DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 1998-020 
 
 

 

 
 

 

 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and sec-
tion 425 of title 14 of the United States Code.  It was commenced on November 4, 
1998, upon the BCMR’s receipt of the applicant’s request for correction. 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  April  22,  1999,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST FOR RELIEF 

 
 
The  applicant,  a  xxxxxxxxxxx  in  the  Coast  Guard,  asked  the  Board  to 
correct  his  record  by  removing  an  officer  evaluation  report  (OER)  that  contains 
comments  referring  to  his  knee  surgery  and  convalescence.    The  disputed  OER 
covered the period December 1, 199x, to May 31, 199x.  He also asked the Board to 
expunge his failure of selection to the rank of lieutenant commander.  
 

APPLICANT'S ALLEGATIONS 

 
 The applicant stated that the disputed OER, which he received while serv-
ing  as  an  aviator  at  the  Xxxxxxxxxx,  contains  the  following  comments  by  his 
supervisor and reporting officer: 
 

Underwent knee reconstructive surgery during this marking period which 
resulted  in  5  months  in  a  grounded status.  Despite extensive outpatient 
therapy, he was still able to adequately administrate the flight safety pro-
gram. . . .  
 

Concur.  Despite a prolonged medical grounding and convalescence, [the 
applicant] kept the unit’s Flight Safety Program on track through regularly 
scheduled training and informal sessions with junior pilots. . . . 

 

 
The  applicant  alleged  that  these  comments  are  prohibited  because  they 
refer to a medical condition and to how that condition affected his performance.  
The  applicant  alleged  that  references  to  medical  conditions  are  impermissible 
under Article 10.A.4.g. of the Personnel Manual in effect at the time the disputed 
OER was completed and under 10.A.4.f.(5) of the current Personnel Manual.   

 
Furthermore, the applicant alleged, his supervisor erred by disparaging his 
performance  with  the  word  “adequately”  when  his  performance  was  hampered 
by  his  medical  condition  and  treatment.    He  alleged  that  Article  10.A.2.b.2.i.(1) 
“provides for restructuring or reassignment of duties and directs that ‘command-
ing  officers  shall  ensure  that  these  individuals  do  not  receive  below  standards 
evaluations strictly as a consequence of these circumstances.’” 

 
The applicant alleged that the disputed OER constituted a significant part 
of his record before the selection board because it was completed within the pre-
vious  six years and because his evaluations from his service in the xxxxxx from 
1981  to  1987  could  not  be  considered  by  the  selection  board,  which  sees  only  a 
summary  Statement  of  Creditable  Service  for  service  in  other  military  depart-
ments.    Therefore,  the  applicant  alleged,  the  disputed  OER  caused  him  to  be 
passed over for promotion by the selection board in 1998: 

 
The  patent  adverse  impact  of  an  evaluation  of  “adequately”  cannot  be 
gainsaid when applied to the principal duty being performed by an aviator 
in a grounded status. . . .  While overall the report does not disparage [the 
applicant], it is a patently mediocre evaluation unlikely to assist promotion 
in a highly competitive selection field. 
 
 
On December 16, 1998, the applicant submitted a statement signed by the 
captain  who  was  the  applicant’s  commanding  officer  at  Xxxxxxxxxx  and  who 
served as the reviewer for the disputed OER.  The captain stated that he arrived at 
the air station only 14 days prior to the end of the reporting period in question.  At 
the  time  he  reviewed  the  disputed  OER,  he  was  unaware  of  the  restriction  on 
mentioning  medical  conditions.    Since  that  time,  the  captain  stated,  he  has  had 
ample  opportunity  to  observe  the  applicant’s  performance  as  an  aviation  safety 
instructor,  and  he  is  “strongly  of  the  opinion  that  the  overall  evaluation  in  the 
report  in  question  is  inconsistent  with  the  knowledge,  technical  capability  and 
execution  of  duties  [the  applicant]  has  displayed  as  an  xxxxxxxxxxx  with  wide 
ranging authority over Coast Guard aviation safety . . . reflective of much more 
than just an ‘adequate administration of aviation safety’.” [Ellipses in original.] 

 

VIEWS OF THE COAST GUARD 

On  March  30,  1999,  the  Chief  Counsel  of  the  Coast  Guard  recommended 

 
 
denial of the applicant’s request for relief.   
 

The Chief Counsel alleged that, at the time the OER was completed, regula-
tions  allowed  rating  chain  members  to  mention  a  medical  condition  in  an  OER.  
The  Personnel  Manual  at  the  time  only  prohibited  medical  or  psychological 
speculation or mention of a medical diagnosis.  This policy was not changed until 
three years later, in October 1997, when the language was broadened to prohibit 
any mention of medical or psychological conditions.  The Chief Counsel argued 
that  the  comments  complained  of  by  the  applicant  do  not  constitute  medical 
speculation  or  diagnosis  according  to  the  definitions  in  the  American  Heritage 
Dictionary.  Therefore, the comments were permissible.  He stated that under the 
old  rule,  “once  a  member’s diagnosis was confirmed or settled, the rating chain 
was permitted to mention the medical condition as a method of clarifying and fur-
ther explaining the member’s performance.” 
 
 
The Chief Counsel stated that the provision of the Personnel Manual that 
directs  commanding  officers  to  ensure  that members do not receive below stan-
dard evaluations as a consequence of medical conditions did not become effective 
until March 199x, after the disputed OER was completed.  Therefore, it cannot be 
considered a basis for relief.  Furthermore, the Chief Counsel argued, the disputed 
OER  is  “not  an  adverse  evaluation.”    It  contains  no  mark  below  a  4,  and  the 
reporting  officer  recommended  him  for  promotion  with  his  peers.    The  Chief 
Counsel also noted that the applicant failed to submit a reply to the OER, which 
was his “opportunity to raise his issue in an immediate and proactive manner to 
his OER rating chain.” 
 
Finally,  the  Chief  Counsel  stated  that,  if  the  Board  decides that the refer-
 
ences  to  the  applicant’s  medical  condition  were  in  error,  only  the  comments 
should be removed, rather than the entire OER.  The applicant “has presented no 
evidence in support of his contention that the entire OER is somehow infected by 
these comments.” “In the interests of administrative efficiency,” the Chief Counsel 
did not discuss whether the alleged error could have caused the applicant to fail of 
selection, but he requested the chance to do so if the Board decides to remove the 
disputed OER or comments. 
 
 
The Chief Counsel attached to his advisory opinion a memorandum on the 
applicant’s  case  prepared  by  the  Coast  Guard  Personnel  Command  (CGPC).  
CGPC stated that the disputed comments referred to a medical condition, rather 
than a diagnosis, according to the definitions in the Random House College Dic-

tionary.  CGPC also noted that the applicant had not asked the Board to remove 
the OER which immediately preceded the disputed OER and which also contains 
a reference to his knee surgery:  “Flew 98 hours on a wide range of missions prior 
to being grounded for knee surgery.”  However, the marks in that OER are some-
what higher than those in the disputed OER. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
The Chairman sent the applicant a copy of the Coast Guard’s views, and on 
April 13, 1999, he responded.  The applicant alleged that “a medical condition is 
subsumed  in  a  medical  diagnosis.”    He  argued  that  the  words  “diagnosis”  and 
“condition”  are  synonymous  according  to  the  various  definitions  in  several  dic-
tionaries, including those used by the Coast Guard.  He concluded that “the dis-
tinction which the Advisory Opinion seeks to draw is too nebulous to be accorded 
weight.”   
 

The  applicant  asked  that  the  Board  focus  on  the  purpose  of  Article 
10.A.4.g., rather than on dictionary definitions.  He alleged that the purpose was 
“to preclude inappropriate factors from providing undue and unfair emphasis and 
support for an evaluator’s rating.”  Pursuant to that purpose, “it was plain error to 
mention the medical diagnosis and use it as the predicate for the evaluation of his 
performance of duty.” 
 
 
The applicant further argued that, although Article 10.A.2.b.2.i.(1) was not 
effective  until  after  the  disputed  OER  was  issued,  the  Personnel  Manual  still 
required  Coast  Guard  officers  to  ensure  that members received fair evaluations.  
The  disputed  OER  was  not  fair  because  it  “was  driven  by  his  medical  infirmity 
which prevented him from performing his flying duty.”  The “infected reference” 
“permeates the entire evaluation and is incapable of severance.” 
 
The applicant also argued that the lack of a mark below 4 in the disputed 
 
OER does not mean that it was not so adverse as to prevent his promotion.  In fact, 
he  “was  stymied  in  his  quest  for  promotion  through  an  OER  expressing  faint 
praise while postulating a period of medical inability to fully perform as a Coast 
Guard aviator.”  He stated that his case was ready for decision by the Board and 
should not be delayed to allow the Coast Guard additional time to submit a nexus 
analysis. 
 
 
Finally, the applicant explained why he had not asked the Board to remove 
the  OER  immediately  preceding  the  disputed  OER  even  though  it  also  contains 
reference to his knee surgery.  He stated that the earlier OER did not fall within 
the six years of previous service that are supposed to be considered most signifi-
cant by the selection board.  In addition, he was able to fly during the majority of 

RELEVANT REGULATIONS 

 

 
Article  10.A.1.b.  of  the  Coast  Guard  Personnel  Manual  (COMDTINST 
M1000.6A) in effect in 199x states that “[c]ommanding officers must ensure accu-
rate, fair, and objective evaluations are provided to all officers under their com-
mand.”   
 
 
Article  10.A.4.g.(3)(c)  states  that  members  of  a  rating  chain  shall  not 
“engage in medical or psychological speculation, or mention any medical diagno-
sis.” 
 
 
After  the  completion  of  the  disputed  OER,  the  Personnel  Manual  was 
revised to provide that for “officers who are unable to fully perform due to illness, 
injury, pregnancy, etc. . . . commanding officers shall ensure that these individuals 
do not receive below standard evaluations strictly as a consequence of these cir-
cumstances.”    Article  10.A.2.b.2.i.(1).    The  new  provisions  also  state  that  rating 
chain  members  shall  not  “[m]ention  any  medical  or  psychological  conditions, 
whether factual or speculative.”  Article 10.A.4.f.5. 
 
 
Section 10.A.4.h. allows the Reported-on Officer to reply to any OER and 
have the reply filed with the OER.  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.” 
 

that  reporting  period,  and  the  OER  reflects  his  excellent  performance.    He  also 
explained that he did not submit a reply to the disputed OER because he did not 
then know that the references to his medical condition were prohibited. 
 

SUMMARY OF THE RECORD 

 
The applicant served in the xxxxxx from August 14, 1981, to June 15, 1987.  
 
He was trained as a xxx pilot and achieved the rank of xxx.  On April 23, 19xx, he 
accepted a commission as a xxxxxxxxxx in the Coast Guard and began serving as a 
xxxxxx pilot at Xxxxxxxxxx.  In March 199x, he began serving as a safety officer as 
well, and later became the department head responsible for all ground and flight 
safety  training.    On  April  27,  199x,  he  was  promoted  to  xxxx.    The  applicant 
received  eight  OERs  during  his  time  at  the  air  station.   The last six of them are 
numbers 1 through 6 in the chart on page 6, below.  The disputed OER is number 
6, the last the applicant received for his service at the air station.  Aside from the 
references to his knee surgery, the disputed OER also includes the following com-
ments: 
 

Thoroughly  prepared  for  safety  stand-downs  .  .  .  .    Utilized professional 
resource of local xxx police . . . .  Rewrite of safety incentive program has 

revived interest and participation in safety suggestions. . . .  Effective coop-
eration with department heads . . . channeled several ideas into a detailed 
working plan of action. . . .  Shared lessons learned from last year’s fatal 
xxxxx  accident  at  Xxxxxx.  .  .  .    Assisted  all  copilots  via  oral  quizzes  & 
tutoring  .  . . .  Routinely gave training classes to flight mech[anics] . . . .  
Obvious  flare  for  public  speaking.  .  .  .    Excellent  guidance  provided  to 
members of Crash Truck NWG . . . .  Used discretion and sound judgment 
while  investigating  allegations  of  improper  maintenance  .  .  .  .  Following 
extensive  physical  therapy  program,  promptly  regained  proficiency  and 
requalified as [aircraft commander].  [Emphasis added.] 
 
Forthright and sincere, [the applicant] has made his mark on Air Station 
Xxxxxx’s Flight Safety Program.  Through his engaging speaking skills and 
personable demeanor, he instilled an attitude of safety and professionalism 
. . . .  His staff potential was clearly evident in his leadership of the Crash 
Truck NWG. . . .  He is qualified & recommended for promotion with his 
peers. 

On June 1, 199x, the applicant began working at headquarters in the avia-
tion safety branch, first as a program officer and then as an xxxxxxx.  The seven 
OERs he received for this service prior to his failure of selection in 199x are num-
bers 9 through 16 in the chart below. 

 

 

APPLICANT’S MARKS IN 13 OERs FROM 7/1/9x THROUGH 5/31/9x 

 

CATEGORYa 
Being prepared 
Using resources 
Getting results 
Adaptabilityd 
Responsivenessd 
Work-life sensitivityd 
Specialty expertise 
Collateral dutyd 
Working with others 
Human relations/ 
Workplace climate 
Looking out for 
others 
Developing 
subordinates 
Directing others 
Evaluations 
Speaking & Listening 
Writing 
Initiative 
Judgment 
Responsibility 
Staminad 

1 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 
 
 
 
 

2 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 
 
 
 
 

3 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 
 
 
 
 

4 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 
 
 
 
 

5 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 
 
 
 
 

6 b 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 
 
 
 
 

7 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 
 
 
 
 

8 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 
 
 
 
 

9 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 
 
 
 
 

10 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 
 
 
 
 

11 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 
 
 
 
 

12 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 
 
 
 
 

13 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 
 
 
 
 

 
 
 
 
 
 
 

AVEc 

 
 
 
 
 
 
 
 
 
 

 

 

 
 
 
 
 
 
 
 

 
 
 
 
 
 
 

 
 
 
 
 
 
 

 
 
 
 
 
 
 

 
 
 
 
 
 
 

 
 
 
 
 
 
 

 
 
 
 
 
 
 

 
Health & Well-being 
Military bearingd 
 
 
Professionalism 
Dealing with publicd 
 
Comparison scalee 
 
 
Total  
Average for OER 
 
a Some categories’ names have changed slightly over the years. 
b Disputed OER. 
c Average score of all OERs except disputed one, which is shaded.  Averages have been rounded. 
d Category nonexistent until later years, or category discontinued. 
e The Comparison Scale is not actually numbered.  In this row, “5” means the applicant was rated to be a 
“distinguished performer; give tough, challenging, visible leadership assignments.”   A “4” means the 
applicant was rated to be an “exceptional performer; very competent, highly respected professional.” 
f  The reviewer of this OER attached a separate page on which he assigned a separate comparison mark of 

 
 
 
 
 
 
 

 
 
 
 
 
 
 

 
 
 
 
 
 
 

 
 
 
 
 
 
 

 
 
 
 
 
 
 

 
 
 
 
 
 
 

4. 
 

 
 

FINDINGS AND CONCLUSIONS 

The Board has jurisdiction concerning this matter pursuant to section 

 
 
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: 
 
 
1552 of title 10, United States Code.  The application was timely. 
 
 
The  applicant  requested  an  oral  hearing  before  the  Board.    The 
Chairman denied the request under 33 C.F.R. § 52.31, and recommended disposi-
tion of the case without a hearing.  The Board concurs in that recommendation. 
 
 
period December 1, 199x, to May 31, 199x:  
 

The  following  comments  appear  in  the  applicant’s  OER  for  the 

Underwent knee reconstructive surgery during this marking period which 
resulted  in  5  months  in  a  grounded status.  Despite extensive outpatient 
therapy, he was still able to adequately administrate the flight safety pro-
gram. . . .  
 
Despite a prolonged medical grounding and convalescence, [the applicant] 
kept the unit’s Flight Safety Program on track through regularly scheduled 
training and informal sessions with junior pilots. . . . 

1. 

2. 

3. 

 
4. 

 

The Board notes that the applicant did not protest the presence of two other 
references to his knee surgery and convalescence in his OERs.  However, the two 
other  references  are  not  so  different  from  those  disputed  by  the  applicant  as  to 
affect the Board’s decision in any way. 

The Board finds that the comments in the disputed OER were per-
missible according to both the spirit and the letter of the law in Article 10.A.4.g.  
The  words  do  not  constitute  medical  “speculation”  or  “diagnosis”  within  their 
usual meaning.  Furthermore, the rule was clearly intended to prevent selection 
boards from being prejudiced by officers’ medical conditions.  The Board does not 
believe that references to knee surgery and an extended period of convalescence 
per se would prejudice a selection board against an officer.  Therefore, even if the 
comments did constitute “diagnosis,” the references to the knee surgery did not 
by themselves make the applicant’s record appear worse than it would have been 
without them and would not justify removal of the OER or of applicant’s failure of 
selection.  The fact that the regulation was later broadened to prohibit references 
to  any  medical  “condition”  does  not  alter  this  conclusion.    Therefore,  the  Coast 
Guard  did  not  commit  error  by  including  the  contested  comments  in  the  appli-
cant’s OER. 

Article 10.A.2.b.2.i.(1) of the current Personnel Manual provides that 
for “officers who are unable to fully perform due to illness, injury, pregnancy, etc. 
. . . commanding officers shall ensure that these individuals do not receive below 
standard evaluations strictly as a consequence of these circumstances.”  Although 
Article  10.A.2.b.2.i.(1)  was  not  in  effect  when  the  disputed  OER  was  completed, 
the Board’s inquiry does not end there.  Article 10.A.1.b. of the Personnel Manual, 
which was in effect at that time, states that “[c]ommanding officers must ensure 
accurate,  fair,  and  objective  evaluations  are  provided  to  all  officers  under  their 
command.”  Therefore, the Board must consider whether the applicant has proven 
by  a  preponderance  of  the  evidence  that  the  disputed  OER  was  inaccurate  or 
unfair as a result of his medical grounding. 
 
The applicant’s major duty during his grounding was safety training 
 
and management of the air station’s safety program.  Prior to the reporting period 
in  question,  the  applicant  had  already  been  involved  in  the  safety  program  for 
over two years.  The fact that his supervisor chose to describe his performance of 
this duty as “adequate” rather than “excellent” or “superb” in the same sentence 
that  he  mentioned  the  applicant’s  grounding  does  not  prove  that  he  was  preju-
diced against the applicant because of his grounding.  Nor does it prove that the 
applicant’s medical condition prevented him from performing his duty better than 
“adequately” or that his limited opportunity to perform was not properly taken 
into  account  by  his  rating  chain  when  it  completed  the  OER.    Furthermore,  the 
disputed  OER  is  not  surprisingly  worse  than  the  OER  for  the  immediately  pre-
ceding reporting period, during most of which the applicant was not grounded.  
Therefore, the applicant has not proven by a preponderance of the evidence that 
he was unfairly downgraded because of his medical grounding. 
 
 
ted injustice by including the disputed comments and OER in his record. 
 
 
 
 
 
 
 
 
 
 

The applicant has not proved that the Coast Guard erred or commit-

Accordingly, the applicant’s request should be denied. 

7. 

8. 

 
5. 

6. 

[ORDER AND SIGNATURES APPEAR ON FOLLOWING PAGE] 

 
 

ORDER 

The application for correction of the military record of xxxx, is denied. 

 
 

 
 

 
 

 
 

 
 

 
 

      
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
John A. Kern 

 

 
Charles Medalen 

 

 

 

 

 
Edmund T. Sommer, Jr.