DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
                                                                                     BCMR Docket No. 1998-018 

Technical Amendment 

 

 
 

 
 

TECHNICAL AMENDMENT TO FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This  is  a  proceeding  conducted  under  33  C.F.R.  § 52.73  to  consider  a  technical 
amendment to the order issued by the Board in Docket No. 1998-018.  The order was 
signed by the Deputy General Counsel on February 19, 1999.  This technical amendment 
was requested by the Chief of the Office of Military Justice of the Coast Guard. 
 

In its order in Docket No. 1998-018, the Board granted the applicant’s requested 
relief, in part, by removing one of two disputed officer evaluation reports (OERs) and 
two failures of selection in 199x and 199x from his record.  It also directed that, if he 
should be selected for promotion to xxxxx by the next selection board, his date of rank 
be backdated to the date he would have been promoted had he been selected for pro-
motion by the 199x selection board. 
 
 
Unbeknown to the Board, the applicant also failed of selection in August 199x.  
The OER that the Board ordered removed was still in his record at the time.  Therefore, 
on July 8, 1999, the Coast Guard recommended that the Board amend its order in the 
case  to  include  the  removal  of  the  applicant’s  failure  of  selection  in  199x.    The  Coast 
Guard recommended that the correction be made before the next xxxxx selection board 
meets in August 1999. 
 

FINDINGS AND CONCLUSIONS 

The Board has jurisdiction over this matter pursuant to 33 C.F.R. § 52.73. 

 

1. 
 
2. 

The  OER  that  the  Board  ordered  removed  was  still  in  the  applicant’s 
record when he failed of selection in 199x.  All of the applicant’s failures of selection 
that occurred while his record still contained the OER that the Board removed should 
also be removed from his record.   

3. 

 
 
applicant’s 199x failure of selection.  
 

Accordingly, the final order in this case should be amended to remove the 

The  order  issued  by  the  Board  in  Docket  No.  1998-018  to  correct  the  military 

The third paragraph (second bulleted item) of the order shall be deleted and re-

 All record of the applicant’s failures of selection for xxxxx by the 199x, 199x, and 

ORDER 

 
 
record of XXXXXXXXX, USCG, is hereby amended. 
 
 
placed by the following: 
 
• 
1998x selection boards shall be removed. 
 
 
 
 

 

 

 

 

 
 
 
 

 
 
 
 

 
 
 

 

 

 

 

 

 

 
 

 
 

 
 

 

 
 
David H. Kasminoff 

 

 

 
 

 
 

 
 

 
 

 

 
George Kuehnle, Jr. 

 

 

 

 
Michael J. McMorrow  

 

 

 
 

DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 1998-018 
 
 
   

 

 
 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This is a proceeding under the provisions of section 1552 of title 10, United States 
Code.  It was commenced on November 3, 1997, upon the BCMR’s receipt of the appli-
cant’s request for correction. 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  December  17,  1998,  is  signed  by  the  three  duly  

APPLICANT’S REQUEST FOR RELIEF 

 

 
 
The applicant, a xxxxxxxxxxxxxx in the Coast Guard, asked the Board to correct 
his record by expunging two officer evaluation reports (OERs) because of improperly 
composed rating chains.1  The two disputed OERs, which cover the periods August 22, 
199x,  to  July  15,  199x,  and  July  16,  199x,  to  August  5,  199x,  have  significantly  lower 
scores than the applicant’s other OERs (see the chart on page 16, below).  The disputed 
OERs would be replaced with two “For Continuity Purposes Only” OERs.   
 

The applicant also requested that the Board remove from his record his failures 
of selection in 199x and 199x, which, he alleged, resulted from the presence of the two 
disputed OERs.  If, after the OERs and failures of selection are removed from his record, 
the applicant is selected for promotion by the next selection board, he wants his date of 

                                                 
1   The following abbreviations are used to refer to members of the applicant’s rating chains: 
“RO1” was the reporting officer for the first disputed OER.  He was under investigation for [redacted se-

rious charges] at the time he completed that OER. 

“RO2” was the supervisor for the first disputed OER and the reporting officer for the second disputed 

OER.  He later married S. 

“S” was the supervisor for the second disputed OER.  She later married RO2. 

rank to be backdated to the date of his first failure of selection, and he wants to receive 
back pay and allowances. 

APPLICANT'S ALLEGATIONS 

 
Allegations Concerning First Disputed OER 
 
 
The applicant alleged that the first disputed OER should be removed because a 
member  of  the  rating  chain,  the  reporting  officer  (RO1),  was  soon  to  be  “be[]  tried  
before a general court-martial and faced trial by jury in the xxxxxxxxxxxx.”  He also al-
leged  that  RO1  had  completed  the  OER  just  17  days  before  he  pleaded  guilty  to  [re-
dacted crime] at the court-martial.  The applicant stated that RO1 should have recused 
himself because, “there is no way that, given the personal strain which he faces as a re-
sult of the pending criminal actions against him, [RO1] could have fairly and accurately 
evaluated anyone in his chain of command.”  
 

To  support  his  allegation  about  RO1’s  court-martial,  the  applicant  submitted a 
photocopy of an Order of a General Court-Martial, dated xxxxxx, 199x, indicating that 
pursuant  to  an  Order  dated  xxxxxxx,  199x,  RO1  had  been  arraigned  on  charges  and 
brought to trial, at which he pleaded guilty to [redacted crime].  The same Order indi-
cates that RO1 pleaded not guilty to “commit[ting] an [redacted serious charge].”  The 
latter  charge  was  withdrawn.    RO1  was  sentenced  to  “confinement  at  hard  labor  for 
three months” for [redacted crime]. 
 

In  addition,  the  applicant  submitted  copies  of  court  papers  indicating  that  on 
xxxxxx, 199x, RO1 was found guilty of [redacted serious crime] and was sentenced to 
seven years in prison by civilian authorities.  To support this allegation, the applicant 
submitted a photocopy of a Final Order of a trial, dated xxxxxxxxxx, 199x, which states 
that RO1 had been convicted of [redacted crime] and was sentenced to seven years in 
the penitentiary.  The applicant also submitted (1) a copy of RO1’s arrest warrant, ex-
ecuted  on  xxxxxxx,  199x,  which  indicates  that  he  had  been  charged  with  “[redacted 
crime]” in late 198x and early 198x; and (2) a photocopy of an Order denying RO1’s ap-
peal. 
 
Allegations Concerning Second Contested OER 
 
 
The applicant alleged that the second disputed OER, which covered the period 
from July 16, 199x, to August 5, 199x, should be removed because the supervisor [S] and 
reporting officer [RO2] for that OER married each other within a year of completing the 
OER.  (See the timeline on page 16.)  Prior to the summer of 199x, the applicant and S 
were the only two section chiefs who reported to RO2.  In the summer of 199x, when 
RO1 retired due to his legal problems, RO2, who had been the applicant’ supervisor, 
“fleeted up” to take his place, thereby becoming the applicant’s new reporting officer.  
Soon thereafter, S “fleeted up” to take RO2’s previous position and thereby became the 
applicant’s supervisor.  According to the applicant, “it is readily apparent that [RO2’s] 
and [S’s] marriage the following year raises a question of impropriety which cannot be 
dismissed.” 

 
Allegations Concerning the Applicant’s Actual Performance 
 
 
The applicant alleged that he received a Meritorious Service Medal and his third 
Letter of Commendation for his work during the period covered by the two disputed 
OERs.  He described his job during that time  as follows: 
 

[The applicant] was the project officer in charge of developing and implement-
ing  the  Coast  Guard’s  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.    He  obtained 
funding, developed policy, and directed the implementation of the xxxxxxxxxx, 
which was completed on time and within budget.  He supervised 3 individuals 
and  directed  the  efforts  of  2  xxxxxxxxxxx  and  2  xxxxxxxxxx  centers  in  imple-
menting the project.  All the while, he was charged with managing a $xx million 
budget. . . . 
 
 
[The applicant] served as the Planning Officer for the xxxxxxxxxxxx.  He 
was responsible for strategic planning, long range planning, and program bud-
geting for the office.  [He] developed an extensive budget plan for the distribu-
tion of a $xx million operating fund, in addition to developing a xxxxxx Plan and 
a xx briefing book for the xxxxxxxx use during xxxxxxxxx. 

 

 

The applicant also alleged that a review of his previous OERs would reveal that 
he  had  “excelled  in  a  demanding,  high-stress,  deadline-oriented  assignment  at  Coast 
Guard  Headquarters,”  and  was  considered  a  “walk-on-water”  member  of  the  Coast 
Guard and a “distinguished performer.”  He also noted that the OER he received sub-
sequent  to  the  two  disputed  OERs  was  “stellar”  and  “marked  him  in  the  top-block 
across the board of all Coast Guard officers.” 

 

The Applicant’s Legal Arguments 

 
To support his application, the applicant argued that, “if OERs are not prepared 
in the manner required by law, they are not properly included in an officer’s records be-
fore  selection  boards,”  citing  Guy  v.  United  States,  608  F.2d  867,  871  (Ct.  Cl.  1979).  
Moreover,  he  argued  that  “Coast  Guard  Regulations  require  that  an  officer’s  rating 
chain be unbiased and to give a fair and objective evaluation,” citing Fescina v. United 
States, 12 Cl. Ct. 254, 261 (1987).  “The Coast Guard Personnel Manual—a lawfully bind-
ing regulation—provides that a Supervisor, Reporting Officer or reviewer can be disqu-
alified and be replaced in appropriate circumstances. . . .  A person can be disqualified 
for misconduct, or ‘any other situation in which a personal interest or conflict on the 
part  of  the  Supervisor,  Reporting  Officer,  or  Reviewer  raises  a  substantial  question 
whether  the  Reported-On  Officer  will  receive  a  fair  and  accurate  evaluation.’”    Per-
sonnel Manual, Article 10-A-2.g. 
 

VIEWS OF THE COAST GUARD 

On  September  16,  1998,  the  Chief  Counsel  of  the  Coast  Guard  recommended  

 
denial of the applicant’s request for relief.   
 

The Chief Counsel urged the Board to deny the requested relief for lack of proof 
because the applicant “fails to offer any evidence of a nexus between the alleged ‘per-
sonal interest or conflict’ of his OER rating chain members and his documented job per-
formance.”  He stated that “[t]o establish that the OER is erroneous or unjust, the Appli-
cant must show a misstatement of a significant hard fact or a clear violation of a statute 
or regulation.”  “With no evidence to the contrary, a presumption of regularity must be 
assumed regarding the conduct of his Supervisor and Reporting Officer.”  The appli-
cant, the Chief Counsel stated,  
 

has not alleged a misstatement of hard fact or any procedural defect in the dis-
puted OERs nor has he provided evidence, much less prima facie proof, of any 
violation of a statute or regulation in this regard.  Applicant provides no expla-
nation or theory regarding how the alleged off-duty actions of members of his 
rating chain might have had a deleterious effect on the documentation of his per-
formance in the disputed OERs.  Further, he fails to point to any specific com-
ment or mark that would demonstrate his unsupported claim. 

 
 
The Chief Counsel stated that the applicant’s receipt of the Meritorious Service 
Medal is not proof that the disputed OERs are in error because “medals and awards are 
not directly connected to the Officer Evaluation System.”  He pointed out that neither of 
the disputed OERs could be considered an “adverse evaluation” because “[n]o charac-
teristic mark fell below 4,” and that the applicant did not take advantage of the oppor-
tunity to submit responses that would have been included in his record with the OERs. 
 
  
In regard to the first disputed OER, the Chief Counsel stated that RO1 was con-
victed of [redacted crime] before a general court-martial on xxxxxxxx, 199x.  The Chief 
Counsel  contended,  however,  that  “[t]hese  charges  and  court  martial  have  no  re-
lationship  to  the  Applicant.”    “Both  [the court-martial and the civilian trial] occurred 
after  the  OER  was  completed,  and  did  not  have  anything  to  do  with  [RO1’s]  Coast 
Guard employment.”  Furthermore, he asserted, “[t]here is no requirement that auto-
matically disqualifies a rating official who is the subject of criminal proceedings.” 
 

In regard to the second disputed OER, the Chief Counsel stated that RO2 and S 
“were  married  in  November  199[x],  approximately  16  months  after  the  close  of  the 
marking period . . . .”  There is no proof that the intimate relationship between S and 
RO2  existed  at  the  time  they  completed  the  second  disputed  OER.    Furthermore,  he 
stated,  the  “[a]pplicant  offers  no  theory,  much  less  prima  facia  proof,  which  would  
explain  why  the  alleged  relationship  between  his  Supervisor  and  Reporting  Officer 
would somehow adversely affect the appraisal of his performance.”  The Chief Counsel 
pointed out that the applicant apparently did not complain about the composition of his 
rating chain at the time of the evaluation.   

 

The Chief Counsel attached to his advisory opinion affidavits from RO2 and S, 
who  both  stated  that  they  had  reviewed  the  disputed  OERs  and  that  the  marks  they 
awarded the applicant were accurate, objective, fair, and based on his overall perform-
ance during his tour of duty at Coast Guard Headquarters.  RO2 stressed that the marks 
he gave the applicant in the second disputed OER were “consistent with [the applicant] 
learning  the  job  and  growing  more  competent  with  that knowledge and experience.”  
He pointed out that, in the second disputed OER, he had “strongly recommended [the 
applicant] for promotion to CDR with his peers,” and that “in the [first disputed] OER, 
[the  applicant’s]  first  as  [a  xxxxxxxxxxx],  it  would  be  totally  inappropriate  to  recom-
mend him for promotion to [xxxxxxxxxxx].  He would not even be eligible for another 
year.  I still believe that he was well qualified to become [a xxxxxxxxx] and I am disap-
pointed to find out that two selection boards didn’t select him.”   

 
RO2, whose supervisor was RO1, included the following comments about RO1’s 

performance prior to his court-martial in his affidavit: 

 
. . . Sometime during the period of the OER, I recall [RO1] becoming involved 
with military justice matters related to his xxxxxxxxx.  I observed nothing to in-
dicate his work was affected by his life outside of work.  I was sensitive to this, 
as he was my direct supervisor.  In all instances of my dealings with [RO1], I re-
call him to be focused on his CG work. . . .  [RO1] appeared to closely review the 
OER and wanted changes/clarifications. . . .  I was also aware of an out-of-the-
office relationship between [RO1 and the applicant] that seemed to involve fit-
ness activities such as jogging.  I didn’t follow the situation very closely, but I am 
under the impression that [RO1] would not neglect an OER of [the applicant]. . . . 

 
 
In regard to the applicant’s failures of selection, a memorandum sent to the Chief 
Counsel  by  the  Military  Personnel  Command  states  that  “[s]election  to  xxxx  is  very 
competitive.  The stated opportunity of selection to xxxx for promotion years 199x and 
199x  was  xx  percent.”    However,  the  Chief  Counsel  admitted,  the  applicant’s  record 
would have been stronger without the disputed OERs.  “Therefore, if the BCMR were to 
find that either of the disputed OERs were erroneous or unjust, the Coast Guard con-
cedes that there would be a nexus between Applicant’s non-selection to xxxx and the 
existence of the disputed OERs in his record.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On September 17, 1998, the Chairman forwarded a copy of the Chief Counsel’s 
advisory opinion to the applicant and invited him to respond within fifteen days.  The 
applicant requested two extensions, which were granted.  On November 18, 1998, the 
applicant submitted his response to the advisory opinion. 
 
 
by RO1, the reporting officer for the first disputed OER.  RO1 stated the following: 
 

In response to the advisory opinion, the applicant submitted an affidavit signed 

I have reviewed the contested OER and agree that the report is incomplete and 
underrates his performance in several areas. . . .  [In] Block 3.a . . . [the appli-
cant’s] effort should have earned him a mark of at least 5 . . . .  [In] Block 3.c . . . 
[his] accomplishment should have earned him a mark of at least 5 . . . .  [In] Block 
3.d . . . [h]is responsiveness was impressive and should have earned him a 5 if 
not a 6 in this block. . . .  [In] Block 4.a . . . [a] mark of at least 5 is warranted here. 
. . .  [In] Block 11 . . . [t]his block being partially empty was a significant oversight 
on  my  part.    [The  applicant’s]  accomplishments  and  demonstrated  leadership 
skills provided ample information to completely fill this block. . . .  [Regarding 
the] Comparison Scale and Distribution:  I marked [the applicant] as an excep-
tional  performer.    He  should  more  accurately  have  been  marked  as  a  Distin-
guished  Performer.    He  came  into  the  job  as  the  xxxxxxxxxxxx  where  the 
incumbent had been retired for at least 6 months.  I specifically remember being 
impressed at how he aggressively assumed his duties and championed this high 
profile project from day one. . . .   
 
My  review  indicates  that  this  report  is  not  an  accurate  representation  of  [the  
applicant’s] performance for the period 28 Aug 9x – 15 Jul 9x.  It is clear from his 
accomplishments during this 1 year period, that [the applicant] was fully capable 
of performing at the O-5 level and a recommendation to this effect should have 
been made. 
 
I attribute the lack of thoroughness and accuracy on my part in preparing this 
OER to ongoing issues at the time.  I retired from active duty on 1 Oct 9x but was 
retained until Aug 9x due to a UCMJ investigation. . . .  During this time, I per-
formed  planning  work  for  the  Commanding  Officer  while  preparing  my  de-
fense.  Needless to say, this period of time was not the high point of my Coast 
Guard career where I had served faithfully for over 20 years.  In spite of my best 
intentions, I prepared an incomplete and inaccurate evaluation of [the applicant] 
that I signed on 23 Nov 9x. 
 

RESPONSE OF THE COAST GUARD 

RELEVANT REGULATIONS 

 

Preparing an OER 
 
 
Article  10.A.  of  the  Coast  Guard  Personnel  Manual  (COMDTINST  M1000.6A) 
governs the preparation of OERs.  Each OER is prepared by the reported-on officer’s 
“rating chain” of three senior officers:  the supervisor (the officer to whom the reported-
on officer answers on a daily basis), the reporting officer (the supervisor’s supervisor), 

 

 
 
On December 14, 1998, the Chief Counsel stated that the Coast Guard’s advisory 
opinion was not changed in any way by the affidavit of RO1.  The Chief Counsel ques-
tioned  the  validity  of  RO1’s  “retrospective  review”  and  suggested  that  RO1’s  state-
ments concerning blocks 3 and 4 in the OER were inappropriate since those blocks are 
completed by the supervisor of an OER, not by the reporting officer. 
 

and the reviewer (the reporting officer’s supervisor).  According to Article 10.A.2.e.(2) 
of the Personnel Manual, which governs the responsibilities of the reporting officer, the 
reporting officer 
 

(d) 
[e]nsures the Supervisor fully meets responsibilities for administra-
tion of [the Officer Evaluation System].  Reporting Officers are expected to 
hold those persons designated as Supervisors accountable for timely and 
accurate evaluations.  If a Supervisor submits evaluations that are incon-
sistent  with  actual  performance  or  unsubstantiated  by  narrative  com-
ments,  the  Reporting  Officer  shall  return  the  report  for  correction  or 
reconsideration, counsel the Supervisor, and consider this when reporting 
on  the  performance  of  the  Supervisor.    The  Reporting  Officer  may  not  
direct in what manner an evaluation mark or comment is to be changed 
. . .  . 
According to Article 10.A.2.f.(2) of the Personnel Manual, which lists the respon-

 
sibilities of the reviewer, the reviewer  
 

(1) 
In instances where a Supervisor, Reporting Officer, or Reviewer is 
unavailable or disqualified to carry out the responsibilities of a member of 
the rating chain, the next senior officer in the chain of command will des-
ignate  an  appropriate  substitute  who  is  capable  of  evaluating  the  
Reported-on Officer. . . . 

• • • 

(b) 

(2) 
“Disqualified” includes 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 Supervisor, Reporting Officer, or Reviewer rais-

[e]nsures  the  OER  reflects  a  reasonably  consistent  picture  of  the 

(a) 
Reported-on Officer’s performance and potential. 
 
(b) 
[c]hecks  for  obvious  errors,  omissions,  or  inconsistencies  between 
numerical evaluations and written comments and any failures to comply 
with instructions. . . . 

• • • 

(d) 
[e]nsures the Supervisor and the Reporting Officer have adequately 
executed their responsibilities under the [Officer Evaluation System].  The 
Reviewer shall return an OER to the Reporting Officer to correct errors, 
omissions, or inconsistencies between the numerical evaluation and writ-
ten comments. . . . 

Article  10.A.2.g.  of  the  Personnel  Manual  provides  for  exceptions to the rating 

 
 
chain composition: 
 

(b) 
For  each  evaluation  area,  the  Reporting  Officer  [or  Supervisor] 
shall  review  the  Reported-on  Officer’s  performance  and  qualities  ob-
served and noted during the reporting period.  Then, for each of the per-
formance  
dimensions, the Reporting Officer [or Supervisor] shall carefully read the 
standards and compare the Reported-on Officer’s performance to the level 
of  performance  described  by  the  standards.    The  Reporting  Officer  [or  
Supervisor] shall take care to compare the officer’s performance and quali-
ties against the standards—NOT to other officers and not to the same offi-
cer in a previous reporting period.[2]  After determining which block best 
describes the Reported-on Officer’s performance and qualities during the 
marking  period,  the  Reporting  Officer [or Supervisor] fills in the appro-
priate circle on the form in ink. 

• • • 

(d) 
In  the  “Comments”  sections  following  each  evaluation  area,  the 
Reporting  Officer  [or  Supervisor]  shall  include  comments  citing  specific 
aspects  of  the  Reported-on  Officer’s  performance  and  behavior  for  each 
mark that deviates from a “4.”. . .    
 
(e)  Comments should amplify and be consistent with the numerical eval-
uations in the evaluation area.  They should identify specific strengths and 
weaknesses in performance or qualities.  Well-written comments must be 
sufficiently  specific  to  paint  a  picture  of  the  officer’s  performance  and 
qualities which compares reasonably with the picture defined by the stan-
dards marked on the performance dimensions in the evaluation area. . . . 
 

es  a  substantial  question  whether  the  Reported-on  Officer  will  receive  a 
fair and accurate evaluation. 

Article 10.A.4.d. of the Personnel Manual governs the preparation of OERs.  Pa-

 
 
ragraphs (4) and (7) instruct the rating chain members as follows: 
 

 
Replies to OERs 
 
Article 10.A.4.h. allows the reported-on officer to reply to any OER and have the 
 
reply filed with the OER if they are submitted within 14 days of receipt of the OER copy 
from the commandant.  The provision for reply is intended to “provide an opportunity 
for  the  Reported-on  Officer  to  express  a  view  of  performance  which may differ from 
that of a rating official.” 
  
Romantic Relationships 
 
                                                 
2  The  shaded  language  appears  only  in  the  instructions  for  supervisors  in  paragraph  (4)  of  Article 
10.A.4.d., not in the instructions for reporting officers in paragraph (7). 

Article 8.H. of the Coast Guard Personnel Manual governs personal relationships 
 
between Coast Guard members.  According to Article 8.H.3.b., a romantic relationship 
between  a  supervisor  and  a  subordinate  is  an  “unacceptable  relationship.”    Article 
8.H.2.d.3.c. states that “unacceptable relationships” shall normally be resolved adminis-
tratively if not terminated. 
 

SUMMARY OF  APPLICANT’S RECORD 

 
Prior Service Records 
 
 
On May xx, 198x, the applicant graduated from the Coast Guard Academy with 
a Bachelor of Science in xxxxxxxxxx.  In 198x, he was promoted from xxx to xxx and 
worked as an xxxxxxxxxxx for a xxxxxxxxxxx.  From 198x to 198x, the applicant was the 
xxxxxxxxxxxxxxxxxxxxx.  He received his first Commandant’s Letter of Commendation 
for his efforts.   
 

After being promoted to xxx and earning a master’s degree in xxxxxxxxxxx from 
the  xxxxxxxxxxxxx  in  198x,  the  applicant  served  as  section  chief  for  a  multi-state 
xxxxxxxxxxxxxxxxx.  He was responsible for maintaining xxxxxxxxxxxxxxx and super-
vising five other xxxxxxxx.  He was also the xxxxx representative for the contracting of-
ficer  for  the  xxxxxxxxxxxx.    In  198x,  he  received  his  second  Commandant’s  Letter  of 
Commendation for his “exceptional” work on the xxxxx.  His OER for this period is no. 
1 in the chart on page 16. 

 
From  August  198x  to  August  199x,  the  applicant  was  assigned  to  the  xxxxxx, 
where he served as the commanding officer of the xxxxxxxxx detachment.  He coordi-
nated xxxxxxxxxx for the xxxxxxxx region, supervising a staff of eleven and the installa-
tion, testing, evaluation, supply, and training for all xxxxxxxxxx-related work.  During 
this period he was promoted to xxx and he was awarded a Coast Guard Achievement 
Medal.  The applicant’s OERs for this period (nos. 2 through 6 in the chart on page 16) 
state that he  

 
•  “respond[ed] to many non-working hours emergency calls”;  
•  “excel[led] in independent [commanding officer]/administrator role”;  
•  “[did] outstanding job pulling resources from any/everywhere to meet cus-

tomer needs”;  

•  “[was]  particularly adept at handling the sensitive ‘politics’ . . .”;  
•  “demonstrat[ed] high-level of administrative competence”;  
•  “quickly/independently resolved numerous personnel problems”;  
•  “[i]n anticipation of the loss of procurement support . . . , he formed & trained 

purchasing section to do the work in-house”;  
•  “molded a highly effective & motivated unit”;  
•  “developed excellent working relationships with local vendors/agencies”; 
•  “continu[ed] to produce exceptional work”;  

•  “[p]rojected a dedicated and professional image”;  
•  “set an outstanding example for unit”;  
•  “represented [the Coast Guard] in sports events & marathon”;  
•  “completed critical xxxxxxxxxxxxxxxxxxxxxxxx”; 
•  “provided  expert  advice  .  .  .  on  support  of  xxxxxxxxxxxxxxxxxxxxxxx  sys-

tems”; 

•  “[was] exceptionally successful as the Commanding Officer of [his unit]”; and 
•  “[was] recommended for promotion [to xxxxx] with his peers.” 
 

Records  Concerning First Disputed OER 

 
From  August  199x  to  June  199x,  the  applicant  was  Section  Chief  of  the 
xxxxxxxxxxxxxxxxxxxxxxxx at Coast Guard headquarters.  He was responsible for the 
budgeting and implementation of the $xx million xxxxx at xxxxx, under the supervision 
of  the  project  manager.    He  administered  a  $xx  million  budget  and  supervised  three 
persons.   

 
The first disputed OER (no. 7 in the chart on page 16) covers the applicant’s first 
year at this post, from August 22, 199x, through July 15, 199x.  During this first year, 
RO2 was the xxxx project manager to whom the applicant reported.  The only other sec-
tion chief to report to RO2 was S, whom RO2 later married in late 199x.  RO2 was the 
supervisor for the first disputed OER.  When RO1, the reporting officer for the first dis-
puted OER, retired in the summer of 199x (but continued to work in the same position) 
prior to his court-martial, RO2 “fleeted up” and S took over RO2’s position as the appli-
cant’s supervisor.  The first disputed OER was signed by RO2, as supervisor, RO1, as 
reporting  officer,  and  the  Chief  of  the  xxxxxxxxxxxxxxxxxx,  as  reviewer, 
in  
November 199x, just one month before RO1 was arraigned for [redacted charge].  RO1 
had  been  under  investigation  for  xxxxxxxxxxxxx[redacted  charge]xxxxxx  for  several 
months.  In June 199x, RO1 pleaded guilty to the charge of xxxxxx but not guilty to the 
charge of xxxxxxxxx.  The latter charge was dropped by the military authorities.  How-
ever, in June 199x, the applicant was convicted by civilian authorities of xxxxxxxxxxx 
for a 198x incident involving a xxxxxxxxxxx.   

 
The  first  disputed  OER  differs  significantly  from  the  applicant’s  previous  and 
subsequent OERs in both the numerical scores, which are lower, and comments, which 
are less laudatory.  Although none of the comments in the first disputed OER could be 
called critical, they tend to describe in detail what work the applicant performed rather 
than  describing  how  well  he  performed  the  work.    The  OER  contains  the  following  
notable comments by RO2 acting as the supervisor: 

 
•  “Anticipated  need  to  obtain  a  Delegation  of  Procurement  Authority  (DPA) 
for procurement of xxxxxxxxxxxxxx and began documentation process, pre-
venting a possible delay in the xxx project completion.  Saw a need to retain 
additional property at a decommissioned [Coast Guard] unit that was being 

returned to the state.  Shifted workload of [ensign] to relieve backlogged cor-
respondence allowing the expediting of closing down unused xxxxxxx . . . .  
Planned  and  executed  high  interest  project  to  xxxxxxx  for  xxxxxxxxxxxx  of 
xxx mandated by [the Office of Management and Budget]. . . .  Generated ac-
curate budget for the xxx project and well thought out spreadsheet to track 
procurements.  Quickly responded to xxxxx request for additional xxxxxx. . . .  
Demonstrated  excellent  understanding  of  the  [Coast  Guard]  xxxxxxx  struc-
ture  in  planning  the  installation  of  a  xxxxxx.    Quickly  became  an  expert  in 
xxxxxxx through professional reading and TAD technical training.” 

 
•  “Extremely effective in working with [a support unit] in the retaining of addi-
tional  property  at  a  decommissioned  unit  for  implementation  of  xxx.  .  .  .  
Smoothly  coordinated  a  xxxxxx  project  with  many  participants  to  install  a 
xxxxxxxx in a short time period.” 

 
•  “Provided excellent xx briefings at a professional society luncheon and at a 
Federal subcommittee meeting . . . .  Demonstrated excellent listening skills in 
generating  minutes from several meetings attended. . . .  Drafted an excep-
tional letter to all district xxxxxs on the status of the xx project.” 

 
The first disputed OER contains the following comments from RO1 acting as the 

reporting officer: 

 
•  “I concur with the reporting officer’s [sic] comments and numerical evalua-
tion.    [The  applicant]  is  a  great  asset  to  the  xxxxxxxxxx  and  the  [xxxxx] 
Project.  His considered thought, judgement and the extra effort he puts into 
all tasks is [sic] greatly appreciated.” 

 
•  “Aggressively  assumed  duties  as  xxxx  section  chief,  relieving  project  man-
ager  [RO2]  of  most  matters.  .  .  .    Recommended  excellent  method to deter-
mine  ccccc  failure  statistics  without  placing  more  burden  on  field  units.  
Extremely loyal—voiced disagreement with policy on xxxxx installations but 
enthusiastically worked . . . per policy guidelines.  Put forth whatever effort 
and hours required to meet tight deadlines . . . .  [C]ompleted xxxxxx.” 

 
•  “Demonstrated outstanding military bearing . . . .  Was an outstanding repre-

sentative of the [Coast Guard] . . . .  Very professional and proper.” 

 
•  “[The applicant] has shown maturity and judgement in his work at all times.  
He leads by example. . . .  Keen ability to get things done through his subor-
dinates and working closely with other organizations.  Strongly recommend-
ed for increased responsibility . . . .  Can handle any [xxxxxxxx] billet in xxx 
arena.” 

 

Records Concerning Second Disputed OER 

 
The second disputed OER (no. 8 in the chart on page 16) covers the second year 
of  the  applicant’s  duty  at  this post, from July 16, 199x, to August 5, 199x.  S was the  
applicant’s  supervisor.    RO2  was  the  xxxxxx  project  manager  and  the  applicant’s  
reporting officer.  The same division officer that reviewed his first disputed OER also 
served as reviewer for this second disputed OER.  The OER was signed by each mem-
ber of the rating chain in December 199x.  RO2 and S married each other in late 199x.  
There  is  no  evidence  concerning  when  their  intimate  relationship  began,  and  neither 
RO2 or S addressed the matter in their affidavits except to say that the marriage did not 
affect their evaluations in the second disputed OER. 

 
The marks the applicant received in the second disputed OER are mostly higher 
than those in the first disputed OER but still significantly lower than those he received 
in  previous  and  subsequent  OERs.    In  particular,  the  marks  of  4  that  the  applicant  
received for the Speaking and Listening and Writing categories do not seem to match 
the  comments  which  follow  those  marks  (see  last  bullet  in  list  immediately  below).  
Those comments match more closely the description provided for a mark of 6 in those 
categories.3   

 
S made the following comments on the second disputed OER: 
 
•  “Superb  preparation  in  planning xxxxxxxxxxx for XXXX project & manage-
ment  of  its  execution  .  .  .  .    Developed  outstanding  XXXX  implementation 
plan . . . .  kept to [project schedule without] overburdening xxxxx or need for 
[additional personnel] resources . . . .  Showed sound work life knowledge in 
assisting [Chief Warrant Officer] in resolving significant medical issues prior 
to retirement.  Superb xx & organizational expertise.” 

 
•  “Superbly worked [with] other units/staffs to resolve difficult issues . . . .” 
 
•  “Extremely supportive of section members . . . .  Promoted an esprit de corps 
resulting in superior work environment that allowed significant project goals 
to be reached [with] minimal resources.  Provided timely feedback to subor-
dinates—helped meet critical deadlines.” 

                                                 
3  The mark of 6 for the Speaking and Listening category is described as follows: 

Displayed a remarkable ability to identify and discuss key issues, and to express thoughts 
clearly,  coherently,  and  extemporaneously  with  credibility.    Captivated  and  persuaded 
audiences.  Chosen by superiors to make presentations on complex or sensitive issues, or 
when audience had unusual significance. 

The mark of 6 for the Writing category is described as follows: 

Expressed  complex  and  controversial  material in such a lucid and persuasive way that 
achievement of stated objectives was materially aided.  Meticulous proofreader.  Written 
material responsible for unit achievement or mission accomplishment, or published ma-
terial brought credit upon [Coast Guard].  Provide noteworthy examples. 

 
•  “An exceptional speaker, chosen to give XXXX brief to distinguished panel of 
experts at [the xxxxxxxxxx].  Gave outstanding briefings . . . .  Drafted very 
specific & crucial response to xxxxxx flag [letter] . . . .  Drafted & presented 
outstanding XXXX paper at . . . xxxxxxxx conference, chaired tech[nical] ses-
sion on XXXX at conf[erence].” 

 
RO2 made the following comments on the second disputed OER: 
 
•  “Concur with supervisor.  [The applicant] achieved significant goals with li-
mited resources . . . .  Achieved outstanding results & kept XXXX project on 
schedule.  Took initiative to develop XXXX demo[nstration] plan . . . .” 

 
•  “Extremely innovative & goal oriented, continually found ways to overcome 
major obstacles towards XXXX implementation . . . .  Judgement always on 
the mark . . . .  Demonstrated utmost responsibility in project [management] 
of XXXX  . . . .  Excellent physical condition, an avid runner . . . .” 

 
•  “Set  the  standard  for  military  bearing  in  his  section  .  .  .  .    An  outstanding 
[Coast Guard] rep[resentative] . . . .  Responded to several inflammatory pro-
fessional  situations  [with]  poise  &  restraint  to  the  benefit  of the XXXX pro-
gram.” 

 
•  “[The applicant] has demonstrated outstanding managerial, administrative, & 
technical skills, and is a critical member of the XXXX project . . . .  Strongly 
recommended for promotion to [xxxxx] with his peers.” 

 

Subsequent Service Records 
 
 
The applicant remained at the same post until June 5, 199x.  He was awarded the 
Meritorious Service Medal for his work on the XXXX project from October 199x to June 
199x.  The citation to the medal reads as follows: 
 

[The applicant] is cited for meritorious service in the performance of duty 
. .  .  from  October  199x  to  June  199x.    Demonstrating  exceptional  leader-
ship,  [he]  managed  the  implementation  of  the  [xxx]  .  .  .  .    When  the  
National Environmental Protection [sic] Act (NEPA) requirements threat-
ened  a  1-year  project  delay,  he  developed  and  executed  a  creative  plan 
which  avoided  $xx  in  NEPA  contract  costs  and simultaneously kept the 
project  on  schedule.    When  resource  requirements  threatened  to  delay 
XXXX  implementation  in  the  xx  District,  [he]  developed  an  innovative 
plan to expedite xxxxxxxxxx . . . .  [His] diligence in formulating and nego-
tiating a xxxxxxxxxx. . . reduced the government’s costs in implementing 
this xxxxxxx by combining resources and avoiding duplication. . . .  

 

The third OER that the applicant received for his work on the XXXX project (no. 9 in 
the chart on page 16) was completed by a new rating chain and is significantly more  
favorable than the two disputed OERs.  The following comments appear on that OER: 
 

•  “Anticipated  xx  XXXX  proj[ect]  concerns  prior  to  senior  xxxx  conf[erence  and] 
drafted status [letter] pre-empting/diffusing an adversarial situation at the conf-
[erence].  Developed innovative contingency plan . . . .  Superbly managed lim-
ited  resources  to  accomplish  branch  mission  .  .  .  .    Completed  daunting  EA/ 
NEPA prep[arations] for the entire XXXX project . . . preventing 1 year proj[ect] 
delay & avoiding $xx cost of contracting this effort. . . .  Extremely punctual in 
meeting  deadlines.  .  .  .  Office  expert  in  admin[istration]/doc[ument]  process-
[ing].” 
 

•  “Masterful in coordinating efforts among diverse units . . . .  Resolved ongoing 
turf battles between xxxxxxxxxxxxxxxxxxx allowing xxxxxxxxxxxxxx to proceed 
to meet Congressionally promised dates.” 
 

•  “Exceptional/highly  effective  speaker,  chosen  by  [program  manager]  for  most 
sensitive briefs . . . .  Gave powerful brief at xxxxxxx XXXX [meeting] convincing 
xxxx  that  [Coast  Guard]  resources  were  the  only  solution  to  complete  the 
proj[ect] on sched[ule]/within budget. . . .  A superb writer . . . .  Able to distill 
complex issues on paper . . . .” 
 

•  “This officer’s performance has been superior in all respects.  His execution of the 
NEPA/EA  program  within  xxx  for  the  XXXX  project  is  unprecedented  in  the 
Coast  Guard  and  his  personal  efforts  kept  this  high  visibility  (xxxxxxxxxxxxx) 
project on schedule and within budget.  As acting XXXX project manager for a 
one  month  period,  he  showed  impressive  leadership  and  organizational 
skills/savvy while making critical decisions to resolve ongoing xxxxxxxxxxxx/ 
logistical/resource problems.” 
 

•  “Superb  initiative/[judgment]  .  .  .  .    Showed  utmost  respon[sibility]  towards 
meeting goals . . . .  In superb physical condition [through] daily workouts result-
ing in high productivity/energy.” 
 

•  “[The applicant] has been a superb proj[ect] officer/brand chief.  He has champi-
oned  the  XXXX  proj[ect]  &  kept  it  on  sched[ule,]  overcoming  every  obstacle 
placed in his way. . . .  He is a highly respected, versatile, & hard-working indiv-
[idual] with excellent interpersonal skills—traits which will make him successful 
in any high visibility leadership pos[ition]. . . .  I . . . give my highest recommen-
dation for promotion to [xxxxx].”  
 

From June 199x through April 199x, the applicant served as a xxxxxxxxx in the 
xxxxxxxxxxx office.  He was responsible for xxxxxxxxxxxxxxx coordination of strategic 
planning, long-range planning, programming, budgeting, execution and evaluation sys-
tem efforts, developing spending plans for fiscal year 199x, and coordinating research 
and development projects.  The OER he received for this work (no. 10 in the chart on 
page 16) contains such comments as “achieved superb results,” “highly conscientious,” 
“relentless,”  “extremely  flexible/enthusiastic,”  “superior  knowledge,”  “built  excep-
tional relationship with xxx staff,” “aggressively assumed leadership role,” “developed 
superb guidance to the xxx board,” “exceptional/skilled speaker,” “first choice to brief 
xxx senior management,” “impressive writer,” “excellent prof[essional] tech[nical] ex-
pertise,” “excellent judgment.”  His reporting officer concluded as follows: 

 
An aggressive & dynamic officer.  An outstanding asset to this office [and 
the Coast Guard].  Diligent, professional, & persevering manner is an ex-
cellent  example  for  others  and  inspires  juniors  &  coworkers  to  do  their 
best.    His  quiet,  confident,  capable  manner  along  with  his  exceptional  
interpersonal  skills  quickly  earns  trust  &  respect  of  others.    His  excep-
tional  judgment,  dedication,  leadership,  and  initiative  demonstrates  that 
he is capable and highly recommended for positions with greater respon-
sibility.  And ideal candidate and highly recommended for any high visi-
bility leadership position . . . and/or senior service school.  I most strongly 
recommend [the applicant] for selection to [xxxxx]. 
 

This OER was signed in June 199x.  For this work, the applicant also received a third let-
ter of commendation from the Commandant, date May 16, 199x.  Both were presumably 
in the applicant’s record when he first failed of selection to xxxxx in xxxxxxx 199x. 

 
From May 199x to the present, the applicant has served as Chief of the xxxxxxxx 
of the xx Coast Guard District.  The two OERs he has received for this post (nos. 11 and 
12 in the chart on page 16) contain comments similar to those contained in the two im-
mediately  preceding  OERs.  The  reporting  officer  included  the  comment  “Should  be 
promoted now!” and the reviewer took the unusual step of adding the following com-
ments to the OER: 

 
I feel compelled to provide reviewer comments because of the value [the 
applicant] has added to my staff and to operations in the xxxxxxxxxx Dis-
trict.  .  .  .    He  has  excelled  in  every  regard.    He  has  put  the  role  of  the 
xxxxxxxxxxx center stage while deploying technologies that have marked-
ly  improved  xx  operations.    He  has  demonstrated  visionary  leadership 
skills in managing his program; skills that I covet in my staff . . . . He looks 
ahead,  develops  a  plan,  and  makes  it  happen!    He  also  has  made  the 
xxxxxxxxxxxxxx more accessible and responsive to our operational units.  
The capabilities, demeanor and forward looking mindset of this officer are 
the traits we need in our workforce and leadership of the 21st century! 

 
However, the applicant again failed of selection for xxxxx in xxxxx 199x.   
 

Timeline of Events 
 

 

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           199x                               199x                               199x                              199x 
 
 
                   Time covered by the first disputed OER 
 
                   Time covered by the second disputed OER 
 

AVEc 

 
 
 

 

 
 

 

 

 
 
 

 

 
 
 

 

 
 
 

 

 
 
 

 

9 
 
 
 
 
 
 
 

6 
 
 
 
 
 
 
 

5 
 
 
 
 
 
 
 

4 
 
 
 
 
 
 
 

3 
 
 
 
 
 
 
 

2 
 
 
 
 
 
 
 

1 
 
 
 
 
 
 
 

8b 
 
 
 
 
 
 
 

7b 
 
 
 
 
 
 
 

11 
 
 
 
 
 
 
 

10 
 
 
 
 
 
 
 

APPLICANT’S MARKS IN 12 OERs FROM 1/1/8x THROUGH 4/30/9x 
12 
 
 
 
 
 
 
 

CATEGORYa 
Being Prepared/Planning 
Using Resources 
Getting Results 
Responsivenessd 
Work-Life Sensitivityd 
Adaptabilityd 
Specialty Expertise/ Pro-
fessional Competence 
Collateral Dutyd 
Warfare Expertised 
Working with Others/ 
Teamwork 
Human Relations/ Work-
place Climate 
 
Looking Out for Others 
 
Developing Subordinates 
 
Directing Others 
 
Evaluations 
 
Speaking & Listening 
 
Writing 
 
Initiative 
 
Judgment 
 
Responsibility 
Staminad 
 
 
Health & Well-Being 
Military Bearingd 
 
 
Professionalism 
Dealing with the Publicd 
 
Comparison Scalef 
 
Average for OER 
 
a Some categories’ names have changed slightly over the years. 
b Disputed OER. 
c Average score of all OERs except disputed ones, which are shaded.  Averages have been rounded. 
d Category nonexistent until later years, or category discontinued. 
e Score given was “NO,” which means there was no opportunity to observe this trait. 
f The Comparison Scale is not actually numbered.  In this row, “5” means the applicant was rated to be a “distin-
guished performer; give tough, challenging, visible leadership assignments.”  A “4” means the applicant was 
an ”exceptional performer; very competent, highly respected professional.” 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 

FINDINGS AND CONCLUSIONS 

3. 

 
 
The Board makes the following findings and conclusions on the basis of the ap-
plicant's military record and submissions, the Coast Guard's submission, and applicable 
law: 
 
 
The Board has jurisdiction concerning this matter pursuant to section 1552 
of title 10, United States Code.  Under Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 199x), 
the application was timely. 
 
 
The applicant requested an oral hearing before the Board.  The Chairman, 
acting pursuant to 33 CFR § 52.31, denied the request and recommended disposition of 
the case without a hearing.  The Board concurs in that recommendation. 
 
 
The  applicant  alleged  that  his  rating  chains  for  two  OERs  had  been  im-
properly constituted.  He asked the Board to remove those OERs and two subsequent 
failures of selection from his military record and allow him to be considered for promo-
tion  by  two  additional  selection  boards.    He  alleged,  and  the  Coast  Guard  admitted, 
that  the  reporting  officer  for  the  first  disputed  OER  was  under  investigation  for 
xxxxxxxx xxxxxxxxxxxxxxxxx and was about to be court-martialed at the time he com-
pleted the OER.  In regard to the second disputed OER, he alleged, and the Coast Guard 
admitted,  that  the  supervisor  and  reporting  officer  for  the  rating  chain  had  married 
within one year of when they completed the OER.  
 
At  the  time  the  first  disputed  OER  was  completed,  the  reporting  officer 
 
was  under  investigation  for  xxxxxxxxxxxxxxxxxxxxxxxxxxxxx.    He  was  about  to  be 
court-martialed.    Article  10.A.2.g.  of  the  Personnel  Manual  requires  “disqualified” 
members of a rating chain to be replaced.  It defines “disqualified” as “includ[ing] 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 Supervisor, Reporting Officer, or Reviewer raises a sub-
stantial question whether the Reported-on Officer will receive a fair and accurate evalu-
ation.”  Under this provision and the circumstances of this case, the Board finds that the 
Coast Guard committed an error when it allowed the reporting officer of the first dis-
puted OER to remain on the rating chain. 
 
 
The Chief Counsel argued that being the subject of a criminal investiga-
tion does not, per se, disqualify someone for a rating chain.  On its face, however, Arti-
cle  10.A.2.g.  of  the  Personnel  Manual  does  not  require  a  reported-on  officer  to  be 
personally involved in the investigation or inquiry for the reporting officer to be dis-
qualified.  The applicant has alleged, in essence, that the reporting officer for the first 
disputed OER was too preoccupied with his own legal troubles to pay adequate atten-
tion to the applicant’s OER.  The reporting officer signed an affidavit indicating that he 

4. 

1. 

2. 

5. 

6. 

was, in fact, distracted by his personal problems, and he pointed out specific deficien-
cies in the OER that he would have corrected had he not been distracted. 
 
 
The Chief Counsel also alleged that the applicant was required to, but did 
not, point out specific marks or comments that were inaccurate. The applicant cited the 
overall lower marks he received as the inaccuracy requiring removal of the entire OER 
rather  than  pointing  to  specific  errors  in  the  OER.    Although  the  significantly  lower 
marks received by the applicant are not, by themselves, proof of inaccuracy, they lend 
credence to the applicant’s contention that the reporting officer may not have paid ade-
quate attention to the OER because he was preoccupied with his legal troubles.   
 

8. 

Therefore,  the  Board  finds  that  the  reporting  officer’s  involvement  with 
the legal system at the time he was reviewing and completing the applicant’s OER over-
comes the presumption of regularity and raises a substantial question of whether the 
reporting  officer  was  able  to  focus  sufficient  attention  on  the  OER  to  ensure  that  it 
would be fairly and accurately completed.  Thus, the Coast Guard erred when it failed 
to remove the reporting officer from the applicant’s rating chain for the first disputed 
OER. 
 
 
The applicant has failed to prove that the Coast Guard committed an error 
with regard to the second disputed OER.  At the time the OER was completed, the su-
pervisor and reporting officer for that OER may have been involved in a romantic rela-
tionship.    They  were  married  less  than  a  year later.  Neither the applicant, the Coast 
Guard, or the officers in question presented any evidence as to whether they were al-
ready involved in a romantic relationship when they completed the applicant’s second 
disputed OER.  Because the reporting officer supervised the supervisor for the second 
disputed OER, a romantic relationship at the time would have been an “unacceptable 
relationship” according to Article 8.H.3.b. of the Personnel Manual.   
 

Under Article 10.A.2.g. of the Personnel Manual, involvement in an “un-
acceptable relationship” would disqualify officers from serving on a rating chain if their 
relationship  were  to  give  them  a  personal  interest  in  downgrading  the  applicant  or 
were otherwise to prevent them from preparing a fair and accurate evaluation.  How-
ever, the applicant did not allege that his supervisor or reporting officer for the second 
disputed OER had any particular bias against him or personal interest in downgrading 
him.  Nor did he allege that one of them coerced the other into downgrading him.   

In  the  absence  of  any  allegations  or  evidence  that  the  alleged  romance 
gave the applicant’s supervisor or reporting officer a personal interest in downgrading 
him or interfered with their ability to evaluate his performance, the Board finds that the 
applicant has not shown by a preponderance of the evidence that “a personal interest or 
conflict on the part of the Supervisor, Reporting Officer, or Reviewer raise[d] a substan-
tial question whether the Reported-on Officer [received] a fair and accurate evaluation,” 
as required by Article 10.A.2.g. of the Personnel Manual. 

7. 

9. 

 
10. 

11. 

12. 

  
 
Finally,  the  Coast  Guard  argued  that  the  applicant  is  not  due  relief  be-
cause he did not take advantage of the opportunity to file replies to the disputed OERs 
in accordance with Article 10.A.4.h. of the Personnel Manual.  The Board does not be-
lieve that the applicant’s failure to reply at the time should deny him relief from any er-
ror the Coast Guard may have committed with regard to the OERs. 
 
The  Coast  Guard conceded that the applicant’s record would have been 
 
much stronger without the disputed OERs.  The Board finds that the applicant’s record 
would appear considerably stronger even with only the first disputed OER removed.  
Therefore,  the  Board  finds  the  applicant’s  two  failures  of  selection  may  have  been 
caused by the presence in his record of the first disputed OER.  The applicant’s two fail-
ures of selection for xxxxx should thus be removed. 
  
 
Therefore,  the  Board  finds  that  the  applicant is entitled to have the first 
disputed  OER  and  his  two  failures  of  selection  in  199x  and  199x  removed  from  his 
record.  The remainder of the applicant’s request should be denied.  
 
 
 
 
 
 

13. 

[ORDER AND SIGNATURES APPEAR ON FOLLOWING PAGE] 

ORDER 

The  application  for  correction  of  the  military  record  of  XXXXXXXX,  USCG,  is 

 
 
granted in part as follows: 
 
•  The  OER  covering  the  period  from  August  22,  199x,  to  July  15,  199x,  shall  be  re-
moved  from  the  applicant’s  military  record.  It shall be replaced by one prepared 
“For Continuity Purposes Only” in accordance with the terms of Article 10-A-3 of 
the Coast Guard Personnel Manual (COMDTINST M1000.6A). 

 
•  All record of the applicant’s failures of selection for xxxxx by the 199x and 199x se-

lection boards shall be removed. 

If selected for promotion to xxxxx by the next selection board, the applicant’s date of 
rank shall be the date that he would have been promoted had he been selected for 
xxxxx by the 199x board, and he shall receive back pay and allowances accordingly. 

The remainder of the applicant’s request is denied. 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Robert C. Ashby 

 

 

 
Walter K. Myers  

 

 

 
Mark A. Tomicich 

 

  

 

 

 

 

 

 

 

 

 

 

 

 
•