DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 1998-038 
 
  
   

 

 
 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 of the United 
States Code.  It was commenced on December 9, 1997, 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  November  19,  1998,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST FOR RELIEF 

 

 
 
The applicant is a xxxxxx who was discharged from the Coast Guard on May 1, 
199x, and is now in the Coast Guard Reserve.  He asked the Board to correct his record 
by expunging two officer evaluation reports (OERs) he received while on active duty.  
The disputed OERs, which cover the periods October 28, 199x, to July 27, 199x, and July 
28,  199x,  to  January  31,  199x,  would  be  replaced  by  OERs  prepared  “For  Continuity 
Purposes Only.”   
 

The  applicant  also  requested  that  the  Board  return  him  to  active  duty  in  the 
Coast Guard and remove from his record failures of selection1 for promotion, which, he 
alleged, resulted from the presence of the two disputed OERs.   
 

APPLICANT'S ALLEGATIONS 

 
Allegations Concerning the Disputed OERs 
 

                                                 
1  Although the applicant did not mention his first failure of selection, the Board assumes that he wishes it 
to be removed as well since the disputed OERs were in his record at the time. 

The applicant alleged that the first disputed OER should be removed because the 
 
executive officer (XO)2 of his ship, the Coast Guard cutter Xxxx, employed an “unfair 
discriminatory  evaluation  practice”  and  because  the  comments  in  the  OER  “do  not 
justify [the] marks assigned.”  He alleged that, from his first day on board, he was “held 
to a position of ‘second class officer’” because he is [redacted nationality] and because 
he is not a graduate of the Coast Guard Academy.  (The applicant is xxxxxxxxxxxxxxx.)  
He alleged that the ship’s Operations Officer (OO) told him that he would never be “at 
the same level [as] the ‘Academy’ graduates,” and that the XO told him that he “would 
never  be  able  to  compete  with  other  officers  on  board.”    He  alleged  that  similar 
comments  were  made  throughout  his  tour  on  the  Xxxx  in  front  of  other  officers  and 
enlisted members.  (Although he apparently sought affidavits from the OO and another 
officer,  he  did  not  submit  any  affidavits  to  the  Board.)    He  said  the  other  officers  on 
board “were all white and ‘Academy’ graduates.”   
 
 
The XO, the applicant alleged, “constantly” called him “less qualified” and “use-
less.”  The insults were disguised as teasing, and he would have been “tagged as ‘sensi-
tive’ and not a team player” if he had protested.  “The Executive Officer’s comments . . . 
effectively  created  a  biased  poisoned  environment  from  which  I  could  not  escape  or 
appeal.”  “The racist comments and demeanor from the Executive Officer were continu-
ous,  including  making  derogatory  comments  regarding  non-Americans  ([redacted 
nationalities], etc.) and other minorities during actual operations.” 
 
 
The applicant also alleged that the XO had blocked his efforts to become a quali-
fied  officer  of  the  deck  (OOD),  although  the  OO,  other  officers,  and  crew  members 
“trusted and believed [him] to be fully qualified.”  He cited the fact that he had quali-
fied to serve as OOD soon after the XO departed the ship as evidence that the XO had 
blocked his progress. 
 
 
The applicant alleged that six marks of 33 on the first disputed OER are inaccu-
rate and inconsistent with the comments.  He stated that the XO’s “discriminatory prac-
tices were reflected in [his] evaluation.”  The XO, who served as reporting officer on the 
first disputed OER, had ordered the OO, who served as the supervisor for the OER, to 
lower the marks and include negative comments.  He also alleged that, when the OO 
told  him  this,  he  considered  appealing  the  OER,  but  the  OO  said  that  the XO would 

                                                 
2   The following abbreviations are used in this Final Decision to refer to the officers of the Xxxx: 
“XO”  was  the  ship’s  executive  officer  during  the  period  of  the  first  disputed  OER.    He  served  as  the 

reporting officer for that OER. 

“CO” was the ship’s commanding officer throughout the applicant’s tour.  He served as the reviewer for 

the first disputed OER and as the reporting officer for the second disputed OER. 

“OO”  was  the  ship’s  operations  officer  during  the  period  of  the  first  disputed  OER.    He  served as the 

supervisor for that OER. 

supervisor for that OER. 

“XO2” was the ship’s executive officer during the period of the second disputed OER.  She served as the 

3  Coast Guard officers are evaluated on a variety of characteristics on a scale of 1 to 7, with 7 being the 
best mark.  A mark of 3 is below average. 

make his life “hell” if he complained.  Therefore, fear of reprisal from the XO stopped 
him from complaining.   
 
 
The applicant alleged that the second disputed OER was an unjust “remnant” of 
the  XO’s  influence  on  board  the  Xxxx.    He  stated  that  the  environment  was  still 
“poisoned,” and the XO’s racist perceptions of him remained even after the XO depart-
ed.  
 

Allegations Concerning the Applicant’s Failures of Selection 
 

The applicant failed of selection for  in 199x and 199x.  He alleged that the 199x 
selection  board  had  “failed  to  notice  [his]  documented  outstanding  performance, 
potential for future duties, [and the] strong endorsement for selection [in later OERs], 
and [had] unjustly concentrated on [the] negative OER[s].”  He stated that he did not 
reply to or protest the OERs earlier because his supervisor and other superior officers 
had indicated that he “should have no problem being selected to xxx” given his later 
OERs.  They also told him that “any attempt to appeal [his] marks would seem to the 
[selection] board as a ‘desperate cry’ to get selected with poor performance.”  Therefore, 
he alleged, he was unjustly passed over by a “system [that] concentrate[s] on reasons 
why not to promote people, rather than what has the person done to merit promotion 
and greater responsibilities.” 

 
To support his application, the applicant submitted a signed statement from the 
commander  of  the  xxxxx  Coast  Guard  District,  dated  December  2,  199x.    In  it  the 
commander stated that the applicant “is one of my most valued officers,” “highly moti-
vated,” “multi-talented,” and “an outstanding role model for juniors as well as peers.” 

 

VIEWS OF THE COAST GUARD 

 
 
On October 15, 1998, the Chief Counsel of the Coast Guard recommended that 
the Board dismiss the application for failure to exhaust administrative remedies or deny 
the applicant’s request for relief for failure of proof.  
 

The Chief Counsel urged the Board to dismiss the case because the applicant did 
not file a civil rights complaint.  He alleged that the civil rights complaint process was 
“an administrative remedy available to [the applicant] to develop the necessary factual 
information for the record.”  He urged the Board not to consider the application until 
that  “administrative  remedy”  had  been  exhausted.    He  stated  that  the  authority  to 
investigate discrimination complaints lies with the Office of Civil Rights, not with the 
BCMR.    “[A]bsent  a  report  of  investigation  conducted  by  competent  authority,  the 
Board  lacks  the  record  necessary  for  it  to  grant  Applicant  the  relief he has requested 
. . . .”    The  Chief  Counsel  cited  BCMR  regulations  and  several  precedent  cases  that 
require  an  applicant  to  exhaust  all  administrative  remedies  before  applying  to  the 
Board.  He did not cite any case in which an investigation by the Office of Civil Rights 
was determined to be an administrative remedy.  The Chief Counsel also pointed out 
that, as his unit’s civil rights officer, the applicant “knew or should have known how to 
report discrimination [and] the fact that reprisals are not tolerated in such circumstanc-
es.” 

 
Alternatively,  the  Chief  Counsel  argued  that the Board should deny the appli-
cant’s request because of a lack of proof.  The Chief Counsel stated that the “Applicant’s 
allegations  of  discrimination  against  his  Reporting  Officer  are  uncorroborated  and 

 

Affidavit of the CO, the Commanding Officer of the Xxxx 

unsubstantiated and would not constitute discrimination or a hostile work environment 
even if true.”  He pointed out that, although the applicant alleged that the discrimina-
tory acts happened in the presence of other officers and enlisted members, he “inexpli-
cably fail[ed] to present a single witness statement.” 

 
The Chief Counsel said that “[t]o establish that the OER is erroneous or unjust, 
the Applicant must show a misstatement of a significant hard fact or a clear violation of 
a statute or regulation.” Germano v. United States, 26 Cl. Ct. 1446, 1460 (1992).  “[T]he 
fact that Applicant had better ratings before and after the disputed OER is of no legal 
moment or probative value as to rating periods covered by disputed reports.”  In the 
absence of substantial proof, “rating officials are strongly presumed to have acted cor-
rectly, lawfully, and in good faith.”  Arens v. United States, 969 F.2d 1034, 1037 (1992). 

 
The  Chief  Counsel  appended  to  his  advisory  opinions  affidavits  from  the  OO, 
the XO, the commanding officer of the Xxxx (CO), and the executive officer of the Xxxx 
for the second evaluation period (XO2). 

 
The CO stated that he “never saw evidence of [discrimination against non-whites 
or non-Academy graduates] from [the XO] or anyone else in the wardroom, and [he] 
dispute[s] this claim completely.”  He named two other officers on the Xxxx who were 
not  Academy  graduates.    He  explained  that  “[the  XO]  was  demanding  of  the  junior 
officers, as a result of his leadership style and the nature of the Executive Officer posi-
tion.  The important thing is, he was no more demanding of the Applicant than he was 
of the other junior officers on board . . . .” 

 
The  CO  stated  that  he  “reviewed  each  and  every  OER  prepared  on  XXXX’[s] 
officers  to  ensure:    marks  were  supported  by  narrative;  rating  chain  marks  and 
comments were not at odds with [his] own observations; and officers were evaluated 
against the standards on a consistent basis.”  He “made it clear at all times that no one 
in  the  rating  chain,  including  [himself],  was  to  direct  a  junior  member of the [rating] 
chain  what  marks  were  to  be  assigned  or  what  comments  were  to  be  made.”    After 
reviewing the disputed OERs, he stated that each mark of 3 was properly supported by 
the comments.  In addition he stated that, although at first he had been very impressed 
with  the  applicant’s  performance,  “that  initial  impression  faded  as  the  shortcomings 
noted in the first [disputed] OER started to become apparent.  In particular, his inter-
personal skills were a clear weakness. . . .  [H]is overall leadership style toward the crew 
tended to be overbearing and autocratic, . . . which [the CO] found surprising since the 
Applicant came from the enlisted ranks and would seem more likely to be empathetic in 
his dealings with subordinates.” 

 
Regarding  the  applicant’s  claim  that  the XO blocked his progress to qualify as 
OOD, the CO stated that he “consider[s] it highly unlikely, given the nature of the OOD 

 
after having relieved [the XO] as Executive Officer, was very open-minded about 
everyone  on  board—i.e.,  she  would  form her own opinions based on her own 
observations and experiences.  With regard to the Applicant, I recall that she was 
aware he had had a slow start and was committed to work with him to help him 
succeed.  .  .  .    [However,]  her  initial  positive  impressions  gave  way  to 
increasingly frequent instances of frustration which she brought to my attention.  
The  problem  areas  .  .  .  seemed  to  center  around  lack  of  initiative  and 
responsiveness, and weak interpersonal skills.  [The XO2] eventually engaged . . 
.  an  experienced  senior  enlisted  man,  to  work  informally  with  the  Applicant, 
particularly  to  assist  him  in  developing  an  effective  leadership  style.    This 
initiative produced positive results . . . . 
 

Affidavit of the XO, the First Executive Officer of the Xxxx 

qualification process we employed on XXXX.”  He explained that whether to allow an 
officer to sit before the qualification board is a collective decision made primarily by a 
ship’s operations officer and commanding officer.  The XO could only have provided 
input.  In addition, the CO attributed the applicant’s qualifying for OOD soon after the 
XO left the Xxxx to the fact that, before he left, the XO had arranged for the applicant to 
gain additional underway experience by performing several weeks of temporary duty 
on the Coast Guard cutter xxxx while the Xxxx was to be in port for a long duration.  
The  CO  denied  the  allegation  of  a  cause-and-effect  relationship  between  the  XO’s 
departure and the applicant’s qualification as an OOD.  

 
Regarding the applicant’s allegations that the “poisoned” perception of him cre-
ated by the XO had lingered during the second reporting period, the CO stated that the 
XO2,  

 
The XO strenuously denied the allegations that the Xxxx had a racist atmosphere 
and that he had created or contributed to it.  The XO stated that he speaks fluent xxxxxx 
and  has  “a  particular  interest,  appreciation  and  respect  for  the  xxxxxx  people  and 
culture.”    Moreover,  he  stated  that  the  applicant  knew  this  and  “was  appreciative  of 
[the XO’s] sensitivity and support for human relations.”  Furthermore, “[a]board XXXX 
we  held  regular  Human  Relations  Board  meetings  (minimum  of  quarterly).    I  don’t 
remember  ever  noting  any  discussion  of  a  racist/biased  environment.”    In  addition, 
during the XO’s tour, he “arranged a xxxxxxxx . . . survey. . . .  [T]he initial results were 
received in the summer/fall of 199x and a positive work environment was supported 
by the survey.”  

 
Regarding  the  applicant’s  performance,  the  XO  stated  that  “[i]n  late  January 
199x, concern over [the applicant’s] weak performance and lack of response to counsel-
ing  prompted  us  to  prepare  a  strawman  OER  (not  to  be  submitted)  so  that  he  could 
clearly  see  where  he  stood  at  present  .  .  .  and  counseled  him  on  his  performance  to 
date—discussing with him how he had earned the comments and evaluations noted.”  
The  XO  characterized  the  applicant’s  main  failing  at  the  time  as  being  “haughty  and 

presumptuous with peers and subordinates.  His interaction with enlisted watchstand-
ers and other crewmembers was directive and dismissive.  I remember the Operations 
Officer, Commanding Officer and myself remarking on this numerous times in light of 
[the applicant’s] enlisted experience. . . .  [I]t is [now] clear to me that [the applicant] 
never had to supervise any subordinates until reporting to XXXX. . . .” 

  
Regarding the delay in the applicant’s qualification for OOD, the XO stated that 
the applicant “was having trouble qualifying as an underway OOD . . . .  To provide 
[the  applicant]  with  additional  underway  time  to  develop  the  necessary  skills  we 
arranged for him to go aboard CGC xxxx for approximately xxx weeks.”  Moreover, the 
XO pointed out, because he departed the Xxxx soon after completing the first disputed 
OER, the applicant had no reason to fear that the XO could retaliate if the applicant had 
protested the OER. 

 

Affidavit of the OO, the Operations Officer of the Xxxx 

 
The  OO  stated  that  the  marks  he  gave  the  applicant  in  the  first  disputed  OER 
were based on the applicant’s performance.  He based his evaluation of the applicant on 
his own observations and on input from the CO, XO, and several OODs with whom the 
applicant had trained.  The OO denied that the XO ever directed him to lower particular 
marks.  He  stated that the XO and CO would review OERs as a “reality check” and to 
prevent “inflation.”  “Occasionally, the review would result in a general shift to the left 
or right of an individual’s marks.”  The XO told him that the procedure was the CO’s 
policy, and the OO stated that “it was generally consistent with guidance in the Person-
nel Manual and with procedures [he] has seen at other commands.”  

 
The OO stated that he had “acknowledged [the applicant’s] own observation that 
his limited sea time put him at a disadvantage to those who had acquired a lot more sea 
time on cadet cruises.”  However, the OO stated, he “never told him he would never be 
at the same level as the Academy graduates, and . . . never related his performance or 
performance potential to his [redacted ethnicity] background or source of commission.”   

 
Regarding the XO’s “harsh” behavior, the OO stated that the XO “treated every-
one that way.”  He denied that the applicant had been targeted.  The OO also stated that 
the XO’s emphasis on preserving the integrity of the evaluation system rather than on 
the  promotion  competitiveness  of  the  evaluees,  and  his  “harsh  ‘win/lose’  leadership 
style that he expected the officers and chiefs to emulate, created a great amount of dis-
trust and speculation, and put most everyone in an unhealthy ‘survival’ mode.”  The 
OO further stated that “I am not surprised that an appeal such as this has arisen from 
that environment.  I am surprised, however, to see accusations of racism and discrimi-
nation.  We had a very diverse crew, and I was always impressed that I never saw or 
heard even a hint of racism or discrimination from anyone.” 

 

Affidavit of the XO2, the Second Executive Officer of the Xxxx 

 
The XO2 stated that, when she arrived on board the Xxxx, the morale of the crew 
was “commensurate with a crew that was well taken care of, challenged by the missions 
they  faced,  but  well  prepared  to  do  so.”    She  does  “not  believe  that  [the  applicant] 
suffered under the ‘poisoned environment’ he claims existed.” 

 
Regarding the second disputed OER, the XO2 stated that she “stand[s] by it in its 
entirety.”  She stated that the applicant received a mark of 3 in block 4.c. because at the 
time, he “did not meet the parameters of the OER definition of a ‘4’.”  She stated that 
the comments the applicant complained of were quite consistent because the applicant 
“did do well with his peers and seniors . . . .  However, this was not the case with his 
subordinates.  He was frequently overbearing, and took a long time learning the value 
of a simple ‘thank-you’ or ‘please.’”  She stated that the crew had left notes in the sug-

gestion  box  with  comments  such  as  “Improve  morale,  throw  [the  applicant]  over-
board.” 
 
The  XO2  stated  that,  after  she  ordered  someone  to  mentor  him,  the  applicant 
improved greatly and “the crew’s rapport with him changed accordingly.”  By the end 
of his tour on board, she “would have been happy to retain him in the wardroom of 
XXXX.”  He is now “a good role model and a good officer.” 

APPLICANT’S RESPONSE 

 
On  October  16,  1998,  the  Chairman  forwarded  the  Chief  Counsel’s  advisory 
opinion to the applicant and invited him to respond.  On October 29, 1998, the applicant 
responded, reiterating his allegations and submitting a copy of the last OER he received 
while on active duty in the Coast Guard. 

 

 

[e]nsures the Supervisor fully meets responsibilities for administra-
(d) 
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 re-
consideration,  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 
. . . . 

 

RELEVANT REGULATIONS 

 

Article  10-A  of  the  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),  and  the 
reviewer (the reporting officer’s supervisor).  Section 10-A-1 states the following: 
 

b. 
Each commanding officer must ensure that accurate, fair, and objec-
tive  evaluations  are  provided  to  all  officers  under  their  command.    All 
supervisory personnel will see to it that evaluations of their subordinates 
are  completed  on  schedule  and  in  accordance  with  the  prescribed  stan-
dards. . . .  [S]trict and conscientious adherence to the specific wording of 
the  standards  is  essential  to  realizing  the purpose of the evaluation sys-
tem.  

According  to  Section  10-A-2.e.(2)  of  the  Personnel  Manual,  which  governs  the 

 
 
responsibilities of the reporting officer, the reporting officer 
 

 

 

Section 10-A-4.d. of the Personnel Manual governs the preparation of OERs.  The 

 
 
instructions state the following: 
 

(d) 
In the “Comments” sections following each evaluation area, the Re-
porting  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 
evaluations 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. . . . 

According to Section 10-A-2.f.(2) of the Personnel Manual, which lists the respon-

sibilities of the reviewer, the reviewer  
 

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

(a) 
Reported-on Officer’s performance and potential. 
 
[c]hecks  for  obvious  errors,  omissions,  or  inconsistencies  between 
(b) 
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.  the Reviewer may not, however, direct in what manner an 
evaluation mark or comment is to be changed. . . .  

SUMMARY OF THE APPLICANT’S RECORD 

 
 
The applicant enlisted in the Coast Guard as a xxx on xxxxx, 19xx.  In 19xx, he 
enrolled in Officer Candidate School, and he received his commission on July xx, 19xx.  
Thereafter, he served as a xxx officer, xxxxxxxxxxxxxxx regulations at Coast Guard xxx.  
In June 199x, he became a xxxxxxxxxxxxxxxxxx.  In the fall of 199x, the applicant began 
serving  temporary  active  duty  on  the  Xxxx  and  standing  break-in  watches.    He  then 
requested and received sea duty.  The OERs he received for his performance from the 
date of his commission until the date he reported to the Xxxx are numbers 1, 2, and 3, in 
the chart on page 11, below. 
 

First Disputed OER 
 
The applicant was promoted to xxxxxx and reported to the Xxxx on October 28, 
 
199x.    For  his  first  nine  months  on  board,  he  served  as  a  deck  watch  officer,  xxxxxx 
xxxxxxxxxxxxxxxxxxx, civil rights officer, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, 
before assuming duties as xxxxxxx.  The first disputed OER, which covers this period, is 
number 4 in the chart on page 11, below. 
 
 
The OO, as the supervisor for the first disputed OER, prepared blocks 3 through 
7.  Under block 3, “Performance of Duties,” the applicant received marks of 3 in blocks 
3.a., “Being Prepared,” 3.b., “Using Resources,” and 3.f., “Operational/Specialty Exper-
tise.”  The comments for that section include the following: 
 

Conscientious about planning & organizing individual work items . . . still devel-
oping ability to manage multiple projects . . . .  As morale officer, learning to pull 
diverse group together. . . . Focuses well on clearly defined projects & can pro-
duce very good product when understands situation . . . .  Very responsive to 
seniors;  quick  initial  action  to  assignments  but  loses  steam  w/  tasked  by  new 
incoming priorities. . . .  worked w/ E2 on personal counseling; worked w/ PO2 
on child’s health concerns . . . .  Professional development continues;  qual[ified] 
as OOD inport . . .  xxxxxxx language definite asset . . . .  [Underway] qual[ifica-
tions] not on par w/ time aboard  . . . .  

[Sea  duty]  has  presented  a  steep  learning  curve  on  many  fronts  .  .  .  personal 
qualification standards, teamwork & leadership.  He has been counseled regular-
ly  on  his  performance  and  shortcomings  w/  clear  recommendations  for 
improvement.  He continues to indicate a desire to succeed, but has yet to make 

Under block 4, “Interpersonal Relations,” the applicant received a mark of 3 in 

 
 
block 4.a., “Working with Others.”  These comments follow that section: 
 

Interacts/works well w/ seniors . . . willingly shared enlisted experience . . . .  
Substantial interaction w/ crew on morale, civil rights & housing issues; becom-
ing  more  adept  at  combining  tact  with  direction  when  dealing  with  the  crew; 
inflexibility alienates others further detracting from team effort. . . . 

Under block 5, “Leadership Skills,” the applicant received a mark of 3 in block 

 
 
5.c., “Directing Others.”  The comments for that section include the following: 
 

Excellent preparation and presentation of training materials . . . .  As OOD, pro-
vides timely performance feedback to subordinates . . . .  Leadership effective-
ness  hampered  by  dictatorial  approach;  doesn’t  appreciate  expertise  of  experi-
enced personnel; recognized problem and taking steps toward improvement. . . . 

As the reporting officer, the XO prepared blocks 8 through 11.  His comments in 

 
 
block 8 include the following: 
 

the commitment in time, effort & attitude required of a [junior officer] to succeed 
afloat. 

Under block 9, “Personal Qualities,” the applicant received a mark of 3 in block 

 
 
9.c., “Responsibility.”  The comments for that section include the following: 
 

 . . .  Learning full extent of resp[onsibilities] of morale officer and training officer 
positions.    Responsibility  would  benefit  from proactively following issues vice 
waiting for others to submit their input to him. . . . 

The XO’s comments in block 11, “Leadership and Potential,” include the follow-

 
 
ing: 
 

[The applicant] . . . has not yet proven an asset to the XXXX leadership team.  His 
learning curve has been steep and he is working diligently towards conquering 
it, but is not yet ready for continued assignments of greater responsibility.  With 
the  continued  performance  and  professional development expected during the 
remainder of his tour aboard the XXXX I would expect him to be qualified and 
ready for promotion to xxx with his peers. 

 
Second Disputed OER 
 
 
From July 28, 199x, to January 31, 199x, the applicant served as deck watch offi-
cer, in-port and underway OOD, xxxxxxxxxxxxxx and civil rights officer.  The second 
disputed OER, which covers this period, is number 5 in the chart on page 11, below.   
 

The XO2, as the supervisor for this OER, gave the applicant a mark of 3 in block 

4.a., “Working with Others.”  The comments that follow block 4 include the following: 
 

Works well with peers & seniors . . . has difficulties relating to subord[inates], 
surprising since he was prior enlisted himself; tends to be overbearing & prone 
to work solely from position, rather than personal, power base. 

The  CO,  the  reporting  officer  for  this  OER,  gave  the  applicant  a  mark  of  3  in 

 
 
block 9.a., “Initiative.”  The comments for block 9 include the following: 
 

Responded well to explicit tasking from CO/XO, but needs improvement in ini-
tiating new action on his own & in following thru w/ minimal direction—par-
ticularly evident in collat[eral] duties . . . Showed good judgment as [underway] 
OOD,  consistently  making  correct  recommendations  on  shipping  situations; 
made good decisions under stress while controlling Cuban migrants . . . 

In  block  11,  “Leadership  and  Potential,”  the  CO  included  the  following  com-

  

ments: 
 

[The applicant] has made great progress in becoming a qualified DWO & board-
ing  officer  .  .  .  .    However,  most  of  the  reporting  period  was  characterized  by 
continuing  need  for  improvement  in  leadership—i.e.  team-building,  and 
motivation  &  caring  supervision  of  subordinates  to  achieve  goals.    Notable 
improvement was seen late in the period as he responded positively to [senior] 
enlisted feedback . . . if this trend continues he will be suited for jobs involving 
greater  leadership  responsibilities  .  .  .  .    Similarly,  a  solid  tour  marked  by 
performance like that seen recently will make him well-qual[ified] for promotion 
to [xxxxx]. 
 

Subsequent Service Records 
 
The  applicant  served  aboard  the  Xxxx  until  June  2,  199x,  performing  sub-
 
stantially the same duties.  The OER for this period is number 6 in the chart below.  The 
XO2 was the supervisor for the OER, and the CO was the reporting officer.  The appli-
cant’s  next  assignment  was  as  chief  of  xxxxxx  for  the  xxx  Coast  Guard  District.    His 
OERs for this tour from June 3, 199x, to July 31, 199x, are numbers 7 and 8 in the chart 
below.  The applicant failed of selection for xxxxx for the first time in the fall of 199x. 
 

From August 1, 199x, to May 31, 199x, the applicant served as chief of xxxxxx for 
the xxxx Coast Guard District.  His OERs for this period are numbers 9, 10, and 11 in the 
chart below.  Having been passed over for promotion on active duty a second time, he 
requested and was awarded a commission in the Coast Guard Reserve. 
 

 
 

 

 
 

 

 
 

 

 
 

 

8 
 
 
 
 
 
 
 

7 
 
 
 
 
 
 
 

2 
 
 
 
 
 
 
 

1 
 
 
 
 
 
 
 

9 
 
 
 
 
 
 
 

6 
 
 
 
 
 
 
 

3 
 
 
 
 
 
 
 

11 
 
 
 
 
 
 
 

10 
 
 
 
 
 
 
 

5 b 
 
 
 
 
 
 
 

4 b 
 
 
 
 
 
 
 

CATEGORYa 
Being Prepared/Planning 
Using Resources 
Getting Results 
Responsiveness 
Work-Life Sensitivityd 
Adaptabilityd 
Specialty Expertise/         
Professional Competence 
Collateral Dutyd 
Working with Others/   
Teamwork 
Human Relations/           
Workplace 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 Scalee 
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  The  Comparison  Scale  is  not  actually  numbered.  Officers are compared against others of the same 
rank.  In this row, a 6 means the applicant was rated to be “an exceptional officer”; a 5, 4, or 3 
means the applicant was rated to be a “one of the many competent professionals who form the 
majority of this grade.”  

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

APPLICANT’S MARKS IN 11 OERs FROM 7/17/xx THROUGH 5/31/xx 

AVEc 

 
 

1. 

2. 

4. 

FINDINGS AND CONCLUSIONS 

3. 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submission, and appli-
cable law: 
 
 
The Board has jurisdiction concerning this matter pursuant to section 1552 
of title 10 of the 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 C.F.R. § 52.31, denied the request and recommended disposition 
of the case without a hearing.  The Board concurs in that recommendation. 
 
 
The applicant alleged that two of the three OERs he received for his serv-
ice  aboard  the  cutter  Xxxx  were  the  result  of  a  racist  environment  on  board  and 
discrimination  by  members  of  his  rating  chain.    He  cited  his  [redacted  nationality] 
heritage and lack of commission from the Coast Guard Academy as the causes of that 
discrimination.  The applicant also alleged that one of the reporting officers had ordered 
his supervisor to lower certain marks and had prevented his qualifying as an officer of 
the  deck.    In  addition,  the  applicant  alleged  that  the  two  disputed  OERs  contained 
inconsistencies  and  that  the    selection  board  unfairly  focused  on  those  OERs  when  it 
failed to select him for promotion. 
 

The Chief Counsel of the Coast Guard argued that the Board should dis-
miss the case for failure to exhaust administrative remedies because the applicant did 
not file a civil rights complaint.  Although the report and finding of an investigation by 
the Departmental Office of Civil Rights would have increased the amount of evidence 
available to the Board, they would not constitute a “remedy” because they could not 
remove  the  alleged  errors  and  injustices  from  the  applicant’s  record.    Therefore,  the 
Board finds that the applicant’s failure to file a civil rights complaint does not constitute 
a failure to exhaust administrative remedies. 
 

5. 

The  applicant  stated  that  many  incidents  of  the  alleged  discrimination 
were witnessed by other officers and enlisted members.  He also alleged that the report-
ing  officer  for  the  first  disputed OER had directed the supervisor to lower his marks 
and add negative comments.  However, he failed to submit any affidavits to support his 
allegations.  The Chief Counsel submitted four affidavits from officers on the Xxxx who 
thoroughly refuted each of the applicant’s allegations.  Therefore, the Board finds that 
the  applicant  has  not  proved  by  a  preponderance  of  the  evidence  that  the  disputed 
OERs were the result of discrimination by any of the officers on board the Xxxx.  Nor 
has he proved that the reporting officer of the first disputed OER directed the super-
visor to lower marks or add negative comments in violation of Section 10-A-2.e.(2) of 
the Personnel Manual. 

 
6. 

8. 

9. 

7. 

 
The  applicant  alleged  that  the  low  marks  he  received  in  the  disputed 
OERs  were  inconsistent  with  corresponding  positive  comments.    Section  10-A-4.d.  of 
the  Personnel  Manual  requires  that  comments  be  consistent  with  the  assigned  marks 
and that any deviation from a mark of 4 be supported in the comments.  In addition, the 
inclusion of both positive and negative comments in an OER is encouraged in Section 
10-A-4.d of the Personnel Manual.  The Board finds that each mark of 3 in the two dis-
puted OERs is supported in the comments.  The inclusion of some positive as well as 
some negative comments in the OERs does not create an invalidating inconsistency. 
 
The two disputed OERs are clearly the poorest in the applicant’s record, 
 
and they may well have persuaded the selection board not to promote him.  However, 
the applicant has not proved that the OERs are in error or unjust.  The Board will not 
second-guess  a  properly  constituted  selection  board’s  decision  which  is  based  on  an 
accurate record. 
 
 
The applicant has not proved by a preponderance of the evidence that the 
Coast Guard committed an error or injustice by including the two disputed OERs in his 
record or by failing to select him for promotion to xxxxxxxx. 
 
 
 
 
 
 
 

Therefore, the applicant’s request should be denied. 

[ORDER AND SIGNATURES APPEAR ON FOLLOWING PAGE] 

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

ORDER 

 
 

 
 
hereby denied.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 
 
 

 
 

 
 

 
 

 

 
 

 
 
 

 
 

 

 
 

 
 
 

 
 

 

 
 

 
 
 

 
 

 

 

 

 

 

 

 

 

 

 

 

 

 
George Kuehnle, Jr. 

 

 

 

 
Michael K. Nolan 
 

 

 
Coleman R. Sachs