DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 1998-043 
 
 
   

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
This  is  a proceeding  under the provisions of section 1552 of title 10 and section 
 
425  of  title  14  of  the  United  States  Code.    It  was  commenced  on  December  23,  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  March  25,  1999,  is  signed  by  the  three  duly  

APPLICANT’S REQUEST FOR RELIEF 

 

 
 
The  applicant,  a  xxxxxxxxx  in  the  Coast  Guard,  asked  the  Board  to  correct  his 
record  by  expunging  three  officer  evaluation  reports  (OERs).    The  first  disputed  OER 
(OER1) covers the period December 27, 199x, to June 7, 199x.  The second disputed OER 
(OER2)  covers  the  period  May  1,  199x,  to  April  30,  199x.    The  third  disputed  OER 
(OER3) covers the period May 1, 199x, to May 23, 199x.  The disputed OERs are the first, 
third, and fourth that he received while serving as a xxxxxxxxxxxxxx. 
  

The applicant also requested that the Board remove from his record his failures 
of selection to the rank of xxx, which, he alleged, resulted from the presence of the three 
disputed OERs.  If the applicant is selected for promotion by the next selection board, 
he wants his date of rank to be backdated to the date of rank he would have had had he 
been selected by the promotion year 199x selection board, which met in 199x. 

 

 

APPLICANT'S ALLEGATIONS 

The  applicant  alleged that  OER1, which covered the period  December 27, 199x, 
to  June 7, 199x, should be removed from his record because he received an erroneous 
mark.    He  alleged  that  the  mark  he  received  on  the  comparison  scale,  “excellent  per-

 

 

former,” which is one block to the left of center, was too low.  Instead, he asserted that 
he  should  have  received  a  mark  in  the  center  circle  (“exceptional  performer”).    He 
stated that the reporting officer who made the low mark now acknowledges that it was 
a mistake.  He alleged that the reporting officer did not know when he made the mark 
that he was comparing the applicant “less favorably to the typical xx  he [had] known.” 

 
 
The  applicant  alleged  that  OER2  and  OER3  should  be  removed  because  they 
were completed simultaneously.  Therefore, he was “denied the opportunity of know-
ing how my performance was evaluated, what marks to improve upon, and how to do 
so.”  In addition, he stated, “Because these OERs were completed simultaneously, sec-
tions  8,  11,  and  12  were  nearly  identical,  do  not  reflect  [his]  performance,  and  lead  to 
less meaningful information contained in [his] OERs.”  
 
 
The  applicant  alleged  that  he  and  his  supervisor  had  completed  their  work  on 
OER2 on time, but the reporting officer did not complete it for more than a year.  OER2 
was signed just one day before OER3.  The applicant explained his failure to report the 
lateness of OER2 after 90 days, as required by regulation, as follows: 
 

[T]here  were  10  other  xxxxxxx  officer  OERs  that  were  up  to  one  year  late.  . . .  
Because so many officers in the xxxxxx had late OERs and the xxxx Division . . . 
had knowledge of this deficiency, I judged it was better to remain silent on this 
matter and not risk antagonizing my reporting officer by calling attention to this 
matter when his superiors knew of this wide ranging situation in the xxxxx.  
 
The applicant alleged that he did not receive OER2 and OER3 until mid-August, 
after  the  selection  board  had  already  met.    Therefore,  he  felt  that  any  reply  would  be 
moot,  and  he  decided  to  apply  to  the  BCMR  for  correction  instead.1    He  submitted  a 
copy  of  an  OER  quality  review  worksheet  showing  that  he  submitted  OER2  on  time 
(more than 21 days prior to the end of the reporting period) on April 7, 199x.  However, 
it was not signed by the reporting officer until June 29, 199x, and it was not received by 
the OER Administrator until July 11, 199x.  He also submitted photocopies of the enve-
lopes in which he received OER2 and OER3.  The envelopes are postmarked August 15, 
199x, and August 25, 199x.   

 
The applicant also submitted copies of OER status sheets for xxx personnel.  The 
status sheets show that the vast majority of the Spring 199x OERs of xxx and xxxxx at 
the xxxx were several months late and that several, including the applicant’s, were not 
completed  until  July  199x.    In  addition,  the  applicant  submitted  several  documents 
relating to the importance of timely OERs and of blocks 8, 11, and 12 in the OERs.  A 
copy  of  a  message  from  the  Military  Personnel  Command  (MPC)  dated  October  13, 
199x,  stated  that  “[s]election  boards  and  panels  also  consistently  commented  on  the 
importance  of  the  reporting  officer’s  comments  in  narrative  sections  8  and  11  of  the 

                                                 
1   The applicant explained that his application to the BCMR was delayed because he was overwhelmed 
with xxxxxxxxxxxxxxxxxxxxxxxx. 

 

 

OER.  .  .  .    The  timely  submission  of  OERs  remains  a  serious  challenge  to  the 
effectiveness  of  the  OER.    Late  OERs  may  cause  personnel  decisions  affecting  an 
individual officer to be made based upon incomplete record information.”  A copy of a 
letter from the Commandant to xxxx officers dated October 1, 199x, advised officers that 
“[a]lthough  all  of  the  narrative  blocks  are  important,  and  should  be  completely  filled 
with  narrative,  you  must  pay  particular  attention  to  blocks  eight,  eleven  and  twelve.  
Promotion boards scrutinize these blocks to obtain a clear picture of how the reporting 
officer views the evaluated officer for overall performance, promotability, and readiness 
for increased responsibilities and command. 
 

VIEWS OF THE COAST GUARD 

On  December  15,  1998,  the  Chief  Counsel  of  the  Coast  Guard  recommended  

 
Advisory Opinion of the Chief Counsel 
 
 
denial of the applicant’s request for relief.   
 
The  Chief  Counsel  alleged  that  the  applicant  “had  failed  to  provide  substantial 
 
evidence  of  any  error  or  injustice  regarding  the  disputed  OERs.”    The  Chief  Counsel 
alleged that the applicant failed to meet the following standards: 
 

To  establish  that  an  OER  is  erroneous  or  unjust,  the  applicant  must  prove  that 
the challenged OER was adversely affected by a clear, material error of objective 
fact, factors “which had no business being in the rating process,” or a clear and 
prejudicial violation of a statute or regulation.  Germano v. United States, 26 Cl. 
Ct.  1446,  1460  (199x);  Hary  v.  United  States,  618  F.2d  11,  17  (Cl.  Ct.  1980); 
CGBCMR  Dkt.  No.  86-96.    In  proving  his  case,  an  applicant  must  overcome  a 
strong presumption that his rating official acted correctly, lawfully, and in good 
faith  in  making  their  evaluations  under  the  Coast  Guard’s  Officer  Evaluation 
System.    Arens  v.  United  States,  969  F.2d  1034,  1037  (199x);  Sanders  v.  United 
States, 594 F.2d 804, 813 (Ct. Cl. 1979). . . .  In the absence of compelling circum-
stances,  an  OER  will  not  be  ordered  expunged  unless  the  Board  finds  that  the 
entire  report  is  infected  with  the  errors  or  injustices  alleged;  unless  the  Board 
finds that every significant comment in the report is incorrect or unjust; or unless 
the  Board  finds  it  impossible  or  impractical  to  sever  the  incorrect/unjust 
material from the appropriate material.  BCMR No. 151-87, cited in BCMR 106-
91, et al. 

 
 
As for the alleged error in OER1, the Chief Counsel stated that the reporting offi-
cer’s hindsight regarding his mark on the comparison scale does not prove error.  “As 
the Board has repeatedly noted, retrospective reconsideration of an OER, particularly in 
light of the Reported-On Officer’s non-selection, is not a basis for correction.”  The Chief 
Counsel cited Tanaka v. United States, 210 Ct. Cl. 712 (1976), and CGBCMR Docket Nos. 
84-96,  67-96,  189-94,  24-94, 265-92, and 311-88 for this proposition.  The Chief Counsel 
also pointed out that the reviewer of OER1 had noted that he would have described the 
applicant as an “exceptional performer” rather than as just an “excellent performer” on 

 

 

the  comparison  scale.    The  reviewer’s  note  informed  all  future  readers,  including  the 
selection  boards,  that  an  experienced  officer  considered  the  applicant  to  be  an  excep-
tional performer, deserving a mark in the center circle on the comparison scale.  How-
ever, the Chief Counsel alleged, the reviewer’s comment does not prove that the report-
ing officer’s initial choice of the lesser mark was an error. 
 
 
Regarding OER2, the Chief Counsel alleged that the applicant “has not asserted 
that there was an error or injustice in the content of the disputed OER2 . . . .  Applicant’s 
sole assertion is that he was prejudiced by the delay in submitting his OER because he 
was  precluded  from  ‘adjusting  his  performance.’”    The  Chief  Counsel  cited  CGBCMR 
Dkt. No. 183-95 for the proposition that a “delay in signing marks indicated on an OER 
is not substantial evidence of error or injustice in the OER itself.”  He argued that there 
is no evidence that “the lateness of OER2 rendered it unreliable or inaccurate." 
 
 
The Chief Counsel alleged that the applicant’s argument that he was prevented 
from adjusting his performance due to the delay of OER2 fails because OER3 shows that 
the applicant did in fact improve his performance.  The Chief Counsel argued that the 
Personnel  Manual  places  the  responsibility  for receiving performance feedback on the 
evaluee, and that such feedback occurs informally day to day, not just through an OER.  
The Chief Counsel also argued that “Applicant’s failure to submit a reply to any of the 
disputed  OERs  may  be  considered  as  evidence  that  he  accepted  the  rating  officials’ 
characterization of the performance described in those OERs.” 
 
 
Regarding  the  similarities  between  OER2  and  OER3,  the  Chief  Counsel  stated 
that  no  regulation  requires  the  language  in  OERs  to vary.  “Where the officer has not 
been reassigned and is performing largely the same duties as the previous period, a rea-
sonable amount of similarity in describing performance of those duties is expected.” 
 
Memorandum from the Coast Guard Personnel Command 
 
 
The Chief Counsel attached to his advisory opinion a memorandum on the appli-
cant’s case prepared by the Coast Guard Personnel Command (CGPC) dated December 
8,  1998.    CGPC  stated  that  OER2  and  OER3  were  validated  on  August  3  and  4,  199x, 
respectively, and were immediately entered in the applicant’s record prior to the meet-
ing of the PY9x selection board on August x, 199x.  CGPC pointed out that OER3 was 
only 21 days late and that the applicant’s failure to notify his rating chain when OER2 
became overdue had “a direct bearing on his contention that he ‘was denied the oppor-
tunity  to  timely  and  meaningfully  communicate  with  the  PY9x  promotion  board’” 
because he did not have time to file an OER reply.   
 

CGPC attached two affidavits to its memorandum (see below).  One affidavit is 
from xxx, who served as the reporting officer for OER1 and who rated the applicant as 
an “excellent performer” on the comparison scale in that OER.  The second affidavit is 
from xxx, who as the reviewer for OER1 added a comment stating that he would have 

 

 

rated  the  applicant  as  an  “exceptional  performer.”    Xxx  was  also  the  reporting  officer 
for OER2 and OER3. 
 
 
CGPC also addressed the question of nexus:  Could the existence of the disputed 
OERs in the applicant’s record have caused his failures of selection?  It concluded that 
the comparison mark in OER1 was low enough to have persuaded a selection board to 
pass  over  the  applicant.    However,  CGPC  alleged  that  the  applicant’s  record  would 
appear worse to a selection board without OER2 and OER3.  Both OER2 and OER3 are 
better than the undisputed OER that immediately preceded OER2. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

The  Chairman  sent  the  applicant  a  copy  of  the  views  of  the  Coast  Guard  and 
invited him to respond within 15 days.  On January 4, 1999, the applicant indicated that 
he wished to respond but could not do so in the allotted time.  On January 11, 1999, the 
Chairman  granted  the  applicant  a  60-day  extension.    On  March  3,  1999,  the  applicant 
responded  to  the  recommendation  of  the  Chief  Counsel.    The  applicant  stated  that,  if 
the  disputed  OERs  could  not  be  removed  in  their  entirety,  he  would  like  to  have 
removed those sections that are in error and unjust. 

 
The applicant argued that the reviewer’s comment in OER1 that he would have 
rated the applicant higher on the comparison scale did not render the reporting officer’s 
erroneously  low  mark  harmless.   He argued that  the selection board could not ignore 
the low comparison mark any more than “the characters at the end of the movie Wizard 
of Oz could . . . ignore the man (wizard) behind the curtain . . . .”   

 
The  applicant  also  argued  that  his  reporting  officer  erroneously  gave  him  this 
low  mark  because  the  mark  was  misleadingly  labeled  “excellent  performer,”  even 
though  it  is  actually  a  poor  mark.    He  pointed  out  that  the  Coast  Guard  has  since 
changed the descriptions on the comparison scale.  The word “excellent” is now used to 
describe an above-average mark on the comparison scale.  The mark his reviewer gave 
him is now described as “fair performer” instead of “excellent performer.”  He submit-
ted copies of the old and new comparison scales, which appear as follows: 

 

Old Comparison Scale Used in Disputed OERs 
 
  12. COMPARISON SCALE AND DISTRIBUTION:  Compare this officer with others of the same grade whom you have known in your career. 
 

Performance 

Good  

unsatisfactory for 

performer, but 

grade or billet. 

 

limited 

potential. 

Excellent 
performer; 

recommended 
for increased 
responsibility. 

Exceptional  

performer; very 

competent, 

highly 

respected 
individual. 

Distinguished 
performer; give 
tough, challeng-

ing, visible 
leadership 

assignments. 

Strongly 

recommended 
for accelerated 

promotion. 

BEST 

OFFICER  
of this grade. 

 
 
 

 

 

New Comparison Scale Recently Adopted by the Coast Guard 
 
  9. COMPARISON SCALE (FOR GRADES O3 TO O5):  Compare this officer with others of the same grade whom you have known in your career. 
 

Marginal  
performer; 

limited 

potential. 

Fair performer; 
recommended 
for increased 
responsibility. 

Good  

performer; give 

tough,  

challenging 
assignments. 

Excellent  

performer; give 
toughest, most 

challenging 
leadership 

assignments. 

Strongly 

recommended 
for accelerated 

promotion. 

BEST 

OFFICER  
of this grade. 

Performance 

unsatisfactory for 

grade or billet. 

 

 

 
 

 

RELEVANT REGULATIONS 

 

Coast Guard Personnel Manual (COMDTINST M1000.6A) 
 
Article  10.A.  of  the  Personnel  Manual  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).   
 
 
Article  10.A.4.d.(9)(a)  instructs  reporting  officers  to  mark  the  comparison  scale 
by “fill[ing] in the circle that most closely reflects the Reporting Officer’s ranking of the 
Reported-on Officer relative to all other officers of the same grade the Reporting Officer 
has known.” 
 
 
Article 10.a.2.f.(2)(c) states that “[f]or any officer whose Reporting Officer is not a 
Coast  Guard  commissioned  officer,  the  Reviewer  shall  describe  on  a  separate  sheet of 
paper  the  officer’s  ‘Leadership  and  Potential’  and  include  an  additional  ‘Comparison 
Scale’ mark.” 
 
 
Article 10.A.1.a. states that one of the purposes of the evaluation system is “[t]o 
provide a means by which each officer may receive feedback regarding how well he or 
she is measuring up to the standards [of performance].” 
 
Article 10.A.1.b.(2) states that “[t]he is only one person responsible for managing 
 
the performance of an individual officer . . . and that is the officer himself or herself.  He 
or she is ultimately responsible for finding out what is expected on the job, for obtaining 
sufficient feedback or counseling, and for using that information in adjusting as neces-
sary to meet or exceed standards.” 
 
 
Article 10.A.1.b.(1) states that “[e]ach commanding officer must ensure that accu-
rate,  fair,  and  objective  evaluations  are  provided  to  all  officers  under  their  command.  
All supervisory personnel will see to it that evaluations of their subordinates are com-
pleted on schedule and in accordance with the prescribed standards.” 
 

 

 

the  reported-on  officer 

to  complete 

Article  10.A.2.c.(2)(d)  requires 

the 
 
administrative  section  of  an  OER  and  forward  it  to  his  supervisor  “not  later  than  21 
days before the end of the reporting period.”  Article 10.A.2.h.(2) states that each “OER 
Administrator  shall  ensure  that  OERs  . . .  are  received  by  Commandant  .  .  .  not  later 
than  45  days  after the end of reporting periods.”  Article 10.A.2.c.(2)(g) states that  the 
reported-on  officer  “[i]nforms  the  Commander  [of  the  Military  Personnel  Command] 
directly by Rapidraft Letter if the official copy of the OER has not been received 90 days 
after the end of the reporting period.” 
 
 
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.” 
 
Coast Guard Xxxx 
 
This  instruction  concerning  the  Xxxxxxxxxx  Officer  Evaluation  System  Rating 
 
Chain  was  issued  on  xxxxxxxx,  199x.    Articles  3  and  4  of  the  instruction  includes  the 
following statements: 
 

Xxxx officers deserve timely and accurate evaluations.  It is the responsibility of 
every officer in the rating chain to ensure the standards of the Personnel Manual 
are  met  .  .  .  .    Late  submissions  .  .  .  may  jeopardize  a  top  performing  officer’s 
opportunity  for  selection  for  promotion.  .  .  .    The  Reviewer  ensures  the  OER 
reflects a reasonably consistent picture of the Reported-on Officer’s performance 
and potential and checks for obvious errors, . . . .  If necessary, the Reviewer adds 
comments  on  a  separate  sheet  of  paper  further  addressing  the  performance 
and/or  potential  of  the  Reported-on  Officer.    For  any  officer  whose  Reporting 
[Officer] is not a Coast Guard commissioned officer, the Reviewer shall describe 
on  a  separate  sheet  [of]  paper  the  officer’s  “Leadership  and  Potential”  and 
include an additional “Comparison Scale” mark. . . .  The Reviewer forwards the 
reviewed  report  to  the  OER  Administrator  .  .  .  in  time  for  the  administrative 
review and meet the target date for the OER to be received by Commandant . . . 
45  days  after  the  end  of  the  reporting  period.  .  .  .    With  few  exceptions  the 
Reported-on Officer must start the process and prepare and forward an OER 21 
days before the end of a reporting period . . . .  

  

SUMMARY OF  THE RECORD 

 
 
In May 19xx, the Applicant graduated from the Coast Guard Academy and was 
commissioned an ensign.  Between June 197x and June 198x, he served tours as a cut-
ter’s  deck  watch  officer,  the  commanding  officer  of  a  xxxxxx,  and  a  xxxxxx.    He  was 
promoted to xxxxxxxx and then to xxxxxxx.  During these tours, the comparison marks 

 

 

he  received  in  this  OERs  rose  from  4s  to  5s  and  then  to  6s.2    From  June  198x  to 
December 199x, the applicant xxxxxx at the xxxxxxxxx.  
 
 
From December 27, 199x, to May 23, 199x, the applicant served as a xxxx at the 
xxxxxxxx.  Three of the four OERs he received while at the Xxxx are the disputed OERs.  
(He did not dispute the second OER he received while at the Xxxx, although the marks 
are somewhat lower than those in OER2 and OER3.)   
 

On OER1, the applicant received a mark of 3 (“excellent performer”) on the com-
parison scale from xxxxx, who was his reporting officer and the head of the xxxxxx at 
the  xxx.    However,  xxx,  who  was  the  reviewer  for  OER1  and  the  xxxxx  at  the  xxx, 
attached the following comment to OER1 in the applicant’s record: 
 

 

Concur with the marks and comments of the supervisor and the reporting officer 
except  for  the  Block  12  comparison;  I  believe  that  [the  applicant]  is  an  “excep-
tional  performer.”    He  is  an  active  participant  in  all  phases  of  Xxxx  life  and  is 
sincere in his efforts to be an excellent xxxxx.  He has made an excellent start in 
this new assignment.  He frequently stays late to xxxx, is an excellent role model 
for  xxxxxxxxxxxxx,  and  eagerly  shares  his  experiences  with  them.    I  strongly 
recommend him for promotion with his peers and for assignment to positions of 
greater responsibility. 
 
OER2  was  submitted  by  the  applicant  in  April  199x  but  was  not  signed  by  the 
reporting officer until June 29, 199x.  OER3 was submitted by the applicant on May 18, 
199x, five days prior to the end of the reporting period.  It was signed by the reporting 
officer on June 30, 199x.  The comments in blocks 8 and 11 in OER2 and OER3, which 
the applicant complained of being too similar, appear as follows.  Most of the language 
is identical but rearranged (language that is not identical is underlined): 
 
OER2 Block 8. Reporting Officer Comments: 
 

Concur with supervisor’s remarks…  [The applicant’s] efforts to support xx in all 
phases  of  xxx  experience  has  continued…  he  looks  at  things  in  a  positive way, 
always  maintaining  an  enthusiastic,  up-beat  demeanor  that  easily  spreads  to 
those around him… his sincere, caring manner has made him a valuable asset to 
the xxxxx & to the xxxx… he has genuine credibility with xxxxxxxxxxxxx & they 
frequently  seek  his  advice  &  counsel…  I  am  pleased  to  have  him  on  my  staff. 
[ellipses in original] 

 
OER3 Block 8. Reporting Officer Comments: 
 

Concur with supervisor’s marks & comments…  [The applicant’s] efforts to sup-
port xxxx in all phases of xxxx experience has continued in his role as xxxxxx; he 

                                                 
2   The comparison scale is not actually numbered.  See the figure on page 5, above, for the meanings of 
the marks on the comparison scale. 

 

 

has genuine credibility with xxxxxxxxxxxxxxxx & they frequently seek his advice 
&  counsel…looks  at  things  in  a  positive  way,  always  maintaining  an 
enthusiastic,  up-beat  demeanor  that  easily  spreads  to  those  around  him…  his 
sincere,  caring  manner  has  made  him  a  valuable  asset  to  the  xx  &  xxx  …  I  am 
pleased to have him on my staff. [ellipses in original] 

 
OER2 Block 11. Leadership and Potential: 
 

His  sincere  interest  in  xxxxxxx,  combined  with  his  active  support  of  xxx,  both 
inside & outside xxxxxxxx, has made him a very positive & significant influence 
in  xx  overall  development…  he  has  supported  the  xxxxxxxxxx’s  efforts  in  both 
the xxx & xxx arenas… he proactively takes on important tasks & executes them 
with infectious enthusiasm coupled with common sense… he has great potential 
for added responsibility & should be given challenging assignments in his areas 
of  expertise…  he  is  strongly  recommended  for  promotion  with  his  peers. 
[ellipses in original] 

 
OER3 Block 11. Leadership and Potential: 
 

His  sincere  interest  in  xxxx,  both  inside  &  outside  xxxxxxxx,  has  made  him  a 
very positive & significant influence in xxx overall development… his efforts as 
xxxxx  have  been  exceptional;  he  has  opened  lines  of  frank  communication  & 
increased  understanding  between  xxxxxx  and  the  xxxxxxx  …  he  has  continued 
to actively supported [sic] the xx’s efforts in both the xxxx & xxxxxxx arenas… he 
takes  on  important  tasks,  frequently  with  short  notice,  &  executes  them  with 
infectious  enthusiasm  coupled  with common sense… he has great potential for 
added responsibility & should be given challenging assignments in his “xxxxxx” 
areas  of  expertise…  he  is  strongly  recommended  for  promotion  with his peers. 
[ellipses in original] 

 
 
With these OERs in his record and no reply from the applicant, he failed of selec-
tion in early August 199x.  He received copies of OER2 and OER3 in late August 199x, 
but did not file replies.  He has not been selected for promotion by subsequent promo-
tion  boards  either.    Therefore,  since  he  has  completed  20  years  on  active  duty,  he  is 
scheduled to be retired on June 1, 199x. 
 

AFFIDAVITS OF RATING CHAIN MEMBERS 

 
Affidavit of xxxxxxxxxx, Reporting Officer for OER1 

 
On  April  xx,  199x,  xxxxxx  signed  the  following  statements  regarding  OER1, 
which were included in CGPC’s memorandum to the Chief Counsel of the Coast Guard: 
 

Based  upon  the  predominance  of  “5’s”  for  the  individual  OER  items,  it  does 
appear (in hindsight for seven years ago) that his mark in block 12 should be in 
the  center  position  vice  one  to  the  left.    However,  if  I  understand  the  OER 
process  correctly,  this  “glitch”  was  immediately  caught  by  the Reviewer, [xxx], 

 

 

USCG  and  “corrected”  at  the  time  by  his  comments  dated  29  Sept  9x  and 
appended to this June 199x OER.  Thus, raising this single mark (which denotes 
an  “Excellent”  performer  based  upon  just  six  months  of  observation)  as  a  con-
tributing factor to a failure of selection seems to be a moot point. 

 
 
On September 26, 199x, xxxxxxxx sent the applicant an email message in which 
he  stated,  “I  readily  concur  with  [xxxxx’s]  Reviewer  Comments  dated  29  September 
199x,  that  I  should  have  rated  you  as  an  “Exceptional”  vice  “Excellent”  Performer  at 
that time!” 
 
Affidavit of xxxxxxx, Reviewer of OER1 and Reporting Officer for OER2 and OER3 

 
On  July  8,  199x,  xxxxx  signed  the  following  statements  regarding  OER1,  which 

were included in CGPC’s memorandum to the Chief Counsel of the Coast Guard: 
 

. . .  As the xxxxx I was the Reviewing Officer for the majority of officers assigned 
to the xxxxxx . . . .  Upon review of the [applicant’s] 07 June 199x OER, I felt the 
marks and comments by both the Supervisor and the Reporting Officer merited a 
higher overall comparison mark (block 12) than that assigned by the Reporting 
Officer and noted the same in my Reviewer’s comments. 

 
Xxxx  explained  that  OER2  had  been  delayed  because  of  a  lack  of  clerical 
 
assistance.    Regarding  the  marks  and  comments  in  OER2  and  OER3,  xxxx  stated  as 
follows: 
 

. . .  [The supervisor for the OERs] submitted detailed performance information 
to me (as xxx) in the form of draft OER comments.  I edited those comments as 
appropriate and entered them onto the OER form.  He also submitted proposed 
numerical ratings for all categories except the overall comparison scale, block 12.  
My  norm  is  not  to  change  these recommendations without significant personal 
observation  that  would  warrant  making  such  a  change.    To  the  best  of  my 
knowledge,  the  marks  in  all  blocks  (except  block  12)  on  the  OERs  in  question 
were  those  recommended  by  the  Supervisor.    I  believe  that  they  accurately 
reflect  [the  applicant’s]  performance  during  those  periods.    In  my  opinion,  the 
mark  in  block  12  assigned  by  me  also  accurately  reflects  his  performance  in 
comparison with other officers of his grade. 
       

Although  [OER2]  was  submitted  to  Headquarters  late,  the  comments  and  per-
formance  marks  were  “captured”  and  submitted  by  the  Supervisor  within  the 
designated time frame.  The comments were derived primarily from the support-
ing  information  submitted  by  [the  applicant]  (which  accompanied the Supervi-
sor’s  submission  to  me)  and  the  Supervisor’s  personal  observations.    Although  
[OER2] was not formatted and printed on time, the comments and marks were 
recorded on time and are, in my opinion, an accurate assessment of his perform-
ance. 
 

 

 

  

[The applicant’s] submission of [OER3] information on 18 May 199x did not, in 
fact,  meet  the  prescribed  timeline,  i.e.,  21  days  prior  to  the  end  of  the  marking 
period. . . .  The comments and marks are, in my opinion, an accurate assessment 
of his performance for that period. 
 
. . .  While the comments in blocks 8 and 11 of the April 9x and May 9x OERs are 
similar,  they  are  very  positive,  and,  I  believe,  are  an  accurate  reflection  of  his 
performance as reported by [the applicant] and his Supervisor and are consistent 
with my own observations of him. . . . 

FINDINGS AND CONCLUSIONS 

2. 

1. 

 
 
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, United States Code.  Under  Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 199x), 
the application was timely. 
 
 
The applicant asked the Board to remove three OERs and his subsequent 
failures of selection from his record.  He alleged that OER1 should be removed because 
his  reporting  officer  mistakenly  gave  him  a  low  mark  on  the  comparison  scale.    He 
alleged that this occurred because of the misleading wording on the scale.  The report-
ing officer signed an affidavit indicating that he now believes he should have given the 
applicant a higher mark.   
 
 
 With regards to OER1, the Chief Counsel of the Coast Guard argued that 
the  reporting  officer’s  hindsight  did  not  prove  that  the  mark  on  the  comparison  scale 
was in error.  Furthermore, he argued, any error by the reporting officer was corrected 
by  the  reviewer’s  comment  that  he  would  have  assigned  the  applicant  a  higher  com-
parison mark. 
 
 
The  wording  of  the  comparison  scale  on  OER1  could  mislead  someone 
into  thinking  that  a  mark  in  the  third  circle  is  a  good  mark.    However,  Article  10-A-
2.f.(2)(c) of the Personnel Manual provides that,  if a reporting officer is not a commis-
sioned  Coast  Guard  officer,  the  reviewer  will  add  comments  on  the  reported-on 
officer’s leadership and potential and provide another comparison scale mark.  In this 
way, comparison scale marks made by those who, like the applicant’s reporting officer, 
may  misunderstand  the  scale  are  mitigated  by  a  comparison  mark  assigned  by  a 
commissioned  officer,  who  presumably  better  understands  the  scale.    The  applicant’s 
reviewer complied with the rules and assigned the applicant a higher mark in his added 
comments.    The  applicant’s  reporting  officer  now  states  that  he  should  have  assigned 
the  higher  mark.    However,  the  applicant  has  not  proved  that  the  reporting  officer’s 
original comparison mark in OER1 was in error.  Nor has he proved that the reviewer’s 

3. 

4. 

 

 

6. 

5. 

added comments and comparison mark did not adequately inform the selection board 
that a commissioned Coast Guard officer with better understanding of the comparison 
scale rated the applicant more highly.  Therefore, the applicant has not proved that the 
Coast Guard erred with respect to OER1.  
 
 
The  applicant  alleged  that  OER2  and  OER3  should  be  removed  because 
they were completed simultaneously and have virtually identical comments in blocks 8 
and 11.  He submitted documents indicating that blocks 8 and 11 are very important to 
selection  boards.    He  also  alleged  that  the  lateness  of  OER2  prevented  him  from 
improving his performance for the OER3 reporting period.  He further alleged that the 
lateness of OER2 and OER3 prevented him from filing replies in time for the selection 
board that met in August 199x. 
 
 
Although OER2 and OER3 have many different marks and comments, the 
comments by the reporting officer in blocks 8 and 11 are virtually identical.  The reason 
for  their  uniformity  is  unclear,  as  the  reporting  officer  had  both  his  own observations 
and  written  material  from  the  applicant  and  the  supervisor  with  which  to  work.  The 
reporting officer submitted a signed statement indicating that the applicant’s perform-
ance  during  the  reporting  period  for  OER2  was  timely  captured,  although  the  report 
was  not  signed  for  over  a  year.    He  also  stated  that  the  comments  and  marks  in  both 
OER2  and  OER3  accurately  reflect  the  applicant’s  performance  during  those  periods.  
Because  the  comments  are  nearly  identical  and  because  the  reporting  officer  signed 
OER2 and OER3 within a day of each other, the Board believes it is likely that whoever 
composed  the  comments  for  those  blocks  merely  rearranged  the  phrases  from  OER2 
and retyped them into OER3, or vice versa.  Nevertheless, the applicant has not proven 
by a preponderance of the evidence that either the comments in blocks 8 or 11 or any-
thing else in OER2 or OER3 is inaccurate or unfairly describes his performance during 
the  two  reporting  periods.    Moreover,  although  reporting  officers  should  ideally  use 
different words in describing an officer’s performance from one reporting period to the 
next,  the  Board  does  not  believe  that  the  similarities  between  the  comments  in  OER2 
and OER3 constitute such an injustice as to require their removal and the removal of his 
failures of selection. 
 

7. 

Article  10.A.1.a.  of  the  Personnel  Manual  states  that  one  purpose  of  an 
OER is to provide feedback so that the reported-on officer may improve his or her per-
formance.  The applicant arguably was denied this source of feedback since he did not 
receive  OER2  until  after  the  OER3  reporting  period  was  over.    However,  Article 
10.A.1.b.(2) places much of the burden of obtaining feedback on the reported-on officer.  
In addition, though the applicant states that he chose not to complain about the lateness 
of  OER2  to  avoid  angering  his  superior  officers,  Article  10.A.2.c.(2)(g)  provided  the 
applicant a means by which to ensure that he received this form of feedback in a timely 
manner.  He voluntarily chose not to exercise this option.  In addition, the applicant has 
not stated that his superiors failed to or were unavailable or unwilling to provide him 
with  feedback  on  an  informal  basis.    Therefore,  the  Board  finds  that  the  lateness  of 

 

 

8. 

OER2 did not so unfairly render the applicant incapable of improving his performance 
during the reporting period for OER3 as to cause OER3 to be unjust. 
 
 
 Article 10.A.2.h.(2) of the Personnel Manual requires OERs to be received 
by the Commandant no later than 45 days after the end of the reporting period.  CGPC 
indicated that OER2 and OER3 were received on August 3 and August 4, 199x, respec-
tively.  Therefore, OER2 was received by the Commandant more than a year late, and 
OER3 was received approximately three weeks late.  Although OER2 and OER3 were in 
the applicant’s record when the first selection board met on August 8, 199x, the appli-
cant did not have a chance to file replies to the OERs because he did not receive them 
until August 15 and August 25, 199x, respectively.  However, the lateness of both OER2 
and OER3 can be attributed at least in part to the applicant’s own failures.  He failed to 
comply  with  Article  10.A.2.c.(2)(g)  when  he  did  not  inform  the  Military  Personnel 
Command  that  OER2  was  overdue.    He  did  not  initiate  OER3  until  five  days prior to 
the  end  of  the  reporting  period,  whereas  Article  10.A.2.c.(2)(d)  requires  officers  to 
initiate  an  OER  at  least  21  days  prior  to  the  end  of  the  reporting period.   Because the 
applicant did not himself comply with the regulations to help ensure the timeliness of 
these  OERs,  it  is  not  an  injustice  that  they  appeared  in  his  record  before  the  selection 
board  without  any  reply  from  him.    The  Board  also  notes  that  the  applicant  has  not 
shown that any reply he might have filed would have convinced a selection board that 
the OERs were in error.  Moreover, if the applicant had filed replies to OER2 and OER3 
after he received them, his replies would have appeared in his record before subsequent 
selection boards.   
 

9. 

The  applicant  has not proved that  the Coast Guard committed any  error 
or injustice that would justify removing any of the three disputed OERs or his failures 
of selection from his record. 

 
10.  Accordingly, the relief requested by the applicant should be denied. 

 

  
 

 

 

ORDER 

The application for correction of the military record of XXXXXXX, USCG, is hereby 

 
 

 
 

 
 

 
 

denied. 
 
 
 
 
 
 
 
 

 
 

 

 

 
Nancy Lynn Friedman 

 

 

 

 

 

 
Jacqueline L. Sullivan 

 

 

 

 
Sharon Y. Vaughn