DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                 BCMR Docket No. 2000-128 
 
 
  

DECISION OF THE DEPUTY GENERAL COUNSEL 

ACTING UNDER DELEGATED AUTHORITY 

__X___  I approve the recommended Order of the Board. 

______   I disapprove the recommended Order of the Board.  

______  I concur in the relief recommended by the Board. 

 

 
 
 
 

 

 
 
 
 

 

 
 
 
 

 

 

 
 
 
 

 
 
 
 
 
 

 

     

Rosalind A. Knapp 
Deputy General Counsel 
  as designated to act for the 
  Secretary of Transportation 

 

 

 

 
 

       
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Date:  
 
 
 
 
 

DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                 BCMR Docket No. 2000-128 
 
 
  

 

 
 

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  on  May  9,  2000,  upon  the 
BCMR’s receipt of the applicant’s completed application. 
 
 
members who were designated to serve as the Board in this case. 

This  final  decision,  dated  May  31,  2001,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST FOR RELIEF 

 

 
 
The  applicant,  a  xxxxxxxxxxx  in  the  Coast  Guard  Reserve,  asked  the  Board  to 
correct  his  military  record  by  raising  six  performance  marks  in  the  officer  evaluation 
report (OER) he received for the period April 1 through May 31, 1998, and by removing 
his 1999 and 2000 failures of selection for promotion to xxxxx.  He further asked that, if 
he is selected for promotion by the first xxxxxxx selection board to review his record as 
corrected, the Board backdate his date of rank to what it would have been had he been 
selected for promotion by the first such board that reviewed his record, and award him 
the back pay and allowances he would then be due. 
 

APPLICANT'S ALLEGATIONS 

 
 
The  applicant  alleged  that  in  the  spring  of  1999,  his  command  originally  pre-
pared an OER for the entire year from April 1, 1998, through March 31, 1999.  However, 
this  OER  was  returned  to  his  command  by  the  Coast  Guard  Personnel  Command 
(CGPC) for revision on June 21, 1999, because it covered his job performance both while 
serving in the Reserve for two months from April 1, 1998, through May 31, 1998, and 
while serving on active duty for ten months from June 1, 1998, through March 31, 1999.  

CGPC stated that his performance while in the Reserve and while on active duty must 
be evaluated on two separate OERs.  He alleged that in the rush to prepare two new 
OERs  before  the  xxxx  selection  board  met  on  August  2,  1999,  the  OER  for  the  two-
month  period  he  was  still  in  the  Reserve  was  prepared  hurriedly.    As  a  result,  he 
alleged, he received six marks that were lower than his performance merited. 

APPLICATION TO THE PRRB 

 
 
On March 1, 2000, the applicant applied to the Personnel Records Review Board 
(PRRB) for correction of the two-month OER.  In his application, he alleged that because 
he was scheduled to be considered for promotion by a xxxxx selection board that con-
vened  on  August  2,  1999,  his  rating  chain  had  to  prepare  the  two replacement OERs 
very  quickly  because  the  deadline  for  entering  documents  into  personal  data  records 
(PDRs) being reviewed by the selection board was July 2, 1999. As a result of this hur-
ried preparation, he alleged, the marks assigned for the two-month replacement OER 
covering his performance in the Reserve were lower than they should have been.  He 
alleged that the narrative description of his performance in the OER “fully supported 
higher marks in six categories.”  
 

Along with his application, the applicant submitted statements signed by each of 
the three members of his rating chain endorsing his request.  His supervisor stated that 
he “fully concur[red]” with the applicant’s request for the reasons given in the applica-
tion.  His reporting officer “strongly concur[red]” in the applicant’s request, stating that 
“[d]ue to the fast turn around time needed to complete these two OERs, I agree that the 
subject OER was not looked at as closely as it would have been under normal circum-
stances.  A further review shows that the new marks are justified.”  The reviewer of the 
OER  wrote  that  he  “highly  support[ed]”  the  applicant’s  request,  stating  that  he  had 
“exhibited  outstanding  performance  both  on  Reserve  and  Active  Duty.    I  fully  agree 
that  the  attached  OER  should  replace  the  existing  one  in  [the  applicant’s]  permanent 
record.”  Each of the members of the applicant’s rating chain also signed a proposed 
substitute OER.  However, the PRRB dismissed his case due to untimeliness.1 
 

SUMMARY OF THE APPLICANT’S RECORD 

 
 
In 197x, the applicant was appointed an ensign in the Reserve after graduating 
from the xxxxxx Merchant Marine Academy and began serving on extended active duty 
as a marine inspector and investigator.  He was released into the Selected Reserve after 
four  years  of  active  duty  on  xxxxxxxx,  198x.    For  the  next  17  years,  he  served  in  the 
Selected  Reserve  by  drilling  and  occasionally  performing  short-term  active  duty  for 

                                                 
1 Paragraph 8 of COMDTINST 1070.10C states that “PRRB applications must be received at Coast Guard 
Headquarters within 1 year of the date on which the contested information was entered or should have 
been entered into the official record.”  The applicant applied to the PRRB within one year of when the 
disputed OER was entered in his record, but the PRRB may have decided that the disputed OER covering 
April 1 through May 31, 1998, “should have been entered into [his] official record” in 1998.   

special  work  (ADSW)  assignments  of  several  days’  duration.    He  was  regularly  pro-
moted  and  attained  the  rank  of  xxxxxxxxx  on  July  1,  199x.    He  has  received  several 
commendations and medals for his service.   
 

In  the  mid  1990s,  the  applicant  served  as  a  Reserve  deputy  and  group  com-
mander.  The two OERs for this service are summarized in the table below as Reserve 
OER 1 and OER 2.  From July 1, 1995, to April 30, 1996, he served as a Reserve port 
safety officer and senior investigation officer at xxxxxx.  OER 3 in the table shows his 
marks for this period.  
 
 
From  May  1,  1996,  through  May  31,  1998,  the  applicant  served  as  the  Reserve 
Chief of the xxxxxxxxxxxx, augmenting the xxxxxxxxxxxxxx branches of the division.  
OER  4  in  the  table  below  is  a  regular  biennial  OER  covering  his  performance  in  this 
position  from  May  1,  1996,  through  March  31,  1998.    The  disputed  OER  covers  his 
performance for his last two months at this Reserve position, from April 1 through May 
31,  1998.    According  to  the  Reserve  rating  chain  published  by  xxxxxxxxx,  his  rating 
chain during these two months was the same as the rating chain for OER 4.  During this 
period, he supervised marine investigators and planned and oversaw, as acting chief of 
the division for two weeks, the Coast Guard’s participation in a xxxxxxxxxx, with two 
xxxxxxxx.   
 
 
On June 1, 1998, the applicant began serving on an extended active duty contract 
as Chief of the xxxxxxxxxx.  On March 10, 1999, he submitted an OER form to his rating 
chain for the period April 1, 1998, through March 31, 1999, which included the last two 
months  of  his  work  in  the  Selected  Reserve  and  the  first  ten  months  of  his  extended 
active duty.  The numerical marks assigned in this OER appear in the table below under 
the  heading  “Rejected  12-month  OER  Res.  &  AD.”    The  OER  was  signed  by  his 
supervisor  on  April  18,  1999,  by  his  reporting  officer  on  May  4,  1999,  and  by  his 
reviewer on May 5, 1999.  This rating chain was his active duty rating chain, but two of 
the officers had also served on his Reserve rating chain:  the supervisor was the same 
person who served as his supervisor for the biennial OER 4, and the reporting officer 
had served as the reviewer for OER 4.  On June 21, 1999, this OER was returned to his 
command by CGPC because it covered periods of both Reserve and active duty. 
 
 
On July 7, 1999, the applicant’s rating chain signed and submitted two new OERs 
to  replace  the  one  CGPC  had  rejected:    one  for  his  two  months  of  Reserve  duty  and 
ADSW in April and May 1998 and one for his ten months of active duty from June 1, 
1998,  through  March  31,  1999.    The  rating  chain  for  both  replacement  OERs  was  the 
applicant’s active duty rating chain.  The senior Reserve officer who had served as the 
reporting  officer  on  the  applicant’s  Reserve  rating  chain  had  been  transferred  from 
xxxxxxxx on July 1, 1998.   
 

The  numerical  marks  in  the  new  OER  covering  the  applicant’s  ten  months  of 
active duty (shown in the last column in the table below) were identical to the numeri-
cal marks in the OER returned by CGPC.  In addition, the great majority of the com-
ments  were  identical;  the  only  difference  was  that  a  few  phrases  regarding  his  prior 
Reserve duties were replaced with more comments on his active duty performance.  
 

The  new  OER  for  the  applicant’s  Reserve  duty  and  ADSW  in  April  and  May 
1998, which is in dispute, was significantly revised from the original since it could not 
cover any of his performance while on active duty.  The numerical marks assigned for 
this  new  OER  appear  in  the  table  below  under  the  heading  “Disputed  2-month  OER 
Res.”  Thirteen of the applicant’s numerical marks were lower than in the original OER 
for the twelve-month period.  In comparison with his biennial evaluation for the period 
ending  March  31,  1998  (OER  4),  two  marks  were  higher  and  five  marks  were  lower.  
The new marks proposed by the applicant and his rating chain are shown in the table 
below under the heading “Proposed 2-month OER Res.”   

The comments in the disputed OER are wholly new and concern only his per-
formance  during  April  and  May  1998.    These  comments,  which  the applicant alleged 
support the proposed higher numerical marks, include the following:  

•  Acting Chief & xxxxxxxxxx. 

 

 

•  Excellent CG Spokesperson xxxxxxxxxxxx. 
 
•  As acting Branch Chief, xxxxxxxxxxxxxx. 
  
•  Fully concur w/ supv’s comments. Demonstrated outstanding xxxxxxxxxxxxx. 
  
•  During Marine Casualty xxxxxxxxxxxxxxx. 
  
•  His  work  ethic,  common  sense  approach  to  issues  &  ability  to  work  with  people  make  him  a 
highly regarded officer in this command.  Highly motivated & hard working officer who is driven to 
excel.  Fully  possesses  the  intelligence  &  drive  necessary  for  a  department head. Has demonstrated 
outstanding leadership potential & knowledge of the marine safety field, making him qualified to fill 
the  xxxxxxxxxxxx.  An  extremely  qualified,  highly  competent  officer  who  always  displays  a 
professional demeanor. Strongly recommended for promotion to O6. 

 

On July 18, 1999, the applicant’s active duty contract ended.  However, he soon 
signed another active duty contract, running from August 9, 1999, to August 9, 2000.  
Because he had been serving on active duty, his record was considered for selection for 
promotion by the active duty selection board that met in August 2000.  With the two 
new OERs in his record, he was not selected for promotion to xxxxx by that board.  

MARKS IN RESERVE & ACTIVE DUTY OERs FROM 7/1/93 THROUGH 3/31/00 
10-month 
OER       AD 

PERFORMANCE 
CATEGORYa 

OER 
Res.
1 

OER 
Res.
2 

OER 
Res.
3 

OER 
Res.
4 

 Rejected 
12-month 
OER     
Res. & AD 

Disputed   
2-month 
OER      
Res. 

Proposed 
2-month 
OER     
Res. 

 

5 
6 
6 
5 
6 
 
5 

5 
4 
6 
6 
5 
5 
5 
4 

5 
6 
5 
6 
4 
 
5 

6 
6 
4 
6 
5 
5 
6 
4 

5 
5 
5 
5 
5 
 
5 

5 
5 
5 
4 
5 
4 
6 
4 

5 
5 
5 
 
 
5 
5 

 
5 
5 
6 
5 
5 
6 
5 

6 
6 
6 
 
 
6 
6 

 
6 
5 
6 
6 
6 
6 
5 

4b 
5 
5 
 
 
5 
5 

 
6 
5 
5 
5 
5 
4 
4 

6 
6 
5 
 
 
5 
6 

 
6 
5 
6 
5 
5 
5 
6 

6 
6 
6 
 
 
6 
6 

 
6 
5 
6 
6 
6 
6 
5 

4 
6 
5 
5 
 
 
6 
4 
 

4 
6 
6 
6 
 
 
6 
5 
 

4 
6 
5 
5 
4 
4 
5 
6 
6 
5.1 
5 

4 
5 
5 
4 
4 
4 
5 
5 
5 
5.0 
4 

4 
5 
5 
5 
4 
4 
5 
5 
5 
4.8 
4 

4 
5 
6 
5 
 
 
6 
4 
 

Being Prepared/Planning 

Using Resources 

Getting Results 
Responsivenessc 
Work-Life Sensitivityc 
Adaptabilityc 
Specialty Expertise/  
Professional Competence 
Collateral Dutyc 
Speaking & Listening 

Writing 

Looking Out for Others 

Developing Subordinates 

Directing Others 

Teamwork 

Human Relations/  
Workplace Climate 
Evaluations 

Initiative 

Judgment 

Respons bility 
Staminac 
Military Bearingc 
Professional Presence 

4 
5 
6 
5 
 
 
6 
4 
 

5.3 
5 

4 
6 
6 
6 
 
 
6 
5 
 

5.7 
5 

Health & Well-Being 
Dealing with the Publicc 
Average Mark in OER 
Comparison Scaled 
a Some categories’ names have changed slightly over the years. Supervisors fill in the marks for the first 16 categories, from “Being 
b Marks disputed and proposed by the applicant and his rating chain appear shaded. 
c Category nonexistent until later years, or category discontinued. 
d The comparison scale is not actually numbered. However, as with the performance categories, there are seven possible marks. 
Officers are supposed to be marked in comparison with all other officers of the same rank known to the reporting officer. 
In  this  row,  “4”  means  the  applicant  was  rated  to  be  an  ”good  performer; give tough, challenging assignments.” A “5” 
means the applicant was rated to be an “excellent performer; give toughest, most challenging leadership assignments.” A 
“6” means that the officer is “strongly recommended for accelerated promotion.”  

Prepared/Planning” to “Evaluations.” Reporting officers complete the remaining blocks. 

4.7 
5 

5.1 
5 

5.7 
5 

VIEWS OF THE COAST GUARD 

 

 
Advisory Opinion of the Chief Counsel of the Coast Guard 
 
 
On December 21, 2000, the Chief Counsel of the Coast Guard submitted an advi-
sory  opinion  in  which  he  recommended  that  the  Board  deny  relief  in  this  case.    The 

Chief  Counsel  argued  that  Board  should  apply  the  following  standards  in  deciding 
whether to grant relief: 
 

To establish that an OER is erroneous or unjust, the applicant must prove that the chal-
lenged  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 officials 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 ([Fed. Cir.] 1992); Sanders 
v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979).  An applicant may only rebut this pre-
sumption  by  clear,  cogent,  and  convincing  evidence  to  the  contrary.    Decision  Deputy 
General Counsel in BCMR Case No. 2000[-037] dated November 20, 2000 citing Muse v. 
United States, 21 Cl. Ct. 592, 602 (1990).  In the absence of compelling circumstances, an 
OER  will  not  be  ordered  expunged  unless  the  Board  finds  that  the  entire  report  is 
infected with the errors or injustices alleged; unless the Board finds that every significant 
comment  in  the  report  is  incorrect  or  unjust;  or unless the Board finds it impossible or 
impractical to sever the incorrect or unjust material from the appropriate material. BCMR 
No. 151-87, cited in BCMR 106-91, et al.  

 
 
The Chief Counsel argued that the applicant did not present sufficient evidence 
to overcome the presumption that his rating chain completed an accurate OER in July 
1999.  He alleged that the applicant’s rating chain had 16 days between receiving notice 
from CGPC on June 21, 1998, and July 7, 1998, to prepare the OER and that the appli-
cant  did  not  prove  that  this  was  insufficient  time  to  prepare  an  accurate  OER.    He 
argued that 16 days was quite sufficient for the applicant’s supervisor to assign accurate 
marks  in  accordance  with  Article  10.A.4.c.4.b.  of  the  Personnel  Manual,  especially  in 
light  of  the  fact  that  the  supervisor  had  already  collected  and  reviewed  information 
about the applicant’s performance when he prepared the first OER, which CGPC had to 
reject.  
 

The Chief Counsel argued that when the applicant stated that the written com-
ments in the disputed OER support higher marks, he was misapplying the regulation 
governing  the  relationship  between  OER  marks  and  comments.    The  Chief  Counsel 
argued that under Article 10.A.4.c.4.7., narrative comments in an OER are intended only 
to support the assigned marks, not the opposite.  Therefore, he alleged, the applicant is 
wrong  to  argue  that  his  numerical  marks  must  be  erroneous  because  the  comments 
added by his rating chain could support higher marks. 

 
The  Chief  Counsel  also  stated  that  “the  rationalizations  offered  by  Applicant’s 
Supervisor and Reporting Officer to explain the alleged error fail to prove error by clear 
and convincing evidence.”  He pointed out that the supervisor had not explained how 
the  error  occurred  other  than  to  concur  with  the  applicant’s  explanations,  which  are 
meritless.    He  described  the  reporting  officer’s  endorsement  as  “inconclusive”  and 
insufficient to constitute the “clear and convincing evidence” required to prove error.  

In addition, the Chief Counsel argued, the endorsements submitted by the applicant’s 
rating chain “are presumptively retrospective as they were made eight months after the 
OER was signed and after Applicant had failed of selection to O-6.”  He alleged that 
“retrospective reconsideration of an OER is not a basis for correction,” citing the Deci-
sion of the Deputy General Counsel in BCMR Docket No. 84-96; Paskert v. United States, 
20 Cl. Ct. 65, 75 (1990); Tanaka v. United States, 210 Ct. Cl. 712 (1976); and BCMR Docket 
Nos. 67-96, 189-94, 24-94, 265-92, and 311-88.  Therefore, the Chief Counsel concluded, 
the  applicant  has  not  presented  clear  and  convincing  evidence  that  the  six  disputed 
numerical marks in his OER for April 1, 1998, through May 31, 1998, are erroneous. 
 
 
The Chief Counsel pointed out that the applicant failed to challenge the disputed 
OER by filing an OER reply in accordance with Article 10.A.4.g. of the Personnel Man-
ual.  This failure, he argued, should be considered as relevant evidence that he accepted 
his rating chain’s evaluation of his performance as shown in the disputed OER. 
 
 
The  Chief  Counsel  stated  that  in  “the  interests  of  administrative  efficiency,”  a 
nexus analysis concerning whether the alleged error could have caused the applicant’s 
failure of selection for promotion to xxxxx would not be submitted unless specifically 
requested by the Board. 
 
Memorandum of the Coast Guard Personnel Command 
 
 
The Chief Counsel attached to his advisory opinion a memorandum on the case 
prepared by the CGPC.  The memorandum provided the following explanation of the 
Chief Counsel’s argument that the applicant was misapplying the regulation in stating 
that the marks should be raised because of the corresponding written comments: 
 

…  Rating  chain  officials  are  instructed  to  read  the  written  descriptors  for  each 
3. 
performance  dimension  on  the  OER,  consider  the  overall  performance  of  the  ROO 
[reported-on officer] for the period, and select the numerical mark that most closely cor-
responds.  They are then required to provide written comments to justify any mark that 
deviates from a four for the purpose of documenting that officer’s performance and char-
acter.  However, raters are not prevented from providing comments for a mark of four.  
In  the  disputed  OER,  many  comments  are  provided  to  document  performance  even 
though  a  mark  of  four  was  assigned.  The comments provided correlate closely to and 
support the numerical marks. 
 
4. 
Neither  sheer  number  of  comments,  nor  singular  comments  that  describe  per-
formance above the standard for the numerical mark assigned, justify a higher numerical 
mark.  The marks assigned reflect the rater’s opinion of the overall level of performance 
for the ROO during the period.  Comments support the mark assigned and elaborate on 
performance. 

 
CGPC further stated that the Officer Evaluation System is structured to ensure 
 
that  the  assigned  marks  are  carefully  considered  by  all  of  the  members  of  the  rating 
chain, who must sign the OER.  CGPC pointed out that the reviewer of the disputed 

OER was also the applicant’s commanding officer and had personal knowledge of his 
performance.    CGPC  also  stated  that  the  marks  in  the  disputed  OER  were  consistent 
with the marks the applicant had previously received as a reservist.  In addition, CGPC 
alleged that it was not surprising that the disputed marks were lower than the marks he 
received in the next, ten-month OER for his active duty because while on active duty, 
the  applicant  “has  the  opportunity  to  perform  his  duties  continuously  and  as  a  fully 
integrated member of the unit.” 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

 

On December 21, 2000, the BCMR sent the applicant a copy of the Coast Guard’s 
views and invited him to respond within 15 days.  On December 29, 2000, the applicant 
asked  for  an  extension  of  the  time  to  respond  until  February  15,  2001,  due  to  his 
involvement in a “xxxxxxxxxxxxxx.” The extension was granted.  

 
On February 14, 2001, the BCMR received the applicant’s response to the Chief 
Counsel’s advisory opinion.  The applicant first alleged that his application to the PRRB 
had been timely because he submitted it within a year of when the disputed OER was 
entered in his record.  Therefore, he argued that his case should have been considered 
by the PRRB.  The remainder of the applicant’s comments indicate that he misunder-
stood the advisory opinion as being the opinion of the BCMR rather than the opinion of 
the Chief Counsel. 

 
The applicant indicated that he first saw the disputed OER the week before the 
xxxxx selection board convened in August 1999.  He alleged that as soon as he saw the 
marks,  he  “verbally  dispute[d]”  them  with  his  supervisor  and  pointed  out  that  they 
were “too low for the quality of [his] performance” and “substantially lower than the 
prior reserve OER, which was in the same chain of command.”  However, his supervi-
sor  told  him  not  to  worry  because  it  was  only  a  Reserve  OER  and  only covered two 
months  of  his  performance,  so  “it  should  not  make  a  difference  to  the  board.”    As  a 
result  of  his  supervisor’s  advice,  the  applicant  alleged,  he  made  the  mistake  of  not 
appealing the OER, although an appeal could not have resulted in a correction of his 
performance marks.  

 
The  applicant  stated  that  since  that  time,  he  himself  has  served  on  a  selection 
board and knows “how important every OER is, reserve or active duty.”  He alleged 
that because of the large number of OERs the members of a selection board review, a 
two-month OER is treated the same and given the same weight as an OER covering a 
full year. 

 
The applicant argued that the endorsements by his rating chain do not constitute 
“retrospective reconsideration” resulting from his failure of selection.  He alleged that 
he began challenging the OER shortly after he first saw it at the end of July 1999.  He 

alleged that he “followed the chain of command” by first speaking with his supervisor 
in  July  1999  and  then  discussing  it  with  his  reporting  officer  in  September  1999.    He 
alleged that after the reporting officer promised to review the OER, he “purposely did 
not  badger  anyone  about  this  issue”  and  waited  patiently  for  his  reporting  officer  to 
complete  his  review.    “Sometime  after  the  new  year,  2000,”  he  alleged,  he  asked  his 
reporting  officer  to  make  a  decision  since  he  knew  he  needed  to  apply  to  the  PRRB 
within a year.  He alleged that his reporting officer then reviewed the OER and told him 
that he thought six marks should be raised.  Thus, he applied to the PRRB to have the 
six marks raised on March 1, 2000, well within a year of when he received the OER. 

 
The applicant also alleged that the disputed OER was signed by the wrong rating 
chain.  He submitted a copy of the Reserve rating chain for xxxxxxxxxx dated May 16, 
1998, which shows that his rating chain while serving in the Reserve until June 1, 1998, 
continued  to  be  the  rating  chain  that  signed  his  previous  OER  for  the  period  ending 
March 31, 1998.  Moreover, he argued, his new rating chain received no input from the 
xxxxx  who  supervised  his  work  during  the  two  months  covered  by  the  OER.    The 
applicant alleged that during the two months, he was assigned to serve as the Reserve 
counterpart  to  this  xxxxx  and  that  they  were  planning  a  xxxxxxxxxxxxx.    He  alleged 
that the xxxxx was out of town during the xxxxxxxx and so he “became the on scene 
Commander and Coast Guard liaison officer for the xxxxxxxxxx.”  He alleged that his 
rating  chain  did  not  seek  input  from  this  xxxx  because  of  the  short  time  allowed  for 
creating the substitute OERs.  He also contested the Chief Counsel’s allegation that the 
16 days between June 21, 1999, and July 7, 1999, was adequate time for his rating chain 
to prepare both substitute OERs carefully.  He stated that preparing the substitute OERs 
that quickly was a “Herculean task” because his command was “preparing for a major 
marine  event,  the  xxxxxxxxxxxxx  on  the  xxxxxxxxxxxx,  held  on  xxxxxxxx.”    He  also 
alleged that members of his rating chain took leave during the time the substitute OERs 
were being prepared and that he himself “had already scheduled time off to close on 
the  selling  of  one  home,  closed  on  the  purchasing  of  another  home,  and  move  [his] 
family” because his active duty contract was ending. 

 
The applicant alleged that the inaccuracy of the disputed OER is proved by the 
much higher marks shown on the original OER prepared by his rating chain, which was 
rejected by CGPC.  He also strongly contested that Chief Counsel’s argument that per-
formance marks are not based on written comments: 

 
The [Chief Counsel’s] statement that narrative comments support the mark assigned and 
elaborate on performance sounds good, but is not the normal practice.  That is not how 
my OERs have been completed or any other officer’s that I have worked on while I was in 
their rating chain, in any command, through my entire Coast Guard career.  Bullets and 
narrative  information  is  provided  by  the  Reported-on  Officer.    All  the  information  is 
compiled and the important highlights are written into a narrative.  The more informa-
tion written to support a specific category determines your numerical mark.  The last step 
is always the assignment of marks by blackening the circles.  That is the way it is done in 

the Coast Guard.  Although it may not be in accordance with the written procedures, it is 
the practice Coast Guard wide.  And that is, in fact, how my disputed OER was prepared. 
 
The applicant submitted with his response to the Chief Counsel’s advisory opin-
ion another signed statement from the rear admiral who served as the reviewer for the 
disputed OER.  The reviewer stated that when the original OER was returned by CGPC, 
his command was primarily concerned with preparing the substitute OERs quickly and 
that they were “not handled with the care that is normally given to these reports under 
my command.”  He corroborated the applicant’s allegation that no input was received 
from the xxxxx who supervised his work during the two months covered by the OER 
and  argued  that  “[t]hat  in  itself  should  justify  that  the  disputed  OER  be  expunged.”  
The reviewer “strongly disagreed” with the Chief Counsel’s allegation that the rating 
chain’s endorsement of the application was mere “retrospective reconsideration.”  He 
stated that they were only concerned with “fairness” and that the applicant’s perform-
ance during the two months covered by the disputed OER justified the higher marks 
endorsed by the rating chain.  He concluded that “it is time to correct this injustice.”  

APPLICABLE REGULATIONS IN THE PERSONNEL MANUAL 

 

 
Submission of OERs 
 

Reserve  xxxxxxxx  receive  regular  OERs  covering  two-year  periods  ending  on 
March 31st.  There is no provision in either the Personnel Manual or the Reserve Policy 
Manual  that  expressly  prohibits  a  single  OER  from covering both Reserve and active 
duty.2    Article  10.A.3.a.3.  of  the  Personnel  Manual  states  that  when  a  member  is 
detached from a unit on permanent change of station (PCS) orders, “OER submission is 
optional  for  the  PCS  detachment  if  the  previous  regular  reporting  period  ended  … 
within the last 92 days.  The days between the end of the previous regular OER and the 
detachment date … will be reflected as “Days Not Observed, Other” on the first OER 
from  the  next  unit,  with  a  short  explanation  in  Section  2  (e.g.  Detached  USCGC 
DAUNTLESS  on  89  01  01).    A  ‘For  Continuity  Purposes  Only’  OER  is  not  desired.”  
Under the Joint Federal Travel Regulations (JFTR), PCS orders are defined to include 
orders received by a Reservist under a call to active duty for 20 or more weeks.  JFTR, 
App. A.  However, the applicant was not detached from his unit but assumed a similar 
billet at the same unit when his PCS orders and active duty contract went into effect. 
 
Composition of the Rating Chain 
                                                 
2  The BCMR asked the Chief Counsel’s office to state the regulatory basis for CGPC’s rejection of the ori-
ginal OER.  In response, the Chief Counsel’s office cited a provision in Article 10.A.3.c.(3)(a) of the Person-
nel Manual, which was enacted in 2000 and did not exist at the time of CGPC’s decision.  However, the 
Chief  Counsel’s  office  alleged  that  CGPC’s  decision  was  in  accordance  with  a  long-standing  policy  in 
effect  because  of  a  perceived  difference  in  the  way  Reservists  and  active  duty  officers  are  evaluated, 
although the OER forms and written standards used for evaluating Reserve and active duty officers are 
the same. 

 

Duties of the Rating Chain 

 
 
Each OER is prepared by the reported-on officer’s “rating chain” of three senior 
officers:  the supervisor (usually the officer to whom the reported-on officer answers on 
a  daily  basis),  the  reporting  officer  (usually  the  supervisor’s  supervisor),  and  the 
reviewer  (usually  the  reporting  officer’s  supervisor,  who  need  not  have  actually 
observed the reported-on officer’s performance).  Articles 10.A.2.d.1., e.1., and f.1.  The 
commanding officer, rating chain, and reported-on officer are all mutually responsible 
for ensuring that OERs are initiated timely.  Articles 10.A.2.b.2., c.2., d.2., and e.2. 
 

Article  10.A.2.g.1.  provides  that  when  “a  Supervisor,  Reporting  Officer,  or 
Reviewer is unavailable or disqualified to carry out their rating chain responsibilities, 
the commanding officer or the next senior officer in the chain of command shall desig-
nate  an  appropriate  substitute  who  is  capable  of  evaluating  the  Reported-on  Officer.  
Other members in the rating chain may be adjusted and designated, as appropriate.”  
Article 10.A.2.g.2. defines “unavailable” as being dead, discharged, retired, transferred, 
or “any other situation which prevents or substantially hinders the Supervisor, Report-
ing Officer, or Reviewer from properly carrying out their rating chain responsibilities.” 

 
Article  10.A.2.c.2.  provides  that  the  reported-on  officer  must  submit  an  OER 
 
form to his supervisor “not later than 21 days before the beginning of each reporting 
period.”    He  may  also  submit  “a  listing  of  significant  achievements  or  aspects  of 
performance  which  occurred  during  the  period.”    The  reported-on  officer  also  must 
ensure  that  “all  days  of  commissioned  service  are  covered  by  OERs.    If  an  OER  is 
missing  or  a  gap  in  coverage  exists,  [he]  informs  the  appropriate  rating  chain.    The 
rating chain shall take necessary action to correct the discrepancy.” 
 

Article  10.A.2.d.2.  provides  that  the  supervisor must prepare his section of the 
OER and forward it with “any other relevant performance information to the Reporting 
Officer not later than 10 days after the end of the reporting period.”  Prior to preparing 
his  section,  the  supervisor  receives  evaluation  input  from  “secondary  supervisors.”  
Article 10.A.2.d.1.d. 

 
Article 10.A.2.e.2. provides that the reporting officer must prepare his section of 
the OER based on direct observation and reliable reports of the officer’s performance.  
He also reviews that supervisor’s work on the OER and returns the report “for correc-
tion or reconsideration, if the Supervisor's submission is found inconsistent with actual 
performance  or  unsubstantiated  by  narrative  comments.    The  Reporting  Officer  may 
not  direct  that  an  evaluation  mark  or  comment  be  changed  (unless  the  comment  is 
prohibited under --> Article 10.A.4.f.).”  Article 10.A.2.e.2.c.  Finally he ensures that it is 
“forwarded  to  the  Reviewer  not  later  than  30  days  after  the  end  of  the  reporting 
period.”  If a reporting officer leaves a unit without preparing an OER for a subordinate 

officer,  he  must  prepare  a  draft  OER  with  proposed  marks  and  comments  for 
consideration by the next reporting officer.  Article 10.A.2.e.2.i. 

 
Article 10.A.2.f.2. states that the reviewer “[e]nsures the OER reflects a reasona-
bly consistent picture of the Reported-on Officer’s performance and potential.”  In addi-
tion, the reviewer “shall return an OER to the Reporting Officer to correct errors, omis-
sions,  or  inconsistencies  between  the  numerical  evaluation  and  written  comments.  
However, the Reviewer may not direct in what manner an evaluation mark or comment 
be [sic] changed.” Article 10.A.2.f.2.d.  Finally, the reviewer, “[e]xpedites the reviewed 
report  in  a  reasonable  time  to  permit  the  OER  Administrator  to  ensure  the  OER  is 
received by Commander, (CGPC-opm-3) 45 days after the end of the reporting period.” 
Article 10.A.2.f.2.f. 
 
Instructions for Preparing an OER 
 

Article 10.A.4.d.4. instructs supervisors to assign marks and write comments for 
the first 16 performance categories on an OER as follows (virtually identical instructions 
are provided in Article 10.A.4.d.7. for reporting officers, who complete the rest of the 
OER): 
 

(b) 
For each evaluation area, the Supervisor 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  Supervisor  shall  carefully  read  the  standards 
and  compare  the  Reported-on  Officer’s  performance  to  the  level  of  performance 
described by the standards.  The Supervisor shall take care to compare the officer’s per-
formance and qualities against the standards—not to other officers and not to the same 
officer in a previous reporting period.  After determining which block best describes the 
Reported-on Officer’s performance and qualities during the marking period, the Supervi-
sor fills in the appropriate circle on the form in ink.  

(d) 
In the “Comments” sections following each evaluation area, the Supervisor shall 
include  comments  citing  specific  aspects  of  the  Reported-on  Officer’s  performance  and 
behavior for each mark that deviates from a four.  The Supervisor shall draw on his or 
her observations, those of any secondary supervisors, and from other information accu-
mulated during the reporting period.   
 
(e) 
Comments  should  amplify  and  be  consistent  with  the  numerical  evaluations.  
They should identify specific strengths and weaknesses in performance.  Comments must 
be sufficiently specific to paint a succinct picture of the officer’s performance and quali-
ties which compares reasonably with the picture defined by the standards marked on the 
performance dimensions in the evaluation area. . . . 

(g) 
A  mark  of  four  represents  the  expected  standard  of  performance.    Additional 
specific performance observations must be included when an officer has been assigned a 
mark of five or six to show how they exceeded this high level of performance. … 

• • • 

• • • 

 

Article 10.A.4.d.8. contains instructions for completing the comparison scale: 
 

The Reporting Officer shall fill in the circle that most closely reflects the Reporting Offi-
cer’s ranking of the Reported-on Officer relative to all other officers of the same grade the 
Reporting Officer has known.  NOTE:  This section represents a relative ranking of the 
Reported-on  Officer,  not  necessarily  a  trend  of  performance.    Thus,  from  period  to 
period, an officer could improve in performance but drop a category. 
 

Replies to OERs 
 
 
Article 10.A.4.g. allows the Reported-on Officer to file a reply to any OER within 
14 days of receiving it to “express a view of performance which may differ from that of 
a rating official.”  However, a reply to an OER does not constitute an appeal or request 
for correction.  OERs may only be corrected by the PRRB or the BCMR. 

CASES CITED BY THE CHIEF COUNSEL 

 

 
In Tanaka v. United States, 210 Ct. Cl. 712 (1976), the Court of Claims held that the 
 
Air Force BCMR was not arbitrary or capricious in refusing to remove or modify three 
OERs in the plaintiff’s record.  The plaintiff had submitted two letters by members of 
his rating chain who indicated that they had rated his performance too low in the dis-
puted OERs.  The court found that the letters did not identify any misstatements of fact, 
“only opinions they no longer entertained.” 
 
In  Paskert  v.  United  States,  20  Cl.  Ct.  65  (1990),  the  Court  of  Claims  upheld  an 
 
Army BCMR decision not to remove an OER from the plaintiff’s record.  The plaintiff 
submitted  a  statement  by  his  senior  rater,  who  wrote  that  the  applicant  should  have 
been  promoted  and  retained  by  the  Army.    However,  the  senior  rater  repeatedly 
affirmed  the  validity  of  the  disputed  OER.    The  Court  stated  that  “[t]he  supporting 
statement by the senior rater is a case of retrospective thinking motivated by the knowl-
edge of the applicant’s nonselection for promotion to major.”  Because the senior rater 
had confirmed the validity of the disputed OER, the Court found that his statement did 
not prove that the OER was not accurate, fair, or objective. 
 

In BCMR Docket No. 67-96, the applicant had drafted the three disputed OERs 
for  himself  at the request of his civilian supervisor and reporting officer.  He alleged 
that he had marked himself lower than he deserved because he was afraid that higher 
marks  would  be  interpreted  as  undeserved  grade  inflation  by  a  selection  board.    He 
submitted affidavits from the supervisors for the disputed OERs supporting these alle-
gations.  The Board denied relief, agreeing with the Chief Counsel that the supervisors’ 
statements constituted “retrospective reconsideration” induced by the applicant’s fail-
ure of selection.   
 
In BCMR Docket No. 84-96, the applicant, in challenging several OERs, submit-
 
ted a statement from his commanding officer stating that, “were it possible to adjust [his 
OER marks] for today’s ‘rules’ and standards, I would readily raise more than half of 

the marks assigned.”  The applicant also submitted a copy of the commanding officer’s 
directions to a rating chain, which indicated that, for some of the unit’s officers’ OERs, 
he  required  marks  to  be  lowered  to  be  more  like  those  officers’  historical  averages.  
Such “historical averaging” is a direct violation of OER regulations.  The Board refused 
to remove the disputed OERs, finding that the applicant had not proved his own marks 
were lowered as a result of historical averaging.  The Board’s decision was reviewed by 
the Deputy General Counsel over another issue.  Citing Tanaka v. United States, 210 Ct. 
Cl. 712 (1976), in her decision, the Deputy General Counsel characterized the command-
ing officer’s statement as retrospective reconsideration, which should be afforded little 
weight when applied to matters of opinion.  She also pointed out that the commanding 
officer’s statement did not identify any misstatements of fact in the disputed OERs.  
 
 
In BCMR Docket No. 189-94, the applicant submitted a statement from his super-
visor  indicating  that  one  comment  in  a  disputed  OER  contained  criticism  about  an 
aspect of performance about which the applicant had never been counseled.  Because he 
had never received feedback about the deficiency, the supervisor recommended that the 
Board remove it and raise the corresponding performance mark from a 4 to a 5.  The 
Board  denied  relief  because  the  criticism  was  accurate  even  if  the  applicant  had  not 
been  counseled  about  it.    The  Board  held  that  the  supervisor’s  comments  constituted 
“retrospective reconsideration” and did not justify, by themselves modifying the appli-
cant’s OER. 
 
 
In BCMR Docket No. 24-94, the applicant submitted a letter from his reporting 
officer, who stated, “had I known then what I now know I would have marked him dif-
ferently” in the disputed OER.  The reporting officer stated that he should have added 
two  comments  and  assigned  the  applicant  a  higher  mark  in  one  of  the  performance 
categories.  The Board denied relief, finding that the reporting officer’s letter constituted 
retrospective reconsideration that did not justify correction of the OER. 

FINDINGS AND CONCLUSIONS 

 

The Board has jurisdiction concerning this matter pursuant to section 1552 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submission, and appli-
cable law: 
 
 
of title 10, United States Code.  The application was timely. 
 
 
No  regulation  in  the  Personnel  Manual  required  the  applicant’s  rating 
chain to prepare an OER when his status changed on May 31, 1998, or required CGPC 
to reject the original one-year OER prepared by the applicant’s rating chain.  Although 
the  applicant’s  status  changed  from  that  of  a  Reservist  drilling  and  performing  two 
weeks of ADSW during April and May 1998 to that of a Reservist on extended active 

  
1. 

2. 

3. 

4. 

duty, he did not change units.  During those two months, he was serving as the Reserve 
Chief for the xxxxxxxxxxxxxxxx Branches of the division.  On June 1, 1998, he became 
the active duty Chief of the xxxxxxxxx Branch. 
 
 
Although no regulation expressly required separate OERs for Reserve and 
extended active duty, the Chief Counsel stated that long-standing policy did require it.  
If the applicant’s command had acted in accordance with this unwritten but long-stand-
ing  policy, he would have received an OER for April and May 1998 prepared by the 
same rating chain that was, during those two months, preparing OER 4 for the biennial 
evaluation period that ended on March 31, 1998.  This rating chain would have included 
a Reserve officer as the reporting officer and would have received input from the xxxx 
who was the applicant’s active duty counterpart and whose job the applicant had been 
performing  on  ADSW.    OER  4  contains  five  higher  marks but two lower marks than 
those  in  the  disputed  OER.    The  average  mark  in  OER  4  is  5.1,  whereas  the  average 
mark in the disputed OER is 4.7.  In addition, under Articles 10.A.2.c.2., d.2., e.2., and 
f.2.,  the  rating  chain  would  have  had  at  least  two  months  to  prepare  the  OER  after 
receiving the applicant’s “listing of achievements and aspects of performance,” which 
usually becomes the basis for most of the comments in an OER. 
 
 
Because the applicant’s command was apparently unaware of the unwrit-
ten  policy  enforced  by  CGPC,  he  received  an  OER  for  April  and  May  1998  prepared 
more than a year later and without input from his Reserve reporting officer or his active 
duty  counterpart,  although  the  revised  rating  chain  did  include  two  members  of  his 
Reserve rating chain.  The rating chain had 12 working days to prepare two new OERs, 
and before it could begin work, the applicant had to prepare a new “listing of signifi-
cant achievements or aspects of performance” to remind the rating chain of what he had 
done  during  April  and  May  1998.    In  addition,  one  or  more  members  of  the  chain 
apparently took leave around the Fourth of July holiday.  All three members of the rat-
ing chain signed it on July 7, 1999, which supports the applicant’s allegation that they 
were  working  under  significant  time  constraints  and  did  not  carefully  consider  the 
marks assigned in the disputed OER after modifying the original OER to cover only his 
10 months on active duty. 
 
 
All three members of the rating chain have renounced the disputed OER.  
The supervisor and reporting officer expressly supported the applicant’s allegation that 
the marks in it were made inaccurately because of the time constraints they were under.  
All  three  members  have  prepared  and  signed  a  proposed  substitute  OER  with  six 
higher  marks  and  an  average  mark  of  5.3  instead  of  4.7.    In  comparison  with  OER4, 
whose average mark is 5.1, this proposed substitute OER has six higher and two lower 
marks. 
 
 
The applicant alleged that the comments in the disputed OER support the 
higher  marks proposed by his rating chain.  The Chief Counsel stated that this argu-

5. 

6. 

ment  is  inapposite  because  rating  chain  members  are  supposed  to  assign  numerical 
marks first (after considering the reported-on officer’s performance) and then add com-
ments about the officer’s work to support the marks.  Article 10.A.4.d.4. of the Person-
nel Manual supports the Chief Counsel’s statement.  However, before the rating chain 
begins  work,  it  receives  from  the  reported-on  officer  a  “listing  of  achievements  and 
aspects of performance.”  Personnel Manual, Article 10.A.2.c.2.  This listing is often used 
as the basis for many of the supervisor’s comments in an OER.  Therefore, in practice if 
not under the rules, the applicant’s allegation that the comments come first and support 
the marks has some merit.   
 
 
Furthermore, the Board finds that the comments in the disputed OER (see 
page 4 for large excerpts) are inconsistent with the lower marks in the disputed OER 
and  fully  support  the  six  higher  marks  proposed  by  the  applicant’s  rating  chain,  as 
shown below, especially in light of the fact that he accomplished the significant achieve-
ments  cited  in  the  comments  not  while  serving  on  continuous  active  duty  over  the 
course of a year, but as a Reservist drilling and performing two weeks of ADSW over 
the course of two months: 
 

7. 

•  The  comments  indicate  that  the  applicant,  though  serving  as  a  Reservist,  was 
notably “proactive” in his work on at least four projects and “backfilled” for a divi-
sion chief in planning the Coast Guard’s participation in a xxxxxxx.  Yet he received 
a  mark  of  4  for  the  performance  category  “Planning  and  Preparedness”  on  the 
disputed OER.  On the OER form, a mark of 4 is appropriate for an officer who was 
“consistently prepared,” “used sound criteria to set priorities,” and “kept his super-
visors informed.”  A mark of 6 is for an officer known for “exceptional preparation,” 
who “always looked beyond immediate problems,” and who “developed strategies 
with contingency plans.”  The Board finds that the comments in the disputed OER 
support the mark of 6 proposed by his rating chain. 
  
•  The  comments  indicate  that  the  applicant  innovatively  used  a  xxxxxxxx 
xxxxxxxxxxxxxx.  Yet he received a mark of 5 for “Using Resources” on the disputed 
OER.    On  the  OER  form,  a  mark  of  5  falls  between  a  4  and  a  6.    A  mark  of  4  is 
appropriate  for  an  officer  who  “effectively  managed  a  variety  of  activities  with 
available resources” and who “budgeted own and subordinates’ time productively.”  
A mark of 6 is for an officer who was “unusually skilled at bringing scarce resources 
to  bear  on  the  most  critical  of  competing  demands”  and  who  “optimized 
productivity  through  effective  delegation,  empowerment,  and  follow-up  control.”  
The  Board  finds  that  the comments support the mark of 6 proposed by his rating 
chain. 
  
•  The  comments  indicate  that  the  applicant’s  rating  chain  was  highly  impressed 
with his knowledge of the xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx management skills, 
and with his professional representation of the Coast Guard.  Apparently, they were 

impressed enough to facilitate his appointment as the branch chief in lieu of getting 
a  regular  Coast  Guard  officer  to  fill  the  post.    Yet  he  received  a  mark  of  5  for 
“Professional Competence” on the disputed OER.  The mark of 5 falls between a 4, 
which is appropriate for an officer who was a “competent and credible authority” in 
his field, and a mark of 6, which is for an officer who shows “superior expertise” and 
“remarkable grasp of complex issues” and whose “advice and actions showed great 
breadth and depth of knowledge.”  The Board finds that the comments support the 
mark of 6 proposed by his rating chain. 
  
•  The  comments  indicate  that  he  mentored  junior  officers  and  coached  them  in 
their  writing  skills,  made  himself  and  his  staff  xxxxxxxxxx,  used  an  “open  door 
policy [and] effective weekly meetings to inspire teamwork,” “[w]orked excellently 
[with]  federal  and  state  agencies,”  “[p]romoted  improved  communications,” 
“foster[ed] teamwork,” and guided an investigator to “ xxxxxxxxxxxxxx .”  Yet he 
received  marks  of  5,  4,  and  4  in  the  categories  “Looking  Out  for  Others,” 
“Teamwork,” and “Workplace Climate,” respectively.  These marks are appropriate 
for  officers  who  “cared  for  people,”  “recognized  and  responded  to  their  needs,”  
were  “valued 
increase  unit 
effectiveness,”  were  “sensitive  to  individual  differences,”  and  who  “encouraged 
open  communication  and  respect.”    The  higher  marks  proposed  by  the  rating  in 
these categories are for officers who were “always accessible,” whose “insightful use 
of  teams  raised  unit  productivity,”  who  “established  relationships  and  networks 
across  a  broad  range  of  people  and  groups,”  who  “excelled  at  creating  an 
environment of fairness, candor, and respect,” and who “quickly took action against 
behavior inconsistent with Coast Guard human resources policies.”  The Board finds 
that the comments support the marks of 6, 5, and 6 proposed by his rating chain. 

team  participants,”  “skillfully  used  teams  to 

The Chief Counsel argued that the statements by the rating chain support-
ing the applicant’s request must be considered “retrospective reconsideration,” inspired 
by the applicant’s failure of selection.  As he argued, mere “retrospective reconsidera-
tion”  is  not  a  legitimate  basis  for  correction.  Paskert  v.  United  States,  20  Cl.  Ct.  65,  75 
(1990); Tanaka v. United States, 210 Ct. Cl. 712 (1976).  In the past, the Board has denied 
relief when it found that submitted statements constituted “retrospective reconsidera-
tion.”  See  BCMR  Docket  Nos.  84-96,  67-96,  189-94,  24-94.    However,  in  none  of  these 
cases did all three members of the rating chain support the applicant’s allegations and 
sign a proposed substitute OER with higher marks.  Moreover, in none of these cases 
were  there  so  many  other  circumstances  that  suggest  that  the  marks  in  the  disputed 
OER are inaccurate, such as the one-year delay in its preparation; the lack of input from 
the  Reserve  reporting  officer  and  the  applicant’s  active  duty  counterpart;  the  higher 
marks assigned in OER 4, which was prepared during the two-month reporting period 
for the disputed OER; the significantly diminished time in which the disputed OER had 
to be prepared by the applicant, supervisor, and reporting officer and checked by the 

 

 
8. 

reviewer;  and,  especially,  the  inconsistency  between  the  marks  and  comments  in  the 
disputed OER.   

In light of the inconsistency between the comments and marks in the dis-
puted OER, the circumstances under which it was prepared, and the statements of the 
applicant’s  rating  officials,  the  Board  finds  that  the  applicant  has  proved  by  clear, 
cogent, and convincing evidence that the six marks in the disputed OER are erroneous 
and unjust.  Moreover, he has proved that the six marks should be raised as proposed 
by his rating chain.   

The applicant did not submit a reply to the disputed OER.  However, by 
the time he received a copy of it in late July 1999, it was too late to prepare a reply with 
the endorsements of his rating chain in time for it to be included in his record before the 
selection board, which convened on August 2, 1999.  Therefore, the Board finds that the 
applicant reasonably determined that an OER reply would be of little help and that his 
best  chance  for  relief  would  be  an  application  to  the  PRRB,  even  though  that  board 
dismissed his application for untimeliness. 
 

To  determine  whether  the  applicant’s  failures  of  selection  should  be 
removed because of the erroneously low marks 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).   
 
12. 

In answer to the first question, the Board finds that the lower marks in the 
disputed OER do make the applicant’s record appear significantly worse than it would 
with the higher marks proposed by the rating chain, which are amply supported by the 
corresponding comments.   

 
9. 

 
10. 

11. 

 
13. 

The  second  question  is  harder  to  answer.    The  Board  has  had  cases  in 
which xxxxxxxxxx with better OERs than those of the applicant have failed of selection 
for promotion to xxxxxx.  See, e.g., BCMR Docket No. 1999-083.  However, OERs are not 
the only basis on which selection boards make their decisions; the criteria for selection 
are myriad.  In addition, an officer’s chances of being promoted depend in part upon 
the  number of slots open in the next higher grade, which changes from year to year.  
Nothing in the Personnel Manual or selection board precepts required those boards to 
accord lesser weight to OERs covering short periods.  Therefore, this Board cannot say 
with confidence that the selection boards did so.  In light of these considerations, and 
given the presence of several commendations and medals in his record and the absence 
of  any  report  of  poor  performance,  the  Board  cannot  find  that  without  the  disputed 
OER  in  his  record,  it  is  “unlikely  that  he  would  have  been  promoted  in  any  event.”  

Therefore,  the  applicant’s  failures  of  selection  for  promotion  to  xxxxxxx  should  be 
removed from his record. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 

 
14.  Accordingly, relief should be granted. 
 
 

 

ORDER 

The application of XXXXXXXXXX, USCGR, for correction of his military record is 
granted.  His officer evaluation report (OER) covering the period April 1, 1998, to May 
31, 1998, shall be corrected as follows: 

 

 

 

 
 
 

 
 
 
 

 
 
 
 

•  Block  3.a.  shall  be  corrected  to  show  that  he  was  assigned  a  mark  of  6  for 
“Planning and Preparedness.” 
•  Block 3.b. shall be corrected to show that he was assigned a mark of 6 for “Using 
Resources.” 
•  Block  3.e.  shall  be  corrected  to  show  that  he  was  assigned  a  mark  of  6  for 
“Professional Competence.” 
•  Block  5.a.  shall  be  corrected  to  show  that  he  was  assigned  a  mark  of  6  for 
“Looking Out for Others.” 
•  Block  5.d.  shall  be  corrected  to  show  that  he  was  assigned  a  mark  of  5  for 
“Teamwork.” 
•  Block  5.e.  shall  be  corrected  to  show  that  he  was  assigned  a  mark  of  6  for 
“Workplace Climate.” 

 
 
The applicant’s failures of selection for promotion to xxxxxxxx shall be removed 
from his record.  If the applicant is selected for promotion by the first selection board to 
review his record after it is corrected according to this order, his date of rank shall be 
changed  to  what  it  would  have  been had he been selected for promotion by the first 
xxxxxx selection board that reviewed his record, and he shall receive any back pay and 
allowances due. 

 

  

 

 

 

 

  

 

 

 

 
 

 

 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 

 
Barbara Betsock 

 

 

 
George J. Jordan 

 

 

 
 
John A. Kern