DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2008-076 
 
xxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxx   

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 February 22, 2008, 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 November 25, 2008, is approved and signed by the three duly 

 

 

 

APPLICANT’S REQUEST AND ALLEGATIONS  

 

The applicant, a chief storekeeper (SKC; pay grade E-7) in the Coast Guard, asked the 
Board to expunge an Enlisted Employee Review (EER) he received for the period ending Sep-
tember 30, 2005, when he was the head of the Xxxxx xxxxx Department in the Xxxxxx Branch 
of the Xxxxxxx Division at the xxxxxxxxxxxxxxxx.  He alleged that the EER was erroneous and 
unjust and has prevented his advancement to senior chief (SKCS; pay grade E-8) and appoint-
ment to chief warrant officer (CWO).  He asked that his removal from the 2005 SKCS advance-
ment list and failure to advance to SKCS or to be appointed to CWO since 2005 be reassessed by 
the Board. 

 
The applicant stated that the disputed EER should be removed because (a) the perform-
ance marks are inaccurate and inconsistent with his actual performance; (b) his Supervisor at the 
time, CWO X, had a conflict of interest in evaluating his performance because her husband was 
also an SKC competing for advancement and had an adversarial relationship with the applicant; 
and (c) proper EER procedures were not followed.  The applicant stated that he has been con-
cerned about the disputed EER since 2005 but got no support and felt he could not challenge the 
EER until his Supervisor was transferred.  In addition, a new Command Master Chief arrived, 
and his new Supervisor is supporting him in his application. 

 
Regarding the alleged inaccuracy of the marks in the disputed EER, the applicant stated 
that he was unfairly evaluated by his Supervisor in 2004 and 2005.  He submitted copies of his 
prior and subsequent EERs to show that his marks were higher in these other evaluations.  The 
applicant stated that during his first year in the Xxxxxx Branch under CWO X, he supervised the 
Xxxxx’s  xxxxxxxxxxxxxx.    However,  in  November  2004,  he  was  transferred  to  the  Xxxxx 

xxxxx  Department  because,  he  was  told,  that  department  needed  more  supervision.    After 
receiving his first EER from this CWO X in September 2004, he “put forth improved effort in 
my work and sought out opportunities for growth to address comments” by his Supervisor about 
his  lack  of  foresight,  organization,  and  technical  proficiency  in  his  2004  EER.    Despite  his 
improvements, she gave him a worse EER in September 2005 and did not recommend him for 
advancement.  Therefore, he was removed from the SKCS advancement list and was not allowed 
to compete for advancement by taking the servicewide examination (SWE) in May 2006. 

 
The applicant stated  that during the evaluation period for the September 2005 EER, in 
addition to performing his primary duty of managing the daily operations of his department, he 
assumed  responsibility  for  the  following  collateral  duties,  which  required  foresight,  organiza-
tional  skills,  and  technical  proficiency:    Leadership  Development  Program  Coordinator,  DHL 
Coordinator, and Building Manager of xxxxxxxx.  The applicant also argued that the marks and 
comments by his Supervisor are belied by grades he received for classes he was taking that year 
in  pursuit  of  a  bachelor’s  degree  in  business.    He  stated  that  he  received  an  A-  in  “Critical 
Thinking”; an A- in “Critical Thinking Strategies and Decision Making”; a B+ in “Employment 
Law”; and a C+ in “Research and Evaluation I.”  The applicant stated that he also successfully 
completed a class called “Introduction to Outlook Express”; Leadership Development Program 
Coordinator training; and training to assist with the transition to DHL.  Moreover, he began the 
evaluation period by graduating from the Chief Petty Officer Academy, which he attended from 
September 18 to October 20, 2004.  

 
The applicant also submitted a copy of the many documents he submitted to his Supervi-
sor to prove the quality of his work prior to the September 2005 EER and argued that these docu-
ments prove that he should have received higher marks and that her evaluation was not accurate 
or fair.  These documents included many thank you notes for both volunteer and Coast Guard 
projects he accomplished; many work orders showing that repairs were completed in xxxxxxxx, 
where  he  was  the  building  manager;  documentation  of  academic  classes  and  training;  and  his 
own descriptions of his work accomplished under each performance category on the EER. 

 
Regarding the alleged conflict of interest, the applicant stated that his Supervisor’s hus-
band, SKC X, was also assigned to the Xxxxxxx’s office, which had only 23 members, although 
the entire unit (Xxxxx) has more than 60 members.  He drew the chain of command as follows: 

 

 
 
 
 
 
 
 
 

XXXXXXX: CDR X 

        

 
 
|                                                | 

| 

 

CWO X 

Xxxxxx Branch 

| 

SKC Applicant 

Xxxxx xxxxx Dept. 

CWO Z 

Xxxxx Branch 

| 

SKC X (husband of CWO X) 

Xxxxx Department 

 
 
 
 
 
 
 
 

 
The applicant alleged that this arrangement violated Article 8.H. of the Personnel Manual 
because it raised a perception of unfairness and because his Supervisor’s husband was in a posi-
tion to influence her “personnel or disciplinary actions, assignments, benefits or privileges.”  The 
applicant  was  the  same  rate  and  rank  (SKC)  as  his  Supervisor’s  husband,  who  worked  in  the 
Xxxxx Branch, and they were both competing for appointment to CWO in September 2005.  The 

 
•  Applicant to SKC X at 2:19 p.m., on January 11, 2005:  “Thanks for letting us know 
that the cleaner for the GM’s was cancelled and you had to re-order it yesterday.  Just 
kidding, can you let us know in the future when something like this happens, this way 
we’re not racking our brains trying  to find a shipment that we never signed for.” 

 
•  Reply from SKC X to applicant at 7:34 a.m., on January 14, 2005:  “I haven’t had 
time  to  address  this  email  until  now,  been  out  of  the  office  Tuesday  &  Thursday.  
Playing catch up on Wednesday.  I know we spoke about this, but I would like to put 
it  in  ink  so  that  we  have  no  misunderstandings.    When  I  called  you  on  Monday,  I 
believe I told you that the GM’s were not getting what they expected which was a 55 
gallon drum.  I stated that 2 boxes were sent and were signed for by [PO R] on the 
20th of December.  I also faxed you a copy of the shipping document which we had 
received.  For you to insinuate that we had your people on a wild goose chase bothers 
me, not kidding.  It concerns me on how eager you seemed to be in putting the ball 
back in xxxxxxx court.  Calling and talking to the xxxxx of Xxxxx, making a visit to 
the  GM’s  and  talking  highly  of  me.    This  was  leg  work  that  [PO  J]  had  already 
accomplished.  We all now know that the reason the 55 gallon drum wasn’t sent was 
that the unit of issue was ordered as EA instead of DR.  That’s what was on the GM’s 
surf requisition sheet and I believe in FEDLOG at the time.  The conversion from FLS 
to CMPlus has been a good thing for the Xxxxx, it’s just the little bugs that need to be 
worked out.  For instance with this order, the status for that Document # was proc-
essed  for  “Direct  Delivery”.    I  believe  the  system  failed  with  this  particular  order, 
never heard of a xxx cancelling an order, but still send something in its place under 
that Document #.  As a supervisor, I believe it’s my job to care for my people, but it’s 
not my job to carry them.  Holding people accountable for their actions seems to work 
a lot better than trying to point the finger at someone else.  Things get lost or mis-
placed all the time, just like a PR in xxxxx.  [PO J] has learned a valuable lesson on 
how important it is to keep up with MILSTRIP orders.  For what ever reason [appli-
cant’s name], I feel that you are always working against me instead of with me.  I’m 
still miffed at the idea of you emailing me and writing that the shipment was “never 
signed for.”  The only issue from the beginning was “where’s the box(s).” 

applicant alleged that he had an increasingly adversarial relationship with his Supervisor’s hus-
band, which made the Supervisor not impartial.  In support of this allegation, the applicant sub-
mitted a copy of the following email exchange between him and his Supervisor’s husband: 

  
•  Reply from applicant to SKC X at 8:24 a.m., on January 14, 2005:  “I can’t under-
stand why you think I’m always trying to work against you.  We are both Chiefs, SK 
Chiefs to boot.  Every time I send you an email regarding something, you think I’m 
out to get you.  That is not the case, and I’m sorry that you feel that way.  I feel like I 
have to walk on eggshells every time I say something to you.  The fax that you sent 
me said that [SNSK R] signed for 2 packages.  He actually signed for 11 packages 
that day and all were accounted for, that’s why I called the xxx.  I wanted to know 
what items were sent under that document number.  Nobody was trying to put blame 
on anyone.  If an item is signed for by anyone in xxx and we cannot locate it, it is our 
responsibility to try and find it.  If someone is looking for status on an item, that’s 
xxxxx  responsibility.    In  this  case  we  were  told  that  we  signed  for  an  item  that 
belonged to the GM’s that we didn’t have, so we went through the process of trying to 

locate  it.  Life is too short to worry about piddly shit like this [SKC X].  Again, I 
wasn’t trying to put blame on anyone just trying to locate something for the GM’s. 

 
•  Reply  from  SKC  X  to  applicant  at  9:05  a.m.,  on  January  14,  2005:    “You’re  right 
[applicant], piddly shit that didn’t deserve the first email to begin with.  As for egg-
shells, BS.” 

 
Regarding the EER procedure, the applicant stated that he was counseled about the dis-
puted EER on November 18, 2005, which was 48 days after the end of the evaluation period on 
September 30, 2005.  The applicant further stated that during the evaluation period there “was no 
communication between myself and my supervisor … regarding any concerns about my perform-
ance, my advancement potential, goals or acceptable standards of performance.  This led me to 
believe that I was on the correct path and not in jeopardy of receiving marks that would affect my 
chance of promotion for approximately 5 years.”  The applicant also argued that since he was 
recommended for promotion on his 2004 EER and his performance improved during the subse-
quent evaluation period, it was unfair for the Supervisor not to recommend him for promotion on 
the 2005 EER. 
 
 
In support of his allegations, the applicant submitted a statement from CWO Y, who has 
more  than  29  years  of  experience  in  the  Coast  Guard  and  has  been  the applicant’s supervisor 
since July 2006.  CWO Y stated that the applicant “has done an exceptional job in the perform-
ance of his duties as the Supervisor of Xxxxx xxxxx (XXX) and as the Assistant Property Officer 
during my tenure here, directing and supervising three full time storekeepers while ‘moving’ over 
18,000  pieces of freight in addition to managing over 12,000 line items of property valued in 
excess of $20M, many times during peak, strenuous operations performing well above his pay 
grade.  He is ready to step up to the next level in all respects, whether it is to Senior Chief or 
Chief Warrant Officer, particularly as a leader and subject matter expert.”  CWO Y praised the 
applicant’s  interpersonal  skills  and  stated  that  the  applicant’s  department  was  immensely 
effective and efficient.  CWO Y stated that he was shocked to see that the applicant had received 
average marks on his two prior EERs and that he had not been recommended for advancement by 
his  prior  Supervisor.    CWO  Y  said  that  he has learned that the applicant had a “far less than 
amiable relationship” with his prior Supervisor’s husband, who was also an SKC in the division.  
He stated that he would hate to think that a Supervisor would “take a personal relationship (not 
their own) and turn it against their subordinate professionally speaking, but we’re only human.” 

 
The applicant also submitted a statement from CWO Z, who retired in 2007 with more 
than 24 years of service.  CWO Z stated that he was Chief of Xxxxxxxxxx in the Xxxxx Branch 
of the Xxxxxxx Division at the Xxxxx from July 2004 until his retirement.  During this time, the 
applicant was assigned to the Xxxxxx Branch under CWO X.  CWO Z stated that he had both 
professional  and  personal  relationships  with  CWO  X  and  CWO  Y,  the  applicant’s  two 
supervisors during his tenure.  “[The applicant] quite often was the lead topic of conversation 
when  communicating  personally  or  professionally  with  either,”  but  the  two  had  very  different 
opinions  of  his  professional  abilities.    CWO  X  “was  very  negative  in  her  perception,  while 
[CWO Y] was highly positive with his.”  CWO Z stated that his own dealings with the applicant 
were limited but they did visit each other’s departments for business purposes several times a 
week.  In addition, they served together on the OOD selection board and were members of the 
chief petty officers’ mess.  CWO Z stated that he gained “the highest respect” for the applicant 
based upon these interactions.  The applicant “always displayed himself a step above in his pro-

fessional courtesies, appearance and knowledge.  His leadership with his junior petty officers was 
exceptional. … Simply speaking, he knows how to get the all from his people.”  CWO Z stated 
that SKC X was chief of the Xxxxx Department and the applicant’s Supervisor’s husband.  SKC 
X and the applicant “never liked one another and often times there would be verbal exchanges 
that I believe had a very negative impact on his evaluations.” 

On February 16, 1984, the applicant enlisted in the Coast Guard.  By September 1997, he 
had advanced to first class petty officer, SK1, and was serving as the Assistant Xxxxx Officer in 
the Xxxxxxx Division at the Xxxxx.  He received good marks on his EERs in this position and 
an Achievement Medal when he completed his tour of duty in July 2001. 

 
From July 2001 to June 2003, the applicant was assigned to the Xxxxx Department at 
Group Xxxxx.  The performance marks he received in 2002 and 2003 as an SK1 at Group Xxxxx 
appear in the table below.  On his May 2003 EER, the applicant’s rating chain wrote comments 
describing him as an “outstanding team leaders and role model.  He uses the synergistic power of 
team  planning  to  maximize  departmental  goals.  …  [He]  is  a  self-starter  requiring  only  initial 
direction.    He  enables  his  coworkers  to  be  problem  solvers  and  to  learn  from  judgment  and 
experience in resolving day-to-day issues.”  The rating chain also noted that the applicant would 
be advanced to SKC on June 1, 2003, and that he was capable of performing at an even higher 
pay grade, “whether Senior Chief Petty Officer or Chief Warrant Officer.” 
 

In  November  2003,  the  applicant  reported  to  the  Xxxxx  to  serve  as  the  head  of  the 
xxxxxxxxxxxx in the Xxxxxx Branch of the Xxxxxxx Division.  He served in this position until 
November 2004, when he was put in charge of the Xxxxx xxxxx Department.  He received four 
annual EERs while serving in the Xxxxxx Branch.  His marks in his first two EERs as an SKC—
dated September 30, 2004, and September 30, 2005—are shaded in the table below.  The second 
of these is the disputed record in this case.  CWO X served as both his Supervisor and Marking 
Official for these first two EERs.  Her successor, CWO Y, prepared the applicant’s EERs for 
September 2006 and September 2007. 

SUMMARY OF THE RECORD 

 

 

 
 

 
PERFORMANCE CATEGORY 
Directing Others 
Working with Others 
Developing Subordinates 
Responsibility 
Evaluations 
Work-Life Sensitivity, Expertise 
Setting an Example 
Health & Well-Being 
Integrity 

PERFORMANCE MARKS IN EERs 

2002 

2003 

2004 

2005 

2006 

2007 

5 
6 
5 
6 
5 
6 
7 
5 
6 

5 
6 
5 
6 
5 
6 
7 
5 
6 

5 
5 
5 
5 
4 
4 
5 
6 
5 

4 
4 
4 
4 

4→5* 

4 
4 
5 

4→5 

6 
6 
6 
6 
5 
4 
7 
6 
6 

6 
6 
6 
6 
6 
5 
7 
6 
6 

Loyalty 
Respecting Others 
Human Relations 
Adaptability 
Judgment 

6 
6 
5 
7 
NA 

4 
5 
4 
6 
NA 

4 

4→5 

4 
5 
NA 

6 
6 
4 
5 
6 

6 
6 
5 
6 
6 

Initiative 
Professional, Specialty Knowledge 
Quality of Work 
Professional Development 
Administrative Ability 
Organization 
Monitoring Work 
Using Resources 
Safety & Occupational Health 
Stamina 
Communicating 
Military Bearing 
Customs & Courtesies 
Conduct (S or U) 
Recommendation for 
Advancement (R or N) 
* Four of the marks were raised by the Approving Official upon informal appeal by the applicant. 
**The EER form changes between pay grades and over time as performance categories may be added or dropped.  
“NA” means that the performance category did not appear on the EER form used to evaluate the applicant that year. 
 

NA 
5 
NA 
4 
4 
4 
5 
5 
4 
6 
5 
6 
5 
S 
R 

6 
6 
NA 
7 
5 
NA 
6 
6 
6 
5 
6 
6 
6 
S 
R 

NA 
6 
6 
NA 
NA 
NA 
5 
6 
5 
7 
6 
5 
5 
S 
R 

6 
6 
NA 
7 
5 
NA 
6 
6 
6 
6 
6 
6 
6 
S 
R 

NA 
4 
NA 
4→6 

4 
4 
4 
4 
5 
5 
4 
6 
5 
S 
N 

 
On his 2004 EER, the rating chain included the following comment: 

RECOMMENDED:  [The applicant] is taking steps to meet eligibility requirements for advance-
ment to the next higher paygrade. 
 
LEADERSHIP and POTENTIAL:  [The applicant] exhibits an understanding of routine concepts 
and  assignments,  producing  optimal  results  with  direct  supervision.    Areas  of  focus  to  improve 
skill sets and leadership competencies include foresight, organization and technical proficiencies.  
It is anticipated that with his recent completion of the Chief Petty Officer’s Academy and locally 
available resources, he will demonstrate a commitment to seek and display the ability to assume 
greater responsibilities. 

6 
6 
5 
7 

NA** 
NA 
6 
6 
NA 
NA 
NA 
5 
6 
4 
7 
6 
6 
6 
S 
R 

 

 

On November 18, 2005, the applicant was counseled about his 2005 EER and the non-
recommendation  for  advancement.    The  written  comment  explaining  the  non-recommendation 
for advancement states the following: 
 

[The applicant] has not fully demonstrated the capability of satisfactorily performing the duties and 
responsibilities of the next level at this time.  Leadership and Potential:  Overall performance of 
required  competencies  is  average.    While  [he]  continues  to  exhibit  an  understanding  of  routine 
concepts and assignments, he has not demonstrated the ability to perform duties producing optimal 
results independently of supervision.  Areas of leadership competencies still in need of improve-

 

The applicant did not formally appeal the disputed EER.  However, on February 24, 2006, 
CDR X, the Xxxxxxx of the Xxxxx and the Approving Official on the applicant’s rating chain, 
authorized the four corrections to the applicant’s performance marks shown in the table above.  
 
 
Because of the recommendation against advancement, the applicant was removed from 
the 2005 SKCS advancement list.  He had been in the 13th spot on the list, and the cut-off for 
advancement was initially set at 3 and later revised to 6.  Also because of the recommendation 
against  advancement,  the  applicant  was  not  allowed  to  take  the  SWE  in  May  2006.    SKC  X 
apparently did not take the SWE in 2005 or 2006 as his name is not on either advancement list.   
 

On  August  23,  2006,  after  a  new  supervisor,  CWO  Y,  took  over  the  Xxxxxx  Branch, 

CDR X changed the recommendation against advancement with the following explanation: 

 
[The applicant] has demonstrated great strides in his performance and leadership advancement as 
supervisor  of  the  Xxxxx’s Xxxxx  xxxxx Dept.    His  technical  and  supervisory skills continue to 
grow in strength and breadth.  He has my full confidence of performing well as an E-8 storekeeper. 

ment include but are not limited to foresight, organization and technical proficiencies.  In order to 
acquire the potential required of the next higher paygrade, it is recommended that [he] establish 
performance goals to include learning styles, listening and problem solving skills, time and per-
sonnel management and personal effectiveness. 

 
 
Although the applicant was allowed to take the SWE in May 2007, he apparently has not 
been advanced to SKCS or selected for appointment to CWO.  Instead of remaining on active 
duty and competing for advancement to SKCS or for appointment to CWO, SKC X retired on 
May 1, 2007, and accepted a civilian job with the Coast Guard. 
 

VIEWS OF THE COAST GUARD 

 
 
On July 15, 2008, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion recommending that the Board deny the applicant’s request.  The JAG attached 
to  the  advisory  opinion  a  memorandum  on  the  case  prepared  by  the  Coast  Guard  Personnel 
Command (CGPC).   
 
 
CGPC stated that the applicant was counseled about the disputed EER 48 days after the 
evaluation  period  ended  on  September  30,  2005,  although  the  Personnel  Manual  requires  that 
such counseling occur no later than 21 days after the end date.  CGPC submitted a declaration 
from the Approving Official for the disputed EER, CDR X, who stated that the EER was delayed 
because of his own deliberation of the recommendation against advancement.  (This declaration 
is summarized below.)  CGPC noted that there is no evidence that the delay in counseling disad-
vantaged the applicant since the period for appealing an EER does not begin until the actual date 
of counseling. 
 
 
CGPC stated that Coast Guard policy does not preclude the assignment of an officer and 
her husband to the same large command as long as there is no supervisor/subordinate relationship 
between them.  CGPC stated that the applicant’s allegation that CWO X was biased against him 
because of her husband’s adversarial relationship with him and because her husband was com-
peting  for  advancement  to  SKCS  and  for  appointment  to  CWO  with  him  “is  without  merit.  
There is no substantiation that the assignment of CWO X and her husband to the same command/ 

division was improper or impacted the applicant’s EER.”  CGPC pointed out that the applicant 
must  have  appealed  his  marks  informally  because  the  Approving  Official  corrected  several 
marks.  CGPC stated that if the applicant was still dissatisfied with his marks after the Approving 
Official’s corrections, he should have formally appealed them. 
 

Regarding the applicant’s comparison of his performance marks in 2004 and 2005 with 
his marks in his prior EERs as an E-6 and his later EERs as an E-7, CGPC noted that the appli-
cant’s 2004 and 2005 EERs were his first two as an SKC/E-7 and that it is not uncommon for 
members’ marks to drop when they are first evaluated at a new, higher pay grade because the 
written standards against which the members’ performance is compared are different at different 
pay grades.   
 
 
CGPC noted that the Personnel Manual does not allow an enlisted member to appeal a 
recommendation against advancement in an EER.  CGPC stated that the fact that the applicant 
was not recommended for advancement from October 1, 2005, to August 23, 2006, is supported 
not only by the mark and comment on the disputed EER, but also by the Approving Official’s 
memorandum changing the recommendation on August 23, 2006, and by the Approving Offi-
cial’s declaration.   CGPC alleged that the recommendation against advancement was carefully 
considered and ultimately made by the Approving Official, who did not change his recommen-
dation until August 23, 2006.  Because of this change, the applicant was eligible to take the SWE 
in May 2007 to compete for advancement to SKCS. 
 
CGPC recommended that no relief be granted because there “is no evidence of error or 
 
injustice in the [disputed] EER.  The EER rating chain provides for additional levels of review 
and while the applicant claims that his supervisor was biased when conducting the evaluation, 
this  is  not  supported  by  the  record and there is no indication that the Approving Official was 
biased in his assignment of the not recommended for advancement marks assigned in the EER.” 
 
Declaration of CDR X, the Xxxxxxx and Approving Official for the Disputed OER 
 
 
On June 20, 2008, CDR X submitted a declaration about the applicant’s BCMR applica-
tion by email to CGPC.  CDR X stated that as Xxxxxxx of the Xxxxx he has been the applicant’s 
Approving Official since July 2004.  CWO X, who was the applicant’s first Supervisor at the 
Xxxxx,  worked  directly  for  CDR  X,  as  the  chief  of  the  Xxxxxx  Branch,  which  included  the 
Xxxxx xxxxx Department and the xxxxxxxxxx. 
 
 
CDR  X  stated  that  he  is  confident  that  there  were  “several  performance  feedback  ses-
sions” between the applicant and CWO X during the evaluation period for his September 2005 
EER as CWO X notified him whenever she counseled the applicant about his performance.  CDR 
X stated that he “received adequate details of these conversations [from] CWO [X] indicating 
that specific performance feedback (good and bad) was provided.”  He believes that their meet-
ings were “frequent and well communicated.”  However, CDR X, stated, he does not believe that 
they discussed whether or not the applicant would be recommended for advancement prior to the 
end of the evaluation period. 

 

CDR X stated that during the evaluation period, “there were a couple of minor instances 
 
involving  ‘followership’[1]  issues  between  [the  applicant]  and  his  subordinates  which  did  put 
some  question  in  the  mind  of  [CWO  X]  as  to  the  effectiveness  of  [his] leadership.”   CDR X 
noted,  however,  that  during this period the applicant had to manage several subordinates who 
“posed  significant  disciplinary  and  performance  challenges  and  were  subsequently  removed 
[from] the [Coast Guard].”  CDR X also noted the applicant’s superior academic performance 
but stated that CWO X questioned his success in applying classroom principles to his workplace.  
CDR X stated that two particular performance lapses greatly concerned CWO X:  “Both involved 
the failure to deliver critical flu vaccines [from] the Xxxxx’s Xxxxx xxxxx [Center] to the XXX 
Clinic.  Due to the temperature sensitivity of the vaccines, there was only a brief window of time 
to deliver them to the clinic.  In both instances, that time period elapsed before delivery occurred.  
Fortunately,  subsequent  tests  revealed  that  neither  batch  of  vaccine  expired  as  a  result.    The 
question of sound responsibility remained.”   
 
 
Regarding the applicant’s allegation that CWO X had a conflict of interest in evaluating 
him, CDR X stated that CWO X and her husband, SKC X, worked in different buildings and for 
different  branches  within  the  Xxxxxxx  Division.    CDR  X  stated  that  he  believes  the  married 
couple “managed the arrangement professionally” around the Xxxxx, but that the content of their 
private discussions at home is unknown.  CDR X confirmed the applicant’s claim that he and 
SKC X “had their differences.  They did not necessarily get along, but remained professional in 
most instances and kept their distance.”  He noted that the “possibility exists that any negative 
comments [SKC X] made about [the applicant] to [CWO X] outside of work could have biased 
[CWO X’s] assessment of [the applicant’s] performance.” 
 
 
CDR X stated that any delay in the applicant’s EER counseling beyond the 21-day dead-
line resulted from his own need for additional time to contemplate CWO X’s recommendation 
that the applicant not be recommended for advancement.  CDR X stated that he discussed the 
matter with CWO X several times, and she assured him that “ample discussion between her and 
[the applicant] occurred during the eval[uation] period and that articulated performance expecta-
tions  which  would  have  led  to  an  advancement  recommendation  were  simply  not  met.    As  a 
result of those discussions, [CDR X] gave the benefit of the doubt to the supervisor.” 
 
 
Regarding the statements of CWO Z and CWO Y submitted on behalf of the applicant, 
CDR X stated that he does “not place much credence in either letter of endorsement … .  I have 
experienced  performance  and/or  disciplinary  problems  with  both  these  individuals  during  the 
time they worked for me as Xxxx Div Branch Chiefs.” 
 
 
CDR X concluded, however, that he would give the applicant the benefit of the doubt in 
this  case.    “In  retrospect,  it should have been made very clear to [him] that if he did not rise 
above a certain performance threshold during that eval[uation] period, he would NOT be recom-
mended  for  advancement.    I  don’t  believe  that  was  made  very  clear  to  him during any of the 
counseling  sessions  that  occurred  with  his  supervisor,  CWO  X.    I  ask  that  [the  applicant’s] 
BCMR petition be give favorable consideration.” 
 
                                                 
1 “Followership” is expected of all members, and it includes “look[ing] to leadership for guidance and feedback”; 
“actively  seek[ing]  to  understand  through  listening,  responsible  questioning,  and  feedback”;  and  “work[ing]  with 
leaders to ensure successful mission accomplishment.”  See  and 
. 

The JAG’s Opinion 
 
 
The JAG argued that the applicant has failed to submit evidence of error or injustice in 
the EER or of bias on the part of his Supervisor.  The JAG alleged that the statements of CWO Y 
and CWO Z have been discredited by CDR X, who stated that they have had performance and 
disciplinary problems.  In addition, the JAG noted that CDR X concurred with the Supervisor’s 
recommendation that the applicant not be recommended for advancement.  The JAG alleged that 
the applicant has failed to submit sufficient evidence to overcome the presumption of regularity 
afforded his chain of command. 
 
 
The JAG stated that no policy prohibited the assignment of the applicant’s Supervisor to 
the same division as her husband.  He also alleged that the applicant has “fail[ed] to offer any 
evidence  which  would  prove  that  such  an  arrangement  impacted  [his]  EER  for  the  marking 
period in question.”  The JAG argued that any inconsistencies between the marks in the EER and 
the applicant’s actual performance were corrected by the Approving Official in February 2006.  
He  argued  that  if  the  applicant  was  still  dissatisfied  with  his  marks,  he  should  have  formally 
appealed them. 
 
 
The  JAG  stated  that  CDR  X’s  declaration  indicates  that  the  applicant  was  not  recom-
mended for advancement in 2005 as a result of two performance lapses that reflected negatively 
on his responsibility.  He argued that the applicant has not submitted any evidence to prove that 
his rating chain’s actions were unjust or unwarranted. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On August 15, 2008, the applicant responded to the views of the Coast Guard.  The appli-
cant repeated the bases for his allegations of bias in the evaluation process.  He noted that CDR 
X  agreed  in  his  declaration  that  it  was  unjust  that  the  applicant  was  not  advised  during  the 
evaluation period that he might not be recommended for advancement if his performance did not 
improve.  He alleged that in their counseling sessions, the feedback he received from CWO X 
“was in no way significant enough to warrant such a severe measure” as not recommending him 
for advancement.  The applicant again stated that he took many positive steps to improve his per-
formance during the evaluation period by taking Coast Guard and college classes and by accept-
ing challenging new collateral duties.  He also alleged that his subordinates presented significant 
disciplinary and performance problems and that, despite his “ongoing efforts to correct their per-
formance, there were several instances that [were] negatively reflected in [his] … EER.” 

 
The applicant alleged that the declaration of CDR X and the statements of CWO Y and 
CWO  Z  prove  his  adversarial  relationship  with  his  Supervisor’s  husband  and  prove  that  that 
relationship adversely affected his EER.  The applicant stated that because CWO X still works at 
the Xxxxx, albeit in another branch, and because of the “political atmosphere” there, “it is dif-
ficult to find individuals willing to put in writing their opinion regarding the situation.  He stated 
that CWO Y and CWO Z were willing to submit statements on his behalf only because one of 
them was retiring and the other was at the end of his tour and thus due to transfer.  He stated that 
any problems they may have had are not related to his situation and should not discredit their 
testimony on his behalf. 

 

 

 

Enlisted Employee Reviews 

APPLICABLE REGULATIONS 

The  applicant  stated  that  his  Supervisor’s  bias  against  him  manifested  itself  in  many 
ways.  He stated that sometimes work she had already approved “suddenly was unacceptable and 
required significant revisions.” 

 
Regarding his failure to appeal the disputed EER formally, the applicant stated that he did 
not do so because the EER was handed to him just twenty minutes before he was due to catch a 
flight to go on vacation, because he knew that the non-recommendation for advancement could 
not be appealed, and because of the climate that existed within the Xxxxxxx Division. 

 
Article 10.B.1.b. of the Personnel Manual in effect in September 2005 states that “[e]ach 
commanding  officer/officer  in  charge  must  ensure  all  enlisted  members  under  their  command 
receive accurate, fair, objective, and timely employee reviews. To this end, the Service has made 
enlisted performance criteria as objective as possible, within the scope of jobs and tasks enlisted 
personnel perform.”  

 
Article 10.B.2.a.1. requires the rating chain to include supporting remarks in an EER for 
any numerical mark of 1, 2, or 7; an unsatisfactory conduct mark; or a recommendation against 
advancement. 

 
Article 10.B.2.b. states that a rating chain for an enlisted member consists of a Supervi-
sor, Marking Official, and Approving Official.  “If necessary, the Marking Official can fill the 
role  of  the  Supervisor.”    Article  10.B.2.b.11.c.    Figure  10.B.2.1.  shows  that  at  the  Xxxxx,  a 
branch chief may serve as both a Supervisor and Marking Official; the division chief serves as 
the Approving Official; and the Superintendent is the appeal authority. 

 
Article 10.B.5.a.1. states that members in pay grade E-7 (chief petty officers) on active 
duty receive regular, annual EERs at the end of each September.  Article 10.B.4.a.4. states that 
each unit must ensure that an EER is completed, including the EER counseling sheet signed by 
the applicant, no more than 21 days after the end of the evaluation period.  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.4.b. states that an enlisted member is ultimately responsible for “[f]inding 
out what is expected on the job,” “obtaining sufficient feedback or counseling[,] and using that 
information  in  adjusting,  as  necessary,  to  meet  or  exceed  the  standards.”    Article  10.B.2.b.8. 
states the following regarding performance feedback during an evaluation 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. 

 
The Personnel Manual contains no regulations allowing the disqualification of a rating 
official  for  an  enlisted  member  due  to  conflict  of  interest  or  bias  although  it  does  have  such 
regulations for officers’ rating officials:  Article 10.A.2.g.2.b. of the Personnel Manual states that 
a rating chain member for an officer may be disqualified as a result of “relief for cause due to 
misconduct or unsatisfactory performance, being an interested party to an investigation or court 
of inquiry, or any other situation in which a personal interest or conflict on the part of the Super-
visor, Reporting Officer, or Reviewer raises a substantial question as to whether the Reported-on 
Officer will receive a fair, accurate evaluation.” 

 
Article 10.B.4.c.3. states that the Supervisor must “clearly communicate goals and accept-
able  standards  of  performance  to  the  evaluee  before  and  throughout  the  marking  period”; 
“[r]oute[] the completed employee review to the Marking Official no later than nine days prior to 
the period ending date”; and “[c]ounsel[] the evaluee on the employee review after the Approv-
ing Official’s action.  The importance of how effective this piece of the evaluation process can be 
in setting the evaluee up for future success cannot be over emphasized.” 

 
Article 10.B.4.c.4. states that the Marking Official reviews the marks recommended by 
the Supervisor and discusses with the Supervisor any recommendations considered inaccurate or 
inconsistent with the member’s actual performance.  The Marking Official may return the EER to 
the Supervisor for additional justification or support for any of the recommended marks.  The 
Marking Official forwards the EER to the Approving Official no later than five days after the end 
of the evaluation period. 

 
 
Article  10.B.4.c.  states  that  an  enlisted  member  is  evaluated  by  a  series  of  raters—the 
rating chain—to provide a “built-in check and accountability system to ensure supervisory per-
sonnel are aware of the importance of employee reviews and give them incentive to be totally 
objective and accurate.”  Rating chain members are required to review and correct any inconsis-
tencies found in an EER “when considering an individual’s performance compared to the written 
standard” and “[h]old the next lower supervisory level accountable for their employee reviews.”  
Article 10.B.4.c.2.   

 
Article 10.B.4.c.5. states that the Approving Official is responsible for ensuring that there 
is the “[o]verall consistency between assigned marks and actual performance/behavior and out-
put”; that the evaluee is counseled and advised of the appeal procedures; and that the EER is sub-
mitted  on  time.    The  Approving  Official  must  review  the  Marking  Official’s  recommended 
marks and discuss any recommendations considered inaccurate or inconsistent with the evaluee’s 
actual  performance.    The  Approving  Official  may  return  an  EER  to  the  Marking  Official  for 
additional justification or support for any mark.  After approving the EER, the Approving Offi-
cial  forwards  the  EER  to  the  Supervisor,  who  counsels  the  evaluee  about  his  marks.    Article 
10.B.4.c.5.f.  The Approving Official must ensure that the EER is completed and entered into the 
Coast Guard’s database no more than 30 days after the end of the evaluation period. 

 
Article 10.B.6.a.5. states that rating officials must mark evaluees against the written stan-
dards on the EER form.  Article 10.B.6.a.6. states that a mark of 4 “represents the expected per-
formance level of all enlisted personnel.  Normally, a single, isolated event, either positive or 
negative, should not drastically affect the marks assigned” on an EER.  Article 10.B.6.a.7. states 

that a mark of 4 is an average mark indicating that the evaluee met “all the written performance 
standards for this level and none in the ‘6’ level.”  A mark of 5 is above average and means that 
the evaluee met “all the written performance standards in the ‘4’ level and at least one of those in 
the ‘6’ level.”  A mark of 6 is excellent and means that the evaluee met “all the written perform-
ance standards for this level and did not exceed any of them.” 

 
Article 10.B.7.2. states that a recommendation for advancement means that “[t]he mem-
ber is fully capable of satisfactorily performing the duties and responsibilities of the next higher 
pay grade.”  A mark of not recommended means that “[t]he member is not capable of satisfacto-
rily performing the duties and responsibilities of the next higher pay grade.”  Article 10.B.7.4. 
states that the Approving Officials’ recommendation about advancement “is final and may not be 
appealed.  However, if the Approving Official learns new information and decides to change the 
recommendation, they should follow the procedures in Article 10.B.10.b.” 

 
Article 10.B.9.a.2. states that the EER appeal process allows members to seek review of 
marks that they believe are disproportionately low or based on incorrect information, prejudice, 
or discrimination.  However, a recommendation against advancement may not be appealed.  Arti-
cle 10.B.9.b. states that before filing an official appeal, an evaluee should request an audience 
with his rating chain to discuss the EER.  If not satisfied with the results of that meeting, the 
evaluee  “must  submit  the  appeal  within  15  calendar  days  …  after  the  date  they  signed  the 
acknowledgment section of the counseling sheet for the disputed employee review. … If appeal-
ing  more  than  15  calendar  days  …  after  the  date  the  member  signed  the  employee  review 
acknowledgment section, the member must explain the circumstances that did not allow or pre-
vented him or her from submitting the appeal within the prescribed time limit.” 

 
Article 10.B.10.b.1. states that “Approving Officials are authorized to change any mark 
they assigned to members still attached to the unit if the Approving Official receives additional 
information that applies to the particular employee review period.” 

 

Assignment of Married Members and Interpersonal Relationships 
 

Article 4.A.8.c. of the Personnel Manual in effect in 2005 states that “[t]he Service does 
not assign married couples together to the same cutter or a small shore unit of less than 60 mem-
bers. If a member at such a unit marries another member assigned to the same unit, the Service 
will reassign one as soon as possible. Chapter 8.H. contains further guidance.” 
 
 
Article 8 of the Personnel Manual is entitled “Discipline,” and Article 8.H. concerns pro-
hibited  interpersonal  relationships  among  members.    Article  8.H.2.c.  states  that  interpersonal 
relationships must not jeopardize a member’s impartiality.  Article 8.H.2.d. states that one factor 
to consider in assessing the propriety of a relationship is the “organizational relationship between 
the individuals:  whether one member can influence another’s personnel or disciplinary actions, 
assignments, benefits, or privileges.”  Article 8.H.2.e. states that a “relationship, including mar-
riage,  does  not violate Service policy unless the relationship or the members’ conduct fails to 
meet the standards set by this section, standards of conduct set by the Uniform Code of Military 
Justice (UCMJ), or other regulations.”  Article 8.H.3.a. states that “[m]embers married to mem-
bers or otherwise closely related shall not be assigned in the same chain of command.”  A chart 
at the end of Article 8.H. shows that married members may be assigned to separate units or the 

same large shore unit but may not be assigned in the same chain of command or to the same 
afloat unit or small shore unit. 
 

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: 
 

The Board has jurisdiction over this matter pursuant to 10 U.S.C. § 1552(a).  The 
application  was  timely  filed  because  it  was  submitted  within  three  years  of  the  applicant’s 
discovery of the alleged error or injustice in his record, as required under 10 U.S.C. § 1552(b).  
The applicant has exhausted his administrative remedies, as required by 33 C.F.R. § 52.13(b), 
because there is no other currently available forum or procedure provided by the Coast Guard for 
correcting the alleged error or injustice.2 
 

In 2005, when the applicant was serving as the chief storekeeper (SKC) in charge 
of the xxxxxxxx xxxxxxx Department within the Xxxxxx  Branch of the Xxxxxxx Division at 
the  xxxxxxxxxxxxx,  he  was  not  recommended  for  advancement  on  his  annual  Enlisted 
Employee Review (EER) and so was removed from the 2005 senior chief storekeeper (SKCS) 
advancement list and not allowed to take the servicewide examination (SWE) in May 2006 to 
compete for advancement.  Although he was recommended for advancement prior to the May 
2007  SWE,  he  has  not  been  advanced  to  SKCS  or  selected  for  appointment  to  chief  warrant 
officer (CWO).  The applicant asked the Board to expunge his EER dated September 30, 2005, 
and to reassess his failure either to advance to SKCS from the 2005 advancement list or to be 
selected for appointment to CWO.  He based this request on alleged errors in the EER and on 
alleged bias on the part of his Supervisor due to her marriage to another SKC in the Xxxxxxx 
Division with whom the applicant had an adversarial and professionally competitive relationship 
(see the diagram on page 2 above). 

1. 

 
2. 

 
3. 

The Board begins its analysis in every case by presuming that the disputed infor-
mation in the applicant’s military record is correct, and the applicant bears the burden of proving 
by a preponderance of the evidence that the disputed information is erroneous or unjust.3  Absent 

                                                 
2 The Board notes that the applicant did not take advantage of the opportunity to appeal his EER marks or seek relief 
from  the  Personnel  Records  Review  Board  (PRRB).    However,  those  avenues  of  administrative  remedy  have 
expired,  and  the  crux  of  the  applicant’s  complaint—the  recommendation  against  advancement  in  2005—was  not 
subject to appeal under Article 10.A.9. of the Personnel Manual.  The Board’s policy is that exhaustion of adminis-
trative  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.  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)).    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 or application to the PRRB, would be a violation of the Board’s responsibility under 10 U.S.C. § 1552. 
3 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002, approved by the Deputy 
General Counsel, May 29, 2002) (rejecting the “clear and convincing” evidence standard recommended by the Coast 
Guard and adopting the “preponderance of the evidence” standard for all cases prior to the promulgation of the latter 
standard in 2003 in 33 C.F.R. § 52.24(b)). 

evidence to the contrary, the Board presumes that the applicant’s rating officials have carried out 
their duties “correctly, lawfully, and in good faith.”4  

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.”  The applicant alleged that his 2005 EER was not pre-
pared accurately, fairly, or objectively and should be expunged from his record (a) because he 
was counseled about it by CWO X, who served as both the Supervisor and Marking Official for 
the EER, more than 21 days after the end of the evaluation period on September 30, 2005, in 
violation of Article 10.B.4.a.4. of the Personnel Manual; (b) because the performance marks in 
the EER are inaccurate and inconsistent with his actual performance; and (c) because CWO X 
was biased against him because he had an adversarial relationship with her husband, who was 
also assigned to their division, and because CWO X had a conflict of interest in evaluating his 
performance because her husband was, like the applicant, an SKC competing for advancement to 
SKCS and for appointment to CWO.  The applicant argued that it was unfair and improper that 
his  Supervisor/Marking  Official  was  married  to  another  member  of  his  small  division  of  23 
employees and to someone with whom he was competing for advancement because she could not 
evaluate him impartially under the circumstances.  He also alleged that, although CWO X coun-
seled  him  about  his  performance  during  the  evaluation  period,  she  failed  to  warn him that he 
might not be recommended for advancement.   

 
4. 

 
5. 

Regarding the alleged lateness of the EER counseling, the date of the signatures 
on  the  EER  counseling  sheet  supports  the  applicant’s  allegation  that  CWO  X  counseled  him 
about it on November 18, 2005, which was not within 21 days of the end of the evaluation period 
on September 30, 2005, as required by Article 10.B.4.a.4. of the Personnel Manual.  His Approv-
ing Official, CDR X, stated in his declaration for CGPC that he believes the EER counseling was 
delayed because he himself took extra time to decide whether or not to recommend the applicant 
for advancement.  However, as the Board held in another case, BCMR Docket No. 2004-041, 
“lateness, per se, is insufficient to justify removal of an otherwise valid EER, especially when 
that lateness has caused no harm to the member.”  As an EER has already been approved by the 
Approving Official when EER counseling occurs,5 a delay of EER counseling cannot have any 
impact on the EER itself unless it affects the member’s opportunity to appeal the EER marks.  
The applicant stated that he did not appeal the disputed EER in part because he was counseled 
about it the same day that he was flying out of town on leave, which would not have been the 
case had he been timely counseled by October 21, 2005.  Under Article 10.B.9.b. of the Person-
nel Manual, members are supposed to appeal their EERs within 15 days of the date of counsel-
ing.  However, Article 10.B.9.b. also allows for exceptions to this 15-day deadline.  The appli-
cant has not alleged or shown that he ever attempted to appeal his EER and had his appeal denied 
for untimeliness.  In fact, the record shows that he at least informally appealed his marks to his 
Approving Official after his return from leave because CDR X corrected four of his performance 
marks on February 24, 2006.  Therefore, the Board is not persuaded that the violation of Article 
10.B.4.a.4.  had  any  negative  effect  on  the  EER  or  caused  the  applicant  any  harm.    Since  the 

                                                 
4 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
5 Personnel Manual, Article 10.B.4.c.5.f. 

6. 

7. 

applicant has not shown that his record was prejudiced by the lateness of the EER counseling, his 
rating chain’s violation of Article 10.B.4.a.4. must be deemed harmless error.6 
 
 
The applicant alleged that CWO X and SKC X should not have been assigned to 
the Xxxxxxx Division because they were married and that this arrangement created bias in CWO 
X’s preparation of the disputed EER.  Although the applicant argued that the arrangement was 
improper under Article 8.H., that part of the Personnel Manual essentially concerns disciplining 
members who are in the same chain of command or are assigned to the same small unit and who 
have  unacceptable  relationships  with  each  other;  it  is  not  about  whether  married  members 
assigned to the same unit may serve as rating officials for other members and employees in the 
unit.  Because the Xxxxx is a unit of more than 60 members and CWO X was not a member of 
SKC X’s chain of command, the Coast Guard did not violate either Article 4.A.8.c. or Article 
8.H.3.a. of the Personnel Manual in assigning CWO X and SKC X to two different branches of 
the  Xxxxxxx  Division  at  the  Xxxxx.    The  applicant  noted  that  Article  8.H.1.c.  states  that 
“[i]nterpersonal relationships which raise even a perception of unfairness undermine good leader-
ship and military discipline.”  However, the applicant’s perception of unfairness is not likely to 
have caused CWO X to be biased against him. 
 

Under Article 10.B.1.b. of the Personnel Manual, the applicant was entitled to an 
accurate, fair, and objectively prepared EER.  The applicant alleged that CWO X did not rate him 
impartially because of a conflict of interest:  She was married to another SKC against whom the 
applicant  competed  for  advancement  to  SKCS  and  for  appointment  to  CWO.    This  argument 
would logically prevent any married member of the Coast Guard from serving on the rating chain 
of  someone  of  the  same  rank  or  rate  as  his  or  her  spouse.    Of  course,  the  competition  for 
advancement  and  appointment  among  the  higher  enlisted  rates  is  very  tough7  because  of  the 
pyramidal structure of the Service.  However, the applicant has not alleged or proved that his 
removal  from  the  advancement  list  caused  SKC  X  to  be  advanced  to  SKCS  or  appointed  to 
CWO.  In fact, SKC X apparently did not even compete for advancement by taking the SWE in 
2005 and 2006 because his name is not on either advancement list.  Instead, on May 1, 2007, 
SKC X retired to a civilian position at the Xxxxx, which he could not have done had he accepted 
an advancement or appointment.8  Nor is the Board persuaded, based on the record, that CWO X 
lacked  sufficient  integrity  to  stop  herself  from  slightly  improving  her  husband’s  chance  of 
advancement  or  appointment  by  downgrading  the  applicant  and  not  recommending  him  for 
advancement.  As stated in Finding 3 above, absent evidence to the contrary, the Board must pre-
sume that she evaluated the applicant “correctly, lawfully, and in good faith.”9  In this regard, the 
Board also notes that all officers are evaluated on the accuracy of their evaluations of subordi-
nates, and so CWO X was accountable in her own performance evaluations for the accuracy of 
her evaluation of the applicant. 
 

                                                 
6 Engels v. United States, 678 F.2d 173, 175 (Ct. Cl. 1982) (finding that an error is harmless unless it is “causally 
linked with” the record the officer wants corrected). 
7 Upon inquiry, the Coast Guard advised the Board that 9 advancements to SKCS were made in 2005; 5 in 2006; and 
4 in 2007 with one carried over to 2008. 
8 Article 12.C.9.a. of the Personnel Manual states that a CWO Zust have completed two years in grade to request 
retirement.  Article 12.C.11.a.2.b.(4) states that a senior chief petty officer must also have completed at least two 
years in grade to request advancement. 
9 Arens, 969 F.2d at 1037. 

9. 

8. 

The applicant alleged that CWO X did not prepare his 2005 EER fairly and impar-
 
tially because he had an adversarial relationship with her husband, SKC X.  The Board finds that 
the  applicant  has  proved  that  he  and  SKC  X did not like each other.  CWO Z stated that the 
applicant  and  SKC  X  “never  liked  one  another  and  often  times  there  would  be  verbal 
exchanges.”  The applicant’s Approving Official, CDR X, stated that the applicant and SKC X 
“had their differences,” did not always “get along,” and “kept their distance.”10  The tone and 
content of the emails the applicant submitted also indicate their dislike of each other.  As chiefs 
of the Xxxxx xxxxx and Supply Departments, the applicant and SKC X apparently interacted fre-
quently and had occasion to blame each other for certain supply and delivery problems.   
 

The question before the Board, however, is not whether SKC X disliked the appli-
cant but whether his wife, CWO X, was not impartial in evaluating the applicant because of her 
husband’s dislike of the applicant.  Of course, even if SKC X had not been married to the appli-
cant’s  Supervisor,  he  might  have  informed  her  of  his  apparently  low  opinion  of  some  of  the 
applicant’s work, and she could legitimately have taken any of his complaints about the applicant 
into account.  In theory, it is also possible that SKC X made false complaints about the appli-
cant’s performance to her and that her marriage to SKC X led her to place undue credence in his 
reports, but there is insufficient evidence in the record to find that SKC X made false reports 
about the applicant to CWO X.  Did CWO X downgrade the applicant and make a recommenda-
tion against his advancement simply because her husband disliked him?  CWO Z stated that he 
believes that the unfriendly relationship between the applicant and SKC X “had a very negative 
impact  on  his  evaluations.”    CWO  Y  stated  that  he  did  not  like  to  think  that  CWO  X  would 
downgrade the applicant based on her husband’s dislike of him “but we’re only human.”  The 
applicant’s Approving Official, CDR X, acknowledged that the “possibility exists that any nega-
tive  comments [SKC X] made about [the applicant] to [CWO X] outside of work could have 
biased [CWO X’s] assessment of [the applicant’s] performance,” but he recommended that the 
Board grant relief on an entirely different basis.  CDR X also opined that he did “not place much 
credence” in the statements of  CWO Y and CWO Z because he has had “performance and/or 
disciplinary  problems”  with  both  of  them.    Therefore,  of  the  three  officers’  statements  in  the 
record, one claims that he believes SKC X’s dislike of the applicant did negatively affect CWO 
X’s evaluation of him, and two acknowledge the possibility of such an effect because of the mar-
riage but do not actually endorse it. 

 
10. 

The applicant alleged that CWO X’s lack of impartiality is proved by inaccuracies 
in the disputed EER.  As evidence of the alleged  inaccuracies, he pointed to the marks in his 
prior and subsequent EERs; his academic grades; his own EER input; completed work orders; 
notes of appreciation he received; his collateral duties and other training during the period; his 
poorly  performing  subordinates;  the  opinion  of  his  subsequent  Supervisor/Marking  Official, 
CWO Y; the opinion of another officer in the Xxxxxxx Division, CWO Z; and the Approving 
Official’s decision to correct four of the marks in the EER and recent support for his request to 
remove the EER.  With regard to this evidence, the Board finds the following: 
 
 
The applicant’s high marks in his 2002 and 2003 EERs are not evidence of 
error in his 2005 EER.  The applicant was still an SK1 in 2002 and 2003 and was thus evaluated 

a. 

 

                                                 
10 The Board notes that the applicant’s next Supervisor, CWO Y, stated that he had learned that the applicant had a 
“far less than amiable relationship” with SKC X, but he did not state how he learned this or that he witnessed it, and 
may well have heard it from the applicant himself. 

 

 

 

 

e. 

b. 

on  the  EER  form  for  a  petty  officer  (CG-3788B).    The  written performance standards on this 
form are significantly less stringent than those on the EER form for chief, senior chief, and mas-
ter chief petty officers (CG-3788C). 
 
The  applicant  received  higher  marks  in  most  performance  categories  on 
 
his first SKC EER in September 2004 than he did in September 2005 and significantly higher 
marks in 2006 and 2007.  He alleged that his performance improved during the 2005 evaluation 
period, so his marks should have improved from 2004.  He also pointed to his academic grades 
and his poorly performing subordinates as evidence that he should have received higher marks in 
2005.  The record shows that in November 2004, the applicant was transferred from the xxxxxx 
to the Xxxxx xxxxx Department because the latter needed more supervision.  It appears that his 
leadership  skills  were  taxed  more  heavily  in  the  2005  evaluation  period  because  CDR  X 
remembers  that  several  of  the  applicant’s  subordinates  “posed  significant  disciplinary  and 
performance  challenges.”    Therefore,  the  applicant’s  duties  during  the  two  evaluation  periods 
were substantially different.  Almost four years after the end of the evaluation period, CDR X 
still remembers some significant errors in the Xxxxx xxxxx Department during the applicant’s 
tenure and remembers the fact that the Supervisor had to provide “several performance feedback 
sessions.”  Although CDR X was aware of the applicant’s academic grades and his subordinates’ 
poor performance, CDR X did not state that he believes that the marks in the disputed EER were 
inaccurate.    Therefore,  the  Board  cannot  conclude  that  the  higher  marks  that  the  applicant 
received in 2004 prove that the disputed EER is erroneous.  Nor does the fact that the applicant’s 
performance was rated much higher in 2006 and 2007 by CWO Y persuade the Board that CWO 
X and CDR X were wrong in their assessment of his performance during his first year as chief of 
the Xxxxx xxxxx Department. 
 
 
The  applicant’s  EER  input,  notes  of  appreciation,  and  completed  work 
orders show that he completed a significant amount of work during the evaluation period.  They 
do  not  prove  that  his  overall  performance  in  the  various  performance  categories  necessarily 
exceeded the written standards for the marks he was assigned. 
 
 
CWO Y and CWO Z clearly have a highly favorable opinion of the appli-
cant.   Neither, however, was in the applicant’s chain of command during the 2005 evaluation 
period.  Their assessment of his abilities does not persuade the Board that CWO X and CDR X 
erred in assessing his actual performance during that period. 
 
 
On February 24, 2006, the Approving Official, CDR X, raised four of the 
marks on the disputed EER after having approved them in November 2005.  This is the strongest 
evidence in the record that CWO X’s recommended marks were too low.  On the other hand, it 
also shows that CDR X has carefully reviewed the applicant’s claims and submissions, scruti-
nized the marks, and made the corrections he found to be justified.  The Board is not persuaded 
that the entire EER must be infected with bias simply because CDR X found four of the marks 
recommended by CWO X to be too low. 
 
 
The applicant argued that his non-recommendation for advancement in 2005 was 
unfair because he was not expressly warned that it was a possibility during the evaluation period.  
CDR X recommended that the Board grant relief on this basis because he does not believe that 
CWO X warned the applicant that he was at risk of losing his place on the advancement list.  
However, there is no regulation requiring that a member be warned that he is in danger of losing 

11. 

d. 

c. 

his  command’s  recommendation  for advancement.  Moreover, on his 2004 EER, although the 
applicant was recommended for advancement, he also received the following written comment 
about that recommendation:  “[The applicant] is taking steps to meet eligibility requirements for 
advancement to the next higher paygrade.”  And the written comments concerning his leadership 
and potential in the 2004 EER are likewise highly tentative in their endorsement:  “[He] exhibits 
an  understanding  of  routine  concepts  and  assignments,  producing  optimal  results  with  direct 
supervision.  Areas of focus to improve skill sets and leadership competencies include foresight, 
organization and technical proficiencies.  It is anticipated that with his recent completion of the 
Chief Petty Officer’s Academy and locally available resources, he will demonstrate a commit-
ment to seek and display the ability to assume greater responsibilities.”  Given these comments 
and  the  fact  that  the  applicant  was  counseled  about  his  performance  several  times  during  the 
evaluation  period,  the  Board  finds  that  the  applicant  has  not  proved  that  the  recommendation 
against advancement was an unfair surprise. 
 
 
The Board finds that the applicant has failed to prove by a preponderance of the 
evidence that his rating officials failed to act “correctly, lawfully, and in good faith”11 in prepar-
ing his 2005 EER.  He has not proved that the disputed EER and the recommendation against 
advancement therein are erroneous or unjust or are the product of a conflict of interest or bias on 
the part of his Supervisor/Marking Official, CWO X.  Therefore, there are no grounds for reas-
sessing the applicant’s failure to advance or to be selected for appointment to CWO.  The Board 
also notes that the applicant’s request regarding advancement is very vague.  He neither alleged 
nor proved that he would have advanced to SKCS had he not been removed from the advance-
ment list in 2005. 
 
 
 
 
 
 
 
 

Accordingly, the applicant’s request should be denied. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

12. 

13. 
 

                                                 
11 Arens, 969 F.2d at 1037; Sanders, 594 F.2d at 813. 

The application of SKC xxxxxxxxxxxxxxx, USCG, for correction of his military record 

ORDER 

 
 

 
 
is denied.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 

 
 Donna M. Bivona 

 

 

 
 Robert F. Parker 

 

 

 
 
 Eric J. Young