that  he  discovered  the  errors  in  his  record  in  2004  but  that  the  Board  should 
excuse his delay in filing his application because he only recently learned that he could appeal his 
marks through the BCMR and “justice delayed should not be justice denied.” 

 
The  applicant  alleged  that  in  the  summer  of  2002,  he  asked  the  detailer  for  the  boat-
swain’s mate (BM) rating about serving on EAD because he had learned that there was an open 
first class BM billet at the Regional Examination Center (REC) in xxxxxxxxxxxxxxxxx, which 
administers  license  examinations  for  the  Merchant  Marine.    Although  he  was  not  a  BM1,  he 
knew he could do the work without difficulty because of his “solid administrative background.”  
The detailer said he could do the work and contacted the REC, which decided that the applicant 
was suitable for the position.  However, shortly before he was to begin EAD in the fall of 2002, 
he injured his right shoulder and had to undergo surgery.  When he was fit for duty again in the 
spring of 2003, the BM detailer told him that the billet at the REC was still open, so he resub-
mitted his application for a two-year EAD contract and was issued orders to report to the REC on 
June 15, 2003.   

 
The applicant stated that shortly after he gave up his residence and arranged to move his 
personal possessions to xxxxxxxxxx, LCDR G of the REC informed him that the billet he was 
supposed to fill had already been filled with someone else and that he had been reassigned to 

 
The applicant reported to the Waterways Division on June 15, 2003.  However, within the 
first week it was clear that he “lacked the necessary skills and background for the billet.”  He told 
his  first  supervisor,  LCDR  Z,  that  he  would  call  Headquarters  to  have  his  EAD  contract 
rescinded, but LCDR M asked him not to leave, said he would “work things out” for the appli-
cant, and persuaded him to stay on.  For several months, “things went reasonably well” despite 
his lack of waterways-related experience.  His supervisor during those months, LT P, found his 
work and conduct satisfactory and assigned him fairly good performance marks on his evaluation 
dated November 30, 2003.  The applicant alleged that the marks he received in this first EER at 
the Waterways Division show that his next two sets of marks from that command were inaccu-
rate and unfair. 

 
In January 2004, the applicant stated, ENS G became his supervisor and they did not “get 
along.”  He knew his marks from ENS G would not be very good, but he was not unduly con-
cerned because he already had more than 28 years of active service and so was not eligible for 
advancement.  He did not realize how any poor marks ENS G might give him would adversely 
affect his eligibility for future active duty assignments.  The applicant alleged that in June 2004, 
after the EER was presumably prepared, his rating chain1 did not show him or counsel him about 
his marks.  Instead, ENS G and LCDR M showed him only a memorandum prepared by ENS G 
and signed by LCDR M in which they claimed that his performance had been unsatisfactory ever 
since his arrival in the Waterways Division the year before.  The applicant noted that their claim 
contradicted the EER he had received from LT P and LCDR M on November 30, 2003.   

another first class billet in the Waterways Division.  However, this new billet required particular 
skills and knowledge that the applicant did not have.  Therefore, he contacted the BM detailer, 
who  told  him  “that  there  was  nothing  he  could  do.”    The  applicant  then  faxed  his  resume  to 
LCDR M, the deputy chief of the Waterways Division, to show him that he “had no experience 
of any kind pertaining to waterways; yet [LCDR M] stated that there would be no difficulty in 
finding  suitable  work  for  [the  applicant].”    Since  the  applicant’s  possessions  were  already  in 
transit to xxxxxxxxxx and canceling the EAD contract was not a feasible option, he “resolve[d] 
to make the best of the situation.”   

 
The applicant alleged that he was not shown the May 2004 EER or informed of his right 
to appeal the marks until November 2004, at the end of the next evaluation period.  LCDR M 
called him to his office in November and counseled him about the marks only because the Coast 
Guard Personnel Command had inquired about the lack of an acknowledgment of EER counsel-
ing in the applicant’s record.  LCDR M refused to explain to him why he had not timely coun-
seled him about his May 2004 marks or why he had accepted ENS G’s evaluation without ques-
tion.    Therefore,  the  applicant  addressed  caustic  remarks  to  LCDR  M—“e.g.,  ‘If  waiting  six 
months  to  inform  a  petty  officer  of  his  right  to  appeal  unsatisfactory  marks  is  an  actionable 
offense, you won’t be wearing silver collar devices anytime soon!’”  The applicant alleged that 
he was later advised by another officer that LCDR M did not timely counsel him about the EER 
because he did not want the applicant to appeal the marks and thereby inform LCDR M’s own 
chain of command that he had filled a waterways billet with someone who had no appropriate 
                                                 
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.  Personnel Manual, 
Articles 10.B.2.b., 10.B.4.c. 

skills or experience.  (The applicant’s specific allegations about the marks and comments in this 
EER are summarized in another section below.) 

 
The applicant stated that after speaking with LCDR M, he quickly decided to appeal the 
marks  and  arranged  to  meet  with  the Command Master Chief.  However, the day before they 
were  to  meet,  the  chief  of  the  Waterways  Division, CDR F, summoned him to his office and 
informed  him  that  he  was  to  be  charged  with  disrespectful  and  threatening behavior toward a 
superior officer—LCDR M.  However, CDR F told the applicant that if he agreed to drop his 
appeal of the EER and request early termination of the EAD contract, CDR F would drop the 
charges.  The applicant stated that his feelings had changed from “burned up” to “burned out”; he 
was chagrined about having “lost it” with LCDR M; and he did not want to spend any more time 
with  people  “who  clearly  had  no  compunction  about  ‘screwing  [him]  over.’”    Therefore  and 
because he did not understand the effect of the disputed EER on his future eligibility for active 
duty orders, he gave into the pressure, agreed to CDR F’s deal, withdrew his appeal of the EER, 
and asked that his EAD contract be terminated early. 

 
The applicant stated that after his meeting with CDR F, he was transferred to the Supply 
Division, which was “like transiting from Hell to Heaven.”  The Supply Division chief assigned 
him an important project appropriate to his skills and experience and was so impressed with the 
applicant’s work that he asked Headquarters not to release the applicant early from the contract.  
The request was denied, however, because there was no empty billet in the Supply Division.  The 
applicant  alleged  that  because  his  EAD  contract  was  terminated,  he  “had  no  opportunity  to 
appeal the NOV 04 marks.” 

 
The applicant stated that he has been performing periods of active duty for special work 
(ADSW)  for  25  years  and  has  received  letters of appreciation and awards.  He stated  that his 
2004 EER marks stand out as an anomaly, and he should not be denied future ADSW and EAD 
opportunities  because  of  them.    He  stated  that  he  may  have  made  mistakes  at  the  Waterways 
Division but he “was ‘sinned against’ far more than [he] ‘sinned.’”  Had he known the effect of 
the low marks on his eligibility for future ADSW, he would not have dropped his appeal.  He is 
now being denied opportunities to serve on active duty because of the substandard marks in the 
disputed EERs. 

On October 16, 1972, the applicant enlisted in the Coast Guard Reserve.  Since that date 
he has drilled regularly while on inactive duty and performed many periods of ADSW and EAD.  
He advanced to PS1 on January 1, 1984, and has remained in that rate.  Over the years, the appli-
cant has received several letters of appreciation, medals, and awards but also two negative coun-
seling  entries  (“Page  7s”)  criticizing  him  for  slow  learning  of  new  work,  inability  to  manage 
multiple tasks, and need for supervision when filling in as an operations center watchstander in 
1997 and at a cutter logistics and support desk in 1999.  

 
On September 30, 2000, while assigned to the Coast Guard’s training center as a tempo-
rary physical fitness instructor and security watchstander, the applicant received an EER with ten 
“average” marks of 4, six “above-average” marks of 5, four “excellent” marks of 6, two “supe-
rior”  marks  of  7,  a  satisfactory  conduct  mark,  and  a  recommendation  for  advancement.    The 

 

SUMMARY OF THE RECORD 

 

marks of 7 are supported by comments commending the applicant for his willingness to work 60-
hour work weeks without complaining. 

 
On March 31, 2001, while maintaining filing systems and processing FOIA requests at 
another unit, the applicant received an EER with ten marks of 4, eight marks of 5, four marks of 
6, a satisfactory conduct mark, and a recommendation for advancement.   

 
The applicant served on active duty from January 2, 2002, through February 14, 2003.  
On his EER dated August 29, 2002, the applicant received sixteen marks of 4, five marks of 5, 
one  mark  of  6,  a  satisfactory  conduct  mark,  and  a  recommendation  for  advancement.    He 
received  an  Achievement  Medal  for  “superior  performance  of  duty”  on  a  survey  team  in  the 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.   The certificate notes 
that he helped collect information from 11,000 people in a 30-day period; developed a database 
with 11,000 rows and 12 columns to track survey responses; developed a mailing list of 1,100 
people who wanted paper copies of the survey; and personally mailed the survey to each one.  In 
the fall of 2002, he injured his shoulder and, while undergoing physical therapy, received a letter 
of  appreciation  for  his  assistance  to  the  Coast  Guard  xxxxxxxxxxxxxxxxxxxxxxxxx  in  orga-
nizing their files and entering class rosters and contact information into a database. 

 
On May 9, 2003, the applicant signed a two-year EAD contract to begin on June 1, 2003.  
The contract does not specify what billet the applicant was supposed to fill.  Print-outs from the 
applicant’s “Career Summary” in the Coast Guard’s database indicate that he was assigned to the 
REC as a license evaluator for the period June 16, 2003, to February 15, 2005.  None of the print-
outs reflect the applicant’s reassignment to the Waterways Division.  On his EER dated Novem-
ber 30, 2003, the applicant received twenty-one “average” marks of 4, one “above-average” mark 
of 5 for “Quality of Work,” and a satisfactory conduct mark, but he was not recommended for 
advancement. 

 
On April 28, 2004, ENS G entered a Page 7 in the applicant’s record with this text: 
 
[The applicant] was counseled in regards to his unsatisfactory job performance.  He has displayed 
an  apathetic  attitude  towards  job  assignments  and  an  inability  to  put  forth  the  necessary  effort 
required to complete tasking in a timely and efficient manner.  [He] does not update his Supervisor 
unless directly asked and then provides vague, generalized answers.  When a task is completed, he 
does not seek additional tasking, nor is he capable of completing multiple assignments within a set 
period  of  time.    [He]  requires  constant  guidance  when  tasked  with  new  projects  and  does  not 
effectively research or utilize available resources to work through problems on his own.  His per-
formance does not reflect the standards expected of a First Class Petty Officer. 
 
For the period December 1, 2003, to May 31, 2004, the applicant’s rating chain gave him 

the following marks and comments on his EER: 

 

PERFORMANCE 
CATEGORY 
Professional, Specialty 
Knowledge 

MARK  COMMENTS SUPPORTING “POOR” MARKS OF 2 

2 

“[He has] marginal knowledge of waterways operations despite having been in 
the division for 11 months … demonstrated a total lack of interest … and has on 
several occasions stated that he is not supposed to be here, that he was 
originally assigned to another division. He has demonstrated no proficiency in 
matters related to waterways operations, nor any desire to gain proficiency 
aside from what is immediately required by his tasking.” 

Quality of Work 
Monitoring Work 

Using Resources 

Safety 
Stamina 

Communicating 
Directing Others 

Working with Others 
Developing 
Subordinates 
Responsibility 

Evaluations 
Work-Life Sensitivity, 
Expertise 
Setting an Example 

3 
2 

2 

4 
2 

3 
2 

3 
3 

2 

3 
3 

2 

 
“[He] has difficulty prioritizing his tasks despite minimal tasking.  He has only 
demonstrated an ability to work on one project at a time and is unable to set 
priorities without direct instruction.  He does not update his supervisor on 
project status without being asked directly to do so and then provides … vague 
responses.” 
“[He is] unable to properly and effectively use even the most basic of tools and 
publications, such as a chart, without detailed and explicit instruction.  When 
tasked with finding the bottom type of a waterway he was referred to Nautical 
Chart 1.  He then required his supervisor to locate and point out the specific 
examples on the chart.  He then required his supervisor to explain how to 
determine the bottom type from the data observed on the chart.  When asked to 
find the tidal range and current velocity he was provided with the Tide Table.  
He then stated that he needed training and was unwilling to make an attempt at 
working it out on his own.  When his supervisor opened the book it became 
apparent that the required information was located within the first few pages and 
that [the applicant] had made no attempt to figure it out on his own.” 
 
“[He] does not react well to stressful situations.  He becomes very defensive 
when tasked with anything new.  He does not contribute any extra time to 
ensure project completion is a timely manner and frequently desires immediate 
compensation time for any activity after 1600.  An opportunity arose at the 
command for 1400 liberty for all donors during a blood drive.  … he was told 
that his project would need to be completed before any liberty was granted.  He 
later stated that he would not donate if he was not going to get liberty.  [He] 
often seeks any excuse to arrive late or depart early.  When computers were 
shut down for maintenance at 1545, he departed 15 minutes early without 
consulting his supervisor.  On a separate occasion, he reported 20 minutes late 
from lunch without consulting his supervisor because of scheduled maintenance 
being performed on his computer.” 
 
“[He] does not instill confidence in coworkers or superiors.  He is unable to be 
placed in a leadership capacity because of his lack of proficiency in any issue 
related to waterways operations.  He has not been able to maintain the 
standards in quantity or quality of work that is expected of a [PO1].  He is 
unable to manage difficult situations because he becomes stressed at any 
unfamiliar situation.  Because of his poor performance and apathetic attitude, 
his superiors believe that he would make a poor role model for a junior member 
and is, therefore, not placed in any supervisory positions.” 
 
 

“[He] provides little or no support for policies and decisions.  When tasked with 
e-mailing updates to his supervisors twice a day, he demonstrated resistance.  
When counseled regarding his failure to meet the standards he refused to take 
responsibility and demonstrated no motivation to improve.” 
 
 

“[He] projects an apathetic attitude towards assigned work.  On several 
occasions, he has stated that he didn’t want to come to the Waterways 
Operations Division and that he is supposed to be somewhere else.  He shows 
no interest in assigned tasks and often needs to be reassured of the value of 
the work.  He has repeatedly demonstrated an inability to make decisions and 
frequently requires explicit instruction before undertaking any responsibility.” 

Military Bearing 
Customs & Courtesies 
Health & Well-Being 
Integrity 
Loyalty 
Respecting Others 
Human Relations 
Adaptability 

Conduct (S or U) 
Recommendation for 
Advancement (R or N) 

 

4 
3 
4 
3 
3 
3 
4 
2 

S 
N 

 
 
 
 
 
 
 
“[He] has a great deal of difficulty adapting to anything new.  He is clearly 
unwilling to adapt to his position within the Waterways Operations Division as 
evidenced by his poor performance, apathetic attitude, and stated desire to be 
elsewhere.  When tasked with a new project, he requires explicit instruction 
from his supervisor and is unwilling to perform adequate research on his own 
prior to seeking guidance.  He often becomes stressed by changes in routine or 
any new obstacles or issues.” 
 
“[He] has not demonstrated the leadership qualities nor satisfactorily performed 
the duties expected of a [PO1].  His sub-par performance is evidence that he is 
not currently capable of the duties and responsibilities that are required of the 
next higher pay grade.  He lacks self-confidence necessary to provide 
leadership to others.” 

(Dated signatures on the EER show that the applicant was not counseled about it or advised of 
his right to appeal the marks until November 22, 2004.  He did not appeal the marks.) 
 
 
ance” and presented him with the following memorandum:   
 

On  July  2,  2004,  LCDR  M  counseled  the  applicant  about  his  “unsatisfactory  perform-

1.  This is to inform you that for the previous 12 months, your performance has been unsatisfactory 
compared to your peers in your pay grade.  You are considered to be on performance probation.  
You must take stock of your actions that have caused this situation to develop and take corrective 
action.  Your performance must improve over the next six months, or you will be considered for 
discharge. 
 
2.  The reasons for being placed on performance probation are:  an apathetic attitude towards job 
assignments  and  an  inability  to  put  forth  the  necessary  effort  required  to  complete  tasking  in  a 
timely and efficient manner.  You do not update your Supervisor unless directly asked and then 
only provide vague, generalized answers.  When a task is completed, you do not seek additional 
tasking, nor are you capable of completing multiple assignments within a set period of time.  You 
require constant guidance when tasked with new projects and do not effectively research or utilize 
available resources to work through problems on your own.  Your performance does not reflect the 
standards  expected  of  a  First  Class  Petty  Officer  as  was  addressed  in  counseling  sessions  and 
documented in a CG-3307, as well as your most recent set of marks. 

 
 
On his EER dated November 30, 2004, the applicant received one mark of 2 for “Direct-
ing Others,” thirteen marks of 3, eight marks of 4, a satisfactory conduct mark, and no recom-
mendation for advancement.  The record contains no counseling page to show that he was coun-
seled about the mark of 2 in this EER.  He did not appeal these marks. 
 
 
On February 15, 2005, the applicant was released four months early from his EAD con-
tract.  His DD 214 shows that he was honorably “deactivated” with an RE-1 reenlistment code 

(eligible to reenlist) for “completion of required active service.”  He had completed 15 years, 3 
months, and 26 days of total active service and 17 years and 5 days of total inactive service. 

 

APPLICANT’S ALLEGATIONS ABOUT THE MAY 2004 EER COMMENTS 

 
 
Regarding  the  mark  of  2  and  comment  for  “Professional, Specialty Knowledge” in his 
May 2004 EER, the applicant stated that his Supervisor failed to take into account his work on an 
underkeel depth survey project, for which he prepared a spreadsheet, which he kept up to date, 
and organized and maintained underkeel charts.  He alleged that it was the only assignment he 
received that used his actual skill set and that both CDR F and LCDR M praised his spreadsheet 
work.    The  applicant  also  noted  that  he  “did  considerable  work  in  the  MISLE  database”  and 
ensured that the unit vehicles were properly maintained.  The applicant alleged that he was not 
provided  any  on-the-job  training  to  acquire  knowledge  of  waterways  and  although  he  “would 
have welcomed the chance to become more fully involved [with waterways operations], … was 
given to understand that I lacked the requisite background,” which was not his fault. 
 
 
Regarding the mark of 2 and comment for “Monitoring Work,” the applicant complained 
that  the  Supervisor  failed  to  cite  examples  of  his  poor  prioritization  and  inability  to  work  on 
more than one thing at a time.  He stated that if she had asked him to keep her updated about the 
status of his projects, he would have done so. 
 
 
Regarding the mark of 2 and comment for “Using Resources,” the applicant stated that 
the tools that the Supervisor called “basic” were entirely new to him.  He had never used a nauti-
cal chart before and had no idea what the numbers and symbols indicated.  However, she pro-
vided no on-the-job instruction to help him learn about the charts.  Regarding the tide table, he 
stated that it was only easy to find the answer to her question if you knew the subject matter and 
terminology, which he did not.  He did try to figure out the answer on his own before he asked 
for help.  Moreover, ENS G completely ignored his resourcefulness in preparing the underkeel 
spreadsheet  and  creating  parent  units  in  the  MISLE  database.    In  one  instance,  the  applicant 
stated, ENS G asked him to find a database of current speeds and bottom and shoreline types.  He 
searched for one but was told that no such database existed.  She insisted that there must be one 
and that he continue to look for it.  When he asked for suggestions as to where else he should 
look because he did not want to waste time looking for something that did not exist, she became 
agitated because she thought he was being insubordinate. 
 
 
Regarding  the  mark  of  2  and  comment  for  “Stamina”  in  the  EER,  the  applicant  again 
complained about a lack of specific allegations to which he could respond.  The applicant stated 
that he “never requested compensation time except for work performed on weekends, e.g., taking 
vehicles in for repair” and that he never refused to work late to complete important projects.  The 
applicant argued that there was no correlation between his stamina and his decision not to give 
blood or not to be present when the computers were not functioning.  He alleged that he did not 
often  arrive  late  or  leave  early and pointed out that ENS G cited only two instances in a six-
month  period.    He argued that most supervisors would not make a “big deal” over a member 
leaving  15  minutes  early  when  the  computers  were  down,  and  the  time  he  returned  late  from 
lunch because his computer was undergoing maintenance, he had “left word that [he] would be 
late getting back, which apparently wasn’t passed on to her.” 
 

Regarding the mark of 2 for “Directing Others,” the applicant stated that he must have 
 
inspired confidence in his work on the underkeel records and maintaining vehicles because he 
was not removed from those duties.  He argued that he could inspire confidence in those projects 
that made use of his skill set, such as the underkeel records and the docking spreadsheet he pre-
pared for LCDR M.  In addition, he alleged that he always strove for quality no matter how mun-
dane the assigned task.  As an example, he noted that he had been asked to trim the edges of the 
nautical charts to fit in the drawers, and an “examination of the chart drawers will reveal rows of 
neatly trimmed documents with not a ragged edge to be found.”  Another time, he stated, ENS G 
greatly underestimated the amount of time a project would take and got angry when the arbitrary 
deadline she set was not met.  She had asked him to create a database of certain entries in file 
folders.  Many of the entries were barely legible and many others were written in cryptic script 
that  took  time  to  decipher.    When  the  project  took  more  time  than  ENS G had provided, she 
became “exceedingly wroth.”  The applicant complained about the lack of examples to support 
his  supervisor’s  allegations  that  he  could  not  manage  difficult  situations  and  became  unduly 
stressed in unfamiliar situations.  Finally, he noted that since he was the lowest ranking member 
in his department, he had no opportunity to direct others. 
 
 
Regarding the mark of 2 for “Responsibility,” the applicant complained that when ENS G 
accuses him of offering “‘no support for policies and decisions’, she clearly means her policies 
and decisions.  While I considered some of [ENS G’s] ‘policies and decisions’ to be a tad on the 
‘persnickety’ side, e.g., her insistence that all leave chits be placed in a folder with an attached 
routing slip, I never hesitated to comply with them.”  Moreover, the applicant alleged, he did not 
resist updating her on the status of his work but merely pointed out that updating her at the end of 
each afternoon and the beginning of each morning would result in identical reports since no pro-
gress would be made overnight and so would serve no useful purpose.  The applicant stated that 
in his experience, tasking normally flows from the top down—i.e., the member need not continu-
ally request work.  He argued that “if a member informs his supervisor that he has completed an 
assigned task, and the supervisor is well aware that the member [has not] been given anything 
else  to  work  on,  then  it  shouldn’t  be  ‘rocket  science’  for  the  supervisor  to  conclude  that  the 
member needs further tasking and to provide it; otherwise, the presumption is that the supervisor 
has nothing for the member to work on.” 
 
 
Regarding the mark of 2 for “Setting an Example,” the applicant complained that ENS G 
again failed to provide an example of a time when he could not reach a decision.  He stated that 
her criticism of his request for “explicit instruction” unfairly rebukes him for “wanting to clearly 
understand  the  nature  of  a  given  assignment  in  order  to  properly  execute  it.”    He  argued  that 
supervisors  who  resent  giving  explicit  instructions  are  usually  fearful  that  they  will  be  held 
accountable if something goes wrong when their instructions are followed.  Therefore, they make 
their instructions as vague as possible.  Regarding ENS G’s allegation that he required reassur-
ance of the value of assigned tasks, he argued that a competent supervisor would “take pains to 
encourage their members when assigning tasks that appear to be of a ‘keep-busy’ nature.” 
 
 
Regarding the mark of 2 for “Adaptability,” the applicant stated that ENS G’s allegation 
that he acted stressed and apathetic (in this comment and others throughout the EER) was her 
interpretation of the fact that he felt bored, frustrated, and underutilized because he was assigned 
to the Waterways Division for nearly eighteen months but was never provided with a “clearly 
defined job description as to what [his] responsibilities [were].”  After the underkeel and MISLE 
projects were completed, he was given only short-term “odd jobs,” many of which were “keep-

busy” work, such as trimming chart edges, and did not fill his time.  He alleged that he was not 
given  enough  work  because  he  did  not  have the required background for a waterways assign-
ment, but LCDR M knew that when the applicant first arrived at the division and promised to 
“work things out.”  He alleged that LCDR M only accepted him at Waterways to help get LCDR 
G at the REC “out of a jam” with Headquarters, and that he bore the brunt of their deal.  The 
applicant stated that he informed ENS G of the fact that he had signed the EAD contract to work 
at the REC, not in Waterways, and that she took this news as “gratuitous grousing” rather than 
“an  effort  to  explain  why  [his]  attitude  might  come  across  as  being  ‘stressed  and  apathetic.’”  
However, instead of understanding and empathizing with what had happened, “her response was, 
in effect, ‘You’re here, so shut up and suck it up!’”  This lack of understanding “only served to 
make a difficult situation that much worse.”  The applicant also complained about the lack of 
examples of instances in which his response was “stressed” and alleged that the lack of examples 
contradicts her claim that he was often stressed because, if so, she would have cited examples. 
 

VIEWS OF THE COAST GUARD 

On April 15, 2008, the Judge Advocate General (JAG) of the Coast Guard submitted an 

 
 
advisory opinion recommending that the Board deny the applicant’s request.   
 
 
Regarding the applicant’s allegation that he was not counseled about the May 31, 2004, 
EER until November 22, 2004, the JAG admitted that under Article 10.B.4.a.4. of the Personnel 
Manual, EER counseling should have occurred within twenty-one days of the end of the evalua-
tion period.  However, he argued, the Board has held in another case, BCMR Docket No. 2004-
041, 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 JAG stated that although the Ser-
vice “expects full compliance with its administrative guidelines, failure to meet those guidelines 
does not create an entitlement on the part of Applicant to have otherwise valid EERs expunged.  
To do so would be to exalt form over substance.”  Furthermore, the JAG alleged, although the 
applicant was not counseled about his May 2004 EER marks until November 22, 2004, he was 
clearly aware of his shortcomings prior to that date since he was counseled about them on April 
28, 2004, as shown on the Page 7 signed by the applicant on that date, and on July 2, 2004, when 
he was placed on performance probation.  The JAG also alleged that there is no evidence that the 
delay in counseling prejudiced the applicant’s marks in his November 2004 EER.  The JAG con-
cluded that the applicant has not proved that he was harmed by his command’s violation of the 
deadline in Article 10.B.4.a.4. 
 
 
Regarding the applicant’s allegation that he withdrew his EER appeal to avoid potential 
charges under the UCMJ, the JAG argued that the applicant has admitted that “he made a per-
sonal  choice  not  to  pursue  the  appeals  process  and  has  not  produced  evidence  that  the  Coast 
Guard committed error or caused injustice.” 
 
 
The JAG also adopted the findings and analysis of the case provided in a memorandum 
prepared  by  the  Coast  Guard  Personnel  Command  (CGPC).    CGPC  stated  that  although  the 
applicant’s command failed to counsel him about his EER marks within twenty-one days of May 
31, 2004, the applicant was “not deprived of his right to appeal” the marks in that EER, as he was 
afforded an opportunity to appeal them in November 2004.  Moreover, despite the lack of EER 
counseling, the applicant “should have been keenly aware of his shortcomings prior to receiving 
the EER counseling on November 22, 2004,” because of the Page 7 entered in his record on April 

28, 2004, and because he was placed on performance probation on July 2, 2004.  CGPC argued 
that the applicant has not proved that the May 2004 EER is unjust or that he was unaware that his 
performance was substandard.  CGPC further argued that because the July 2, 2004, memorandum 
mentioned  the  applicant’s  most  recent  marks  and  placed  him  on  performance  probation,  the 
applicant “was presumptively aware of the EER contents or should have requested proper coun-
seling at that time. … Furthermore, the applicant’s statements in his BCMR application do not 
reflect that [he] expressed concern about his EERs until after he was subsequently released from 
EAD and sought out additional ADSW opportunities.” 
 
 
CGPC also argued that the applicant has not proved any error or injustice in his Novem-
ber 2004 EER.  CGPC stated that the marks in this EER show a marked improvement in his per-
formance, although it was still “significantly below standard.”  CGPC stated that although the 
applicant claims that his two 2004 EERs contrast with the outstanding performance reflected in 
other EERs, the applicant was not recommended for advancement in five of his last twelve EERs 
and has received numerous below average marks of 3 in other EERs.  CGPC submitted a chart 
showing the applicant’s marks on his last twelve EERs as follows: 
 

Performance 

Professional Qualities 
3 
2 
4 
4 
5 
6 
4 
4 
4 
3 
5 
5 

4 
3 
4 
5 
4 
5 
5 
4 
5 
4 
4 
5 

4 
3 
4 
6 
6 
6 
4 
4 
5 
4 
4 
5 

4 
4 
4 
4 
4 
4 
4 
4 
4 
4 
4 
5 

Date 

Leadership 

4 
3 
4 
4 
4 
4 
4 
4 
5 
4 
4 
5 

3  3  3  3  4  3  3 
2  3  2  2  4  2  3 
4  5  4  4  4  4  4 
5  5  5  4  4  4  4 
6  5  6  5  4  6  5 
4  5  7  5  4  7  4 
4  3  3  4  4  3  4 
4  4  3  4  4  4  4 
4  4  5  5  4  4  4 
6  6  5  5  4  4  4 
6  6  5  5  4  4  4 
4  6  6  4  4  6  5 

11/30/04  2  3  3  3  3  4  3  4 
5/31/04 
2  3  3  2  3  3  2  4 
11/30/03  4  4  4  4  4  4  4  4 
8/29/02 
4  4  4  5  4  4  4  4 
4  4  4  5  4  5  4  4 
3/31/01 
4  5  4  4  4  4  6  5 
9/30/00 
9/30/99 
4  4  4  5  4  4  4  4 
3  3  3  3  3  3  3  4 
9/30/98 
5/8/98 
4  4  4  4  4  4  4  4 
4  4  4  4  4  4  4  4 
1/24/97 
4  4  4  4  4  4  4  4 
5/31/96 
7/23/95 
4  4  4  5  4  4  5  4 
1 “C” represents the conduct mark, which is either satisfactory (S) or unsatisfactory (U). 
2 “A” represents the advancement recommendation, which is either recommended (R) or not recommended (N). 
 
 
Finally,  CGPC  stated  that  although  the  applicant’s  failure  to  appeal  his  EER  marks 
through his chain of command “does not in itself preclude appeal through the BCMR, a decision 
in favor of the applicant would indicate a clear divesture from the appeal policy as prescribed” in 
the Personnel Manual. 
 

Military  C1  A2 
4 
3  S  N 
3  S  N 
4 
4  S  N 
4 
4 
4  S  R 
5  S  R 
5 
6  S  R 
5 
4 
5  S  R 
3  S  N 
3 
5 
4  S  N 
4  S  R 
4 
4  S  R 
4 
5 
5  S  R 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On April 17, 2008, the Chair sent the applicant a copy of the advisory opinion and invited 
him to respond within thirty days.  The applicant was granted an extension and submitted his 
response on June 5, 2008. 

 

The applicant stated that he disagreed with the Coast Guard.  He argued that both EERs 
he received in 2004 should be expunged because “they transpired in a billet other than the one 
stipulated  by  my  EAD  …  contract.”    He  alleged  that  the  contract  stipulated  that he would be 
assigned to the REC.  However, because LCDR G had filled the billet at the REC with another 
reservist without consulting Headquarters, the applicant was “shunted off” to another first class 
billet  in  the  Waterways  Division  for  which  he  had  no  skills  or  background  knowledge.    In 
support  of  this allegation, the applicant submitted from a civilian employee of CGPC, Mr. H, 
who  stated  that  that  when  the  applicant’s  request  for  EAD  was  approved  in  2003,  CGPC 
expected him to be assigned to the REC.  However, shortly after the applicant began EAD, he 
contacted Mr. H and told him that someone else had filled the billet at REC.  “Consequently,” 
Mr. H stated, the applicant “was assigned to another division which he was not qualified to fill.”  
The reassignment was done without the knowledge or consent of CGPC. 

 
The applicant alleged that when he realized that he was out of his depth during the first 
week in the division, LCDR M convinced him to stay and promised to “work things out” for him, 
but did not do so.  The applicant argued that it was manifestly unfair for LCDR M to convince 
him to stay in a billet for which he had no skill, promise to “work things out” for him, and then 
fail to do so by giving him very low marks in his EERs.  He compared the Coast Guard’s actions 
to assigning a first class yeoman (administrative specialist) to a first class machinery technician’s 
billet and then giving the yeoman low marks because he did not know how to maintain internal 
combustion engines. 

 
Regarding the lateness of his EER counseling, the applicant argued that his case is not 
comparable to that in BCMR Docket No. 2004-041 because the delay in his case was six months, 
whereas in 2004-041, the preparation of the EER was delayed only six weeks.  The applicant 
argued that the six-month delay in his case “unequivocally crossed the line from form to sub-
stance.”  He also asked the Board to question certain Coast Guard personnel on his behalf and to 
enjoin the Coast Guard to answer many questions concerning his case and his superiors.2   

 
The  applicant  further  argued  that  no  provision  of  the  Personnel  Manual  states  that  the 
Page 7 he received on April 28, 2004, is an acceptable substitute for the EER counseling required 
under Article 10.B.4.a.4. of the Personnel Manual.  He stated that the “only thing [he] learned … 
from the CG-3307 was that [he] had very serious personality conflicts” with ENS G.  He also 
argued that the Page 7 is “long on generalities and short on particulars” as it included no specific 
examples  of  his  alleged  shortcomings.    He  argued  that  if  these  alleged  shortcomings  were  so 
egregious, they should have been obvious to his previous and subsequent supervisors. 

 
The  applicant  alleged  that  he  did  raise  the  issue  of  counseling  when  he  received  the 
memorandum from LCDR M on July 2, 2004, but LCDR M “passed the buck” to CDR F.  CDR 
F’s “‘counseling’ consisted of telling me that my problems stemmed from being temperamentally 
unsuited to work in a ‘fast-paced environment’ like USCG Xxxxxxx Xxxxxxx; reiterating his 
refusal to countenance any criticism of [ENS G]; and stating that I should never have been placed 
in the Waterways Division (no disagreement there!).  At no time did [CDR F] make any mention 
of my May 04 marks.” 

                                                 
2 The BCMR staff notified the applicant that he bears the burden of submitting evidence to prove his allegations and 
that  the  Board  does  not  have  authority  to  conduct  investigations  or  to  order  the  Coast  Guard  to  conduct 
investigations.  

 
Regarding the Coast Guard’s argument that the July 2, 2004, memorandum also put him 
on notice of his alleged deficiencies, the applicant stated that the memorandum contains a patent 
falsehood as it indicates that his performance had been unsatisfactory for twelve months, which 
is refuted by his EER dated November 30, 2003.  Because of this patent falsehood, the applicant 
argued, the July 2, 2004, memorandum “should be disregarded.”  He also argued that it should 
not be presumed that he knew his marks were low because of the July 2, 2004, memorandum.  
Instead, because he was not counseled about his EER marks within twenty-one days of May 31, 
2004,  he  could  presume  that  his  marks  were  acceptable,  even  if  his  placement  on  probation 
informed him that his performance was “deficient in some respects.”  The applicant also pointed 
out that nothing in the Personnel Manual states that the counseling he received on July 2, 2004, is 
an  acceptable  substitute  for  EER  counseling.    He  alleged  that  because  he  was  not  counseled 
about his May 2004 marks until November 22, 2004, just eight days before the end of the next 
evaluation  period  on  November  30,  2004,  he  was  at  a  distinct  disadvantage.    In  addition,  he 
alleged that when he received the November 2004 marks, he had no real chance to appeal them 
because he had just received his May 2004 marks and his efforts were of necessity focused on 
appealing the worse set of marks.  He alleged that it is “well-nigh impossible to simultaneously 
process and appeal two different sets of marks.” 

 
In response to the Coast Guard’s claim that his decision not to appeal his marks was a 
“personal  choice,”  rather  than  a  reaction  to  unfair  pressure,  the  applicant  stated  that  he  was 
“understandably outraged” when LCDR M waited until November 2004 to counsel him about his 
May 2004 marks because “any fair-minded person would agree that the proper course of action 
for [LCDR M] would have been to discuss them with me and get my ‘take’ before reaching any 
conclusion  as  to  their  validity.    Instead,  he  simply  ‘rubber  stamped’  everything  that  [ENS  G] 
alleged and sent the marks off to HRSIC without seeking any input whatsoever from me.”  The 
applicant stated that he “‘lost it’ and gave [LCDR M] ‘a piece of my mind’ as to what I thought 
of his so-called ‘leadership.’  In doing so, I clearly contravened the strictures of the UCMJ as 
regards displaying proper behavior towards a superior officer; and I subsequently felt very cha-
grined over my outburst.  Under the circumstances, however, I think that an impartial observer, 
while not condoning my actions, would still understand what engendered them.”  He alleged that 
he was “singled out for ill treatment” because no one else in his unit had to wait six months to be 
told about their EER marks.  He also alleged that the six-month delay in counseling proves that 
LCDR M and CDR F doubted the accuracy of the marks assigned by ENS G; were afraid that the 
marks would not “stand up to an impartial scrutiny”; and were afraid that his appeal of the marks 
would “reveal actions which they would have preferred to keep ‘under the rug.’” 

 
The applicant stated that CDR F did not discuss his behavior toward LCDR M until after 
the  applicant  had  prepared  his  appeal  of  the  marks  and  arranged  to  meet  with  the  Command 
Master Chief.  The day before their meeting, CDR F called him in, told him about the charges 
against him, and offered to drop the charges if the applicant dropped his EER appeal and agreed 
to early termination of his EAD contract.  The applicant alleged that CDR F offered him this deal 
because CDR F did not want the Captain to know that LCDR M had accepted a PS1 with no 
appropriate  skills  or  experience  to  fill  a  billet  in  the  Waterways  Division;  that  LCDR  M  had 
given the applicant a memorandum with a false statement about his performance; and that LCDR 
M had failed to counsel him about his marks for six months.  The applicant alleged that these 
revelations would have embarrassed CDR F in front of the Captain since they occurred on CDR 
F’s  “watch.”    Therefore,  CDR  F  made  the  applicant  “an  offer  [he]  couldn’t  refuse”  because 

LCDR  M’s  infractions  under  CDR  F’s  watch  could  have  “put  the  kibosh”  on  CDR  F’s  own 
chance of promotion.  The applicant pointed out that neither the JAG nor CGPC denied the fact 
that  CDR  F  had  threatened  him  with  UCMJ  charges  to  get  him  to  drop  his  EER  appeal  and 
terminate his EAD contract early.  He stated that his decision to drop the appeal and end the con-
tract was not a “personal choice” but a matter of “‘knuckling under’ to intimidation,” which the 
JAG and CGPC ignored and the applicant regrets. 

 
Regarding the marks in his November 30, 2004, EER, the applicant alleged that after he 
was placed on performance probation on July 2, 2004, he was assigned primarily menial tasks 
and little work.  In retrospect, he believes that his chain of command was trying to get him to 
“pack it in” before the end of the new evaluation period.  Since he had not been counseled about 
his May 2004 marks, he asked how he could fairly “have been expected to deal with the issues 
relative to my performance if [he] was never explicitly or specifically—as distinct from crypti-
cally and ambiguously—apprised of them in a timely manner, i.e., without the prescribed 21-day 
period.”    Moreover,  he  alleged  that  he was harmed by the delay of his counseling because, if 
there had been no delay, he would not have lost his temper with LCDR M and so could not have 
been threatened with charges under the UCMJ.  Absent this threat, he would have been able to 
appeal his EER marks.  The applicant further alleged that after he “lost it” with LCDR M, CDR F 
realized that he was “getting close to the ‘breaking point’” and so applied more pressure until the 
applicant finally agreed to leave under duress.  He could not appeal the marks in the November 
2004  EER  because  he  needed  to  concentrate  on  appealing  the  worse  marks  in  his  May  EER, 
which  he  had  received  almost simultaneously.  Moreover, the applicant alleged, he was never 
counseled about his low marks in the November 2004 EER. 

 
Regarding his past performance record, the applicant noted that he received three of the 
five  EERs  on  which  he  was not recommended for advancement while he was assigned to the 
Waterways Division in a billet he did not seek and for which everyone knew he was not quali-
fied.  The applicant alleged that, having been arbitrarily placed in the wrong billet, he could not 
possibly have received a recommendation for advancement in any of his EERs. 

APPLICABLE REGULATIONS 

 
Article 10.B.1.b. of the Personnel Manual in effect in 2004 states that “[e]ach command-
ing officer/officer in charge must ensure all enlisted members under their command receive accu-
rate, fair, objective, and timely employee reviews. To this end, the Service has made enlisted per-
formance criteria as objective as possible, within the scope of jobs and tasks enlisted personnel 
perform.”   

 
Article  10.B.5.a.1.  states  that  members  in  pay  grade  E-6  (first  class  petty  officers)  on 
active duty receive regular, semiannual EERs at the end of each May and November.  Article 
10.B.5.a.3. states that “[r]egular employee reviews may not be delayed.  The unit rating chain is 
responsible  for  ensuring  complete  reviews  are  acknowledged  by  the  evaluee  and  completed 
within CGHRMS not later than 30 days after the employee review period ending date.” 

 
Article 10.B.2.b.8. states the following regarding performance feedback during an evalua-

 

 

tion period: 

No specific form or forum is prescribed for performance feedback. Performance feedback - formal 
or informal - actually occurs whenever an evaluee receives any advice or observation from a rating 
official on their performance or any other matter on which they may be evaluated. Performance 
feedback can occur during a counseling session, particularly during a mid-period session, through 
on-the-spot comments about performance, or at the end of the employee review period. Each eval-
uee  must  be  continuously alert for the “signals” received in one of these ways from the rating 
chain. If the signals are not clear, the evaluee must ask the rating chain for clarification. 
 
Article  10.B.4.b.  states that an enlisted member is “ultimately responsible for” the fol-

lowing: 
 
1. Learning the EERS intent and procedures as set forth in these prescribed guidelines. 
2. Finding out what is expected on the job. 
3. Obtaining sufficient feedback or counseling and using that information in adjusting, as neces-
sary, to meet or exceed the standards. 
4. If desired, providing a list of significant accomplishments. 
5.  Signing  in  the  member's  signature  block  of  the  counseling  sheet  and  retaining  this  form  as  a 
receipt to indicate acknowledgment of: 

a. The counseling and review of their employee review; 
b. The impact of their employee review on their Good Conduct eligibility; 
c. The appeal time frame; 
d. His or her advancement potential and recommendation. 

6. Verifying through CGHRMS self service that their individual employee review has been prop-
erly recorded. 
Note: Members that have an approved employee review will be notified on their Leave and Earn-
ings Statement (LES). It is their responsibility to verify their employee review and report any dis-
crepancy thru their chain of command. 
 
Article 10.B.4.c.3. states that the Supervisor in a rating chain must “clearly communicate 
goals and acceptable standards of performance to the evaluee before and throughout the marking 
period”; provide a means by which the evaluee may provide input on his performance; complete 
the  EER  with  recommended  marks  and  any  required  supporting  comments;  forward  the  com-
pleted EER and supporting comments to the Marking Official no later than nine days before the 
end of the evaluation period; and counsel the member about the EER after the Approving Official 
has approved the EER.  Article 10.B.4.c.3.f. notes that  

 
[t]he importance of how effective [EER counseling] can be in setting the evaluee up for future suc-
cess cannot be over emphasized. How well the supervisor clearly communicates the member’s past 
performance and methods in which to improve are primary to ensuring future success. The Super-
visor is required to ensure the evaluee is provided with a printed counseling sheet and acknowl-
edges receipt by obtaining their signature Article 10.B.4.a.4. 

Article  10.B.4.c.4  states  that  the  Marking  Official  in  a  rating  chain  reviews  the  marks 
recommended by the Supervisor; “[d]iscusses with the Supervisor any recommendations consid-
ered inaccurate or inconsistent with the member’s actual performance, paying special attention to 
recommended 1s, 2s, 7s, unsatisfactory conduct marks, or low competency marks”; assigns the 
marks; and forwards the EER to the Approving Official no later than five days after the end of 
the evaluation period. 

 
Article 10.B.4.c.5.c. states that the Approving Official in a rating chain is responsible for 
ensuring that the assigned marks are consistent with the evaluee’s performance; that the evaluee 
is counseled and advised of the appeal procedure; and that the required supporting comments are 
completed.    The  Approving  Official  also  reviews  the  EER  and  “discusses  with  [the  Marking 

 

Official]  any  recommendations  considered  inaccurate  or  inconsistent  with  the  evaluee’s actual 
performance, paying special attention to recommended marks of 1, 2, or 7; unsatisfactory con-
duct marks; low competency marks, or a ‘Not Recommended’ mark in the Recommendation for 
Advancement competency.”  Article 10.B.4.c.5.f. states that the Approving Official “[f]orwards 
the  completed  employee  review  to  the  Supervisor  to  counsel  and  inform  the  evaluee.”    The 
Approving official also ensures that the EER is processed in time for the member to be able to 
review  it  in  the  CGHRMS  database  no  later  than  thirty  days  after  the  end  of  the  evaluation 
period.  (Article 10.B.4.c.5.g.) 

 
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.”  Commands are not required to retain a copy of the counseling sheet.  Arti-
cle 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  statement  prior  to  transmitting  the  completed  EER  to 
HRSIC.  The unit provides the evaluee the original counseling sheet.”   

 
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 poten-
tial  of  all  enlisted  personnel,  E-6  and  above,  and  for  any  recommended  marks  of  1,  2,  or  7, 
unsatisfactory conduct mark, or loss of recommendation for advancement.”  Article 10.B.6.b.1. 
states the following regarding supporting remarks on an EER: 

 
The employee review is designed to inform members how they are performing compared to the 
written standards. The form requires few or no supporting remarks and should cover explicitly all 
performance factors for each evaluee. The rater may use the employee review as a tool in counsel-
ing the evaluee. 

a.  Raters  must  provide  supporting  remarks  for  certain  marks  Article  10.B.2.  These 
remarks serve as supplemental information on the evaluee in determining decisions such as OIC 
certification, removal for cause, regular duty assignments, or special duty assignments as a recruit-
er, instructor, investigator, or CMC. 

b. Specific comments that paint a succinct picture of the evaluee's performance and quali-
ties allow the reader to determine WHAT or HOW they exceeded or failed to meet the standards 
and may reduce or even eliminate subjectivity and interpretation. 
 
Article 10.B.7.2. states that a member should be marked as recommended for advance-
ment on an EER when “[t]he member is fully capable of satisfactorily performing 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.”  Article 10.B.7.2.b. provides that a 
member should be marked as not recommended for advancement when he “is not capable of sat-
isfactorily performing the duties and responsibilities of the next higher pay grade.”   

 
Article  10.B.7.4.  states  that  a  mark  of  not  recommended  for  advancement  cannot  be 
appealed.  However, Article 10.B.9. provides procedures for appealing the numerical perform-
ance marks on an EER.  Article 10.B.9.a.2. states that the “appeals process is designed to review 
marks the evaluee believes were based on:  a. incorrect information; b. prejudice; c. discrimina-
tion;  or  d.  disproportionately  low  marks  for the particular circumstances.”  Article 10.B.9.b.1. 
states that before submitting a written appeal, a member should request an audience with the rat-

ing chain, including the Approving Official, to see if the objection to the EER may be resolved.  
A written appeal must be submitted within fifteen days of the date the member signs the com-
pleted EER. 
 
Article 12.B.9. authorizes commands to process for discharge members whose perform-
 
ance has been unsatisfactory for at least six months, though a period of twelve months is pre-
ferred.  Article 12.B.9.c. states that unsatisfactory performers may be identified through their per-
formance evaluations.  Article 12.B.9.d. states that before initiating such a discharge, the member 
may be placed on performance probation for so that he has a chance to improve his performance.  
The member must be notified of the probationary period by memorandum as follows: 
 

1. This is to inform you that for the previous (number) months, your performance has been unsatis-
factory compared to your peers in your pay grade. You are considered to be on performance pro-
bation. You must take stock of your actions that have caused this situation to develop and take cor-
rective action. Your performance must improve over the next six months, or you will be considered 
for discharge. 
2.  The  reasons  for  being  placed  on  performance  probation  are:  (state  specific  facts,  incidents, 
unheeded  corrective  performance  guidance,  and  any  other  documentation  which  supports  the 
unsatisfactory performance evaluation(s)). 

 
Under 12.B.9.e., if the member’s performance does not improve substantially during the 
 
probation,  the  command  may  initiate  an  involuntary  administrative  discharge,  in  which  case 
member receives a DD 214 showing “unsatisfactory performance” as the reason for separation 
and a reenlistment code of RE-4 (ineligible) or RE-3Y (waiver required to reenlist due to unsatis-
factory performance). 
 

FINDINGS AND CONCLUSIONS 

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

 
 
military record and submissions, the Coast Guard's submission, and applicable law: 
 

1. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  
The application was received less than three years after the applicant’s release from active duty 
and so was timely filed.3   

 
2. 

3. 

 The  applicant  requested  an  oral  hearing  before  the  Board.    The  Chair,  acting 
pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case with-
out a hearing.  The Board concurs in that recommendation. 
 
 
The applicant has asked the Board to expunge two EERs from his record.  Under 
Article 10.B.1.b. of the Personnel Manual, “[e]ach commanding officer/officer in charge must 
ensure  all  enlisted  members  under  their  command  receive  accurate,  fair, objective, and timely 
employee reviews.”  Under its rules, the Board begins its analysis of every case by presuming 
that a disputed EER is correct as it appears in the record, and the applicant bears the burden of 
submitting sufficient evidence to prove by a preponderance of the evidence that the EER is erro-
neous or unjust.4  Absent evidence to the contrary, the Board presumes that the applicant’s rating 
                                                 
3 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that section 205 of the Soldiers’ and Sailors’ Civil 
Relief Act of 1940 “tolls the BCMR’s limitations period during a servicemember’s period of active duty”). 
4 33 C.F.R. § 52.24(b). 

4. 

6. 

5. 

chain prepared the EERs “correctly, lawfully, and in good faith.”5  To establish error in an EER, 
an  applicant  must  prove  that  the  EER  was  adversely  affected  by  a  significant  factual  error,  a 
prejudicial violation of a statute or regulation, or some factor that “had no business being in the 
rating process.” 6  
 
 
The Coast Guard argued that the Board should deny relief because the applicant 
failed  to  appeal  his  EER  marks.    CGPC  argued  that  a  grant  of  relief  “would  indicate  a  clear 
divesture from the appeal policy” prescribed in the Personnel Manual.  Under Article 10.B.9. of 
the Personnel Manual, a member may appeal his EER marks within fifteen days of signing of his 
EER.    Because  the  fifteen-day  period  for  appealing  an  EER  has  long  passed,  the  applicant’s 
opportunity  to  appeal  the  disputed  marks  is  no  longer  available.    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.  This policy is consistent with its rule at 33 C.F.R. § 52.13(b) 
and with congressional intent.7  The only limitation Congress placed on filing an application with 
the BCMR is the three-year statute of limitations under 10 U.S.C. § 1552(b), and it even allowed 
that to be waived in the interest of justice.  A blanket denial of applications in the absence of an 
appeal within fifteen days under Article 10.B.9., as suggested by CGPC, would be a violation of 
the Board’s responsibility under 10 U.S.C. § 1552.   
 
 
The  Board  sometimes  considers  an  applicant’s  failure  to  appeal  a  performance 
evaluation as evidence of his opinion of the fairness of the evaluation when he received it.  In this 
case, however, the disputed marks are so poor and the applicant’s anger about them is so palpa-
ble that the Board does not believe that his failure to appeal them constitutes evidence that he 
believed they were fair when he received them.  
 
 
The applicant alleged that he originally sought a billet at the REC, in which he 
knew he could do well because of his administrative background.  He alleged that he signed the 
EAD contract believing that he would be assigned to that billet but instead was unfairly assigned 
to a billet in the Waterways Division for which he was not qualified and in which he could not 
possibly perform well because of the expertise required.  Although he alleged that the REC billet 
was specified in his EAD contract, the contract itself does not actually state what billet he was 
supposed to fill.  However, entries in the Coast Guard’s database and Mr. H’s statement strongly 
support the applicant’s allegation that he was supposed to work at the REC as a license evaluator.  
His EER comments show that he was placed in the Waterways Division instead.  However, the 
applicant’s reassignment to a different billet than the one he sought was presumably based on the 
needs of the Service8—specifically, Xxxxxxx Xxxxxxx—and would not constitute an injustice 
against him unless (a) the billet was one in which he could not possibly succeed; or (b) his rating 
                                                 
5 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
6 Germano v. United States, 26 Cl. Ct. 1446, 1460 (1992) (holding that a performance evaluation should only be 
removed if adversely affected by (a) a “misstatement of significant hard fact,” (b) a “clear and prejudicial violation 
of a statute or regulation,” or (c) factors that “had no business being in the rating process”); see also Hary v. United 
States, 618 F.2d 704, 708 Cl. 1980); CGBCMR Dkt. No. 86-96. 
7 See McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (holding that “[o]f ‘paramount importance’ to any exhaustion 
inquiry is congressional intent”) (citing Patsy v. Board of Regents of Florida, 457 U.S. 496, 501 (1982)). 
8 The Board notes that the applicant alleged that his reassignment was the result of an improper deal between LCDR 
G at the REC and LCDR M in the Waterways Division.  He did not submit any evidence to prove this allegation, but 
even if he did prove this allegation, the reason for the applicant’s reassignment would not, in and of itself, affect the 
validity of his EERs. 

7. 

chain unreasonably failed to modify his assigned duties or its expectations of his performance if 
the billet actually required expertise that he did not have and could not acquire on the job. 
 
 
The applicant alleged that the billet to which he was assigned in the Waterways 
Division required expertise that he did not have and could not learn on the job.  He likened his 
situation to a yeoman being required to repair an engine.  Mr. H of CGPC stated that the appli-
cant was not qualified for the billet in the Waterways Division.  The record does not contain, 
however, the designation of this billet.  Whether the billet in the Waterways Division was origi-
nally designated a PS1 billet, a BM1 billet, a generic “general petty officer” billet, or something 
else is not apparent in the record.  Although Mr. H stated that he remembers that the applicant 
was  not  qualified  for  the  billet,  the  Board  cannot  conclude  that  it  was  impossible  for  him  to 
succeed  given  the  work  he  was  assigned.    The  EER  comments  show  that  his  rating  chain 
expected him to gain some knowledge of waterways work during his assignment and to become 
somewhat proficient at the work, but that he showed no interest in doing so.  Absent evidence to 
the contrary, his rating chain’s expectations that he would learn “on the job” and their assessment 
of his attitude and efforts to do so are presumptively correct.9 
 

The applicant alleged that when he began to work in the Waterways Division in 
June 2003, LCDR M acknowledged that the applicant did not have the proper expertise for the 
billet but promised to “work things out” for him—presumably by assigning him only work that 
comported with his skills or by lowering their expectations of his performance in the billet.  The 
applicant has not proved this allegation, but assuming arguendo that the billet was not a PS1 bil-
let  or  a  general  petty  officer  billet  and  that  it  required  specialized  training  unavailable  to  the 
applicant, some such accommodation would have been necessary and fair.   

8. 

 
9. 

The  applicant  alleged  that  his  EERs  prove  that  his  supervisor  during  the  first 
evaluation period, LT P, fairly accommodated or accounted for his lack of appropriate expertise, 
as shown by the many “average” marks of 4 on his November 2003 EER, but that ENS G, who 
supervised  his  work  in  2004,  refused  to  take  his  lack  of  appropriate  skills  into  account  and 
unfairly assigned him poor marks for being unable to perform work he did not have the expertise 
to do.  However, the applicant submitted no evidence to support his allegation that ENS G’s task-
ing and expectations were unreasonable given his prior background and several months of work 
in the Waterways Division.  For example, he alleged that she unreasonably expected him to be 
able to read a nautical chart and a tide table, but he did not prove that her expectation was unrea-
sonable  since  he  had  been  assigned  to  the  division  for  several  months.    As  stated  above,  the 
Board’s rules accord ENS G a presumption of regularity—a presumption that she acted correctly, 
lawfully, and in good faith in supervising and evaluating the applicant—and the applicant has 
submitted  no  evidence,  such  as  corroborative  statements  from  colleagues  in  the  division  who 
were aware of his work; from LT P, his first supervisor; or from his predecessor or successor in 
the  billet,  to  support  his  contention  that  her  expectations,  tasking,  and  evaluation  were  unrea-
sonable and unfair given his PS1 skills and prior months working in the Waterways Division. 
 

The Board notes that many of the criticisms in the EER marks concern an alleged 
“apathetic attitude” toward gaining proficiency in waterways work on the part of the applicant.  
He  denied  having  this  attitude  when  working  for  ENS  G  but  failed  to  submit  statements 
corroborating his allegation.  Indeed, all of the applicant’s allegations of error with respect to the 
                                                 
9 33 C.F.R. § 52.24(b). 

10. 

11. 

numerical marks in the May 2004 EER and supporting remarks suffer from a lack of corrobora-
tive evidence.  Moreover, the record indicates that the applicant was formally counseled about 
unsatisfactory performance on April 28, 2004, and he admits that he knew his supervisor was 
quite dissatisfied with his work.  He further admitted that he was not too concerned about her 
opinion of his performance because he would not be eligible for advancement regardless of how 
she  marked  him  and  he  did  not  realize  that  poor  marks  might  affect  his  eligibility  for  future 
ADSW and EAD.  In light of his admissions and the Page 7 dated April 28, 2004, there is no 
basis in the record for finding that the EER marks were an unfair surprise. 
 
 
The applicant argued that his 2004 EERs should be expunged because he was not 
presented the May 2004 EER counseling sheet for signature until November 22, 2004, contrary 
to the requirements of Article 10.B.5.a.3. the Personnel Manual.  The Board has held in another 
case, BCMR Docket No. 2004-041, 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.”  Under 
Article 10.B.4.c.5.f. of the Personnel Manual, by the time a member is counseled on his EER 
marks,  the  evaluation  period  has  ended  and  the  marks  have  already  been  approved  by  the 
Approving Official.  Once an evaluation period has ended, the only way a member can affect his 
EER marks is by appealing them under Article 10.B.9.  Therefore, the extremely late date of the 
applicant’s May 2004 EER counseling could not possibly have affected the marks in the May 
2004 EER itself.  The applicant did not exercise his right to appeal the marks in November 2004. 
 

Although the applicant alleged that the lateness of his EER counseling proves that 
LCDR M knew that the marks were erroneous and unfair, the Board is not persuaded that the 
lack of timely EER counseling was not simply a matter of administrative oversight since LCDR 
M did counsel the applicant about his placement on performance probation based in part on the 
poor EER marks on July 2, 2004.  In addition, the Board notes that under Article 10.B.4.c.3. of 
the Personnel Manual, it was ENS G’s responsibility to show the applicant his EER marks and 
comments and to have him sign them in June 2004.  Apparently, she prepared the EER and the 
memorandum to place him on performance probation but did not have him sign the EER.  The 
Board is not persuaded that her failure in this regard proves that she knew the marks to be erro-
neous or unfair. 
 
 
The applicant signed the May 2004 EER supporting comments page to acknowl-
edge counseling on November 22, 2004, just eight days before the end of the evaluation period 
on November 30, 2004.  Article 10.B.4.c.3.f. of the Personnel Manual states that “[t]he impor-
tance of how effective [EER counseling] can be in setting the evaluee up for future success can-
not be over emphasized.  How well the supervisor clearly communicates the member’s past per-
formance and methods in which to improve are primary to ensuring future success.”  Therefore, 
the lack of a timely signed counseling page for the May 2004 EER is significant evidence that the 
applicant might not have been given the information he needed to improve his performance in 
time to earn a good EER on November 30, 2004—specifically, knowledge of his deficiencies (as 
perceived by the rating chain) and of what he should do to improve.  As the Coast Guard pointed 
out, however, the applicant was formally counseled about his deficiencies verbally and in writing 
on April 28, 2004, and July 2, 2004.  The July 2, 2004, memorandum cited verbal counseling 
sessions as well as the April 28th Page 7 and the May 2004 EER marks.  Although the applicant 
argued that he had no way of knowing that an EER had been prepared, as a PS1 with more than 
thirty years of experience and more than twenty years as an E-6, he was presumably expecting to 
receive regular EER marks for the period ending May 30, 2004.  Moreover, if he did not expect 

12. 

13. 

them,  the  July  2,  2004,  memorandum  put  him  on  notice  that  they  had  been  prepared.    As 
administrative oversights sometimes occur, Article 10.B.4.b.6. of the Personnel Manual advises 
members to verify through CGHRMS that EERs have been entered in their records.  In light of 
the above, the Board finds that the applicant has not proved by a preponderance of the evidence 
that  the  extreme  lateness  of  his  official  marks  counseling  for  his  May  2004  EER  denied  him 
timely knowledge of his performance deficiencies (as perceived by his rating chain) or of what he 
needed  to  do  to  improve  his  performance  so  that  his  November  2004  marks  could  be  better.  
Therefore, he has not proved that his November 2004 EER marks were adversely affected by this 
rating chain’s violation of the 21-day rule under Article 10.B.4.a.4. of the Personnel Manual with 
regard to his May 2004 marks.  
 
The  applicant  alleged  that  the  2004  marks  should be expunged because he was 
 
coerced  into  not  appealing  them.    He  alleged  that  he  was  threatened  with  charges  under  the 
UCMJ and advised that no charges would be laid if he dropped his EER appeals and requested 
early termination of his EAD contract.  There is no evidence in the record to support these allega-
tions except for the fact that the applicant’s contract was in fact terminated early.  However, even 
assuming arguendo that such a bargain was struck between CDR F and the applicant, the forgone 
opportunity to appeal the EER marks would not justify their expungement unless the applicant 
also proved that his appeals would likely have succeeded.  The applicant alleged that his EER 
appeals would have succeeded because they would have exposed alleged wrongdoing by mem-
bers of his rating chain or their friends, but the Board is not persuaded the appeal authority would 
have found the EERs to be erroneous or unjust simply because the applicant was assigned to the 
Waterways Division, for which he had little experience or skills, instead of the REC. 
 
 
The applicant has made numerous allegations of improper actions, attitudes, and 
motivations on the part of various officers involved in his assignment to the Waterways Division, 
EER preparation, and contract termination.  Those allegations not specifically addressed above 
are considered to be not dispositive of the case. 
 
 
The applicant has submitted insufficient evidence to support his allegations that 
his 2004 EER marks are erroneous or unjust.  He has not overcome the presumption of regularity 
or proved by a preponderance of the evidence that the EERs were adversely affected by a signi-
ficant  factual  error,  a  prejudicial  violation  of  a  statute or regulation, or some improper factor, 
such as illegal discrimination.  In light of the absence of significant corroborative evidence, such 
as statements from other members who might have witnessed his attitude, efforts, and perform-
ance in the Waterways Division, it appears that the applicant failed to understand that he must 
support his claims with corroborative evidence.  It is possible, for example, that the applicant 
could produce evidence that the waterways billet required so much expertise that he could not be 
expected to learn the work and succeed there and that ENS G nevertheless regularly assigned him 
tasks that required him to demonstrate expertise that he could not have been expected to have or 
to learn during his first several months on the job. 
 
 
Accordingly, the Board finds that the applicant’s request should be denied but that 
if within 180 days of the date of this decision he submits evidence or information that, in the 
Chair’s estimation, could result in a different outcome of this case, the Chair will docket the case 
for further consideration. 
 
 

15. 

16. 

14. 

17. 

 

ORDER 

 
 
The application of PS1 xxxxxxxxxxxxxxxxxxxxxxxxxxx, USCGR, for correction of his 
military record is denied. However, if within 180 days of the date of this decision he submits 
evidence or information that, in the Chair’s estimation, could result in a different outcome of this 
case, the Chair shall docket the case for further consideration. 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 George J. Jordan 

 

 

 
 Patrick B. Kernan 

 

 

 
 Vicki J. Ray