DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 1999-142 
 
 
   

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.  The application for correction was filed on 
June 30, 1999.  The application was not completed until December 13, 1999, when the 
applicant submitted new evidence in support of his allegations. 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  September  7,  2000,  is  signed  by  the  three  duly 

 

 
 

 

APPLICANT’S REQUEST FOR RELIEF 

 

 
 
The  applicant,  a  xxxxxxxxxxx  now  serving  on  an  active  duty  contract  in  the 
Coast  Guard  Reserve,  asked  the  Board  to  correct  his  record  by  removing  or  revising 
three  written  comments  in  an  officer  evaluation  report  (OER)  issued  prior  to  his 
discharge from the regular Coast Guard.  The disputed OER was issued for the period 
October 1, 1991, through August 6, 1992, during which time, the applicant served as a 
deck  watch  officer  aboard  the  Coast  Guard  cutter  Xxxx.    Specifically,  the  applicant 
asked that the following two comments in the disputed OER be removed: 
 

  However, [the applicant’s] underway OOD watchstanding was occasionally lax; he allowed 
his  quartermaster  to  plot  a  course  with  a  10  degree  error  which  would  have  carried  the  ship 
across  a  shoal  and  once  proposed  an  unrealistic  passing  arrangement  with  another  ship  in 
restricted waters. 

  … (somewhat offset by his mediocre watch-standing) … 

 
In addition, the applicant asked that the third disputed comment—  
 

I am sure he will succeed in flight school and become a typically productive member of the 

 
aviation community.  I consider him fully qualified for promotion with his peers. 

 
—be removed and replaced with the following: 
 

I am sure he will succeed in flight school and become an outstanding member of the aviation 

 
community. 

 

 
 
The applicant asked the Board to remove his failures of selection to xxxx by the 
1994  and  1995  selection  boards  and  to  remove  his  involuntary  separation  from  the 
Coast  Guard  on  June  30,  1996.    He  further  requested  that  his  record  be  corrected  to 
show  that  he  reentered  the  regular  Coast  Guard  on  July  9,  1998,  through  the  Direct 
Commission Aviator program in the rank of xxxx and that the OERs he has received 
since that date be corrected to show his rank as xxxx.  He asked to be awarded back pay 
and allowances for the periods November 1994 to July 1996 and July 1998 through the 
present for service in pay grade O-3 rather than O-2. 
 

APPLICANT'S ALLEGATIONS 

 The applicant alleged that during the period covered by the disputed OER, he 
held  numerous  responsible  positions  aboard  the  Xxxx  and  “always  received  positive 
feedback from [his] supervisors and other senior officers … concerning [his] perform-
ance in all assigned duties.”  Because no one had ever criticized his watchstanding, he 
was “completely taken off-guard and surprised by the comments” in the disputed OER, 
which he received upon his departure from the Xxxx for flight school.  He alleged that 
none of his supervisors or the executive officer (XO) of the Xxxx, who was his reporting 
officer and who wrote the comments, “had ever mentioned any watchstanding issues 
during the reporting period.” 

 
Upon receiving the disputed OER, the applicant alleged, he asked his supervisor 
about the negative comments.  He alleged that his supervisor recommended that he do 
nothing about the “harsh” comments because the XO might retaliate by adding worse 
comments or by lowering his marks.  The applicant stated that his experience with the 
XO led him to believe this might be true.  He alleged that the XO had “recently become 
very bitter after being passed over [for promotion] the second time for [captain].”   

 
The applicant also alleged that his supervisor told him the comments would not 
prevent him from being promoted.  He himself could not imagine that the Coast Guard 
would separate him because of the comments since it “was about to spend over a mil-
lion dollars on [his] flight school education.”  Therefore, he “naively” chose not to “rock 
the boat” by protesting the comments.   

 
The applicant alleged that he learned to fly both airplanes and xxxxs at the U.S. 
Naval Flight School and that his performance was “well above average.”  However, as a 

student, his performance was not evaluated in his OERs but marked “not observed.”1  
After he finished flight school in May 19xx, he was assigned as a xxxx co-pilot to Air 
Station Xxxx in Xxxx, but no OER for his performance as a pilot was added to his record 
before it was considered by the 1994 xxxx selection board.  He alleged that he failed of 
selection  by  the  1994  selection  board  because  the  most  recent  operational  OER  in  his 
record was the disputed OER with the inaccurate and unfair comments.  He alleged that 
he  considered  seeking  relief  via  the  BCMR  at  this  time,  but  was  advised  by  a  fellow 
officer that to do so, he had to hire an attorney, which he could not afford.  Instead, he 
worked  very  hard,  was  upgraded  from  co-pilot  to  first  pilot,  and  earned  two 
outstanding OERs.  He hoped those OERs would improve his record before the 1995 
selection  board,  but  he  failed  of  selection  again  and  was  therefore  involuntarily 
discharged on June 30, 1996. 

 
After  being  separated  from  the  Coast  Guard,  the  applicant  worked  as  a  plant 
manager and engineer for a large paper company.  However, two years later, the Coast 
Guard asked him if he would reenter the service through the Direct Commission Avia-
tor program.  Because he missed flying, he applied and was commissioned as a xxxx in 
the Coast Guard Reserve.  He signed an active duty contract and was assigned to Air 
Station Xxxx.  Thus, he ended up picking up where he had left off two years earlier.  He 
alleged that he requalified as a first pilot within three weeks and qualified as an aircraft 
commander in just five months.  After less than a year, he applied for and was accepted 
by the aeronautical engineering officer training and advanced education program, “the 
most competitive program within Coast Guard Aviation.” 

 
Since  his  return,  the  applicant  alleged,  his  Coast  Guard  mentors  have  encour-
aged him to seek relief with the BCMR.  He alleged that they have told him that the 
comments  in  the  disputed  OER  show  that  his  reporting  officer,  the  XO  of  the  Xxxx, 
discriminated against him because he was leaving the cutter to enter the “aviation com-
munity,” which the XO did not respect. 

 
The applicant argued that the comments should be removed from the disputed 
OER  because  they  are  “damaging,  career-ending  statements”  about  his  performance 
concerning  incidents  that  neither  he  nor  his  supervisors  could  remember  and  about 
which he was never informed or counseled by the XO.  In support of this allegation, he 
submitted  two  affidavits  by  his  supervisors  aboard  the  Xxxx,  which  are  summarized 
below.  He also submitted an affidavit by the cutter’s navigator, who denied the occur-
rence of the ten-degree course error and the unrealistic passing arrangement mentioned 
by the XO in the disputed OER.  The applicant alleged that if he had ever performed his 
watchstanding duties poorly, his supervisors would have known or would have been 
told, and the navigator would have known of any error in course or passing arrange-
ment.  Because neither he nor his supervisors or the navigator could recall any incidents 
                                                 
1  All performance traits are marked “not observed” in OERs for officers in school.  Personnel Manual, 
Article 10-A-3.a.(6). 

that might have given rise to the comments, he alleged, the disputed statements must 
be either false or highly exaggerated.   

 
The applicant further argued that if his watchstanding had in fact been “lax,” he 
would not have received his command’s strong endorsement for aviator training, and 
he would not have had what it takes to succeed as a pilot.  He stated that both flying 
and  watchstanding  require  navigational  accuracy,  procedural  knowledge,  and  situa-
tional awareness. 

 
The applicant alleged that the XO was motivated to make these false or exagger-
ated  negative  comments  because  of  his  bias  against  aviators  and  his  bitterness  about 
failing  of  selection  himself.    He  stated  that  the  XO  once  told  him  that  aviators  were 
“below whale sperm,” that pilots were “at the bottom just above lawyers, and that the 
worst possible situation would be a Coast Guard Aviator who went to law school.”  The 
applicant alleged that the XO was serious and “never cracked a smile” when he said 
this.  He alleged that the XO’s bias is proved by the sarcastic remark in his disputed 
OER about him becoming a “typically productive member of the aviation community.” 

 
The  applicant  further  alleged  that  the  XO’s  comment  concerning  a  ten-degree 
error  that  would  have  carried  the  cutter  across  a  shoal  was  demonstrably  false.    The 
Xxxx’s mission, he alleged, was to monitor high seas fisheries, and the cutter only came 
near shoals when entering or leaving port.  At these times, he alleged the cutter’s course 
was set beforehand, and any changes called for by the conning officer had to be cleared 
by  the  navigator.    Therefore,  the  navigator  would  have  known  if  he  had  ever 
endangered the cutter by changing a preset course while entering or leaving a port. 

 
The applicant also submitted an affidavit from a fellow junior officer (see below), 
who denied hearing of any problems with the applicant’s performance.  The applicant 
alleged that if there had been any such problems, his peers would have known. 

 
The  applicant  alleged  that,  if  any  negative  watchstanding  incidents  did  occur, 
unbeknownst to him, his supervisors, the navigator, and his peers, he should have been 
formally  counseled  about  them  and  given  a  chance  to  improve.    He  alleged  that  his 
counseling sessions with his supervisors were always “routine and informal conversa-
tions about ongoing projects and other assigned work.”  He alleged that his supervisors 
did not use the officer support form (OSF), to counsel him, as required by the Personnel 
Manual  for  all  xxxx  and xxxxs, because his performance was very good.  He did not 
insist  that  they  use  it  because  he  “thought  it  was  intended  more  for  someone  who 
needed  to  improve  his  or  her  performance.”    He  argued  that  if  his  performance  was 
actually as lax as the XO’s comments indicate, the XO or his supervisors should have 
counseled him about it and used an OSF so that he could improve. 

 

The applicant stated that he can remember only one occasion when the XO was 
“outwardly upset” about something he did.  During a training exercise, the XO seemed 
unhappy with how he anchored the cutter.  He alleged that after the exercise was over, 
he asked his supervisor what he had done wrong.  His supervisor told him that he had 
not  seen  the  applicant  do  anything  wrong  and  that  the  anchoring  exercise  had  gone 
well.  The supervisor attributed the XO’s unhappiness to “a personal problem that the 
XO must have” with the applicant, rather than to any mistake he had made.  He alleged 
that his supervisor told him to “minimize his exposure to the XO” because the “XO just 
didn’t like” him.  The applicant stated that the cutter received a “clean sweep” of excel-
lent  scores  for  the  training  exercise,  including  the  anchoring  evolution  for  which  he 
stood watch.  The applicant alleged that if the XO really disapproved of his perform-
ance, he should have counseled him about it at least once during the ten-month report-
ing period, but he never did.  He alleged that it was unjust for the XO to remain silent 
for  ten  months  and  then  destroy  his  Coast  Guard  career  by  including  such  negative 
comments in his departing OER. 

 
The applicant also alleged that the XO’s failure to counsel him concerning any 
perceived performance problems was evidence of the “zero-defect mentality” described 
in an article in the October 1998 issue of Naval Institute Proceedings.  The article surmised 
that junior officers were leaving the service because “[m]istakes on the job no longer are 
treated  as  learning  tools  but  are  addressed  immediately  and  publicly  with  punitive 
corrective actions … one mistake can kill years of faithful service.”  Senior officers, he 
alleged, “are afraid to let any of their junior officers make a mistake that might make 
them look bad” because of “career fear,” which was a recent topic of several articles and 
                                                 
2    Officers  are  graded  in  approximately  20  different  performance  categories,  such  as  “judgment”  and 
“getting results,” on a scale of 1 to 7, with 7 being highest. 

 
The applicant alleged that the XO’s bias also led him to lower most of the appli-
cant’s  marks  in  the  disputed  OER  to  4s2  in  performance  categories  for  which  he  had 
previously earned 5s.  He stated that the comment about his being “fully qualified for 
promotion  with  his  peers”  was  also  a  sign  of  prejudice  because  he  was  a  xxxx.    He 
explained  that,  whereas xxxxx are selected for promotion to xxxx as long as they are 
“fully qualified,”  xxxxs are selected for promotion to xxxx only if they are among the 
“best qualified.”  Therefore, the use of the phrase “fully qualified” in the OER of a xxxx 
is a backhanded compliment and prejudicial to the reported-on officer. 

 
The applicant alleged that the problem he suffered in receiving an unfairly poor 
OER as he departed the cutter for a specialty career path is a systemic one recently iden-
tified  in  a  Junior  Officer  Needs  Assessment  study  conducted  by  the  Coast  Guard’s 
Work  Life  Department.    The  study,  he  alleged,  found  that  first  tour  officers  receive 
dramatically  lower  marks  when  they  leave  underway  positions  for  flight  school  or 
engineering school, as compared to officers who choose to remain in underway opera-
tions.  The applicant alleged that he was one such victim of this phenomenon. 

 
The applicant also alleged that the disputed OER was unfair because it was com-
pleted in a type font that was smaller than that prescribed by regulation.  The use of the 
smaller font, he stated, left significant blank spaces in his OER, which are prejudicial to 
reported-on officers.  

 
Finally,  the  applicant  argued  that  his  failures  of  selection  should  be  removed 
from his record because they were caused by the damaging comments in the disputed 
OER.  The disputed comments had a significant negative impact on his record before 
the selection boards because the OER was the last operational OER in his record and 
covered his last ten months on the Xxxx.  He explained that the reporting period for the 
disputed OER was extended from the normal six months to ten months because both he 
and the XO were departing the cutter at that time.  Under Engels v. United States, 230 Ct. 
Cl. 464 (1982), he argued, his failures of selection should be removed because the unfair 
and inaccurate comments made his record significantly worse and without them, “it is 
not unlikely that [he] would have been promoted in any event.” 

an address by the Commandant.  The applicant alleged that “zero-defect mentality” and 
“career fear” may also have caused the XO to fail to counsel him properly concerning 
any issues he had with the applicant’s watchstanding. 

 
Furthermore, the applicant alleged, he was not the only victim of the XO’s disfa-
vor.  He stated that four other deck officers aboard the Xxxx for whom the XO acted as 
reporting officer were passed over for promotion to xxxx.3  This extremely high failure 
rate,  he  alleged,  proves  the  XO’s  “inability  or  unwillingness  to  provide  effective 
performance counseling [or to] develop and mentor junior officers that were entrusted 
to his care.” 

 
The  applicant  stated  that  he  believes  most  applicants  in  his  position  ask  to  be 
reinstated and to have their dates of rank back dated if they are selected for promotion 
by the next selection board to consider their records as corrected by the Board.  How-
ever, he is asking the Board to reinstate him in the regular Coast Guard as a xxxx with 
the  day  he  entered  the  Coast  Guard  Reserve  as  his  new  date  of  rank.    The  applicant 
stated that this relief would be fairest to him because his original year group from the 
Coast  Guard  Academy  has  already  been  promoted  to  xxxx  and  has  even  been 
considered by its first xxxx selection board.  He argued that the date of rank he seeks 
would give him enough time in service as a xxxx “to build a competitive record” for a 
xxxx selection board.  An earlier date of rank would prejudice him before a selection 
board  and  prevent  him  from  building  a  competitive  record  as  a  xxxx  before  he  is 
considered for promotion to xxxx. 
                                                 
3  In BCMR Docket No. 1998-073, evidence was presented indicating that nine out of ten xxxxs who served 
on the Xxxx from July 1991 to July 1994 were passed over for selection twice and separated involuntarily.  
The applicant in that case also alleged that 21 out of the 28 (75 percent) officers who served on the Xxxx 
during those three years were subsequently involuntarily separated from the Coast Guard. 

 

SUMMARY OF  THE APPLICANT’S MILITARY RECORD 

 
The applicant graduated from the Coast Guard Academy and was commissioned 
 
an ensign in May 19xx.  He initially reported to the cutterxxx, but was transferred with 
other crewmembers to the Xxxx on xxxxx.  He served on the Xxxx until August 6, 199x, 
when he was detached to attend flight school. 
 

The applicant received three OERs for his service on the Xxxx.  All three were 
signed  by  the  applicant’s  commanding  officer,  Xxxx’s  captain,  who  served  as  the 
reviewer.  The first (OER1 in the table below) contains only one negative comment (by 
the XO) to the effect that, as gunnery officer, he failed to take an active interest in gun 
repairs at one point.  All other comments in OER1 are positive, and his supervisor, LT 
x., wrote that he “[s]tands an effective watch.”  The XO also wrote that the applicant “is 
qualified for promotion to LTJG.  He is interested in attending Flight School and I am 
sure he would complete that program and become an effective Coast Guard Aviator.” 

 
The  second  OER  he  received  for  service  aboard  the  Xxxx  (OER2  in  the  table 
below) contains no negative comments.  His supervisor, LT x., wrote that he “[s]tands 
an effective and safe inport and underway OOD watch.”  The XO wrote that his “per-
formance has improved during this period.  He is fully qualified for promotion with his 
peers.  He has a strong interest in attending flight school and I am confident he would 
succeed in that program and make an excellent Coast Guard career aviator.”   

 
On  November  23,  199x,  the  applicant  was  promoted  to  the  rank  of  xxxx.    The 
disputed comments appear in his third and final OER for his service aboard the Xxxx, 
from October 1, 199x, to August 6, 199x (see OER3 in the table below).  The comments 
appear in 10-point condensed type, with 15 letters per inch (pitch) and 7.5 lines per inch 
of  text.    His  supervisor,  LT  x.,  made  many  positive  and  no  negative  comments.    He 
stated that the applicant’s “[d]ivision was so well prepared for the April [training exer-
cise], the instructors spent only two days on board, [and] cancelled the next weeks of 
training in order to spend time on a unit that needed them … .  The division excelled, 
receiving a final score of 93%.”  The XO wrote the disputed comments, which appear on 
the first page of this final decision. 
 
 
From August 199x to May 199x, the applicant attended flight school, where he 
was trained as an xxxx and xxxx pilot.  He received three OERs while in flight school 
(OER4, OER5, and OER6 in the table below) with all evaluation categories marked “not 
observed.”    OER4  indicates  that  his  class  standing  was  xxx  in  a  class  of  xx.    OER5 
indicates  that  his  flight  grades  were  above  the  squadron  average  and  his  academic 
average  was  94  percent.    The  reviewer  for  OER5  added  comments  stating  that  the 
applicant’s completion of “fixed wing” flight training shows that he “possesses a supe-
rior degree of initiative and responsibility.  His academic and flight performance were 

 

The applicant was passed over for promotion to xxxx by the selection board that 

above  average  in  a  highly  competitive,  demanding  program.    He  is  strongly  recom-
mended  for  promotion  with  peers.”    OER6  indicates  that  the  applicant’s  flight  grade 
equaled  the  squadron  average  and  that  his  academic  average  was  96  percent.    The 
reviewer added comments almost identical to those in OER5, except that his “degree of 
initiative and responsibility” was described as “outstanding.” 
 
 
met in the summer of 1994.  At this time, his record contained OER1 through OER6.  
 
 
Upon  completion  of  flight  training,  the  applicant  was  assigned  to  Air  Station 
Xxxx  as  a  xxxx  co-pilot.    His  OER  covering  the  period  xx,  199x,  to  January  31,  199x 
(OER7 in the table below), contains many laudatory comments, including praise for his 
“noteworthy” situational awareness.  His reporting officer strongly recommended him 
for promotion. 
 
 
The applicant’s second OER after flight school, covering his service as a xxxxx at 
Xxxx from February 1, 199x, to July 31, 199x (OER8 in the table below), contains highly 
laudatory comments.  His reporting officer strongly recommended him for promotion.  
In  addition,  his  reviewer  added  laudatory  comments,  including  a  strong  recom-
mendation for promotion. 
 
 
The applicant was passed over for promotion to xxxx a second time in xxxx 1995.  
OER7 and OER8 were in his record at this time.  He was separated from the service on 
June 30, 1996, due to non-selection for promotion. 
 
 
In April 199x, the applicant applied for a direct commission as an aviator in the 
Coast  Guard  Reserve.    His  application  included  a  letter  of  recommendation  from  a 
retired Coast Guard captain who had supervised him during flight school.  The captain 
stated that the applicant’s performance, demeanor, and maturity placed him “in the top 
10% of all the flight students I supervised.”   
 

In May 199x, the applicant was selected by a Direct Commission Aviator selec-
tion board.  On July 9, 199x, he signed an Acceptance and Oath of Office as a xxxx in the 
Coast Guard Reserve.  He also signed a four-year active duty contract.  He was assigned 
to  Air  Station  Xxxx,  where  he  requalified  as  a  xxxx  on  August  27,  199x,  and  was 
designated  an  xxxxx  on  March  26,  199x.  Since  his  return,  his  reporting  officers  have 
rated him as “an exceptional officer” in his OERs.  In September 199x, he was selected 
for the xxxxxxx program.   

 

SUMMARY OF OTHER EVIDENCE 

 
Affidavit of the Operations Officer of the Xxxx from August 199x to June 199x 
 
 
The applicant submitted an affidavit by LCDR x., the officer who served as his 
supervisor until two months before he left the cutter.  LCDR x. stated that as the Xxxx’s 
Operations Officer, he supervised the applicant from the time of his arrival on board in 
September  199x  until  June  199x.    He  stated  that  he  never  completed  an  OER  for  the 
applicant “due to OER timing.”  LCDR x. stated that he was very surprised to hear that 
such an outstanding officer had failed of selection for promotion to xxxx. 
 
 
LCDR x. alleged that the applicant had performed well as a desk watch officer.  
He indicated that the applicant qualified as an underway officer of the deck in a reason-
able  amount  of  time  given  the  cutter’s  schedule.    Regarding  the  applicant’s  perform-
ance, he stated that he does “not recall a briefing or counseling regarding any perceived 
watchstanding  issue.”    He  commended  the  applicant’s  “superior  watchstanding  and 
Maritime Law Enforcement expertise.” 
 
Affidavit of the Operations Officer of the Xxxx from June 199x to August 199x 
 
The applicant submitted an affidavit by LCDR x., who replaced LCDR x. as the 
 
Operations Officer of the Xxxx and who served as the supervisor for the disputed OER.  
LCDR  x.  stated  that  he  could  not  remember  “the  background  behind  the  comments” 
written  by  the  XO.    He  stated  that  he  does  “not  remember  the  negative  events 
mentioned by [the XO] (specifically the lax bridge watch, plotting a wrong course and 
proposing an unrealistic passing agreement).”  He alleged that the applicant was a very 
capable officer and that his “performance on board was typical of the average officer 
but  good  enough  to  qualify  him  for  flight  school.”    LCDR  x.  stated  that  he  was  sur-
prised by the applicant’s failure of promotion but that the cutter had “a very bad pro-
motion rate,” which he called a “curse.” 
 
 
LCDR  x.  further  stated  that  he  does  “not  remember  specifically  any  negative 
comments  [the  XO]  personally  made  towards  [the  applicant]  concerning  his  personal 
like or dislike for him.”  He described the XO as a “very tough taskmaster” with a “very 
dry sense of humor” that “often turned people off,” especially junior officers. 
 
Affidavit of the Navigator of the Xxxx from July 199x to June 199x 
 
 
The applicant submitted an affidavit by the cutter’s navigator, LT x.  He stated 
that he was responsible for planning the cutter’s projected courses and ensuring its safe 
navigation.    As  the  navigator,  he  was  “routinely  kept  abreast”  of  the performance of 
quartermasters  by  the  Operations  Officer,  the  XO,  and  the  Commanding  Officer 
because  he  was  the  quartermasters’  direct  supervisor.    He  stated  that  he  was  always 
informed when a quartermaster made a navigational error.  “Therefore, [he] thought it 

was particularly strange that [the applicant] received a comment in his Officer Evalua-
tion Report (OER) that said he had hazarded the ship by allowing a Quartermaster to 
plot  an  incorrect  course  across  shoal  water.    This  is  an event that I would have been 
immediately informed about, especially if it was caught by the Executive Officer.”  LT x. 
further stated the following: 
 

As Navigation Officer, I was on the bridge every time the XXXX entered or left port.  The 
Commanding  Officer’s  Standing  Order’s  [sic]  included  a  requirement  to  set  Special 
Navigational  Detail  anytime  we  were  within  12  nautical  miles  of  shoal  water.    As 
Navigator,  I  was  responsible  for  keeping  the  Conning  Officer  informed  of  the  cutter’s 
current  position  and  distance  to  nearest  shoal  water  and  of  a  course  and  speed  that 
would not take the cutter across shoal water.  The Conning Officer was responsible for 
the exact course and speed of the ship.  While I was Navigator aboard XXXX, I can affirm 
that  there  was  never  an  error  that  would  have  taken  the  ship  across  a  shoal  while  my 
special navigation detail was set.  If this were to occur, I believe that it would have been 
noted in my OER.  My last OER from XXXX make[s] no reference of any such incident 
and  may  be  obtained  if  needed.    Furthermore,  I  never  saw  or  heard  [the  applicant] 
propose  any  unrealistic  passing  arrangements  with  any  other  ships  while  we  were  in 
restricted waters.  [The applicant] was an outstanding deck watch officer; one of the best 
aboard  XXXX.    I would not consider his underway watchstanding to be lacking in any 
way. 

 
 
LT x. also stated that the applicant “fell out of the Executive Officer’s favor when 
he was accepted and committed to flight school.  The Executive Officer made no secret 
of the fact that he didn’t care for aviators.”  LT x. confirmed the applicant’s allegation 
the  XO  had  called  aviators  below  whale  sperm  and  that  “the  worst  thing  that  could 
possibly happen would be a Coast Guard Aviator who became a lawyer.  One might 
interpret this as a joke, but the Executive Officer was serious and we weren’t laughing.” 
 
Affidavit of a Junior Officer on the Xxxx from September 199x to August 199x 
 
 
The applicant submitted an affidavit by Mr. x., a junior officer on the cutter who, 
like the applicant, was separated from the Coast Guard in 1996 after failing of selection 
twice.  Mr. x. stated that he believes he failed of selection because of negative comments 
made in his OERs by the XO, because all of the comments made by other officers in his 
OERs were very positive.  He alleged that the XO’s bitterness about being passed over 
for  promotion  to  captain  caused  him  to  add  “arbitrary  and  capricious  negative  com-
ments” in the OERs of several junior officers.  Those comments, he alleged, caused the 
high rate of failure of selection among the Xxxx’s junior officers.  He also supported the 
applicant’s allegation that the XO did not respect the “aviation community” and that 
the  disputed  comment  in  the  applicant’s  OER  is  an  unprofessional  expression  of  the 
derogatory stereotype of aviators accepted and perpetuated by the XO. 
 
Regarding  the  disputed  comments  in  the  applicant’s  OER,  Mr.  x.  stated  that 
 
“these accusations were never mentioned to [the applicant] outside of this OER.  Lack-
adaisical watchstanding is [not], or never was descriptive of [the applicant’s] perform-

ance.  Lackadaisical watchstanding was not tolerated on the XXXX.”  He alleged that if 
the applicant’s watchstanding had been lax, his qualifications would have been revoked 
or at least counseled about it.  Mr. x. further stated the following: 
 

I remember [the XO] taking a liking to [the applicant] soon after [the XO] reported aboard 
the  XXXX  as  the  new  Executive  Officer.    [The  applicant]  was  a  motivated  and  hard 
charging  officer  who  worked  exceptionally  hard  at  learning  his  collateral  duties  and 
pursuing  his  deck  watch  qualifications,  and  the  XO  admired  him  for  that.    If  the  XO 
wanted something done he routinely assigned it to [the applicant].  I remember the XO 
assigning [the applicant] the task of training Coast Guard Academy Cadets during their 
summer cruise aboard XXXX.  The XO had such confidence in [the applicant’s] underway 
watch-standing  skills  that  he  assigned  [him]  to  help  the  cadets  develop  and  complete 
their bridge watch standing Personal Qualification Standards (PQS) … two years in a row 
… . 

 
Letter of the XO of the Xxxx, Author of the Disputed OER Comments 
 
 
The  Chief  Counsel  of  the  Coast  Guard  submitted with his advisory opinion to 
the Board a copy of a letter from the XO to the applicant dated June 27, 1999.  The XO 
initialed it as a “certified true copy.”  In the letter, the XO stated the following: 
 

[T]he incidents described are now some seven years old.  I recall the [improperly plotted] 
course incident only to the extent I described it in the OER.  I do not recall specifically 
where or when it occurred, but I do remember a trackline laid out on your watch which 
would have taken our ship across shoal water. 
 
I have no specific memory of the second (passing arrangements) incident.  I speculate it 
occurred during a transit of xxxxxxx. … 
 
Finally this:  Even though I now lack specific memory of these incidents, I do not doubt 
their occurrence.  Had my remarks been in error I believe [LCDR x. or LCDR x.] would 
have insisted I rectify the mistake.  I am certain [the captain] would never have allowed 
me to submit, nor would he have signed, an OER containing mistakes of fact. 

 
“Listen to the JOs: Why Retention Is a Problem,” Naval Institute Proceedings (October 
1998) 
 
 
The applicant submitted this article by a retired rear admiral of the U.S. Naval 
Reserve and two xxxxs on active duty in the Navy about their study of why the Navy 
was having trouble retaining its junior officers, especially pilots.  They concluded that 
the retention problem was caused by loss of job satisfaction, unending inspections and 
“administrivia,” micromanagement and the “zero-defect mentality” of superior officers, 
erosion of pay and benefits, and budget cuts. 
 
“The Remedy for Career Fear,” The Bulletin (October 1999) 
 

 
The  applicant  submitted  this  speech  by  the  Commandant,  which  he  defined 
“career fear” as “the alleged reluctance on the part of career-minded military personnel 
to take necessary and prudent risks” because of “the service’s purported intolerance for 
mistakes.”  He cited an example of a recent risk taken by a petty officer (beaching a boat 
to get a rescued swimmer to medical personnel faster) and an apparent mistake (use of 
force on Cuban immigrants that was caught on videotape and denounced in the media) 
to support his contention that risk-taking and mistakes are tolerated by the Coast Guard 
and that “career fear” is not a significant force. 
 
 
Accompanying the Commandant’s speech was a commentary by a retired com-
mander who stated that the Commandant missed the point of “career fear.”  He charac-
terized “career fear” as “that which frightens many or most junior personnel, i.e. any 
action  that  they  take  in  the  course  of  normal  business  (not  emergencies)  may  reflect 
adversely on their record if it has the slightest trace of something new and better than 
routine.” 
 
Junior Officer Needs Assessment Final Report, August 20, 1999 
 
 
The  applicant  submitted  a  copy  of  this  report  from  the  Commandant,  which 
identified and studied the causes of “gaps” between the knowledge, skills, and attitudes 
that the Coast Guard desires in its junior officers and its junior officers’ actual knowl-
edge, skills, and attitudes.  It found that most gaps were attitudinal and that the gaps 
increased  between the junior officers’ first year and second year on active duty.  The 
identified causes of many of the gaps included senior officers’ lack of approachability; 
lack  of  feedback  and  mid-period  counseling;  uncommunicated  or  unrealistic  expecta-
tions; and “zero defect requirements for success on the OER and in the promotion sys-
tem.”  One of the many solutions recommended by the JONA report was to train super-
visors to provide better counseling and feedback to junior officers.  Another was to cre-
ate a mandatory feedback mechanism to replace OSFs through which supervisors and 
XOs could counsel junior officers on their total performance 
 
 
The  report  recommended  tackling  the  “zero  defect”  problem  by  eliminating 
ensign  OERs  from  consideration  by  xxxx  selection  boards.    It  recognized  that  this 
solution might cause officers who attend graduate school or extended training to have 
too  few  OERs  in  their  records  before  being  considered  by  xxxx  selection  boards.  
However, it concluded that the problem would not be significant because such candi-
dates  would  have  at  least  two  first-tour  xxxx  OERs  in  their  records,  as  well  as  their 
school grades. 
 

VIEWS OF THE COAST GUARD 

 
Advisory Opinion of the Chief Counsel of the Coast Guard  
 

 
On  June  16,  2000,  the Board received the Chief Counsel’s advisory opinion for 
this  case.    He  recommended  denial  of  the  applicant’s  request  for  lack  of  merit.    He 
alleged that the applicant received a “fair and objective OER from his rating chain” and 
that the choice of font size for the OER’s written comments was a “minor procedural 
error” and “entirely harmless.”  The Chief Counsel argued that the following standards 
should apply: 
 

To establish that an OER is erroneous or unjust, the applicant must show a misstatement 
of a significant hard fact or a clear violation of a statute or regulation.  Germano v. United 
States, 26 Cl. Ct. 1446, 1460 (1992); CGBCMR Docket No. 86-96.  In determining whether 
the applicant has met this burden, Applicant’s rating officials are strongly presumed to 
have  acted  correctly,  lawfully,  and  in  good  faith  in  executing  their  duties.    Arens  v. 
United States, 969 F.2d 1034, 1037 (1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. 
Cl. 1979).  An applicant may only rebut this presumption by clear, cogent, and convincing 
evidence to the contrary.  Muse v. United States, 21 Cl. Ct. 592, 602 (1990).  Moreover, to 
be entitled to relief, Applicant must not only prove error or injustice, but also must make 
at  least  a  prima  facie  showing  of  harm  to  his  record  as  a  result  of  that  error.    See,  e.g., 
Engels v. United States, 230 Ct. Cl. 464, 470 (1982).  Absent a showing that error or injus-
tice affected the challenged record, it is inappropriate for the Board to change the evalua-
tions  of  those  responsible  for  evaluating  the  Reported-on  Officer  under  Coast  Guard 
regulations.  See, e.g., Opinion of the Deputy General Counsel in CGBCMR Docket No. 
84-96, citing Grieg v. United States, 226 Ct. Cl. 258 (1981). 

 
 
The Chief Counsel argued that the affidavits of the applicant’s supervisors on the 
Xxxx and the letter by the XO enclosed with the advisory opinion prove that the dis-
puted  OER  “represents  the  honest  professional  judgement  of  those  responsible  for 
evaluating Applicant.”  He alleged that the statements by the navigator and Mr. x. “con-
sist mainly of conjecture and do not serve to rebut the presumption of regularity.”  
 
The Chief Counsel argued that the Board should defer to the professional judg-
 
ment of the officers on the applicant’s rating chain because the “process of evaluating 
officer is inherently subjective.”  He stated that deference is required in this case in light 
of the Deputy General Counsel’s statement in BCMR Docket No. 84-96 that “[c]onsistent 
with legal precedent, absent legal error I am reluctant to second guess expressions of 
opinion in OER’s by supervisors who are not only entitled to a presumption of correct-
ness, but are much closer to the facts than I am.”  Therefore, the Chief Counsel alleged, 
the applicant is not entitled to relief because he “has not proved error or injustice.” 
 
 
 
The Chief Counsel alleged that the applicant has not proved that the XO added 
false  comments  because  of  any  prejudice  against  aviators.    He  alleged  that  the  XO’s 
comments in OER1 and OER2 show that he knew of the applicant’s desire to be an avia-
tor prior to OER3 and yet are not negative.  
 
 
The Chief Counsel further argued that, even assuming the applicant’s allegations 
about a lack of formal counseling are true, “such action was not required under Coast 

 

Guard regulations. …  Article 10.A.1.c.(9) [of the Personnel Manual] gives rating chain 
officials a range of counseling options.”  
 
The  Chief  Counsel  also  argued  that  the  applicant’s  performance  prior  to  and 
 
after the evaluation period in question is of “no legal moment.”  Grieg v. United States, 
640 F.2d 1261, 1269 (Ct. Cl. 1981).  He alleged that the Board “may draw no inference 
from his performance of duties in different assignment during different time periods.” 
 
 
The Chief Counsel also pointed out that the applicant failed to file a reply to the 
OER as was his right under Article 10.A.4.g. of the Personnel Manual.  He argued that 
the  applicant’s  failure  to  file  an  OER  reply  “may  be  considered  as  evidence  that  he 
accepted the rating official’s characterization of the performance described in the dis-
puted OER.” 
 
 
Regarding  the  effect  of  the  disputed  comments  on  the  applicant’s  failures  of 
selection, the Chief Counsel conceded that if the BCMR were to remove them because of 
some  perceived  error  or  injustice,  the  applicant’s  failures  of  selection  should  also  be 
removed because “it is reasonable to conclude a nexus exists between the disputed OER 
and Applicant’s non-selection.”  However, he argued that this nexus argument is irrele-
vant because the applicant has failed to prove the comments in the OER are erroneous 
or unjust. 
 

Finally,  the  Chief  Counsel  argued  that  the  use  of  the  small  type  font  for  com-
ments in the disputed OER is “harmless error.”  He alleged that it caused the comments 
“to occupy only 14% less space than conforming typeface.”  He stated that no regulation 
requires  spaces  for  comments  on  OERs  to  be  filled  and  that  the  applicant’s  first  two 
OERs for service on the Xxxx have similar blank spaces.  He argued that “[t]he harm in 
the  OER,  if  it  exists,  flows  from  the  content  of  the  comments  and  not  the  size  of  the 
typeface  of  those  comments.”    Furthermore,  he  argued,  the  applicant  has  not proved 
that the nonconforming font size could have caused his failures of selection for promo-
tion to xxxx. 
 
Memorandum of the Coast Guard Personnel Command 
 
 
The Chief Counsel attached to his advisory opinion a memorandum on the case 
prepared  by  the  Coast  Guard  Personnel  Command  (CGPC).    CGPC  alleged  that  the 
XO’s description of the applicant’s performance as “lax” can be “interpreted as a loss of 
confidence in Applicant’s abilities and potential based on the events described, a loss of 
confidence he consciously chose to include in the evaluation.”  CGPC characterized the 
applicant’s attribution of the disputed comments to the XO’s alleged bitterness and bias 
against aviators as unproven conjecture.   
 

CGPC  argued  that  the  opinions  in  the  affidavits  submitted  by  the  applicant’s 
supervisors that differ from those expressed in the disputed comments do not make the 
comments wrong.  CGPC further argued that the marks assigned by the XO were not 
inconsistent with those assigned by the supervisor. 
 
 
CGPC stated that the fact that the XO did not inform the navigator or other jun-
ior  officers  of  the  applicant’s  errors  does  not  mean  they  did  not  happen  or  that  they 
were not significant enough to be mentioned in an OER.  CGPC alleged that the captain 
would not have signed the OER as reviewer if the incidents had not occurred.  CGPC 
argued  that  because  the  navigator  and  other  officers  apparently  did  not  witness  the 
incidents, “they have no basis for discussing the appropriateness of the [XO’s] choosing 
to mention them [in the OER].” 
 
CGPC  further  stated  that when the applicant was considered for promotion in 
 
1994  and  1995,  the  Coast  Guard  was  “in  the  midst  of  a  massive  downsizing  called 
‘streamlining’.”  Only xx percent of xxxxs were selected for promotion to xxxx in 1994 
and 1995.  CGPC attributed the applicant’s failure to the disputed comments in OER3 
and  to  the  “relatively  few  OERs  in  his  record  with  comprehensive  performance 
information” due to his attendance at flight training.  
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On June 16, 2000, the Chairman sent a copy of the views of the Coast Guard to 
the  applicant  and invited him to respond.  The applicant requested an extension and 
submitted his response on July 15, 2000. 
 
 
The applicant argued that he has presented sufficient evidence to prove by a pre-
ponderance  of  the  evidence  that  he  suffered  a  manifest  injustice  in  his  final  OER  for 
service on the Xxxx.  The applicant stated that the XO should have counseled him about 
any performance poor enough to be mentioned in his OER so that he could improve.  
He stated that if, as CGPC alleged, the XO lost confidence in him over the course of the 
reporting period, there was plenty of time in those ten months for him to be counseled 
and given a chance to improve.  He argued that the affidavits he submitted prove by a 
preponderance  of  the  evidence  that  he  was  never  properly  counseled.    “Withholding 
performance counseling and denying an officer the opportunity to improve violates the 
letter  and  spirit  of  the  Coast  Guard’s  Officer  Evaluation  System  and  is  manifestly 
unjust.”  He argued that it was unjust for the XO to keep his opinions to himself and 
then “include damaging, career-ending comments on my departing OER.”   
 

The applicant submitted a copy of the Junior Officer Needs Assessment (JONA) 
report,  which  he  alleged  “basically  concludes  that  lack  of  appropriate  performance 
counseling or feedback was the key factor” in the decline in the average performance of 
junior officers during the second year of their first tours of duty.  He alleged that the 

JONA report identified such a high degree of failure to provide counseling that, given 
the affidavits he submitted, “it is reasonable to conclude that [he] was also a victim of 
this  problem.”    He  further  argued  that  the  JONA  report  negates  any  presumption  of 
regularity the Coast Guard should be granted with respect to proper counseling. 

 
The applicant argued that he has proved by a preponderance of the evidence that 
neither his supervisors, the navigator, nor his fellow junior officers were aware of any 
decline in his watchstanding performance.  He alleged that if the incidents described in 
the disputed comments actually occurred and were significant enough to be mentioned 
in his OER, at least one of officers whose affidavits he submitted would have remem-
bered. 
 
The applicant further argued that his rating chain should not be afforded a pre-
sumption of regularity by the Board under Arens v. United States, 969 F.2d 1034 (1992).  
He argued that the extremely high rate of failure of selection among junior officers on 
the Xxxx, particularly those for whom the XO acted as reporting officer, casts significant 
doubt about whether the Xxxx’s officers acted “correctly, lawfully, and in good faith” in 
evaluating the junior officers.  Id. at 1037. 
 
 
The  applicant  argued  that  his  failure  to  file  an  OER  reply  should  not  be  held 
against  him.    He  attributed  this  failure  and  his  failure  to  question  the  disputed  com-
ments at the time to the recommendation of the supervisor that he not complain since 
the XO might retaliate with worse marks and comments. 
 
 
The  applicant  denied  the  Coast  Guard’s  claim  that  the small type font used to 
complete the comments in the disputed OER constituted “harmless error.”  He alleged 
that the extra blank space reveals the XO’s indifference to his career and that the “pre-
sence of any white space within an OER is a ‘red flag,’ sending a signal to the promo-
tion boards that subject officer didn’t accomplish enough to justify using up all of the 
allotted space.”  He alleged that a comparison of the disputed OER with those of the 
other  candidates  for  promotion,  most  of  whose  OERs  must  have  complied  with  the 
regulations, would show how prejudicial blank space is.  He submitted a copy of the ten 
pages  of  draft  comments  he  submitted  to  his  rating  chain  in  preparation  for  the  dis-
puted OER to prove that he provided them with plenty of material that could have been 
used to fill the blank spaces.  The applicant argued that the error of the type font, by 
itself, was sufficiently prejudicial to justify the Board’s removing his failures of selec-
tion. 
 

Preparing an OER 
 

RELEVANT REGULATIONS 

 

 
Article 10-A-1.b.(1) of the Personnel Manual (COMDTINST M1000.6A) provides 
that “[e]ach commanding officer must ensure that accurate, fair, and objective evalua-
tions  are  provided  to  all  officers  under  their  command.”    Article  10.A.2.g.  states  that 
officers are disqualified from serving on a rating chain if they have been relieved for 
cause due to misconduct or unsatisfactory performance, if they are an interested party 
to an investigation, or in “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.” 
 

Article  10-A-2.e.(2)(a)  states that a reporting officer “[b]ases his/her evaluation 
on  direct  observation,  the  OSF  or  other  information  provided  by  the  supervisor,  and 
other reliable reports and records.”   
 
 
Section 10-A-4d.(7) states the following: 
 

Article 10-A-4 describes how members of a rating chain should prepare an OER.  

(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 stan-
dards  and  compare  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 Report-
ing 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 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 reasonably with the picture defined 
by the standards marked on the performance dimensions in the evaluation area. . . . 

 

 

Each OER is reviewed, usually by the Reporting Officer’s supervisor, to ensure 
that it “reflects a reasonably consistent picture of the Reported-on Officer’s performance 
and potential” and that “the Supervisor and the Reporting Officer have adequately exe-
cuted their responsibilities.”  Article 10-A-2.f.(2). 

 
Article  10-A-4.a.(3)  requires  OER  comments  to  be  typed  in  a  font  size  “not  … 

smaller than 15 pitch with not more than 6 lines per inch.” 

Replies to OERs 
 
 
Article 10-A-4h. 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.” 
 
Performance Counseling 

 
Article 10-A-5 states that use of Officer Support Forms (OSFs) is mandatory for 
supervisors of all xxxx and xxxxs.  Article 10-A-2(d)(2) provides that supervisors shall 
use the OSFs to counsel and evaluate the reported-on officers.  Reporting officers may 
require supervisors to use OSFs to counsel reported-on officers.  Article 10-A-5. 
 
 
Article 10-A-1.b.(2) provides that each reported-on officer “is ultimately respon-
sible  for  finding  out  what  is  expected  on  the  job,  for  obtaining  sufficient  feedback  or 
counseling, and for using that information in adjusting as necessary to meet or exceed 
standards.”  Article 10-A-2.c.(2)(c) states that it is the responsibility of the reported-on 
officer to “[a]s necessary, seek[] performance feedback from the Supervisor during the 
period.” 
 

Article  10-A-2.d.(2)(e)  states  that  one  of  the  supervisor’s  responsibilities  is  to 
“[p]rovide[]  performance  feedback  to  the  Reported-on  Officer  upon  that  officer’s 
request during the period or at such other times as the Supervisor deems appropriate.” 
 

During an evaluation period, the reporting officer is supposed to provide “per-
formance feedback to the Reported-on Officer as appropriate.”  Article 10-A-2.e.(2)(h).  
 

FINDINGS AND CONCLUSIONS 

1. 

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  the  comments  about  his  watchstanding  and 
course setting in the disputed OER are either false or greatly exaggerated.  He submit-
ted affidavits from the cutter’s navigator, two operations officers, and a fellow junior 
officer indicating that they cannot remember any such incidents and that they would 
have learned of and would remember such incidents if they had occurred.  The Chief 
Counsel  submitted  a  copy  of  a  letter  from  the  XO,  who  asserted  that,  although  he 

2. 

3. 

“lack[s]  specific  memory  of  these  incidents,  [he  does]  not  doubt  their  occurrence” 
because  the  other  members  of  the  rating  chain  would  not  have  allowed  him  to  enter 
false  information  in  the  OER.    Therefore,  in  deciding  whether  the  applicant’s  watch-
standing  errors  occurred  as  described  in  the  OER,  the  Board  must  weigh  the  recent 
statements of the navigator, operations officers, and junior officer against the XO’s past 
and present assertions that the incidents did occur as described and the rating chain’s 
acquiescence  in  his inclusion of the disputed comments in the OER when it was pre-
pared. 
 

In his affidavit, the navigator who served on the Xxxx from the time the 
applicant arrived until June 199x persuasively argued that if the course setting incident 
described in the OER had occurred, he would have been informed.  The first operations 
officer,  who  served  on  the  Xxxx  for  the  same  period,  praised  the  applicant’s 
watchstanding  and  stated  that  he  cannot  recall  the  applicant  ever  having  been 
counseled  about  lax  watchstanding.    The  second  operations  officer,  who  served  from 
June 199x until after the applicant left the cutter, stated that he could not remember any 
lax  watchstanding  or  erroneous  course  setting  or  passing  arrangements  made  by  the 
applicant.  The junior officer, Mr. x., stated that he could not remember any lax watch-
standing  by  the  applicant  and  that  “[t]he  XO  had  such  confidence  in  [his]  underway 
watch-standing skills that he assigned [him] to help the cadets develop and complete 
their bridge watch standing Personal Qualification Standards (PQS) … two years in a 
row … .”  Taken together, these statements constitute significant evidence that the dis-
puted comments are either false or greatly exaggerated. 

On the other hand, the XO indicated that he has some memory of an erro-
neous course setting and is certain the incidents occurred because otherwise the com-
ments  would  not be in the OER.  However, the junior officer stated that the XO was 
biased against the applicant after he accepted orders to flight school.  This allegation of 
bias is strongly supported by the XO’s clearly sarcastic and derogatory reference to a 
“typically  productive  member  of  the  aviation  community.”    This  comment  not  only 
reveals the XO’s negative assessment of the aviation community, but also shows that his 
disapproval of the applicant was closely tied to his being about to join that community. 

 
4. 

 
5. 

 

The supervisor and reviewer for the OER apparently did not challenge the 
XO’s disputed comments.  However, the supervisor was the second operations officer, 
who had only been on board for two months of the reporting period when the OER was 
prepared and could not have known what occurred or did not occur throughout most 
of the reporting period.  The reviewer, the captain of the Xxxx, may well have relied on 
the XO’s assertions regarding the applicant’s performance.  Therefore, the Board is not 
persuaded  that  the  applicant’s  rating  chain’s  acquiescence  in  the  disputed  comments 
outweighs the evidence in the affidavits that the comments are false or exaggerated. 

6. 

The  Chief  Counsel  of  the  Coast  Guard argued that if the disputed com-
ments were false, the applicant should have filed a reply in accordance with Article 10-
A-4.h. of the Personnel Manual.  The applicant alleged that when he asked his super-
visor about the comments, he was advised not to protest because the XO might retaliate 
by adding worse comments.  (When an officer files a reply, rating chain members are 
allowed to respond, and their responses are included in the officer’s personnel file with 
the OER and the reply.)  In addition, the applicant stated, he thought that the comments 
would not harm his career because the Coast Guard was about to spend a lot of money 
training him as an aviator.  Thus, he declined to file a reply.  If the applicant had filed a 
reply,  the  truth  of  the  disputed  comments  might  have  been  investigated  and  either 
verified or denied by the other members of his rating chain.  Although the applicant’s 
failure to file a reply has made determining the truth of the matter more difficult, the 
Board finds that he did not waive his right to an accurate OER when he failed to file a 
reply.    See  BCMR  Docket  No.  64-88(R),  Decision  on  Application  for  Reconsideration.  
An  officer’s  failure  to  file  a  reply  is  not  an  admission  of  the  accuracy  of  the  OER.  
Moreover, the Board finds that the applicant’s reasons for not filing a reply to the OER 
are credible.  The lack of a reply does not persuade the Board that, when he received the 
OER, he accepted the comments as true. 

The officers’ affidavits also prove by a preponderance of the evidence that 
the applicant was not properly counseled concerning the alleged watchstanding errors.  
His supervisors apparently did not use OSFs to counsel him concerning his perform-
ance, as required by Article 10-A-5.  In the Board’s experience, officers are counseled if 
their  ongoing performance is so poor that such damaging comments could appear in 
their OERs, so that they have a chance to improve.  If the XO had such concerns about 
the  applicant’s  watchstanding  during  the  10-month  evaluation  period,  the  applicant 
was entitled to know of it, under Article 10-A-2.e.(2)(h) of the Personnel Manual. 

 
7. 

 
8. 

The  applicant  has  proved  by  a  preponderance  of  the  evidence  that  the 
disputed  comments  are  either  erroneous  or  unfairly  exaggerated  as  indicators  of  his 
performance.  He asked the Board to remove some of the comments and edit one by 
replacing  the  words  “a  typically  productive”  with  “an  outstanding.”    However,  the 
applicant  has  not  proved  by  a  preponderance  of  the  evidence  that  the  substitution 
would make the OER accurate.  Moreover, there is no reason to remove the XO’s com-
ment that “I am sure he will succeed in flight school.”  
 
 
The  applicant alleged that the fact that many junior officers who served 
beside  him  on  the  Xxxx  have  been  passed  over  for  promotion  and  forced  to  retire 
proves that his evaluation was inaccurate.  Although the alleged pass over rate for the 
Xxxx’s junior officers is very high, it is not necessarily probative of the accuracy of the 
applicant’s own OER.   
 

9. 

10. 

11. 

 
The  applicant  submitted  several  publications  alleging  certain  systemic 
problems suffered by junior officers in the Coast Guard, including “career fear,” “zero-
defect mentality,” and lack of performance feedback.  He did not prove by a prepon-
derance  of  the  evidence  that  such  problems  caused  the  XO  to  write  the  disputed 
comments in the OER.   
 

The applicant alleged that the disputed OER was typed in font size small-
er than that prescribed by regulation and that this error in itself could have caused him 
to fail of selection because of the resulting increase in blank space.  Article 10-A-4.a.(3) 
of  the  Personnel  Manual  required  OER  comments  to  be  typed  in  a  font  size  “not  … 
smaller than 15 pitch with not more than 6 lines per inch.”  The type in the disputed 
OER is 15 pitch, but the lines are very close together, so that there are 7.5 lines per inch 
of text.  Therefore, the Coast Guard erred by typing the lines of text of the comments in 
the disputed OER too closely together.  However, it is not blank space per se that can 
reflect  badly  on  an  officer’s  performance  but  the  quantity  of  comments.    The  Board 
finds  that  the  quantity  of  comments  included  in the disputed OER is not abnormally 
small.    Moreover,  the  overall  visual  impression  created  is  not  one  of  too  little  com-
mentary but of many comments typed very compactly.  Therefore, the Board finds that 
the increased blank space created by the Coast Guard’s error did not make his record 
appear worse than it would have if the line spacing had been in accordance with regula-
tion.  The line-spacing error was harmless.  

 
12. 

 
13. 

To  determine  whether  the  applicant’s  failures  of  selection  should  be 
removed because he has proved by a preponderance of the evidence that his XO wrote 
erroneous  or  exaggerated  negative  comments  in  the  disputed  OER,  the  Board  must 
answer two questions:  “First, was [the applicant’s] record prejudiced by the errors in 
the sense that the record appears worse than it would in the absence of the errors?  Sec-
ond,  even  if  there  was  some  such  prejudice,  is  it  unlikely  that  [the  applicant]  would 
have  been  promoted  in  any  event?”  Engels  v.  United  States,  678  F.2d  173,  176  (Ct. Cl. 
1982).    The  Board  finds  that  the  disputed  comments  do  make  the  applicant’s  record 
appear worse than it would without them.  The disputed comments in the OER weigh 
especially  heavily  since  he  had  so  few  substantive  OERs  in  his  record  when  it  was 
reviewed  by  the  selection  boards.    In  addition,  the  Board  finds  that  without  the  dis-
puted comments in the OER, it would not have been unlikely for the applicant to have 
been selected for promotion.  Therefore, the Board finds that, absent the disputed com-
ments, the applicant might well have been promoted. 

The applicant asked the Board to reinstate him in the regular Coast Guard 
and  to  promote  him  directly  to  xxxx,  with  the  date  he  re-entered  the  Service,  July  9, 
199x, as his date of rank.  He also asked for back pay and allowances.  However, he has 
not  proved  that,  if  the  disputed  comments  had  not  been  in  the  OER,  he  would 
necessarily have been promoted to xxxx.  Under such circumstances, the Board does not 

directly promote officers but corrects their records so that they can be fairly considered 
for promotion by a duly constituted selection board of Coast Guard officers. 
 
14.  Accordingly,  relief  should  granted  by  removing  the  disputed  comments 
 
from the OER except for the phrase “I am sure he will succeed in flight school” and by 
making  that phrase a complete sentence by ending it with a period.  In addition, the 
applicant’s failures of selection to the rank of xxxx should be removed, and he should 
be reinstated in the regular Coast Guard as a xxxx.  Furthermore, if he is selected for 
promotion  to  xxxx  by  the  first  xxxx  selection  board  to  review  his  record  after  the 
corrections are made to the OER, or if he is selected for promotion to xxxx prior to the 
correction of his record required by this order, his date of rank as xxxx should be back 
dated to July 9, 199x. 

 
 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 

ORDER 

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

hereby granted as follows: 
 
 
The  OER  for  the  reporting  period  October  1,  199x,  to  August  6,  199x,  shall  be 
corrected  by,  in  block  8,  removing  the  entire  second  sentence  from  “However”  to 
“waters”; in block 9.f., removing the phrase “(somewhat offset by his mediocre watch-
standing)”; and in block 11, by placing a period after “flight school” to end the sentence 
and removing the remainder of the comment from “and become” to “peers.” 
 
 
1994 and 1995 selection boards. 
 

His record shall be corrected by removing his failures of selection to xxxx by the 

The Coast Guard shall pay the applicant any back pay or allowances he may be 

His record shall further be corrected to show that he was recommissioned as a 
xxxx in the regular Coast Guard on July 9, 199x.  His date of rank as a xxxx shall be July 
9,  199x.    If  he  is  selected  for  promotion  to  xxxx  by  the  first  xxxx  selection  board  to 
review  his  record  after  the  corrections  are  made  to  the  OER,  or  if  he  is  selected  for 
promotion to xxxx prior to the correction of his record required by this order, his date 
of rank as xxxx shall be back dated to July 9, 199x.   
 
 
due as a result of this correction. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
Thomas A. Phemister 

 
Michael K. Nolan 

        

 
George J. Jordan