DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 1998-067 
 
 
   

 

 
 

FINAL DECISION 

 
ANDREWS, Attorney-Advisor: 
 
 
This is a proceeding under the provisions of section 1552 of title 10, United States 
Code.    It  was  commenced  on  March  20,  1998,  upon  the  BCMR’s  receipt  of  the  appli-
cant’s application. 
 
 
appointed members who were designated to serve as the Board in this case. 

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

APPLICANT’S REQUEST FOR RELIEF 

 

 
 
The applicant, a xxxxxx in the Coast Guard, asked the Board to correct his record 
by removing a special officer evaluation report (disputed OER) received while serving 
as the xxxxxxxxx at the xxxxxxxx.1  The applicant also requested that the Board remove 
from  his  record  any  other  documents  referring  to  his  removal  as  xxxxxxxxx.    The 
disputed  OER,  which  covers  the  period  June  15,  199x,  to  March  16,  199x,  would  be 
replaced with one marked “For Continuity Purposes Only.”   

                                                 
1  The following xxxx and staff members of the xxxxx are mentioned in this Final Decision: 
“The applicant” was the xxxxxxxx at the  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 
“The  xxxx”  was  the  xxx  of  the  Xxxxxxxxx  of  the  Xxxxxx.    He  and  his  xxxxxx  committed  several  xxxx 

violations during the applicant’s tour at xxxxx.  

“The xxxxxx” was the xxxxxx of the xxxx at the time of the xxxx violations. 
“XXX” was the Xxxxxxxxx of the Xxxxxx, a xxxxxx, and the applicant’s commanding officer.  He served as 

the reporting officer and the reviewer on the rating chain for the disputed OER. 

“VVV”  was  the  first  Assistant  Xxxxxxxxx  to  serve  during  the  applicant’s  tour  at  xxxxx.    He  was  the 

assistant to XXX at the time of the xxxx violations by the xxxx and his xxxxxx. 

“YYY,” the Assistant xxxx xxxxx, was the applicant’s assistant at xxxx.  He conducted the mast of the xxxx 

and his xxxxxx. 

“ZZZ” was the second Assistant Xxxxxxxxx to serve during the applicant’s tour at xxxxx.  ZZZ served as 

the supervisor on the rating chain for the disputed OER. 

 
 
In a response to the Coast Guard’s advisory opinion recommending partial relief 
in the case, the applicant suggested that the Board should write its order to guarantee 
that the OER would be destroyed and that no copy of it would be retained in any Coast 
Guard  file.    He  further  requested  that  his  failures  of  selection  to  xxxxxx  be  removed 
from all military records.  
 

The  applicant  also  expanded  his  request  for  relief  to  include  the  removal  of 
derogatory statements about his performance as xxxxxxxxx xxxxxs that appear in the 
report  of  a  Coast  Guard  administrative  investigation  (AI  Report)  conducted  in  the 
summer of 199x.  In addition, he asked that no copy of the Board’s Final Decision be 
placed in his military record, but that a copy be appended to the PRRB file on his case.  
Finally,  the  applicant  requested that the Board should exercise its authority under 33 
C.F.R. § 52.61(f) to comment to the Secretary about the wrongdoing in this case.    
 

On December 16, 1998, the Board received a supplemental submission from the 
applicant  which  further  added  to  his  request  for  relief.    The  applicant  asked  that  the 
Coast Guard conduct two ad hoc special selection boards to consider him for promotion 
to xxxxxxx.  He stated that if the Coast Guard would not do this, it would be necessary 
for the Board to “perform the comparative analysis itself” and promote the applicant to 
xxxxxxx  if  the  comparison  indicated  he  would  have  been  promoted  had  the  last  two 
selection boards seen his record without the disputed OER in it. 
 

In addition, the applicant specified that he wished the Board to comment to the 
Secretary on (1) “the wisdom and efficacy of continuing to permit the Coast Guard to 
investigate its own senior officials” rather than having the Office of the Inspector Gen-
eral conduct such investigations; and (2) the unfairness of the Coast Guard not conven-
ing special selection boards, which would “permit proper comparative promotion con-
sideration, where, as here, an officer’s right to fair consideration for promotion has been 
denied.” 

APPLICANT'S ALLEGATIONS 

 

 
Allegations Concerning Conflict of Interest in Rating Chain 
 
 
The applicant alleged that, while serving as the xxxxxxxxx xxxxxs at the Xxxxxx 
in October 199x, he was required to determine what punishment would be meted out to 
a xxxx whose xxxxx was the Xxxxxxxxx of xxxxx and a xxxxxxxx (XXX).  The xxxx and 
his  xxxxxx  had  committed  many  xxxxxxx  of  the  xxxx  and  had  continued  to  fail  to 
comply  with  the  xxxx  after  they  had  been  ordered  to  do  so.2    As  the  applicant’s 

                                                 
2    According  to  the  applicant,  the  xxxx  and  his  xxxxxx  were  found  to  have  the  xxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 

commanding  officer,  XXX  served  as  the  reporting  officer  and  the  reviewer  for  the 
disputed OER. 
 
 
The  applicant  alleged  that,  on  October  8,  199x,  after  the  continuing  infractions 
were discovered, he reported the misconduct to the Assistant Xxxxxxxxx (VVV).  A few 
days later, VVV told the applicant that “we are making too much of the misconduct.”  
On October 17, 199x, the applicant alleged, a xxxx investigation charged the xxxx with 
“Xxxxx violations and Xxxxx [violations] for multiple unauthorized xxxxxxxxxxxxx.”   
 

The applicant alleged that a few days later, he met with XXX and VVV to discuss 
the xxxx’s misconduct.  XXX told the applicant “that in his opinion the misconduct was 
not xxxxxxxxxx because it did not involve physical harm to personnel.”  As a result, the 
applicant  directed  the  Assistant  xxxxxxxxx  xxxxxs  (YYY)  to  drop  the  charge  of  xxxx 
xxxxxxxxxxxx against the xxxx.  At a second meeting with XXX concerning the charges 
against his xxxxx, the applicant alleged, XXX told him that the remaining charges were 
“multiplicious  . . .  piling  on.”    XXX  also  told  him  that  “he  considered  his  xxxxxxxx’s 
misconduct to be nothing more than ‘xxxx will xx’ or ‘xxx will xxxxxx.’” 
  
 
On October 25, 199x, YYY took the xxxx and his xxxxxx to mast.  He found that 
the xxxx had committed a “Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx for unauthorized 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.”  YYY awarded the xxxx punishment including 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.    On  the  same  day  and  for  the  first  time  ever, 
VVV asked for a memorandum on the mast from YYY.  The applicant alleged that the 
affidavit signed by VVV (see summary below) shows that VVV “served as a vector for 
the expression of [XXX’s] views on the treatment of his xxxx’s case.” 
 

The  xxxx  appealed,  arguing  that  the  xxxx  was  his  personal  xxxx  and  not  the 
xxxxxxxxxx that had been disapproved.  The applicant alleged that on October 29, 199x, 
XXX visited the applicant and the YYY in the applicant’s office “fishing” for their plans 
on how to deal with his xxxxx’s appeal.  The next day, YYY and the applicant wrote and 
edited the final ruling denying the xxxx’s appeal. 
 
 
The  applicant  alleged  that,  on  November  1,  199x,  XXX  “came  into  [his]  office 
unannounced, sat down, glared at him, and asked where [the applicant’s] ruling was on 
his xxxxx’s mast appeal.  [XXX] told [the applicant] that the punishment was too harsh 
and that [the applicant] had only five days to rule on the appeal, just like in the xxxxxx, 
and that since the five days had expired, the punishment would have to be vacated.”  
When  the  applicant  informed  XXX  that  the  ruling  was  substantially  finished,  XXX 
became “visibly angry, upset and threatening.”  He argued that his xxxxx’s appeal was 
good because he had been ordered to get the “xxxxxx” out of his xxxxxxxxxx, not his 
own xxxxx.  In response to XXX’s visit, the applicant alleged, he telephoned YYY and 
told  him  “that  they  had  to  approve  the  appeal  or  face  serious  consequences  from 
[XXX].”  YYY told him that the regulations for xxxx did not include a five-day deadline 
for rulings on appeals. 

 
 
On November 2, 199x, the applicant alleged, he rewrote the ruling on the appeal 
because of the pressure from XXX.  He reduced the charges found to have been com-
mitted to one Xxxxx, and he substantially reduced the punishment. 
 
 
The applicant further alleged that the Office of the Inspector General of the De-
partment of Transportation (DOT) had investigated some of the applicant’s allegations 
and concluded that XXX “did in fact intervene to protect his xxxxx in disciplinary pro-
ceedings.”  This finding, the applicant alleged, is contrary to a statement XXX signed on 
August  28,  199x,  which  claims  that  he  never  discussed  his  xxxxx’s  case  with  the 
applicant. 
 
Allegations Concerning the Applicant’s Relief from Duty at xxxxxxxxxxxxxxxxx 
 
 
alleged that in January 199x, XXX directed ZZZ  
 

On November 22, 199x, VVV left xxxxx and was replaced by ZZZ.  The applicant 

the  Department  of  Transportation 

to conduct a covert investigation of [the applicant] based on an anonymous letter sent 
to 
interviewed 
approximately  18  people,  some  with  a  grudge  . . .  but  spoke to no one who directly 
worked  with  [the  applicant]  except  .  .  .  (a  xxx  Officer).    [The  applicant]  was  never 
asked to respond to the anonymous allegations and was denied the rights of a party to 
an investigation.  [The xxx Officer] was approached by two xxx members to “pile on.”  
[ZZZ] was biased: he told [the applicant] that he had “heard all about [him]” before 
[ZZZ]  even  reported  aboard.    [The  applicant]  never  saw  the  anonymous  letter  until 
after he was summarily relieved. 

Inspector  General. 

  He 

The applicant alleged that on xxxxxx, 199x, he was removed as xxxxxxxxx xxxxx 

 
 
in a very public and embarrassing manner.   
 
Allegations Concerning the Disputed OER 
 

Soon  after  the  applicant  was  reassigned,  the  disputed  OER  was  prepared  by 
ZZZ,  who  served  as  supervisor,  and  XXX,  who  served  as  both  reporting  officer  and 
reviewer.    The  applicant  alleged  that  XXX’s  intervention  on  behalf  of  his  own  xxx 
disqualified  him  from  serving  on  the  applicant’s  rating  chain  for  the  disputed  OER 
under Section 10-A-2.g.(2)(b) of the Personnel Manual.  He alleged that “[g]iven [XXX’s] 
pervasive involvement in the special OER and close working relationship with [ZZZ] 
(who served as the rating chain Supervisor), [XXX’s] taint extends to the entire special 
OER, not just to the portions he completed as Reporting Officer/Reviewer.” 
 
 
The applicant alleged that the comments in the OER stating “. . . Bad match . . . 
no actionable wrongdoing, no scandal, but strong irreconcilable differences” prove that 
the OER is the result of a personal conflict between the applicant and XXX and not an 
accurate reflection of his performance. 

 
Allegations Concerning PRRB 
 
 
Prior  to  applying  to  the  BCMR,  the  applicant  asked  the  Personnel  Records 
Review Board (PRRB) to remove the OER from his record.  On February 11, 1998, the 
PRRB issued a recommendation (see below) that the applicant’s request be denied.  The 
applicant alleged that the PRRB was wrongly constituted because only one of the five 
members was the applicant’s superior.  In addition, one of the members was at the time 
assigned to the Chief Counsel’s office to draft advisory opinions to the BCMR. 
 

VIEWS OF THE COAST GUARD 

 
Initial Views 
 
 
On  May  6,  1998,  the  Chief  Counsel  of  the  Coast  Guard recommended that the 
Board deny the applicant’s request for relief.  The Chief Counsel stated that the appli-
cant had not “met his initial burden to prove error or injustice entitling him to the relief 
he requests . . . .” 
 
 
The Chief Counsel stated that “the PRRB’s recommendation has been reviewed 
and separately determined to be an adequate statement of the Coast Guard’s advisory 
opinion,  and  is  submitted  [to  the  BCMR]  as  such.”  “For  the  reasons  discussed  in  the 
PRRB’s  Findings,  Conclusions  and  Recommendations  .  .  ., the evidence indicates that 
the challenged OER was the product of [ZZZ’s and XXX’s] professional evaluations of 
Applicant’s performance throughout the reporting period, not the product of personal 
bias.” 
 
The Chief Counsel also denied that it was improper to have a member of his staff 
 
who  drafts  advisory  opinions  to  the  BCMR  serve  on  the  PRRB.    He  noted  that  the 
PRRB’s findings of fact are not binding on the BCMR. 
 
 
In addition, the Chief Counsel alleged that the applicant “has not shown that the 
preliminary factfinding conducted by [ZZZ] was improper, much less that it indicates 
error or injustice in the challenged OER.” 
 
Revised Views 
 
 
On August 3, 1998, the Chief Counsel submitted a supplemental advisory opin-
ion in which he amended the Coast Guard’s advisory opinion to recommend that the 
disputed  OER  be  removed  from  the  applicant’s  record.    The  Chief  Counsel  admitted 
that XXX should not have been the reporting officer for the applicant’s rating chain.  He 
stated that, “[b]ased on the unique circumstances of this case,” the Coast Guard would 
not object to removal of the disputed OER.  However, he stated, 
 

[t]he action to relieve [the applicant] from the assignment as xxxxxxxxx xxxxxs is fully 
supported by documentation in the record from [XXX] and the statements of the two 
Assistant  Xxxxxxxxxs  as  well  as  corroborating  statements  from  [the  Coast  Guard’s] 
investigation.  Applicant has not shown that the action to relieve him was the product 
of  any  error  or  injustice  and  no  relief  from  that  action  is  warranted.    However,  the 
xxxxxxxxx  xxxxxs  position  is  not  a  command  billet  and  the  only  documentation  of 
relief from those duties is the OER. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On August 5, 1998, the Chairman of the BCMR forwarded a copy of the Chief 
Counsel’s supplemental advisory opinion to the applicant and invited him to respond.  
On  September  9,  1998,  the  applicant  submitted  his  response.    He  asked  the  Board  to 
void his failures of selection for xxxxxx and to remove any references to them from both 
his own and the Coast Guard’s records. 

 
The  applicant  also  alleged  that  OERs  removed  from  records  by  order  of  the 
BCMR  are  retained  “indefinitely  in  a  separate  file  maintained  for  this  purpose.”  
Therefore, he said “the Board’s writ is being defied, and second, . . . a phantom system 
of records has been established.”  He asked the Board to write its order to “leave no 
room for doubt as to what should be done with the removed OER.” 

 
The applicant further stated as follows:  
 

The only issue remaining to be decided concerns references in the [AI] Investigation to 
[the  applicant’s]  performance  of  duty  as  xxxxxxxxx  at  Xxxxxx.    Those  references 
should be removed. . . .   
 
Fortunately,  there  is  no  need  to  resolve  this  aspect  of  the  matter  because  the  Coast 
Guard  itself  has  acknowledged  that  the  references  in  the  [AI]  Investigation  to  [the 
applicant’s]  performance as xxxxxxxxx were gratuitous and irrelevant to the matters 
[AI] was directed to investigate. . . .   
 
To the extent that [AI] exceeded the scope of [its] mandate by accepting and including 
comments on [the applicant’s] performance of duty, those portions of the investigative 
report serve no purpose other than unfairly staining [the applicant’s] reputation in the 
agency’s official files.  [AI] did not follow up on these comments, leaving them entirely 
untested.    Moreover,  [its]  report  was  prepared  without  affording  [the  applicant]  the 
core rights of a person whose performance of duty is being faulted. 
 
On these admitted facts, it is impossible to reconcile the retention of this gratuitous, 
irrelevant,  prejudicial  and  untested  material  with  the  Coast  Guard’s  commitment  to 
investigative fairness, not to mention the Board’s statutory duty to correct error and 
remove injustice. 
 

COAST GUARD’S RESPONSE 

TO THE APPLICANT’S ADDITIONAL REQUESTS 

 
 
On October 7, 1998, the Chief Counsel responded to the applicant’s further sub-
mission.  He reiterated that the only item in the applicant’s military record that would 
refer to his relief from duty as xxxxxxxxx is the disputed OER.  He also submitted an 
affidavit  from  the  Chief  of  the  xxxxxxxxxxxxx  Branch  of  the  Coast  Guard  Personnel 
Command, who stated the following:  
 

Part  of  my  responsibilities  include  (1)  coordinating  actions  necessary  as  a  result  of 
BCMR orders . . . (2) coordinating preparations for promotion boards (e.g., conducting 
a quality review of officer records to ensure no evidence of BCMRs are presented to 
selection Boards) and (3) documenting non-selection status in the Personnel Data Sys-
tem (PDS) data base. 
 
Officers do not fail of selection to the grade of Xxxxxx and I know of no record which 
records non-selection to xxx. . . .  [W]e do not produce non-selection letters for officers 
considered for xxx.  The PDS module, which records non-selection for all grades, . . . 
does not possess a category for failure of selection for xxx.  Since there is no record of 
non-selection to xxx, there is no record to be corrected. 
 
The [AI] investigation . . . is not and will not become a part of [the applicant’s] record.  
That investigation was not an investigation of [the applicant] and did not result in any 
personnel record entries in [the applicant’s] record. . . . 
 
If an order is received to correct [the applicant’s] record . . . [t]he new original version 
of the material would be filed in the member’s paper record and the electronic copy of 
the  corrected  record  would  be  updated  to  match  the  paper  version.  .  .  .    After  the 
record  correction  is  accomplished,  records  of  the  BCMR  Order  and  actions  taken 
would be filed in xxxxxxxxx (G-LMJ). . . . 

 
The  Chief  Counsel  called  the  applicant’s  request  that  the  BCMR  order  the 
 
Coast Guard to remove all criticism of the applicant from the AI Report “an irrele-
vant  and  unnecessary  addition  to  the  original  application  for  relief.”    The  Chief 
Counsel further stated that the BCMR  
 

lacks  jurisdiction  to  take  any  action  with  regard  to  the  content  or  action  on  the 
investigation conducted by [AI]. . . .  [The memorandum which] forwarded [the 
AI Report] to the PRRB . . . is not the Coast Guard’s advisory opinion to the BCMR 
in this case. . . .  [N]either the PRRB not the BCMR are investigative bodies.  They 
accept  information  submitted  in  order  to  determine  whether  a  correction  to  an 
applicant’s  military  record  should  be  made.  The review of such information as 
may  be  submitted  does  not  give  the  BCMR  power  to  “correct”  information 
submitted by the Coast Guard or the applicant. . . . 

 
 
The Chief Counsel also argued that the applicant has never “presented evidence 
of his performance that is contrary to the comments contained in the investigation. . . .  
[Nor  has  he]  shown  that  the  action  to  relieve  him  from  duties  as  xxxxxxxxx  was  the 
product of any error or injustice.” 

APPLICANT’S FINAL RESPONSE 

 
 
On October 15, 1998, the Chairman of the BCMR forwarded a copy of the Chief 
Counsel’s response to the applicant with an invitation to respond within 15 days.  The 
applicant responded on December 16, 1998. 
 

In his response, the applicant alleged that the Coast Guard’s claim that “there is 
no such thing as failing of selection for promotion with respect to the rank of Xxxxxx” is 
“literally true, see 14 U.S.C. § 262(a) (1994), but . . . misleading.”  He alleged that despite 
the statutory provisions, officers still refer to xxxxx as having been “passed over” for 
selection  if  the  xxxx  were  in  the  “promotion  zone”  for  xxxxxx  but  were  not selected.  
Therefore,  the  applicant  stated,  because  there  are  no  special  selection  boards  in  the 
Coast Guard, the Coast Guard should convene an ad hoc special selection board (and, if 
necessary,  a  second  ad  hoc  special  selection  board)  to  consider  him  for  promotion  to 
xxx.  The applicant alleged that, prior to the enactment of the statutory provision that 
requires  the  Army,  Navy,  and  Air  Force  to  convene  special  selection  boards,  the 
Department of Defense convened such ad hoc special selection boards.  He alleged that 
nothing prevents the Coast Guard from taking the same approach. 
 
 
With  regard  to  the  informal  administrative  investigation,  the  applicant  alleged 
that it was mishandled in the following ways: (1) the investigator was junior to “the tar-
get”; (2) the investigator attended a retirement party for “the target” the day before he 
began  conducting  the  interviews;  (3)  at  the  retirement  party,  the  “then  head  of  the 
agency let it be known publicly . . . that the target was one of his dearest friends”; (3) 
“the  then  head  of  the agency reviewed in draft the investigation into his old friend’s 
conduct”; (4) the investigator failed to take accurate notes; and (5) the investigator never 
interviewed the xxxx.  The applicant denied the Chief Counsel’s claim that the Board 
has no jurisdiction over the AI Report. 
 
 
Finally, regarding the applicant’s request that the Board submit comments to the 
Secretary,  the  applicant  alleged  that  the  Coast  Guard  had  “failed  to  do  anything  in 
response to a series of disturbing issues at the Xxxxxx.”  He cited allegedly offensive 
material published in the 199x xxxxx; alleged favoritism to a xxxx who was allowed to 
remain  for  a  xxxxxx  rather  than  be  xxxx;  and  the  alleged  failure  to  hold  anyone 
accountable when xxx broke into the Xxxxxx’s xxxxx and stole “xxxxxxxxxxxxxxxx.” 
 

 

REPORT OF THE ADMINISTRATIVE INVESTIGATION 

 
 
On  June  16,  199x,  the  xxxxxxxxxxxxx  of  the  Coast Guard ordered an informal, 
single-officer administrative investigation of several allegations that had been made in 
an anonymous letter dated April 22, 199x, to the Inspector General of DOT.  One of the 
allegations  concerned  preferential  treatment  of  the  xxxx,  XXX’s  xxxxx,  at  the Xxxxxx.  
The  investigator  (a  xxxxxx)  was  instructed  to  investigate  “all  the  facts  and  circum-

“[The applicant] has a psychological problem.” 

“[The applicant conducted a] xxxxxxxxxxxxxxx.” 

“[The applicant is] nuts . . . terrible on implementation . . . .  [The enlisted 

stances surrounding these allegations.”  The Xxx xxxxxxxxx particularly requested an 
“opinion as to whether these incidents are indicative of any systemic problems” at the 
Xxxxxx. 
 
 
The  investigator  interviewed  28  persons  at  the  Xxxxxx  and  summarized  their 
statements in his report.  The vast majority of the AI Report addresses allegations that 
have  nothing  to  do with the applicant’s performance or XXX’s interactions with him.  
However,  the  investigator  noted  that  “[a]lthough  I  was  not  investigating  the 
[applicant’s] situation, 10 of the 28 interviewees did discuss his impact on the Xxxxxx 
during  the  short  period  he  was  [xxxxxxxxx]  xx.”    Most  of  the  derogatory  comments 
concerning the applicant arose in discussions of (1) the alleged preferential treatment of 
the xxxx in the appeal of his mast; and (2) the root causes of an apparent break down in 
the xxxxx at the xxxxx.  The following is a sample of the derogatory comments made by 
the xxxx’s xxx, xxx, and staff about the applicant and his performance that appear in the 
AI Report: 
 
 
 
 
 
 
staff called him] xxxxxxxxxxxx.” 
 
 
can be imagined.” 
 
 
“[The applicant is] very difficult to deal with . . . a bully . . . .  [H]e did not 
think much of xxxxxxxx and even less of xx women. . . .  [His] way was the only way—
every issue was taken personally then became a battle with him. . . . [She] cannot believe 
that one person could tear down what had been built up at [xxxxx] so fast.  He was the 
worst leader she had ever seen.  He berated anyone junior to him . . . .  He was on a 
power trip!  xxxxxxxxxx.” 
 
 
“[The applicant’s tour at xxxxx was] clearly a disruptive period.  He had 
never seen anything like it in his twenty some odd years at [xxxxx].  There was deep 
division between . . . [the xxxxxxxxx] of xxs and the xxx (of xxxx).  [The applicant] could 
not see anything but his way.” 
 
 
with the things he did? . . . A very stiff person, anxious all the time.” 
  
 
tial treatment of the xxxx in the consideration of his mast appeal: 
 

The AI Report also includes the following comments relating to alleged preferen-

“[The applicant] did more damage at [the Xxxxxx] in 3 or 4 months than 

“[The applicant was] very disruptive to [Xxxxxx].  How did he get away 

• 

• 

• 

• 

• 

• 

• 

• 

YYY told the investigator that he believes XXX “did get involved to influ-
ence [the applicant] . . . .”  In addition, he stated that VVV had “relayed” the message to 
the applicant and YYY that the punishment was too severe.   
 
 
 

VVV stated that 

• 

[XXX] took painstaking care to keep out of anything dealing with his xxx.  In the case 
of  [the  xxxx]  having  a  xxx  and  xxxxx  in  his  xxx,  the  Xxxxxxxxx  took  pain  not  to  be 
involved.  In [VVV’s] opinion, [the applicant] made a mountain out of a mole hill. . . .  
[VVV] believes he . . . took a coaching role because the punishment for [the xxxx and 
his xxxxxx] was not in line with the offense.  [XXX] did not want to get involved.  They 
were frustrated with the way the case was handled by Xxxx xxxxxxxx.  Bottom-line, he 
felt  no  pressure  from  the  Xxxxxxxxx  other  than  be  professional  about  it.  .  .  .    [The 
applicant] always turned these situations into Xxxx xxxxxxxx against the xxxxxx.  In 
fact [the applicant] had little or no respect for [XXX]—“the xxxxxxxxx” [the applicant] 
was quoted as saying. 

 

• 

XXX’s secretary stated that 

the  Xxxxxxxxx  was  upset  over  the  severity  of  the  punishment  for  [the  xxxx].    [The 
xxxx] wrote an appeal (to the [xxxxxxxxx] Xxxxs)—she suspects [XXX] helped write it, 
but is not sure. . . .  In hearsay,--staff and xxxxs—felt [the xxxx] should have received a 
stiffer punishment but he was the Xxxxxxxxx’s xxxxxxxx. . . .  

• 

XXX stated that 

 

 

 
 
 

he had standing orders with the Assistant Xxxxxxxxx and the [xxxxxxxxx] Xxxxs that 
he be recused of anything dealing with his xxxxxxxx . . . .  He noted that [the xxxx] was 
caught with a xxx in his xxx and punished.  [The xxxx] appealed and the punishment 
was reduced.  [XXX] was emphatic that he never talked to the [xxxxxxxxx] Xxxxs, [the 
applicant], about his xxxxxxx! 

 
On August 11, 199x, the investigator submitted his report to the Xxx xxxxxxxxx.  
 
The  investigator  reported  that  most  staff  members  at  the  Xxxxxx  did  not  believe  the 
xxxx  had  received  special  treatment.    Nevertheless,  he  found  that  the  staff  of  the 
xxxxxxxxx xxxxxs did feel pressure to give “special treatment” to the xxxxxxxxxxx.  The 
investigator  gave  as  his  opinion  that  XXX  and  VVV  had  viewed  the  severity  of  the 
xxxx’s case “very differently than the Xxxx xxxxxx staff and conveyed that opinion to 
them.” 
 

Regarding the applicant, the investigator made Finding #60, which stated that, of 
the several interviewees who discussed the applicant with him, “[a]ll but one found him 
to have a disruptive influence on the Xxxxxx.”  In Opinion #28, he stated that “[d]espite 
[the applicant’s] good and honorable intentions, the xxxxxxx Xxxxxx culture remained 
foreign to him and he did not comprehend the natural tension that exists between Xxxx 
xxxxxxx, xxxxxx and xxxxxxx for the xxxxx’ precious time.” 

 
 
On August 26, 199x, the Xxx xxxxxxxxx reopened the investigation and asked the 
investigator  to  follow  up  on  certain  issues,  including  the  exact  extent  and  nature  of 
communication between XXX, VVV, YYY, and the applicant concerning the punishment 
of the xxxx over the xxxxs violations.  The investigator asked VVV and YYY to submit 
statements on this issue.  On August 28, 199x, YYY submitted the following statement in 
response to that request: 
 

I believe [XXX] was involved to influence [the applicant] to reduce [the xxxx’s] pun-
ishment in regards to the disciplinary matter.  This belief is based upon a meeting held 
between [VVV], [the applicant], and myself during the week of 28 October, 199x. . . .  
[VVV] strongly suggested that we reconsider our position, that he had discussed the 
issue with the xxxxxx and if we wished we could go right into the xxxxxx’s office to 
resolve the issue but we would not like the answer.  In addition, [VVV] indicated the  
xxxxxx’s  feelings  were  that  the  nature  of  the  violations  came  under  the  heading  of  
xxxxxx will xxxxxx . . . .   
 
Other than [the applicant’s] statement to me, I have no factual knowledge of the meet-
ing between [the applicant] and [XXX] on 29 October 199x.  I was on leave on 29 Octo-
ber 199x.  I was aware of the meeting between them on 1 November 199x as I was in 
the [applicant’s] office when the xxxxxx came in to address the issue.  The substance of 
that meeting was that the xxxxxx told [the applicant] that the 5 day appeal period had 
ended,  that  [the  applicant]  had  not  responded  within  that  time  frame  and  that  the 
punishment should therefore be set aside.  [The applicant] indicated to the xxxxxx that 
the appeal response had been completed, albeit a day late, and the punishment had 
been reduced.  I was present for this discussion.[3]  

YYY also submitted the following statement concerning the mast and appeal: 

.  .  .    Eventually,  however,  the  punishment  was  reduced  after  discussions  were  held 
between [VVV], and [the applicant], and a visit from [XXX] to [the applicant’s] office 
during the appeal process.  Both the Xxxxxxxxx and the Assistant Xxxxxxxxx indicated 
their belief that I had piled on charges to [the xxxx] in an effort to make an example of 
[the xxxx and his xxxxxx].  Both the xxxxxx and [VVV] made there [sic] feelings known 
to [the applicant] prior to his final ruling on the appeal. 
 
On . . . 25 October 199x, VVV asked me for an E-Mail note on the punishment admin-
istered and my punishment reasoning. . . .  It was the first time the xxxxxxxx had ever 
asked for a memo concerning judgment with regard to xxxx mast proceedings. 
 
While on leave, on 29 October 199x, [the applicant] called me at home and indicated 
that he had received several questions from [VVV] concerning [the xxxx’s] case . . . .  I 
passed on to [the applicant] my judgment in regards to the fairness of the punishment 
and felt that [the applicant] agreed with my position. . . .   

 
 
 

                                                 
3   The Board notes that the applicant and YYY disagree about which meeting with XXX YYY was present 
at.  However, they agree that YYY attended at least one meeting with XXX at which he discussed his xxx’s 
case. 

In response to the investigator’s additional questions, VVV submitted the follow-

 
 
ing statement on September 4, 199x: 
 

.  .  .    As  further  background,  [the  applicant’s]  overall  performance  was  increasingly 
becoming a concern to the Xxxxxxxxx and myself during the period in question.  Addi-
tionally, [the applicant’s] opinion of the Xxxxxxxxx’s leadership style had become very 
negative, and he discussed this with me in very explicit terms. . . .  In my opinion, [the 
applicant]  did  not  take  sufficient  action  on  my  recommendations  and  their  rela-
tionship continued to worsen prior to this case. 
 
Regarding  the  case  in  question,  I  had  heard  about  the  infraction  and  queried  [the 
applicant]  about  the  details  and  his  intended  course  of  action.    As  the  investigation 
and planned action unfolded, I increasingly became concerned about [the applicant’s] 
judgment  regarding  the  severity  of  the  case  and  the  proposed  punishments.    I  met 
with  him  on  several  occasions  to  discuss  the  situation,  and  I  believe  that  [YYY] 
attended one or more of these meetings. . . .  
 
I  recall  discussing  the  case  with  the  Xxxxxxxxx  on  several  occasions.    He  had  two 
concerns:    he  didn’t  want  to  get  involved  with  his  xxx’s  situation,  but, on the other 
hand, there was another xxxx involved and he was concerned about the staff’s judge-
ment and the overall fairness of the way the situation was being handled.  I told him 
that I would investigate the situation and act on my own, if warranted, keeping him 
informed.  I think that [the applicant] and I may have met together with the Xxxxxxxxx 
on this matter, but I am not sure.  In any event, in my opinion, [XXX] did not influence 
the outcome of the case in an inappropriate manner at any time in my presence. . . .   
 
My primary disagreements with [the applicant] concerned the lack of evidence sup-
porting charges of disobeyance of an order and grave neglect of duty. . . .  I strongly 
recommended that he not treat the case as he had planned. . . .  Furthermore, I reiter-
ated on numerous occasions that the Xxxxxxxxx was concerned about fairness, but did 
not want to personally get involved with matters relating to his xxxxx in this case.  I 
told  him  that  I  had  no  sense  of  pressure  from  the  Xxxxxxxxx  and  that  my  opinions 
were my own.   . . .  I informed the Xxxxxxxxx of my opinions and actions, I informed 
[the applicant] of my intentions to do so in advance, and I invited him to join me in 
those discussions if he so desired. . . .  
 

On October 1, 199x, the Xxx xxxxxx and the xxxxxxxxx of the xxxx approved the 
 
AI  Report.    However,  Finding  #60  and  Opinion  #28  were  rejected  because  the 
“disagreement  between  [XXX  and  the  applicant]  which  led  to  [the  applicant’s]  being 
relieved as xxxxxxxxx xxxxx, is outside the scope of this investigation.”  In addition, the 
Xxx  xxxxxx  analyzed the evidence as follows: 
 

[The applicant’s and XXX’s] versions of the incident are diametrically opposed to one 
another.  [VVV’s and YYY’s] are similar in that both indicate that [VVV] was the one 
who  applied  pressure  on  [the  applicant  and  YYY]  to  mitigate  the  punishment, 
although [YYY] believes that [XXX] was involved behind the scenes, whereas [VVV] 
maintains  he  acted  on  his  own  initiative.    [The  applicant]  stated  that  two  meetings 

occurred between [XXX, VVV] and himself prior to the date punishment was imposed 
on  [the  xxxx  and  his  xxxxxx];  [VVV]  stated  that  he  thinks  these  meetings  may  have 
happened, but he isn’t sure.  [YYY] stated that [XXX] came to [the applicant’s] office to 
discuss the case on 1 November.  In terms of who was present, this would seem to cor-
relate with the meeting that [the applicant] recalled occurred on or about 29 October.  
However, [YYY] indicated the subject of the meeting on 29 October involved the five 
days for appeal having elapsed, whereas [the applicant] indicated this was the subject 
of the 1 November meeting, at which [YYY] was not present.  While [the applicant’s 
and YYY’s] versions of this meeting do not agree on all details, they agree sufficiently 
to  indicate  that  while  [XXX]  may  not  have  discussed  his  xxxxxxxxxxxxx  with  [the 
applicant],  per se, he did discuss [the xxxx’s] case. 
 
. . .  The record could support an inference that [XXX] attempted to influence his xx’s 
case from behind the scenes through his discussions with [VVV].  However, since both 
[XXX and VVV] deny that this was the case, and since [VVV] denies feeling pressured 
by [XXX], I do not draw this inference. . . .  Finally, both [the applicant and YYY] stated 
that  [XXX]  came  to  [the  applicant’s]  office  sometime  during  the  29  October  to  1 
November  time  frame  and  told  them  that  because  five  days  had  elapsed  since  [the 
xxxx and his xxxxxx] submitted their appeal, their punishment should be set aside. . . .  
This supports an inference that [XXX] personally brought pressure to bear against [the 
applicant]  (although  [the  applicant]  had  already  mitigated  the  punishment  at  this 
point) and lends credence to [the applicant’s] contention that [XXX] had discussed [the 
xxxx’s]  case  with  him  on  previous  occasions,  although  there  is  no  way  of  verifying 
this.  [Footnotes omitted.] 

The  investigative  findings  indicate  that  as  Xxxxxxxxx,  [XXX]  communicated  that  he 
would recuse himself from any matter involving his xxxx.  However, the investigative 
report  also  contains  sufficient  evidence  to  conclude  that  [he]  did  not  adhere  to  his 
recusal on two occasions.  The file reflects that [XXX]: 1) was directly involved in the 
decision not to hold his xxxxxx personally liable for the settlement in connection with 
the canceled xxxxxxx;[4] and 2) had discussions with the xxxxxxxxx xxxxxs concerning 
proposed disciplinary action against his xxxxxx. . . . 

                                                 
4    In  March  199x,  a  xxx  and  the  xxxxx’s  xxxx  (whom  the  applicant  had  appointed  xxxxxxx),  without 
authorization, committed the Coast Guard to xxxx a certain xxxx to xxxxxxxx at the xxxxxx.  Apparently, 
a xxxxxxxxx misled them into thinking that what they were signing was just an xxxxxxxxxxxxx.  In fact, 
what  they  signed  was  a  xxxxxxxx,  which  the  xxxxx  subsequently  accepted.    The  xxxx  was  cancelled 
because the xxxxxxxxx was determined to be inappropriate.  The xxxxxx was sued for breach of contract, 
and it settled for approximately $xxxx.  The applicant alleged that, in violation of written Coast Guard 
policy, no disciplinary action against the xxxx was considered.  In addition, although the policy permits 

 

MEMORANDA OF THE INSPECTOR GENERAL 

 
 
On December 2, 199x, the Inspector General of DOT sent a memorandum to the 
xxxxxxxxx of the xxxxxxx in which he stated that XXX’s assignment as Xxxxxxxxx of the 
Xxxxxx while his xxx was xxxxx as a xxxx was “not consistent with the Coast Guard’s 
policy.”    Regarding  XXX’s  alleged  intervention  on  behalf  of  his  xxxxx,  the  Inspector 
General stated the following: 
 

 
 
On  June  29,  199x,  the  Inspector  General  wrote  a  second  memorandum  to  the 
xxxxxxxxx of the xxxxxxx.  In it, he stated that, upon reviewing the AI Report, “it is our 
view that [XXX] could not help but be influenced by the events involving his xxxxxx, 
and  thus  could  not  have  been  objective  in  reviewing  and  marking  [the  applicant’s] 
OER.”  The Inspector General pointed out that, contrary to evidence in the AI Report, 
XXX had denied ever discussing the performance of his xxxx with the applicant.  The 
Inspector General concluded that XXX’s “failure to recuse himself invalidates the entire 
OER  and  the  subsequent  rebuttal  process.”    Therefore,  he  recommended  that  the 
disputed OER be removed from the applicant’s military service record. 
  

CHIEF COUNSEL’S MEMORANDUM TO THE PRRB 

 
 
Before applying to the BCMR, the applicant applied to the PRRB to have the OER 
removed from his record.  The PRRB requested a copy of the AI Report from the Chief 
Counsel of the Coast Guard.  On November 24, 199x, the Chief Counsel sent the PRRB a 
redacted version of the AI Report.5  In a memorandum attached to the redacted report, 
the Chief Counsel stated the following: 
 

. . . [Y]ou should note that the investigation was not convened to look into the facts 
and  circumstances  surrounding  [the  applicant’s]  relief  from  his  duties  as  xxxxxxxxx 
xxxxxs. . . .  Accordingly, I find that they are not relevant to the deliberations of the 
PRRB and I am withholding these sections of the investigation. 
 
Although the investigation was not convened to look into the facts and circumstances 
surrounding [the applicant’s] relief from his duties as xxxxxxxxx xxxxxs, several of the 
witnesses  gratuitously  offered  the  Investigating  Officer  their  perceptions  of  [the 
applicant’s] performance of duties as xxxxxxxxx xxxxxs. . . .  Because the issue of [the 
applicant’s]  relief  from  his  duties  as  xxxxxxxxx  xxxxxs  was  outside  the  scope  of  the 
investigation,  the  Investigating  Officer  quite  correctly  did  not  follow  up  on  these 
comments.  Consequently, what we are left with are individuals’ opinions which (1) 
do not cite specific examples of conduct which form the basis of the opinions, and (2) 
were  not  subjected  to  the  crucible of the investigation process—i.e., the gathering of 
pertinent  facts  and  witness  statements  regarding  [the  applicant’s]  relief  and  the 
analysis of these facts and statements, from which informed findings of fact, opinions 
and recommendations could be drawn.  Because this was not done, I find that while 
the individuals’ opinions may be relevant to the issue of [the applicant’s] interactions 
with xxxx personnel, their probative value is substantially outweighed by the danger 
of misleading the members of the PRRB.  Accordingly, I have redacted these portions 
of the witness statements. . . .  

 

RECOMMENDATION OF THE PRRB 

                                                                                                                                                             
individuals  who  make  unauthorized  commitments  to  be held personally liable, the Xxxxxxxxx decided 
that the settlement money would be taken from the Xxxx xxxxxxx rather than from the xxxx and the xxx.  
5   The redacted version received by the PRRB did not reveal any of the derogatory comments about the 
applicant and his performance appearing in the bulleted list in this Final Decision. 

 
On February 11, 199x, the PRRB recommended denial of the applicant’s request.  
The denial was based in large part on affidavits provided by XXX, VVV, and ZZZ (see 
below).  The PRRB’s recommendation was approved by the xxxxxxxxx.  The following 
are excerpts of the PRRB’s recommendation: 
 

. . .  Applicant has not substantively challenged the contested OER’s content.  Instead, 
he has focused exclusively on the technical propriety of his rating officials. 

 

•   •   • 

The provision in the Personnel Manual that deals with rating chain exceptions discuss-
es disqualification as a preemptive course of action, and does not require invalidation 
of reports in which a rating official, in retrospect, should have been disqualified.  To 
do otherwise would allow the Reported-on Officer to determine the acceptability of a 
completed evaluation based simply on the nature of marks and comments provided.  
 

AFFIDAVITS PROVIDED TO THE PRRB 

 
Affidavit of XXX 
 
 
that board, XXX stated the following: 
 

In an affidavit to the PRRB in response to the applicant’s application for relief to 

. . . I recused myself from involvement with any decisions involving my xxxxx during 
his time at Xxxxxx . . . .  I have never had a discussion with [the applicant] not [sic] any 
xxxxxxxxx xxxxxs, or their Staff, concerning the conduct or military performance of my 
xxxxxx. 
 
During the later part of September 199x I began receiving disturbing information con-
cerning  [the  applicant’s]  .  .  .  inconsistent  and  irrational  behavior  with  .  .  .  Xxxxxx.  
Saying  one  thing  then  doing  something  else,  degrading people in public, using foul 
and abusive language, and breaking down lines of communication between the xxxxxx 
and other elements of the xxxxx. . . .  
 
. . . Early in November 199x [the applicant] entered into a tirade about how stupid the 
Coast Guard was concerning the policies. . . .  Looking back it was apparent now that 
strong irreconcilable differences were present . . . . 

•   •   • 

In March 199x [the applicant] advised me that two projects were complete when in fact 
they were not. . . . [The applicant] had told his staff to put them on the back burner, 
that I would be leaving soon and that he could outwait me.  That was the final straw 
and the culmination of events led to his relief and reassignment . . . . 

 
Affidavit of VVV 
 
 
VVV also submitted an affidavit to the PRRB.  Much of the affidavit is identical 
to  the  statement  VVV  submitted  to  the  AI  investigator  on  September  4,  199x.    Four 
pages  of  the  affidavit  detail  the  applicant’s  alleged  shortcomings  as  xxxxxxx  xxxxxs.  

The affidavit also includes the following responses to the applicant’s allegations about 
XXX: 
 

. . . I strongly disagree with [the applicant’s] assessment of [XXX’s] action. . . .  I never 
personally observed any favoritism or otherwise illegal xxxxx acts on the part of [XXX] 
during the case. . . . 

I recall discussing the case with [XXX] on several occasions.  He had two concerns: he 
didn’t want to get involved with his xxxxxx’s situation, but, on the other hand, there 
were other xxxxs involved and he was concerned about the staff’s judgment and the 
overall fairness of the way the situation was being handled. . . .  I told him that I would 
investigate the situation and act on my own, if warranted, keeping him informed.  I 
think that [the applicant] and I met with [XXX] on this matter, but I don’t recall all the 
details.[6]  I did not perceive any pressure from [XXX] at any time to improperly influ-
ence the case in his xxxxxxxxxx’s favor. . . . 

•   •   • 

•   •   • 

 [In his memorandum, the applicant] describes meeting with [XXX] and myself about 
the “multiplicious” charges.  In fact, I had told him my opinion on several occasions 
prior  to  any  meeting  with  [XXX]  that  he  needed  to  sort  out  the  central charges that 
were appropriate and pursue them . . . .  I strongly recommended that he not proceed 
as he had planned . . . .  I informed him of my intentions to keep [XXX] informed and I 
invited him to either join me in those conversations or meet with him alone if he so 
desired  in  continuation  of  my  recommendations  to  improve  relations  with  [XXX].  
Clearly,  both  xxxxs  needed  a  xxxxxxx.    In  fact,  I  think  [the  applicant]  further  over-
reacted and lessened the punishment too much after their appeal. 

 
Affidavit of ZZZ 
 
 
ZZZ, who served as the supervisor for the disputed OER, also submitted an affi-
davit to the PRRB.  In response to the applicant’s allegations concerning an investiga-
tion of himself, ZZZ stated the following: 
 

. . . On 27JAN9x [XXX] showed me an anonymous letter [about the applicant] that had 
been FAX’d from [a xxx  xxxxxx ].  [XXX] said he had talked to [the xxx  xxxxxx ] and 
that we should look into these allegations.  We agreed on a list of people I would talk 
to informally to determine if an “official” investigation should be convened.  I did not 
feel  directed  to  conduct  a  covert  investigation.    More  accurately,  we  agreed  that  I 
would conduct a preliminary fact-finding.  
 
.  .  .  I  documented  31  interviews  with  18  people.    I  interviewed  [two  people  who 
worked directly with the applicant]. 
 
 . . . There was no [official] investigation. . . .  My preliminary fact-finding, and my rec-
ommendation, assisted [XXX] in deciding to administratively relieve and request reas-
signment of [the applicant].  I think this was generous to [the applicant] because, in my 

                                                 
6   The Board notes that this statement differs from the one VVV gave to the AI investigator, which states 
that he “may have” met with the applicant and XXX but he is “not sure.” 

opinion,  an official investigation probably would have resulted in formal charges of 
disrespect and abuse of authority, at a minimum. . . .   

Regarding the disputed OER, ZZZ stated the following: 

In my opinion the OER is clear about why [the applicant] was relieved. . . . [The appli-
cant] . . . demonstrated extremely poor leadership and interpersonal relations. . . . His 
performance  did  not  improve.    At  the  point  where  our  concern  for  his  (and  his 
family’s) well-being was more than offset by our concern about an unhealthy, abusive, 
negative work environment, he was relieved. . . .  He was the wrong man for the job.  
This was the “bad match” [referred to in the OER].  He was uncooperative and dis-
agreeable with the entire senior [xxxxxx] management team.  He refused to heed per-
formance  counseling.    He  was  openly  critical  of  almost  everyone  and  everything.  
These were the “irreconcilable differences” [referred to in the OER].  [The applicant] 
was a “conflict” generator. . . .  He should not be in a supervisory position, and there 
should be a document in his official record stating that. . . . 

 
 
 

 

 

• 

SUMMARY OF THE APPLICANT’S RECORD 

 
 
The applicant attended the xxxxxxxxxx and received his commission as an ensign 
on June x, 19xx.  He was promoted to xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxxx  on  July  1,  19xx.    His  military  record  is  replete  with 
numerous awards, medals, citations, commendations, and letters of appreciation.   
 

In the early and mid 1980s, the applicant served as an xxxx to the xxxxxxxxx, an 
xxxxxx  on  a  cutter,  a  member  of  the  xxxxxxx  at headquarters, and a xxxxxxxx in the 
Office  of  the  xxxxxx.    He  was  also  the  first  Coast  Guard  officer  assigned  to  the 
xxxxxxxxxxxxxxx.  In 19xx, the applicant became the commanding officer of the USCGC 
xxxxxxx.  The OERs he received for that command are numbers 1 and 2 in the chart on 
page 18, below.  Thereafter, he attended the xxxxxx and was subsequently appointed to 
the xxxxx of the xxxxxx, where he also served as an xxxxxx to the xxxxx.  The OERs he 
received as a student and a xxxxxxxxxx are numbers 3, 4, and 5 in the chart on page 18, 
below.  From June 26, 19xx, to June 14, 19xx, the applicant served as chief of the xxxxxxx 
for the xxxxxxx.  The OERs he received for this tour of duty are numbers 6, 7, and 8 in 
the  chart  on  page  18,  below.    The  comments  in  the  OERs  numbered  1  through  8  are 
extremely positive, showing him to be the “[u]ltimate naval professional.”  The OER he 
received just prior to his tour at xxxxxxxxxx describes the applicant as “the right person 
to take the xxxxxxxxx to the threshold of the next millennium.” 
 
 
From  June  15,  199x,  to  March  16,  199x,  the  applicant  served  as  the  xxxxxxxxx 
xxxxxs  at  the  Xxxxxx.    His  (disputed)  OER  for  this  period  is  number  9  in  the  chart 
below.  The comments in this OER include the following: 
 
 
“Removed  due  to  poor  perf[ormance],  bad  fit  [between]  job  [require-
ments] & personal strengths/weaknesses.  Excellent ideas, well-read, articulate, strate-
gist, but failed as  [xxxxxxxxx xxxxxs] due to: . . . Ineffectiveness as teammate: alienated 

• 

• 

xxxxxxx  [Assistant  Xxxxxxxxxs]  .  .  .  irretreivably  burned  bridges.  .  .  .    Weakness  in 
people-skills: unable to work w/ others, over-controlling w/ own staff, combative, non-
cooperative,  created  neg[ative]  energy/hostile  climate.    Own  agenda  always  1st.  .  .  .  
Poor  leadership:  wildly  erratic  behavior,  near-intimidating/abusive,  then  apologetic/ 
ingratiating.    Autocratic,  arrogant,  .  .  .  perfectionist,  intolerant,  .  .  .  frustrated, 
inconsistent, overreactive, radiates stress in all directions. . . .  extensive counseling no 
avail  .  .  .  brute  force  methods.    Bullied/antagonized  .  .  .  sometimes  inspiring  .  .  . 
sometimes embarrassing . . . humiliating xxxxs . . . headache for all.  Responsive when it 
suited him, otherwise slow. . . . 
 
“Self-absorbed . . . intimidating to [juniors], uncooperative w/ peers, criti-
 
cal of [seniors].  Items of starkly unprofessional behavior & language cemented ineffec-
tiveness . . . no role model for xxxxxxxxxxxxxxxxx.” 
 
 
judgment  & 
[leadership] . . . [The applicant] has great strengths, but they have not found application 
in this billet.  Bad match . . . no actionable wrongdoing, no scandal, but strong irrecon-
cilable differences.” 
 
 
After  being  relieved  from  duty,  the  applicant  was  reassigned  as  a  xxxxxx  to 
conduct xxxxxx for the Chief of xxxxxx and the xxxxxxxx of the Coast Guard.  His OER 
for the period March 17, 199x, through April 30, 199x, is number 10 in the chart on page 
18, below.  The comments in the OER are quite laudatory.  Neither this OER nor any 
other document in the applicant’s file at this time (except the disputed OER) refers to 
his removal as xxxxxxxxx xxxxxxxxxxxxxs. 
 

“[R]emoved  as  [xxxxxxxxx  xxxxxs]  due  to  lapses  in 

APPLICANT’S MARKS IN 10 OERs FROM 7/4/xx THROUGH 4/30/xx 

 
 
 

 

 
 
 

 

 
 
 

 

AVEc 

6 
 
 
 
 
 
 
 

5 
 
 
 
 
 
 
 

3 
 
 
 
 
 
 
 

2 
 
 
 
 
 
 
 

8 
 
 
 
 
 
 
 

4 
 
 
 
 
 
 
 

1 
 
 
 
 
 
 
 

7  
 
 
 
 
 
 
 

10 
 
 
 
 
 
 
 

9 b 
 
 
 
 
 
 
 

CATEGORYa 
Being Prepared/Planning 
Using Resources 
Getting Results 
Responsivenesse 
Work-Life Sensitivitye 
Adaptabilitye 
Specialty Expertise/Pro-
fessional Competence 
Collateral Dutye 
Warfare Expertisee 
Working with Others/ 
Teamwork 
Human Relations/Work-
place Climate 
Looking Out for Others 
Developing Subordinates 
Directing Others 
Evaluations 
Speaking & Listening 
Writing 
Initiative 
Judgment 
Responsibility 
Staminae 
Health & Well-Being 
Military Bearinge 
Professionalism 
Dealing with the Publice 
Comparison Scalef 
Average for OER 
a Some categories’ names have changed slightly over the years. 
b Disputed OER. 
c Average score of all OERs except the disputed one, which is shaded.  Averages have been rounded. 
d Score given was “NO,” which means there was no opportunity to observe this trait.  The applicant was in school at 
e Category discontinued or nonexistent until later years. 
f The Comparison Scale is not actually numbered.  In this row, “2” means the applicant’s performance was rated to 
be “satisfactory, but limited in assignment potential.”  A “5” means the applicant “has xxx POTENTIAL [and] 
should be given challenging assignments and considered [for xxx selection] with his peers.”  A “6” means 
the applicant is “recommended for xxx selection at a future board.”  A “7” means the applicant is “recom-
mended for xxx selection at next board.”  

the xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx during the period covered by the third OER in the chart. 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

* No mark was made. 
 
 

RELEVANT LAWS AND REGULATIONS 

United States Code 
 
 
 

Title 10 U.S.C. § 1552(a)(1) provides the following: 

 

The Secretary of a military department may correct any military record of the Secre-
tary’s department when the Secretary considers it necessary to correct an error or re-
move an injustice.  Except as provided in paragraph (2), such corrections shall be made 
by the Secretary acting through boards of civilians of the executive part of that military 
department.    The  Secretary  of  Transportation  may  in  the  same  manner  correct  any 
military record of the Coast Guard. [Emphasis added.] 

 
 
Title  10  U.S.C.  §  628(a)(1)  requires  the  Secretary  of  a  “military  department” 
“under regulations prescribed by the Secretary of Defense, [to] convene a special selec-
tion board under this subsection . . . to determine whether such officer should be rec-
ommended for promotion.”  Title 10 U.S.C. § 101(a)(8) states that “[t]he term ‘military 
department’ means the Department of the Army, the Department of the Navy, and the 
Department of the Air Force.” 
 
Coast Guard Personnel Manual  (COMDTINST M1000.6A)  
 
Article  10-A  governs  the  preparation  of  OERs.    Each  OER  is  prepared  by  the 
 
reported-on  officer’s  “rating  chain”  of  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.2.f.(1)(c) provides that “[f]lag officers will also serve as Reviewers on those reports 
for which they are Reporting Officers.”  
 
 
 

Article 10.A.2.g. provides for exceptions to the rating chain composition: 

(1)  
In instances where a Supervisor, Reporting Officer, or Reviewer is unavail-
able or disqualified to carry out the responsibilities of a member of the rating chain, 
the  next  senior  officer  in  the  chain  of  command  will  designate  an  appropriate 
substitute who is capable of evaluating the Reported-on Officer. . . . 
 
. . .  “Disqualified” includes relief for cause due to misconduct or unsatisfac-
(2)  
tory performance, being an interested party to an investigation or court of inquiry, or 
any other situation in which a personal interest or conflict on the part of the Supervi-
sor, Reporting Officer, or Reviewer raises a substantial question whether the Reported-
on Officer will receive a fair and accurate evaluation. 

 

 
Coast Guard  Administrative Investigations Manual (COMDTINST M5830.1) 
 
 
investigation to be conducted by “one or more commissioned officers.” 
 

Article 1.D.4.a. of the Administrative Investigations Manual requires an informal 

Article 1.I.1. of the Administrative Investigations Manual provides the following 
 
instruction concerning the content of a report of an informal administrative investiga-
tion: 
 

The investigative report must be made as complete as possible to ensure preservation 
of evidence relating to the incident investigated and to give authorities in the Coast 
Guard an adequate basis on which to take action. . . .  These are suggestions, however, 
and  are  not  all-inclusive.    Any  information  that  will  aid  in  understanding  or  help 
reviewers analyze the report should be included. . . . 

Article 4.C.5.a. provides the following rules of evidence for reports of informal 

 
 
investigations: 
 

An  informal  administrative  investigation  is  not  bound  by  formal  rules  of  evidence 
applicable before courts-martial, and may collect, consider, and include in the record 
any  credible  (reasonably  believable)  evidence  which  is  relevant  to  the  matter  under 
investigation. . . .  A witness statement should be signed by the witness, but may be 
certified by an investigator to be either an accurate summary of, or a verbatim tran-
script of, an oral statement made by the witness.  

Section C.1.a. of Enclosure (9) to the Administrative Investigations Manual pro-

 
 
vides the following guidance to persons conducting an informal investigation: 
 

. . . You should be interested in any information bearing on the subject matter of the 
investigation which either falls within the scope of the investigation or could lead to 
information falling within its scope. . . . 

 
 
Section C.2.b. of Enclosure (9) advises investigators that “at the end of the inter-
view, it’s always a good idea to allow witnesses to make any additional statement they 
may desire.  Take careful notes, and write up a summary of the interview as soon as 
possible.” 
 
 
findings of fact in an informal investigation: 
 

Section D.1.a.2. of Enclosure (9) provides the following guidance with regards to 

. . . [T]he findings of fact must, themselves, be based on the evidence gathered. . . .  You 
should be careful to exclude any matters of opinion from this section.  Only matters 
whose truth is established by a “preponderance of the evidence” (i.e. matter which, in 
light of the evidence, have at least a 51% probability of being true) should be included.  
You should list all findings of fact which are relevant to the scope of the investigation. 

Section D.1.a.3. of Enclosure (9) provides the following guidance with regards to 

 
 
opinions in an informal investigation: 
 

Opinions  are  reasonable  evaluations  or  conclusions,  which  are  based  upon  the  facts 
found, but which do not meet the degree of certainty required of a “fact”. . . .  You 
should list all opinions which are relevant to the scope of the investigation. 

Article 1.J.2.b.1. provides that the convening authority and intermediate review-

 
 
ing authorities of an informal investigation (in this case, the Xxx xxxxxxxxx) 
 

shall forward the investigative report setting forth appropriate comments and record-
ing approval or disapproval, in whole or in part, of the proceedings, findings of fact, 
opinions,  and  recommendations.    These  authorities  may  amend,  expand,  or  modify 
findings  of  fact,  and  may  comment  on  or  make  new  opinions  or  recommendations 
without returning the record, so long as that action is supported by evidence of record. 
. . . 

 
 
Article  1.J.2.c.  provides  that  the  final  reviewing  authority  (in  this  case,  the 
xxxxxxxxx  of  the  xxxxxx)  “shall  take  final  action  to  ‘approve  (or  disapprove)  the 
findings of facts . . . .’  The result sought is that the final action is either a ‘stand alone’ 
document which closes the case, or which is (at the least) complete without reference to 
prior opinions and recommendations.” 
 
Code of Federal Regulations 
 
 
 

Section 33 C.F.R. § 52.61(f) provides as follows: 

If the Board deems it necessary to submit a comment or recommendation to the Secre-
tary as to a matter arising from, but not directly related to, the issues in a case, it does 
so by separate communication. 

 

FINDINGS AND CONCLUSIONS 

1. 

2. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

 
 
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: 
 
 
of title 10, United States Code.  The applicant was timely. 
 
 
The applicant requested an oral hearing before the Board.  The Chairman, 
acting pursuant to 33 CFR § 52.31, denied the request and recommended disposition of 
the case without a hearing.  The Board concurs in that recommendation. 
 
 
The applicant alleged that the rating chain for his OER for the period June 
1, 199x, to March 16, 199x, when he served as xxxxxxxxx xxxxxxxs at the xxxxxxxxxxx, 
was improperly constituted.  He asked the Board to remove the disputed OER from his 
military record.  As xxxxxxxxx xxxxs, he had been in conflict with the Xxxxxxxxx over 
the  amount  of  punishment  due  the  Xxxxxxxxx’s  xxxxxxx,  who  was  xxxx  at  the  xxx.  

3. 

4. 

5. 

7. 

This  conflict,  the  applicant  alleged,  disqualified  the  Xxxxxxxxx  from  serving  as  the 
reporting officer and reviewer for the OER.  As a result of the conflict, he alleged, the 
entire  OER  was  tainted  because  of  the  Xxxxxxxxx’s  influence  over  the  Assistant 
Xxxxxxxxx, who served as supervisor for the OER. 
 
 
The Chief Counsel of the Coast Guard recommended that the Board order 
the  disputed  OER  to  be  removed  from  the  applicant’s  personnel  file  “[b]ased  on  the 
unique circumstances of this case.” 
 
 
The record shows that there was a substantial personal conflict between 
the Xxxxxxxxx and the applicant over punishment awarded to the Xxxxxxxxx’s X.  The 
Board finds that the applicant has shown by a preponderance of the evidence that the 
Xxxxxxxxx  was  “disqualified”  from  serving  on  his  rating  chain  as  someone  with  “a 
personal  interest  or  conflict  .  .  .  [which]  raises  a  substantial  question  whether  the 
Reported-on  Officer  [received]  a  fair  and  accurate  evaluation.”    Article  10.A.2.g., 
COMDTINST  M1000.6A.    Therefore,  the  Coast  Guard  committed  an  error  when  it 
permitted  the  Xxxxxxxxx  to  serve  on  the  applicant’s  rating  chain.    However,  as  the 
PRRB  found,  the  applicant  has  not  provided  any  evidence  that  the  disputed  OER  is 
inaccurate  in  any  way.    Furthermore,  the  Coast  Guard  has  presented  considerable 
evidence  that  the  OER  is  accurate.    Nevertheless,  because  the  Xxxxxxxxx  was 
disqualified from serving on the rating chain by Article 10.A.2.g. of the Personnel Man-
ual, and in light of the Chief Counsel’s recommendation that the Board grant this relief, 
the Board finds that the OER should be removed from the applicant’s record.   
 
 
The  applicant  also  alleged  that  the  Coast  Guard  retains  copies  of  OERs 
removed by the Board in an alternate file.  He asked the Board to draft its Order so that 
this  would  not  occur  with  the  applicant’s  disputed  OER.    The  Chief  Counsel did not 
respond  directly  to  this  allegation.    However,  he  presented  evidence  indicating  that 
records of BCMR Orders and resultant actions are kept in his office.  The Board finds 
that no copy of the disputed OER should be kept in any file accessible by a selection 
board,  as  that  would  defeat  the  purpose  of  the  Board’s  Order.    However,  the  Board 
finds  that  it  is  entirely  appropriate  for  the  Chief  Counsel  to  retain  in  his  confidential 
files records of all actions taken by the Board, including copies of the OERs removed by 
the Board. 
 
 
The  applicant  asked  the  Board  to order the Coast Guard to destroy any 
record  of  his  two  failures  of  selection  to  xxx.    The  Chief  Counsel  presented  credible 
evidence indicating that the Coast Guard does not keep records specifying who has not 
been  selected  for  xxx.    The  Board  finds  that  no  relief  is  necessary  with  regard  to  the 
applicant’s request in this respect. 
 
 
The applicant asked the Coast Guard to convene an ad hoc special selec-
tion board for the applicant.  As the applicant acknowledged, neither the Board nor the 
Coast Guard has statutory authority to convene a special selection board.  Furthermore, 

6. 

8. 

the Board is not convinced that it has the authority to order the Coast Guard to convene 
an ad hoc special selection board.  Even if it did have such authority, the Board is not 
convinced that it would be appropriate to exercise it.  In the absence of such relief, the 
applicant asked the Board, in effect, to conduct its own comparison and order the Coast 
Guard to promote the applicant.  The Board notes that, as long as he continues to serve, 
the applicant will be considered for selection to xxxxxx by at least the next two selection 
boards.  In light of these continuing opportunities for promotion, the Board finds that it 
would  be  inappropriate  for  it  to  substitute  its  judgment  for  that  of  a  duly  convened 
selection  board  of  experienced  Coast  Guard  officers,  particularly  when  the  resultant 
promotion would be to a xxx.  Therefore, no relief is due with respect to this request. 
 
 
The applicant requested that all references to his removal as xxxxxxxxx be 
deleted from his record.  The Chief Counsel stated that, other than the disputed OER, 
there are no references to the applicant’s relief as xxxxxxxxx in the personnel file.  The 
Board  finds  that,  other  than  the  OER  that  is  being  removed,  no  other  record  in  the 
applicant’s personnel files refers to his relief as xxxxxxxxx.  Therefore, the Board finds 
that no relief is necessary with regard to this request by the applicant. 
 

9. 

10. 

The applicant asked the Board not to have a copy of this Final Decision 
included  in  his  personnel  records.    The  Chief  Counsel  presented  evidence  indicating 
that Final Decisions of the BCMR are removed from personnel records before they are 
sent to selection boards.  However, he did not state that a copy of this Final Decision 
would not be retained in the file at other times.  In light of the highly prejudicial and 
confidential  nature  of  some  of  the  information  contained  in  this  Final  Decision,  the 
Board finds that no copy of it should be kept in the applicant’s personnel record at any 
time or in any file accessible to the members of a selection board to xxx. 
 

The  applicant  also  asked  the  Board  to  have  a  copy  of  this  decision 
attached to the PRRB’s file concerning this case.  The Chief Counsel did not address this 
request.  The Board finds that, in the interest of justice, it would be appropriate for a 
copy of this Final Decision to be added to the applicant’s case file at the PRRB. 
  
 
The applicant asked the Board to remove all derogatory comments about 
him that appear in the report of the administrative investigation of the alleged preferen-
tial  treatment  of  the  Xxxxxxxxx’s  xxxxx  at  xxxxx.    The  applicant  alleged  that  the 
comments were gratuitous, irrelevant, untested, and unfair to him.  The applicant also 
alleged that the investigation was mishandled in several ways. 
 
 
The  Chief  Counsel  argued  that  the  Board  has  no  jurisdiction  over  the 
records of an administrative investigation.  He stated that the Chief Counsel’s memo-
randum  to  the  PRRB  calling  the  derogatory  comments  gratuitous  and  irrelevant  was 
not  the  Coast  Guard’s  advisory  opinion  in  this  case.    Furthermore,  he  stated,  the 
applicant has presented no evidence indicating that the derogatory comments about his 
performance are false. 

11. 

12. 

13. 

15. 

 
 
14.  Under 10 U.S.C. § 1552(a)(1), the Board has authority to correct “any mili-
tary record” of the Coast Guard.  The Board finds that a record of an informal adminis-
trative  investigation  convened  by  the  Xxx  xxxxxxxxx  into  alleged  misconduct  at  the 
Xxxxxx is a “military record” within the meaning of the statute.  
 
 
The Board finds that none of the applicant’s allegations with respect to the 
rank of the investigator and his conduct violates the regulations with regard to informal 
administrative  investigations.    In  addition,  the  Board  finds  that  none  of  the  alleged 
errors  in  the  investigation  would  so  bias  the  investigator  against  the  applicant  as  to 
render his summaries of the interviewees’ statements untrustworthy or his motives in 
gathering the information suspect. 
 

The Board finds that, while the derogatory comments about the applicant 
might  be  considered  gratuitous,  irrelevant,  and  unfair  for  the  purposes  of  the  PRRB, 
they  are  quite  relevant  for  the  purposes  of  the  investigation.    The  investigator  was 
instructed to investigate “all the facts surrounding” an allegation of preferential treat-
ment of the xxx and to indicate whether there might be any “systemic problems” at the 
xxxxxxxxxxxxxxxxx.    The  applicant  himself  had  alleged  that  he  was  pressed  to  give 
preferential treatment to the Xxxxxxxxx.  Moreover, as xxxxxxxxx, the applicant’s job 
performance  (like  that  of  any  authority  at  the  Xxxxxx)  was  within  the  scope  of  any 
investigation intended to identify “systemic problems” at the xxxxx.   

In addition, the Board finds that the Coast Guard’s regulations regarding 
informal administrative investigations encourage investigators to allow interviewees to 
speak freely regarding their concerns, to gather all relevant evidence or evidence that 
may lead to relevant evidence, and to record the evidence in their reports.  Articles 1.I.1. 
and  4.C.5.a.,  and  Enclosure  (9),  COMDTINST  M5830.1.    The  Board  also  notes  that  in 
accordance  with  Article  1.J.2.b.1.,  COMDTINST  M5830.1,  the  Xxx  xxxxxxxxx  disap-
proved  the  investigator’s  finding  and  opinion  regarding  the  applicant’s  job  perform-
ance.  Therefore, the Board finds that the Coast Guard has not committed any error or 
injustice  by  preserving  the  record  of  the  administrative  investigation,  including  the 
derogatory comments made about the applicant. 

The  applicant  asked  the  Board  to  comment  to  the  Secretary  about  the 
alleged wrongdoing in this case and certain Coast Guard policies.  The Board finds that 
with respect to this case and the identified policies, the Coast Guard has not committed 
any errors that require such comment. 
 
 
Therefore,  the  Board  finds  that  the  applicant  is  entitled  to  have  the  dis-
puted OER removed from his record and not be placed in any record that is accessible 
to any member of a selection board to xxx.  In addition, a copy of this Final Decision 
should not be placed in the applicant’s personnel file or in a file accessible to a selection 

19. 

16. 

 
17. 

 
18. 

board to xxx, but should be placed in the PRRB’s file on the applicant’s case.  No other 
relief should be granted with respect to the applicant’s requests. 
 
 
 
 

[ORDER AND SIGNATURES FOLLOW ON NEXT PAGE] 

 

ORDER 

 
 
granted in part as follows: 
 

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

• 

The OER covering the period from June 15, 199x, to March 16, 199x, shall 
be removed from the applicant’s military record.  It shall be replaced by one marked 
“For Continuity Purposes Only” in accordance with the terms of Article 10.A.3 of the 
Coast  Guard  Personnel  Manual  (COMDTINST  M1000.6A).    This  OER  shall  not  be 
retained in any file accessible to the members of a selection board to xxx. 

No copy of this Final Decision shall be included in any of the applicant’s 

personnel files or in a file accessible to the members of a selection board to xxx. 

A copy of this Final Decision shall be placed in the applicant’s case file at 

 
• 

 
• 

the PRRB. 
 

The remainder of the applicant’s requests are denied. 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Robert C. Ashby 

 

 

 
Walter K. Myers  

 

 

 
Mark A. Tomicich