DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 1999-109 
 
 
   

 

 
 

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  docketed  upon  the 
BCMR’s receipt of the applicant’s completed application on May 5, 1999. 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  March  9,  2000,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST FOR RELIEF 

 
 
The applicant, a xxxx in the Coast Guard, asked the Board to correct his 
record by removing an officer evaluation report (OER) that covered the period 
May 1, 199x, to April 30, 199x.  He also asked the Board to expunge his failure of 
selection to the rank of xxxxx.  
 

APPLICANT'S ALLEGATIONS 

 

 

 
The applicant alleged that he received low marks and adverse comments 
in the disputed OER because of an e-mail message he sent to a subordinate at the 
xxxxx in xxxxxx.  He stated that on xxxxxx, he sent a “private” e-mail message to 
his  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx  African  Americans.  
The  applicant  alleged that the computer system manager forwarded his e-mail 
message to the entire command.   
 

The  applicant  submitted  a  copy  of  a  print  out  of  e-mail  messages.    The 
print  out  indicates  that  at  xxxxx  on  xxxxxx,  his  xxxxxxxxxxxxxxxxxx  sent  to 
everyone  in  the  applicant’s  xxxxx  Office  an  e-mail  with  the  subject  line  “xxxx 

xxxxxxxxxxxxxxxxxxx.”  Then, at xxxxx, the applicant sent the following reply to 
the xxxxxxxxxxxx: 
 

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxx. 

 
 
The applicant alleged that on February 13, 199x, after he returned from six 
days’ leave, his department supervisor and the unit’s executive officer told him 
that his e-mail message violated the Commandant’s Human Relations Policy and 
that  his  commanding  officer (CO) “was preparing charges of civil rights viola-
tions against [him].”  They told him he was relieved of his duties as xxxxx of the 
xxxx and would be transferred immediately. 
 
 
The  applicant  alleged that he asked to speak to the CO but was told he 
could not until the CO “had talked to the entire command about [his] e-mail.”  
On February 21, 199x, his CO told him that no one was preparing charges against 
him.  He was reinstated as the xxxxx, but he was still to be transferred as soon as 
possible.  The applicant alleged that the CO recited the following four reasons for 
his actions: 
 
 
The CO has lost faith in his ability to lead his 50 subordinates. 
 
He should not have sent an e-mail message “or voice any opinion 
that could be construed to be in conflict with the Commandant’s Human Rela-
tions Policy.” 
Because  the  District  Commander  and  other  senior  officer  outside 
 
the command had seen the message, the CO had to act quickly “to prevent the 
District Commander from intervening.” 
 
The  CO  felt  “pressure  from  his  superiors  to  effect  punishment, 
despite  the  fact  that  not  a  single  person  filed  discrimination  charges  against 
[him].” 
 
 
puted OER: 
 

The  applicant challenged the following marks and comments in the dis-

• 
• 

• 

• 

 

BLOCK 

 
4.b. Human 
Relations 

MARK 

ASSIGNED1 

 
3 

 

CORRESPONDING WRITTEN COMMENTS 

 
Took official action using the e-mail system to send a message 
which did not support the Commandant’s requirements for 
leadership on diversity and National Special Observances.  

                                                 
1  Marks are assigned on a scale of 1 to 7 in each performance category, with 7 being the highest 
mark. 

 
8. Reporting 
Officer Comments 

 
9.b. Judgment 
 
9.c. Responsibility 
 
11. Leadership 
and Potential  

 

NA2 

 
3 
 
3 
 

NA2 

Questioned the value of a superior officer’s performance of 
assigned National Special Observance duties in a manner that 
negatively impacted the entire Command and that was 
interpreted by individuals to be a negative statement based on 
race.  This action was observed to be a significant negative 
change from previous performance. 
 
 
… Concur w/ Supervisor’s evals & comments. … He was always 
a dependable officer.  However, a lapse in judgment caused the 
command to lose faith & confidence in his abilities to effectively 
lead in his position of leadership in the xxxxxx. 
 
 
… Lacked good judgment sending e-mail in contrast to Comdt’s 
Human Relations Policy & was indifferent towards accountability 
of the action. 
 
 
[The applicant] is a very capable officer with high potential to be 
an excellent officer & leader.  He has demonstrated sound project 
management and xxxxxx skills in numerous demanding and 
dangerous xxxxxxx and has performed superbly.  He clearly has 
the capacity for solid performance and is deserving of additional 
opportunities to demonstrate his full potential.  His lapse in 
judgment is a concern and hopefully he will be able to overcome 
this incident.[3] 
 
 
NA 

 
3 

 
12. Comparison 
Scale4 
 
 
Regarding the mark of 3 for the category Human Relations and the corre-
 
sponding comments, the applicant alleged that “[t]here is no proof that I did not 
support the Commandant’s requirements for leadership on diversity, nor did the 
e-mail  negatively  impact    the  command.”    He  argued  that  the  e-mail  did  not 
undermine  the  diversity  policy  because  it  was  not  discriminatory  and  did  not 
hinder equality of opportunity.  Furthermore, he argued, there is no proof that 
his e-mail negatively affected the command or that it was interpreted as a racist 
comment because no one complained even after his subordinate forwarded it to 
about 190 members of the command. 
 
In  addition,  he  alleged  that  his  e-mail  did  not  “question  the  value  of  a 
 
superior officer’s performance of assigned National Special Observance duties.”  

                                                 
2  This block contains only a reporting officer’s written comments.  No numerical mark is permit-
ted.  
3  Commonly, reporting officers use this block to recommend officers for promotion. 
4  The Comparison Scale is not actually numbered.  However, there are 7 possible marks, and the 
applicant  received  the  third  lowest  mark  on  the  scale.    A  mark  in  this  position  is  supposed  to 
reflect  an  “Excellent  performer;  recommended  for  increased  responsibility.”    No  written  com-
ments are required.  See Coast Guard Personnel Manual, Article 10.A.4.d.(9)(b). 

Rather,  the  e-mail  message  “directed  my  subordinate  to  take  an  action  that 
would decrease my workload.” 
 
Regarding the mark of 3 for the category Judgment and the corresponding 
 
comments, the applicant alleged that his sending of the e-mail was “an adminis-
trative  action,  not  a  judgmental  decision.    There  were  no  risks  or  costs  to  be 
weighed.”  Moreover, he argued, because he immediately requested to meet with 
his commanding officer and because he met three times with his supervisor and 
the  command’s  civil  rights  officer  to  try  to  correct  their  misperception  of  his 
actions, he was not “indifferent” to the matter, as indicated in the corresponding 
comments. 
 
 
Regarding  the  mark  of  3  for  the  category  Responsibility,  the  applicant 
argued that the corresponding comments do not support the mark, as required 
by Article 10.A.4.C.7.d. of the Personnel Manual. 
 
 
Regarding  the  comments  in  block  11.,  on  Leadership  and  Potential,  the 
applicant alleged they are in error because he committed “no lapse in judgment.”  
Moreover, he argued, because his reporting officer wrote that he was “deserving 
of  additional  opportunities  to  demonstrate  his  full  potential,”  he  should  have 
been recommended for promotion after the incident and appointed to a position 
as department chief, executive officer, or commanding officer.  Instead, he was 
transferred to “a staff job with no supervisory responsibilities.” 
 
 
Regarding  the mark he received on the Comparison Scale, the applicant 
stated that it is “substandard” and based on the three erroneous marks of 3 for 
Human Relations, Judgment, and Responsibility.  Therefore, it is also in error. 
 
 
 
Finally,  the  applicant  argued  that  the  disputed  OER  will  diminish  his 
chances for promotion and that promotion to the rank of commander is neces-
sary for him to reach his full potential.  Therefore, he alleged, the OER violates 
the Commandant’s Human Relations Policy, one goal of which is to allow each 
member to reach his or her full potential. 
 

VIEWS OF THE COAST GUARD 

 
 
Upon receipt of the application, the BCMR sent a copy to the Chief Coun-
sel of the Coast Guard in accordance with 33 C.F.R. § 52.82(a).  Under 33 C.F.R. 
§ 52.82(c)  and  (d),  the  Chief  Counsel  may  submit  an  advisory  opinion  on  each 
application, and if he does, the applicant must receive a copy of it and have at 
least 15 days in which to respond.  However, under 14 U.S.C. § 425, the Board 
must issue a decision on each completed application within 10 months. 
 

 
While the burden is not on the BCMR to remind the Chief Counsel’s office 
of  these  statutory  and  regulatory  requirements,  the  BCMR  staff  reminded  the 
Chief Counsel’s office of the 10-month deadline in this case both orally and by 
e-mail in January and early February 2000.  In addition, the BCMR staff informed 
the Chief Counsel’s staff that the Board would have to consider the case without 
the benefit of the advisory opinion if it arrived too late in the statutory period for 
the Board to comply with 33 C.F.R. § 52.82(d) and duly deliberate the case. 
 

The Board did not receive an advisory opinion in this case until February 
18,  2000,  more  than  nine  months  after  the  application  was  received  on  May  5, 
1999. Insufficient time remained in the 10-month statutory period for the appli-
cant to review the Chief Counsel’s advisory opinion and for the Board to issue a 
decision based on a careful review of all submissions, including the applicant’s 
response to the Chief Counsel’s advisory opinion.  Therefore, the Chief Counsel’s 
advisory opinion was not read or relied on by the Board in reaching its decision.  
The advisory opinion was sealed and set aside, and this decision is based solely 
upon the applicant’s submissions and military record and applicable law. 
 

RELEVANT REGULATIONS 

 

Article  10.A.1.b.  of  the  Coast  Guard  Personnel  Manual  (COMDTINST 
 
M1000.6A) in effect in 1994 states that “[c]ommanding officers must ensure accu-
rate, fair, and objective evaluations are provided to all officers under their com-
mand.”   
 

Article 10.A.4. of the Coast Guard Personnel Manual describes how mem-
bers of a rating chain should prepare an OER.  Article 10.A.4.d.(7) states the fol-
lowing: 
 

(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 dimen-
sions, the Reporting Officer shall carefully read the standards and com-
pare the Reported-on Officer’s performance to the level of performance 
described  by  the  standards.  .  .  .  After  determining  which  block  best 
describes the Reported-on Officer’s performance and qualities during the 
marking period, the Reporting Officer fills in the appropriate 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 Officer’s performance and behavior for each mark that devi-
ates from a “4.”  The Reporting Officer shall draw on his/her own obser-
vations,  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 eval-
uations  in  the  evaluation  area.    They  should  identify  specific  strengths 
and  weaknesses  in  performance  or  qualities.    Well-written  comments 
must be sufficiently specific to paint a picture of the officer’s performance 
and qualities which compares reasonably with the picture defined by the 
standards marked on the performance dimensions in the evaluation area. 
. . . 

 
 
Article 10.A.4.d.(9)(a) contains the following instructions for filling out the 
comparison  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.” 
 
The applicant submitted a copy of COMDTINST 5350.21, which contained 
 
the Commandant’s Human Relations and Sexual Harassment Policy Statements 
issued on October 9, 1990.  Paragraph 3.b. of the instruction states that “all Coast 
Guard personnel [are] to actively demonstrate their own commitment and sup-
port of these policies.” 
 
 
the following language: 
 

The Human Relations Policy Statement in COMDTINST 5350.21 includes 

…  Our  greatest  resources  for  meeting  the  challenges  of  change  are  the 
men and women who respond daily, unselfishly in their operational and 
support roles, to carry out our various missions.  I am committed to see-
ing  that  all  Coast  Guard  personnel  …  are  provided  the  opportunity  to 
work and develop so as to achieve their full potential. … 
 
[W]e  must  take  positive  steps  to  avoid  any  vestige  of  discrimination 
based on race, color, religion, gender, age, national origin, or mental or 
physical  handicap  in  any  thoughts  or  actions  affecting  our  personnel, 
those  seeking  employment  with  us,  or  those  entitled  to  benefits  under 
any Coast Guard sponsored programs…. 
 
This policy is important to maintain a Coast Guard where each of us is 
morally  committed  to  ensuring  equality  of  opportunity  for  every  indi-
vidual,  and  where  we  all  assume  a  personal  responsibility  for  assuring 
that this concept works throughout the Service.  This means that each one 
of  us  must  not  only  practice  nondiscriminatory  behavior,  but  we  must 
also  educate  others  regarding  the  benefits  of  a  nondiscriminatory  envi-
ronment on the Coast Guard’s ability to function. 

 
The  Human  Relations  Policy  Statement  in  COMDTINST  5350.21,  was 
 
superceded in 1996 by COMDTINST 5350.21A.  The new statement’s message is 
very similar to that in COMDTINST 5350.21.  It further provides that “we must 

be dedicated to instilling these core values in ourselves and our people, and pro-
viding a working environment in which we appreciate and gain strength from 
our individual differences.” 
 
 
COMDTINST 5354.5, issued on June 26, 1992, lists Black History Month as 
a National Special Observance.  It directs area and district commanders to effect 
program  planning  that  will  “(1)  provide  the  Coast  Guard  work  force  with  a 
greater understanding of the contributions made to our national heritage, (2) rec-
ognize the contributions of these groups, and (3) develop an appreciation for the 
richness and variety these cultures have brought to our diverse nation.”  
 

FINDINGS AND CONCLUSIONS 

1. 

2. 

3. 

The Board has jurisdiction concerning this matter pursuant to sec-

The Board makes the following findings and conclusions on the basis of 

 
 
the applicant's military record and submissions and applicable law: 
 
 
tion 1552 of title 10, United States Code.  The application was timely. 
 
 
Under  14  U.S.C. § 425, the Board must issue a decision within 10 
months of its receipt of an application.  Therefore, the Chairman determined not 
to  include  the  Chief  Counsel’s advisory opinion in the record reviewed by the 
Board because it was received too late for the Board to comply with the 10-month 
deadline and with 33 C.F.R. § 52.82(d), under which the applicant must have 15 
days to respond to the advisory opinion.  The Board concurs in the Chairman’s 
decision. 
 
 
The  applicant’s  superiors  could  reasonably  have  construed  his 
e-mail message to communicate the following information: (a) He considered the 
receipt  of  black  history  facts  during  Black  History  Month  to  be  a  “complete 
waste” of his and other people’s time; (b) he resented having to take a few sec-
onds  each  day  to  read  the  black  history  facts  or  just  to  delete  them  without 
reading them; (c) he did not think it was important for him or other members of 
the  Coast  Guard  to  learn  about  black  history;  and  (d)  he  did  not  support  his 
superiors’ decision and order to distribute black history facts in accordance with 
COMDTINST 5354.5.  Moreover, his superiors could reasonably have concluded 
that the last line of his e-mail message strongly suggested that he questioned the 
truth of the information being distributed. 

 
4. 

In reviewing the applicant’s allegations, the Board is not unmindful 
of the presumption of regularity accorded to personnel evaluations, and that the 
burden is on the applicant to counter such a presumption.  Applying that pre-
sumption, the Board finds that the applicant’s rating chain could reasonably have 

concluded that he showed poor judgment in deciding to send this e-mail.  While 
he could have asked his supervisor if he could be removed from the distribution 
list,  he  should  not  have  communicated  these  attitudes  to  a  subordinate, 
especially via “insecure” e-mail.  Therefore, the applicant has not persuaded the 
Board that the mark of 3 for Judgment in the disputed OER was unjustified, and 
the corresponding comments support the mark. 

Again,  applying  the  presumption,  the  Board  finds  that  the  appli-
cant’s rating chain also could reasonably have concluded that, by sending the e-
mail message, the applicant communicated to his subordinate his resentment at 
being encouraged to learn and appreciate the cultural history of his country and 
fellow  Coast  Guard  members.    Therefore,  the  applicant  has  not  persuaded  the 
Board that the mark of 3 for Human Relations in the disputed OER was unjus-
tified, and the corresponding comments support the mark. 

 
5. 

 
6. 

 
The applicant also challenged the mark of 3 he received for Respon-
sibility in the disputed OER.  A mark of 4 for Responsibility requires that, during 
the evaluation period, the officer “[p]laced goals of Coast Guard above personal 
ambitions and gains. …  Held self and subordinates accountable. …  Supported 
organizational policies/decisions which may have been counter to own ideas.”  
Again,  applying  the  presumption,  the  Board  finds  that  the  applicant’s  rating 
chain could reasonably have concluded that, by sending the e-mail message, he 
did not support the Coast Guard’s Human Relations Policy or place the Service’s 
goals  above  his  own  desires.    Moreover,  the  applicant  has  not  proved  that  his 
reporting  officer’s  comment  in  block  9.c.,  which  stated  that  the  applicant  was 
“indifferent towards accountability of the action,” was in error.  Therefore, the 
applicant has not persuaded the Board that the mark of 3 for Responsibility was 
unjustified, and the corresponding comments support the mark. 
 
 
Marks on the Comparison Scale in block 12 are inherently subjec-
tive, as each reporting officer must compare the reported-on officer with other 
officers  of  the  same  rank  whom  the  reporting  officer  has  known.    In  light  of 
Findings 4, 5, and 6, above, the applicant has not persuaded the Board that the 
mark received by the applicant on the Comparison Scale in the disputed OER is 
either in error or unjust. 
 
 
The applicant alleged that he was transferred from the xxxx in xxx 
only  because  his  commanding  officer  wanted  to  avoid  interference  from  his 
superiors.  However, the applicant has not requested that the Board provide him 
with any specific relief with respect to his transfer.  Even had he requested some 
relief, the applicant has not proved that there was any impropriety with respect 
to his transfer, and he has not persuaded the Board that it was unjust. Moreover, 
it  is  unclear  what  relief,  if  any,  the  Board  could  order  with  respect  to  the 

7. 

8. 

9. 

applicant’s  transfer  given  the  limitations  to  the  Board’s  jurisdiction  under  10 
U.S.C. § 1552.  
 
The applicant alleged that he should have been made a department 
 
chief, executive officer, or commanding officer to have additional opportunities 
to  fulfill  his  potential,  and  that  failure  to  have  such  opportunities  violated  the 
Commandant’s  Human  Relations  Policy.  However,  the  applicant  has  not 
requested that the Board provide him with any specific relief with respect to his 
current  position.    Even  had  he  requested  specific  relief,  the  applicant  has  not 
proved that his current assignment violates the Commandant’s Human Relations 
Policy.    Moreover,  it  is  unclear  what  relief,  if  any,  the  Board  could  order  with 
respect to the applicant’s current duties given the limitations to the Board’s juris-
diction under 10 U.S.C. § 1552.  
 
 

10.  Accordingly, the applicant’s request should be denied. 

 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

ORDER 

The application of XXXXXXXX, USCG, for correction of his military record 

 
 

 
 

      
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
James K. Augustine 

 

 

 
 
Jay R. Gordon 

 

 
Julia A. Rhodes 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 
is hereby denied.