DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 1998-105 
 
 
   

 

 
 

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 August 10, 1998, upon 
the BCMR’s receipt of the applicant’s request for correction. 
 
 
members who were designated to serve as the Board in this case. 

This  final  decision,  dated  May  20,  1999,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST FOR RELIEF 

 
 
The applicant, a xxxxxx on active duty in the Coast Guard, asked the Board to 
correct  his  record  by  “reevaluating”  and  raising  the  low  comparison  marks  he  was 
assigned on two of his officer evaluation reports (OERs).  He also asked the Board to 
delete comments from two subsequent OERs that, he alleged, refer to his performance 
during the rating periods covered by OERs with low comparison marks. 
  

APPLICANT'S ALLEGATIONS 

 

 

 
The  applicant  alleged  that  he  had  been  assigned  inaccurately  low  comparison 
marks of 31 in his OERs for the reporting periods April 1, 1993, to November 30, 1993 
(OER1),  and  December  1,  1993,  to  May  31,  1994  (OER2).    He  alleged  that  the  other 
marks he received in these OERs are all average or above average and therefore do not 
support a lower than average comparison mark. 
 
                                                 
1  There are no numbers on the comparison scale but there are 7 possible marks, each described in words 
(7 being best).  The reporting officer is instructed to compare the reported-on officer to other officers of 
the  same  rank  whom  the  reporting  officer  has  known.    The  written  description  of  a  comparison  scale 
mark of 3 is shown in the footnote on page 5. 

The applicant alleged that comments in two other OERs, for the reporting peri-
 
ods June 1, 1994, to November 30, 1994 (OER3), and December 1, 1994, to May 31, 1995 
(OER4),  make  reference  to  his  performance  during  previous  reporting  periods.    Such 
references, he alleged, are impermissible under Article 10.A.4.g.(3)(g) of the Personnel 
Manual. 
 
 
Specifically, the applicant alleged that the comments in blocks 8 and 11 of OER3 
and  block  8  of  OER4  impermissibly  allude  to  his  performance  in  previous  reporting 
periods.  He alleged that the comments in block 8 of OER3 that state “shown marked 
improvement this period” and “xxxxx & operational expertise are being honed” could 
be  interpreted  as  indicating  past  poor  performance.    The  applicant  alleged  that  these 
comments  are  not  only  impermissible  but  misleading,  because  no  poor  performance 
had  ever  been  documented  and  “all  comments  as  to  [his]  xxxxxxx  abilities  and 
judgment  were  exemplary.”    He  further  stated  that  the  comment  “continues  to  show 
positive improvement in all areas” in block 8 of OER4 could also be misinterpreted to 
denote a previous, undocumented performance problem. 
 
 
missible comments caused his failures of selection to the rank of xxxxxxxx. 
 

Finally, the applicant alleged that the inaccurate comparison marks and imper-

VIEWS OF THE COAST GUARD 

 
 
On April 27, 1999, the Chief Counsel of the Coast Guard recommended that the 
Board deny the applicant’s request for relief due to lack of proof.  The Chief Counsel 
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 alleged that the applicant’s allegations regarding the compari-
son marks in OER1 and OER2 are “based on a fundamental misunderstanding of the 
officer evaluation system.  There is no direct relationship or correlation between an offi-
cer’s  performance  evaluation  marks  and  the  comparison  scale  mark.”    Article 
10.A.4.d.(4)(e) and (9), Personnel Manual (COMDTINST M1000.6A).  Furthermore, the 
Chief Counsel alleged that the mark of 3 on the comparison scale “is consistent with the 
predominant marks of 4 and 5 in [OER1 and OER2].”  He also argued that the applicant 

had provided no evidence that the reporting officer’s opinion of his abilities in compari-
son to his fellow officers’ abilities was wrong. 
 
 
In regard to the allegedly impermissible comments in OER3 and OER4, the Chief 
Counsel argued that they “do not allude to past reporting periods and are, therefore, 
authorized comments.”  He argued that the comments “refer to improved performance 
within the period of the report,” rather than to poor performance in previous periods. 
 
 
The Chief Counsel also pointed out that the applicant had failed to submit replies 
to  these  OERs.    This  failure,  he  argued,  “may  be  considered  as  evidence  that  he 
accepted  the  rating  official’s  characterization  of  the  performance  described  in  those 
OERs.” 
 
 
The  Chief  Counsel  stated  that  the  applicant’s  record  would  appear  stronger  if 
OER1 and OER2 were removed but not if OER3 and OER4 were removed.  Therefore, 
he  argued,  the  Board  should  only  remove  the  applicant’s  failures  of  selection  if  it 
removes OER1 and OER2 from his record.  However, the Chief Counsel stated, “all the 
disputed OERs are a fair and accurate representation of his performance and, therefore, 
this nexus analysis is irrelevant.” 
 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

Article 10.A.4. of the Coast Guard Personnel Manual describes how members of 

 
a rating chain should prepare an OER.  Article 10.A.4.d.(7) states the following: 
 

(b)  For each evaluation area, the Reporting Officer shall review the Reported-on 
Officer’s  performance  and  qualities  observed  and  noted  during  the  reporting 
period.    Then,  for  each  of  the  performance  dimensions,  the  Reporting  Officer 
shall  carefully  read  the  standards  and  compare  the  Reported-on  Officer’s  per-
formance  to  the  level  of  performance  described  by  the  standards.  .  .  .  After 

 
The Chairman sent the applicant a copy of the Coast Guard’s views.  The appli-
cant responded on May 10, 1999.  The applicant stated that he “understand[s] this mark 
is a subjective opinion of the Reporting Officer, but contend[s] it should reflect the rest 
of the OER.”  He alleged that he had consulted his supervisor upon receiving the low 
comparison marks and was told that “it was common to see a decrease in marks when 
an officer gets his first OER from a new unit . . . .”  He stated that “[h]ad I realized this 
“subjective”  mark  was  career  ending,  you  can  be  assured  I  would  have  rebutted  the 
OER without hesitation.”  Furthermore, the applicant argued, he was never counseled 
that his performance and OERs “were potentially career ending.”  Finally, the applicant 
argued  that  a  nexus  exists  between  his  failures  of  selection  and  OER3  and  OER4 
because  the  allegedly  impermissible  comments  strongly  suggest  that  his  performance 
during previous reporting periods was poor. 
 

RELEVANT REGULATIONS 

 

 

determining which block best describes the Reported-on Officer’s performance 
and qualities during the marking period, the Reporting Officer fills in the appro-
priate circle on the form in ink. 

•   •   • 

(d)  In the “Comments” sections following each evaluation area, the Reporting 
Officer  shall  include  comments  citing  specific  aspects  of  the  Reported-on  Offi-
cer’s  performance  and  behavior  for  each  mark  that  deviates  from  a  “4.”    The 
Reporting  Officer  shall  draw  on  his/her  own  observations,  from  information 
provided by the Supervisor, and from other information accumulated during the 
reporting period. 
 
(e)  Comments should amplify and be consistent with the numerical evaluations 
in the evaluation area.  They should identify specific strengths and weaknesses 
in performance or qualities.  Well-written comments must be sufficiently specific 
to paint a picture of the officer’s performance and qualities which compares rea-
sonably with the picture defined by the standards marked on the performance 
dimensions in the evaluation area. . . . 

Article  10.A.4.g.(3)(g)  prohibits  comments  “discuss[ing]  Reported-on  Officer’s 

 
 
Article 10.A.4.d.(9)(a) contains the following instructions for filling out the com-
parison scale on OERs:  “The Reporting Officer shall fill in the circle that most closely 
reflects the Reporting Officer’s ranking of the Reported-on Officer relative to all other 
officers of the same grade the Reporting Officer has known.” 
 
 
performance or conduct which occurred outside the reporting period.” 
 
 
Section 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 oppor-
tunity for the Reported-on Officer to express a view of performance which may differ 
from that of a rating official.” 
 

SUMMARY OF  APPLICANT’S RECORD 

 
 
The applicant began serving in the xxxxxxxx in 1982.  On September 27, 198x, he 
accepted an appointment as a xxxxxxx in the Coast Guard Reserve and began serving 
on  a  four-year  contract  as  a  xxxx  assigned  to  xxxxxxx.    On  August  26,  199x,  the 
applicant  received  a  commission  in  the  regular  Coast  Guard.    He  was  promoted  to 
xxxxxxx on September 27, 1992.  In the seven OERs that he received while serving at 
xxxxxxxxx, the applicant earned the following marks on the comparison scale:  4, 4, 4, 5, 
5, 4, and 4.  The last four of these marks were assigned by the same reporting officer and 
appear as the first four OERs in the chart on page 5, below.  
 
 
On April 1, 1993, the applicant was transferred to xxxxxxxxxx, where he received 
the four disputed OERs, with comparison marks of 3, 3, 4, and 4.  These disputed OERs 
appear shaded in the chart below.  He received OER1 for his first nine months of service 

as a xxxxxxxx in xxxxxx.  OER2, OER3, and OER4 are the first three OERs he received 
after  he  was  promoted  to  xxxxxx  in  December  1993.   The comments in OER1, OER2, 
OER3, and OER4 are fairly laudatory. 
 

In the five subsequent OERs he received as an xxxxxxxx in xxxxxx, the applicant 
was assigned comparison marks of 4, 4, 5, 5, and 5.  (The first four of these appear in the 
chart  below.)    The  same  person  served  as  the  applicant’s  reporting  officer  for  OER1, 
OER2, OER3, OER4, and the two next, undisputed OERs. 
 
 
failed of selection twice and thus will be discharged. 
 

The  applicant’s  record  contains  many  awards  and  citations.    However,  he  has 

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

CATEGORY 

 

 

 

 

 

 

 

 

OER
1 
4 
5 
4 
4 
4 

OER
2 
4 
4 
5 
4 
4 

OER
3 
4 
4 
5 
5 
4 

OER
4 
4 
5 
5 
5 
4 

5 

5 

4 

5 

5 

5 

5 

5 

5 
5 
5 
5 
 

5 

5 

5 
6 
6 
6 
4 

5 

5 

5 
4 
4 
5 

4 
4 
5 

6 
4 
6 
4 

5 
4 
5 

5 
4 
4 
4 

4 
4 
5 

5 
4 
4 
4 
4 

4 

5 

5 
6 
5 
6 
4 

6 

5 

4 
5 
5 
6 
4 

5 

4 
5 
5 
5 
4 

5 
4 
5 
4 
4 

5 

5 
4 
4 
4 

5 

6 
4 
5 
4 

6 
4 
5 

6 

6 
4 
5 
4 

6 
4 
5 

6 

5 
4 
6 
4 

5 
4 
5 

5 

5 
4 
5 
4 

4 
4 
4 

5 
4 
5 
4 

4 
4 
5 

5 
5 
5 
5 
 

5 

5 

5 
4 
4 
4 

4 
4 
5 

Being Prepared 
Using Resources 
Getting Results 
Responsiveness 
Work-Life Sensitivity/ 
Expertisea 
Operational/Specialty 
Expertise 
Collateral Duty/Admin-
istrative Expertise 
Working with Others 
Human Relations 
Looking Out for Others 
Developing 
Subordinates 
Directing Others 
Evaluations 
Speaking and 
Listening 
Writing 
Initiative 
Judgment 
Responsibility 
Stamina 
Health and Well-Being 
Military Bearing 
Professionalism 
Dealing with the Public 
Average Markc 
Comparison Scaled 
a  Category added in 1992. 
b  A score of “NO” means there was no opportunity to observe this category of performance. 
c  The average marks for the OERs do not include the comparison scale marks.  The averages have been rounded. 
d  The comparison scale is not actually numbered.  Reporting officers are instructed to compare the reported-on offi-
cer with other officers of the same rank they have known.  In this row, a “3” means the applicant was rated 
to be an “excellent performer; recommended for increased responsibility.”  A “4” means the applicant was 
rated  to  be  an  ”exceptional  performer;  very  competent,  highly  respected  professional.”    A  “5”  means  the 
applicant  was  rated  to  be  a  “distinguished  performer;  give  tough,  challenging,  visible  leadership 
assignments.” 

4 
5 
4 
4 
5 
4 
5 
5 
4 
4.4 
4 

4 
4 
5 
4 
5 
4 
4 
5 
6 
4.5 
3 

5 
5 
5 
4 
5 
5 
5 
5 
5 
4.8 
4 

5 
5 
5 
5 
5 
5 
5 
5 
6 
5.0 
4 

5 
5 
5 
5 
5 
5 
5 
5 
6 
5.0 
4 

5 
6 
6 
5 
5 
4 
5 
5 
6 
5.2 
5 

5 
6 
5 
5 
5 
4 
4 
5 
5 
4.7 
5 

5 
5 
4 
5 
5 
4 
4 
5 
5 
4.6 
5 

4 
5 
5 
4 
5 
4 
5 
4 
4 
4.4 
4 

5 
5 
5 
4 
4 
4 
4 
6 
5 
4.5 
3 

4 
5 
5 
5 
5 
5 
5 
5 
6 
4.9 
4 

5 
6 
6 
5 
6 
4 
5 
5 
6 
5.3 
5 

5 
NOb 
5 

6 
4 
6 
5 

5 
5 
5 

6 
4 
6 
5 

6 
5 
5 

 
 

FINDINGS AND CONCLUSIONS 

1. 

2. 

3. 

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 of the United States Code.  The application was timely. 
 
 
The  applicant  alleged  that  OER1  and  OER2  were  incorrect  because  he 
received a comparison mark of 3 even though none of the comments in the OERs are 
negative  and  his  marks  in  the  performance  categories  are  4s,  5s,  and  one  6.    Article 
10.A.4.d.(7)  of  the Personnel Manual requires rating chain members to assign to each 
officer  the  mark  in  each  performance  category  whose  written  description  “best 
describes”  the  officer’s  performance.    In  contrast,  Article  10.A.4.d.(9)(a)  requires  the 
reporting officer to assign a mark on the comparison scale by comparing the reported-
on  officer  with others of the same grade whom he has known throughout his career.  
Therefore, there is no requirement that comparison scale marks correspond to numeri-
cal performance marks.   
 
 
Article 10.A.4.2.(7)(d) requires marks in performance categories that devi-
ate from a 4 to be explained by appropriate comments.  However, marks on the com-
parison scale are not required to be explained, and there is no space on the disputed 
OERs for comments after the comparison scale. 
 
 
A mark of 3 on the comparison scale is said to describe an “excellent per-
former,” even though it is on the lower end of the scale.  Comparison marks are often 
somewhat lower than the average performance mark on an OER.  Therefore, it is not 
surprising  that  an  officer  who  received  very  “average”  performance  marks  also 
received a mark of 3 on the comparison scale.  Thus, the applicant’s comparison scale 
marks of 3 are not so extreme or unusual in comparison with his performance marks 
and comments as to convince the Board that they are necessarily inaccurate.   
 
 
A mark on the comparison scale is an inherently subjective decision on the 
part of an officer’s reporting officer, and the Board will not change or remove such a 
mark absent clear evidence that the mark is wrong.  The applicant has not proved by a 
preponderance of the evidence that the Coast Guard erred or committed an injustice by 
assigning him marks of 3 on the comparison scales in OER1 and OER2. 
 
 
The  applicant  alleged  that  the  following  comments  in  OER3  and  OER4 
were impermissible under Article 10.A.4.g.(3)(g) of the Personnel Manual because they 
referred to performance in previous reporting periods: “shown marked improvement 
this period”; “xxxxxxxxx & operational expertise are being honed”; and “continues to 
show  positive  improvement  in  all  areas.”    These  comments  all  refer  to  progress  the 

4. 

5. 

6. 

Therefore,  the  Board  finds  that  the  Coast  Guard  committed  no  error  or 

applicant made during the reporting periods for OER3 and OER4.  They do not describe 
or refer to his performance during previous reporting periods.  Therefore, they do not 
violate Article 10.A.4.g.(3)(g). 
 
 
injustice by including the disputed marks and comments in the applicant’s OERs. 
 
 
 
 
 
 
 
 

Accordingly, the applicant’s request should be denied.  

7. 

8. 

[ORDER AND SIGNATURES APPEAR ON FOLLOWING PAGE] 

 

ORDER 

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

 
 

 
 

 
 
 
hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
Angel Collaku 

 

 
 
James G. Parks 

 

 
L. L. Sutter