DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 1998-084 
 
 
   

 

 
 

 

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 May 14, 1998, upon the 
BCMR’s receipt of the applicant’s request for correction. 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  May  6,  1999, 

is  signed  by  the  three  duly  

APPLICANT’S REQUEST FOR RELIEF 

 

 
 
The applicant, a xxxxxxxxxxxxxx in the Coast Guard, asked the Board to correct 
his  record  by  removing  three  officer  evaluation  reports  (OERs).  The  disputed  OERs 
cover the periods May 5, 199x, to April 30, 199x (OER1); May 1, 199x, to December 15, 
199x (OER2); and December 16, 199x, to June 26, 199x (OER3).  These disputed OERs, 
particularly OER2 and OER3, have significantly lower scores than the applicant’s other 
OERs (see the chart on page 8, below).  If removed, the three disputed OERs would be 
replaced with three “For Continuity Purposes Only” OERs. 
 

The applicant also requested that the Board remove from his record his failures 
of  selection,  which,  he  alleged,  resulted  from  the  three  disputed  OERs.    If,  after  the 
OERs and failures of selection are removed from his record, the applicant is selected for 
promotion by the next selection board, he wants his date of rank to be backdated to the 
date of rank he would have received had he been selected by the first board to consider 
him for promotion to commander.  The applicant also asked for back pay and allow-
ances. 

APPLICANT'S ALLEGATIONS 

The applicant alleged that he received three inaccurate OERs while serving as the 
executive officer (XO) of the Coast Guard cutter xxxx.  The commanding officer (CO) of 
the  xxxx  acted  as  both  the  supervisor  and  the  reporting  officer  for  all  three  disputed 
OERs.  The applicant alleged that the reviewer for the OERs was an officer who had no 
opportunity  to  observe  the  applicant‘s  performance  in  person  and  who  received  all 
input regarding the applicant’s performance from the CO.   

 
The  applicant  alleged  that  the  disputed  OERs  were  inaccurate  because  his  CO 
had very poor judgment.  He did not present any evidence of his CO’s poor judgment, 
but he alleged that it was later documented in a Coast Guard investigation.  He further 
alleged that, after the investigation, the CO was charged but then allowed to retire in 
lieu of appearing before a captain’s mast.  The applicant did not explain the nature of 
the investigation or the charges against the CO. 

 
The applicant stated that he had filed OER replies for OER2 and OER3 because 
they  were  “unwarranted  and  inaccurate.”    He  explained  that  he  did  not  file  an  OER 
reply  for  OER1  because  the  report  was  “average”  even  though  it  was  significantly 
worse than his previous OERs.  He alleged that his OER replies were insufficient reme-
dies for the presence of the inaccurate OERs in his record because regulations prevented 
him from discussing the true source of the OERs’ inaccuracy: his CO’s poor judgment. 

 
The applicant presented several graphs revealing how much lower the marks in  
the three disputed OERs are than the marks in the rest of his OERs.  He alleged that his 
failures of selection were caused by the presence of the disputed OERs in his record.   
 

 

 

VIEWS OF THE COAST GUARD 

 
 
On  February  18,  1999,  the  Chief  Counsel  of  the  Coast  Guard  recommended  
that the Board deny the applicant’s request for relief for lack of proof.  The Chief Coun-
sel alleged that the Board should apply the following standards in determining whether 
to remove the disputed OERs: 
 

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  (1992);  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  (1992);  Sanders v. United 
States, 594 F.2d 804, 813 (Ct. Cl. 1979).   

The  Chief  Counsel  argued  that  the  applicant  failed  to  meet  these  standards 
 
because he did not allege “a misstatement of hard fact or any procedural defect in the 
disputed OERs nor has he provided evidence, much less prima facie proof, of any viola-
tion of a statute or regulation in this regard. . . .  The Applicant’s assertion that his OER 
Rating Chain should have been disqualified on the basis of some non-specific military 
discipline matter subsequent to the time period in dispute is not evidence of error or 
injustice.“ 
 
 
 

The Chief Counsel also argued that the applicant had provided  

no  explanation or theory regarding how the alleged subsequent military disci-
pline matter involving his then Commanding Officer might have had a deleteri-
ous effect on the documentation of his performance in the disputed OERs. . . .  
Additionally, the Applicant has not shown the relevance of such matters consid-
ering that the matter Applicant addresses is contained in another officer’s record, 
the disclosure of that person’s personnel record information without their con-
sent would violate the Privacy Act.  Therefore, the Coast Guard may not com-
ment on, nor release this information to the Applicant.  

 
 
The Chief Counsel also alleged that, “as a matter of law, the Board may not con-
sider Applicant’s previous and subsequent performance in evaluating and assessing the 
Applicant’s  performance  during  the  period  in  dispute.”    He  quoted  from  Grieg  v. 
United States, 640 F.2d 1261, 1269 (Ct. Cl. 1981), that “the fact that this fine officer had 
better ratings before and after the challenged OER is of no legal moment nor of proba-
tive value as to the rating period covered by the one OER with which he is dissatisfied.” 
 
 
The Chief Counsel attached to his advisory opinion a memorandum dated Feb-
ruary  1,  1999,  from  the  Chief  of  the  Officer Evaluations Branch concerning the appli-
cant’s case.  The Chief stated that regulations permit a cutter’s CO to act as both super-
visor and reporting officer for a cutter’s XO.  In addition, the regulations do not require 
a reviewer to have personally observed a reported-on officer’s performance. 
 
 
On  March  4,  1999,  the  Chairman  of  the  BCMR  wrote  to  the  Chief  Counsel 
requesting copies of any reports concerning the CO’s alleged misconduct or poor judg-
ment which led to his retirement.  The Chairman stated that “[w]ithout access to these 
records, the Board cannot determine whether they have any relevance to the applicant’s 
OERs.” 
 
On April 2, 1999, the Chief Counsel of the Coast Guard responded to the Chair-
 
man’s letter by refusing to deliver the documents.  The Chief Counsel refused to pro-
vide  the  requested  documents  “because  (1)  the  Board  does  not  have  the  authority  to 
consider any such record unless it also discloses any such record to the Applicant per 33 
C.F.R. § 52.82, which would constitute a violation of the Privacy Act, and; (2) the Coast 
Guard has no legal duty to provide this information to the Board.”  The Chief Counsel 
further argued that  

 

 

a vague allegation regarding another officer’s performance in 199x has no logical 
connection or relevance to the Applicant’s 199x-9x performance.  That nonspeci-
fic and unsupported allegation is insufficient as a matter of law to make some 
alleged incident in 199x relevant or to shift the burden of production or the bur-
den of proof to the government to affirmatively rebut his non-specific allegation. 
 
.  .  .  Bald  assertions  of  some  poor  judgment  of  a  rating  official at some uncon-
nected time and place should not result in a fishing expedition of the reporting 
officer’s record by the Applicant.  In the absence of any showing of the relevance 
of  some  alleged  nonspecific  lack  of  judgment  to  the  Applicant’s  case  with  an 
appropriate “in camera” proceeding to protect any materials that might exist and 
a stipulation that the Office of the Secretary would bear any fees, costs or penal-
ties associated with allegations of unlawful disclosure of any such records, the 
Coast Guard will not . . . confirm or deny that any record of some poor judgment 
of this officer in 199x exists. 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On  February  23,  1999,  the  BCMR  sent  a  copy  of  the  Chief  Counsel’s  advisory 
opinion to the applicant and invited him to respond.  On March 23, 1999, the applicant 
responded in a letter in which he alleged that his CO had ignored his achievements and 
failed to inform the reviewer of them.  He stated that the regulations had not permitted 
him  to  submit  evidence  of  his  achievements  with  his  OER  replies.    Therefore,  his 
reviewer remained ignorant of his actual performance.  The applicant also argued that 
the  good  evaluations  he  received  as  the  XO  of  the  cutter  xxxxxx  showed  that  the 
evaluations of his performance as XO of the xxxx were inaccurate. 

 
The BCMR also sent the applicant a copy of the Chief Counsel’s memorandum 
concerning the Privacy Act.  On April 21, 1999, the applicant responded stating that he 
waived his right under 33 C.F.R. § 52.82 to see any part of the CO’s record or investiga-
tion.    Furthermore,  the  applicant  stated  that  disclosure  of  the  record  of  investigation 
was compatible with the Privacy Act, 5 U.S.C. § 522a(b)(3) because documentation of his 
CO’s judgment was one of the purposes for which the records were compiled. 
 

 

RELEVANT REGULATIONS 

 

OER Provisions 
 
 
Article  10.A.  of  the  Coast  Guard  Personnel  Manual  (COMDTINST  M1000.6A) 
governs the preparation of OERs.  Normally, 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).    However,  Article 
10.A.2.e.(1)(b) provides that “[c]ommanding officers and division and branch chiefs . . . 
may be both Reporting Officer and Supervisor for their immediate subordinates.  (Ex-

 

“Disqualified” includes relief for cause due to misconduct or unsatisfactory per-
formance,  being  an  interested  party  to  an  investigation  or  court  of  inquiry,  or 
any  other  situation  in  which  a  personal  interest  or  conflict  on  the  part  of  the 
Supervisor, Reporting Officer, or Reviewer raises a substantial question whether 
the Reported-on Officer will receive a fair and accurate evaluation. 

ample:  A commanding officer will normally be both Reporting Officer and Supervisor 
for the executive officer . . . .)”  
 

According  to  Article  10.A.2.f.(2)  of  the  Personnel  Manual,  which  governs  the 
responsibilities of the reviewer, the reviewer “[e]nsures the OER reflects a reasonably 
consistent  picture  of  the  Reported-on  Officer’s  performance  and  potential”  and 
“[c]hecks  for  obvious  errors,  omissions,  or  inconsistencies  between  numerical  evalua-
tions and written comments and any failures to comply with instructions” but need not 
have personally observed the reported-on officer’s performance. 
 
 
chain member if the officer is “disqualified,” which is defined as follows: 

Article 10.A.2.g.(2)(b) of the Personnel Manual provides for removal of a rating 

 
 
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.”    However,  “[c]omments  pertaining  strictly  to  interpersonal 
relations  or  a  personal  opinion  of  the  abilities  or  qualities  of  a  rating  chain  member 
serve no purpose and are not permitted.” 
 
BCMR Provisions 
 
 
Section 52.24 of title 33 of the Code of Federal Regulations states that “[i]t is the 
responsibility  of  the  applicant  to  procure  such  evidence, including official records, as 
the applicant desires to present in support of his case.” 
 
 
Section 52.82(b) of title 33 states that “[t]he Board may request the Coast Guard 
to  submit  any  additional  pertinent  facts  not  disclosed  in  an  application  and  its 
supporting documents.”  Section 52.82(d) states that “[a] copy of each submission made 
by  the  Coast  Guard  under  this  section  shall  be  transmitted  to  the  Board,  which  shall 
promptly send a copy to the applicant involved.” 
  

SUMMARY OF  THE APPLICANT’S RECORD 

 
In May 197x, the applicant received his commission and began his first tour of 
 
duty aboard the cutter xxxxxx.  In 1980, he was promoted to lieutenant junior grade and 
transferred to the cutter xxxxxx, where he served as the XO for two years.  In the six 
OERs  that  reflect  his  performance  during  this  assignment,  he  received  the  next  to 

highest or highest mark on the comparison scale.  Thereafter, he attended postgraduate 
school in xxxxxx and was promoted to xxxxx.   
 

From December 198x to July 198x, he served as the commanding officer of the 
cutter  xxxxxx.    In  the  six  OERs  that  reflect  his  performance  as  CO,  he  received  five 
marks of 5 on the comparison scale and then a mark of 6.1  The comments he received in 
those OERs describe him as an “aggressive young officer” with “force and initiative” 
and “excellent potential.”   

 
In August 198x, the applicant began working at Coast Guard headquarters as an 
xxxxxx  and  later  as  Chief  of  the  xxxxx  of  the  xxxx  Branch.    The  OERs  numbered  1 
through  5  in  the  chart  on  page  8,  below,  covered  this  service.    In  July  199x,  he  was 
promoted to xxxxxxx. 
 
 
In May 199x, the applicant began serving as the XO of the xxxx.  The three dis-
puted OERs (numbered 6, 7, and 8, in the chart below) covered his service aboard the 
xxxx.  OER1 contains comments criticizing the applicant’s listening, conversational, and 
writing skills.  OER2, a “special” OER issued to document his weak performance, con-
tains many negative comments supporting the poor marks, including the following: 
 

Effectively  delegates  to  subordinates,  but  fails  to  adequately  monitor  progress 
and get timely, satisfactory results; does not hold subordinates accountable. . . . 
interest in operational activities has been limited.  All complex/non-routine staff 
work is inadequately researched and ill-prepared. . . . 
  
Not  particularly  ambitious  .  .  .  .    Remains  content  to  let  things  happen  rather 
than make them happen.  Has considerable difficulty in successfully organizing, 
managing and directing the ship as a whole.  Has not fully earned the respect of 
some officers and CPO’s.  Style is much too lenient . . . .  
 
Conversational  abilities  have  improved,  but  still  has  some  annoying  habits.  
Writing skills are deplorable . . . . Nearly all written material must be returned 
for revision. 
 
Not  always  attentive  to  details;  has  to  be  reminded  about  crew’s  grooming, 
adherence  to  uniform  regulations  and  shipboard  housekeeping.  .  .  .  Within 
weight standards, but exercises little dietary control.  No observable exercise or 
conditioning program. 
 
 [The  applicant]  is  one  of  the  most  loyal  and  uncompromising  officers  I’ve 
worked with.  Despite his best efforts, unfortunately, he continues to be plagued 
by several performance shortcomings for which others have had to compensate. 
. . .  For his next assignment I recommend a less demanding position where he 

                                                 
1   The new comparison scale is not actually numbered.  However, there are seven possible marks, and a 
mark in the fourth, or center, position is considered average. 

can improve these skills without burdening others and enhance his potential for 
promotion.  He is not recommended for command afloat/XO assignment. 

 
 
The applicant wrote a reply to OER2 in which he contradicted most of his CO’s 
comments but admitted that he had “shortcomings.”  The CO forwarded the reply with 
a letter of his own stating that the  
 

assigned  marks  are  an  accurate  appraisal  of  his  performance.  .  .  .    Midway 
through the Special OER period I contemplated relief for cause . . . .  I elected not 
to pursue relief, and worked with him in an effort to elicit improvement.  To his 
credit, improvement was later shown in nearly all areas, but it did not obviate 
my responsibility to document the performance observed during that period. 

 
 
The  reviewer  concurred  in  the  CO’s  comments  when  he  forwarded  the  appli-
cant’s reply to the Commandant:  “While I have no first hand observations of his per-
formance, I have discussed his performance with [the CO] on several occasions and I 
am convinced that [the applicant] has been given wide opportunity to succeed.” 
 
 
OER3, which included the following comments: 
 

Upon  the  applicant’s  detachment  from  the  ship  on  June  26,  199x,  he  received 

Orchestration  of  unit  activities  has been ultimately successful, but not without 
difficulty  and  much  dissention;  considerable  friction  between  him  and  dept 
heads. . . . 
 
Uniforms  are  clean  and  properly  worn,  but  fails  to  make  the  extra  effort  to 
achieve  a  “polished”  look;  have  received  unfavorable  comments  about  his 
appearance from subordinates. 
 
[The applicant] has made an earnest effort to improve in those areas previously 
noted, and has been successful in most.  Additional improvement is recommend-
ed; unfortunately, his new assignment as a xxxxxx at HQ will not afford him the 
group  dynamics/leadership  &  management  opportunities  essential  for  further 
development.    At  this  time  I  cannot  unequivocally  recommend  him  for  pro-
motion or future command assignments. 

 
The applicant submitted a reply for OER3, as well, in which he rebutted each of 
 
the negative comments and detailed his achievements during the reporting period.  The 
CO forwarded the reply with a letter in which he stated that the applicant’s “personal 
impact  on  the  completion  of  mission  objectives,  as  well  as  his  influence  and  involve-
ment  in  achieving  the  listed  accomplishments,  were  all  factored  into  the  marks 
assigned.”  The reviewer forwarded the reply to OER3 and the CO’s letter to the Com-
mandant and attached his own letter containing the following statements: 
 

[The  applicant’s]  performance  has  been  the  subject  of  discussion  between  [the 
CO] and me for more than one year. . . .  With the regular coaching and counsel-
ing that has been provided, I am satisfied that [the CO] has made a strong effort 

to assist [the applicant] and that the OER in question provides a fair, balanced 
evaluation of [the applicant’s] performance for the period. 

 
 
After June 27, 199x, the applicant served sequentially as a xxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.    The  OERs  he  received  for  this 
service  are  numbered  9  through  13  in  the  chart  on  page  8,  below.    The  comments  in 
these OERs describe the applicant as having “superlative leadership skills” and “out-
standing working relationships.”  They also describe him as a “highly motivated/dedi-
cated  officer,”  who  is  “extremely  adept  at  gaining  support/consensus  from  diverse 
groups” and who “gets fantastic results.”  His correspondence is described as “extreme-
ly well written” and “thorough.”   
 
 
In addition to his OERs, the applicant’s record contains records of several awards 
and citations that he received for his job performance before and after his tour on the 
xxxx.  Nevertheless, the applicant failed of selection twice and therefore was retired on 
May 31, 199x, after 20 years and 7 days on active duty. 
 

APPLICANT’S MARKS IN 13 OERs FROM 1/1/8x THROUGH 4/30/9x 

9 
6 
5 
5 
5 
4 
5 
5 
 
5 
4 

5 
6 

6 
6 

6 
6 

6 
6 

5.7 
5.5 

5 
6 
6 
6 
7 
 
6 
5 
5 
6 
6 

6 
5 

4 
4 

4 
3 

4 
4 

4 
5 
6 
6 
7 
 
6 
5 
5 
5 
5 

5 
5 

1 
5 
6 
5 
6 
 
5 
 
 
6 
5 

6 
4 

13 
6 
7 
7 
6 
4 
7 
6 
 
7 
6 

6 
7 

12 
6 
6 
7 
6 
4 
6 
5 
 
6 
6 

2 
6 
6 
5 
6 
 
6 
 
 
5 
5 

6 
5 

5 
5 
5 
6 
6 
6 
5 
5 
6 
4 
4 
6 
5 
5 
6 

11 
6 
6 
7 
5 
4 
6 
5 
 
6 
5 

10 
6 
6 
7 
5 
4 
5 
6 
 
6 
5 

8b 
5 
4 
3 
3 
 
4 
4 
NO 
3 
4 

7b 
4 
3 
2 
3 
 
3 
2 
NO 
3 
4 

6 b 
4 
4 
4 
5 
 
4 
4 
NO 
4 
4 

AVEc 
5.8 
6.0 
6.1 
5.7 
4.0 
5.8 
5.4 
5.0 
5.7 
5.2 

3 
6 
6 
6 
6 
 
6 
6 
NOe 
5 
5 

CATEGORYa 
Being prepared 
Using resources 
Getting results 
Responsiveness 
Work-life sensitivityd 
Specialty expertise 
Collateral dutyd 
Warfare expertised 
Working with others 
Human relations/ 
Workplace climate 
Looking out for others 
Developing 
subordinates 
Directing others 
Evaluations 
Speaking & Listening 
Writing 
Articulating ideasd 
Initiative 
Judgment 
Responsibility 
Stamina 
Health & Well-being 
Military bearing 
Customs /Courtesiesd 
Professionalism 
Dealing with public 
Comparison scalef 
Total  
Average for OER 
a Some categories’ names have changed slightly over the years. 
b Disputed OER. 
c Average score of all OERs except disputed ones, which are shaded.  Averages have been rounded. 
d Category nonexistent until later years, or category discontinued. 
e Score given was “NO,” which means there was no opportunity to observe this trait. 
f The Comparison Scale is not actually numbered.  In this row, “6” means the applicant was “strongly recommended 
for  accelerated  promotion.”    A  “5”  means  the  applicant  was  rated  to  be  a  “distinguished  performer;  give 
tough,  challenging,  visible  leadership  assignments.”    A  “3”  means  the  applicant  was  an  ”excellent 
performer; recommended for increased responsibility.”  A “2” means “good performer, but limited potential.” 

5 
5 
NO 
NO 
6 
5 
5 
5 
 
5 
6 
6 
6 
5 
6 
5 
6 
6 
4 
4 
5 
4 
 
6 
6 
5 
6 
5 
6 
6 
120  129  126  117  131 
5.7 
5.2 

4 
4 
4 
3 
 
4 
4 
5 
4 
4 
4 
 
5 
5 
3 
94 
4.1 

2 
2 
4 
2 
 
4 
3 
3 
4 
4 
3 
 
4 
4 
2 
72 
3.1 

3 
4 
3 
3 
 
4 
3 
4 
4 
4 
3 
 
4 
4 
2 
83 
3.6 

NO 
6 
5 
 
5 
6 
6 
6 
4 
4 
 
5 
5 
5 

5.2 
4.4 
5.6 
5.3 
5.5 
5.9 
5.6 
5.8 
5.9 
4.5 
4.7 
6.0 
5.7 
5.4 
5.4 
128.9 
5.4 

6 
4 
6 
6 
 
6 
6 
6 
6 
5 
5 
 
6 
6 
5 

5 
4 
6 
5 
 
6 
6 
6 
6 
5 
5 
 
6 
6 
5 

5 
4 
6 
5 
 
6 
6 
6 
6 
5 
5 
 
6 
5 
5 

6 
5 
5 
4 
6 
5 
6 
4 
 
 
6 
6 
6 
5 
6 
6 
6 
5 
5 
5 
5 
5 
 
 
6 
6 
6 
5 
5 
5 
121  132  133  137  143 
6.0 
5.0 

5.5 

5.5 

5.7 

5 
5 

5 
5 
5 
6 
 
6 
5 
6 
6 
4 
5 
 
6 
5 
6 

NO 

5.4 

5.5 

5.3 

 
 

FINDINGS AND CONCLUSIONS 

3. 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submission, and appli-
cable law: 
 
 
The Board has jurisdiction concerning this matter pursuant to section 1552 
of title 10, United States Code.  Under Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 1994), 
the application was timely. 
 
 
The applicant alleged that three of his OERs were inaccurate due to a lack 
of judgment on the part of his CO, who served as the supervisor and the reporting offi-
cer for the three disputed OERs.  The applicant presented statistical analyses revealing 
that the three disputed OERs are significantly worse than the other OERs in his record.  
He alleged that the Coast Guard had proof of his CO’s lack of judgment because the CO 
was forced to retire several years after the reporting periods in question.  The applicant 
did not present any evidence of his CO’s alleged lack of judgment. 
 
 The Chief Counsel of the Coast Guard urged the Board to deny the appli-
 
cant’s request because the applicant failed to prove any inaccuracy or procedural defect 
in the disputed OERs.  The Chief Counsel stated that the applicant had not proved the 
relevance  of  the  alleged  misjudgment  on  the  part  of  his  CO  long  after  the  reporting 
periods in question were over to his CO’s ability to evaluate him during the reporting 
periods.  The Chief Counsel refused to provide the Board with any information relating 
to the CO except that he was retired in 199x.  He argued that 33 C.F.R. § 52.24 places the 
burden of proof on the applicant and that the applicant had not provided enough evi-
dence to shift the burden of proof to the Coast Guard.  Furthermore, he argued that if 
he provided such information, the Board would be required to reveal it to the applicant 
pursuant to 33 C.F.R. § 52.82(d), which would be a violation of the Privacy Act. 
 
 
The Chief Counsel’s arguments for denying the Board access to any extant 
reports of the CO’s alleged misconduct or misjudgment are unconvincing.  The Board is 
as  bound  by  the  Privacy  Act  as  is  the  Coast  Guard,  and  its  regulation  33  C.F.R. 
§ 52.82(d) cannot trump the statute.  The Board has many times in the past received and 
relied on unredacted copies of Coast Guard investigations that were not provided to the 
applicants.  Furthermore, the Board must decide for itself what evidence is relevant and 
cannot rely on the Chief Counsel’s assurances.  The Board must have access to evidence 
to determine its relevance. 
 
 
The applicant did not present any evidence of his CO’s lack of judgment.  
He claimed all proof is in the hands of the Coast Guard.  The Chief Counsel refused to 
confirm or deny the existence of such evidence and to provide the Board access to any 
such evidence.  Therefore, in making its final decision, the Board will assume that evi-
dence exists that may support the applicant’s allegation concerning the circumstances of 
his  CO’s  retirement  in  199x.    Nevertheless,  even  assuming  the  applicant’s  CO  was 

4. 

1. 

2. 

5. 

6. 

forced to retire in 199x, the Board is not persuaded that he erroneously evaluated the 
applicant in the three disputed OERs covering May 5, 199x, to June 26, 199x.  Other than 
asserting that his CO lacked judgment, the applicant provided no details as to how the 
alleged lack of judgment affected his performance on the xxxx, biased the CO against 
him, or caused the CO to fail to appreciate the applicant’s performance. 
 
 
The fact that the disputed OERs are significantly worse than the others in 
the applicant’s record does not prove that they are erroneous.  Grieg v. United States, 
640 F.2d 1261, 1269 (Ct. Cl. 1981).  The applicant has not established by a preponderance 
of the evidence that his performance as XO of the xxxx was other than as described in 
the disputed OERs. 
 
 
Article 10.A.2.g. of the Personnel Manual requires “disqualified” members 
of a rating chain to be replaced.  It defines “disqualified” as “includ[ing] relief for cause 
due to misconduct or unsatisfactory performance, being an interested party to an inves-
tigation or court of inquiry, or any other situation in which a personal interest or con-
flict on the part of the Supervisor, Reporting Officer, or Reviewer raises a substantial 
question whether the Reported-on Officer will receive a fair and accurate evaluation.”  
The applicant has not proved that, pursuant to this article, his CO was disqualified from 
serving on his rating chain. 
 
 
The applicant has failed to prove that the Coast Guard committed error or 
injustice by including the three disputed OERs in his record.  He has not shown by a 
preponderance of the evidence that, during the reporting periods in question, his CO 
was unable accurately to evaluate his performance. 
 
 
 
 
 
 
 
 

Accordingly, the applicant’s request should be denied. 

[ORDER AND SIGNATURES APPEAR ON FOLLOWING PAGE] 

7. 

8. 

9. 

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

ORDER 

 

 
 

 
 

hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

_______________________________ 
Mark A. Holmstrup 

_______________________________ 
Walter K. Myers 

_______________________________ 
Pamela M. Pelcovits