DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
 
BCMR Docket 
No. 2000-163 

 
 
 
Application for Correction of  
Coast Guard Record of: 
 
 
 
 
 

DECISION OF THE DEPUTY GENERAL COUNSEL 

ACTING UNDER DELEGATED AUTHORITY 

 
The  Final  Decision  of  the  Board  for  Correction  of  Military  Records  (the  Board) 
accurately summarizes the Applicant’s Request for Relief, the Summary of the Record, 
the Applicant’s Allegations, the Decision of the Personnel Records Review Board, the 
Applicant’s  Further  Allegations,  the  Views  of  the  Coast  Guard,  the  Applicant’s 
Response to the Views of the Coast Guard, and the Applicable Law.  In addition, I agree 
with and therefore adopt all of the Board’s Findings and Conclusions except numbered 
paragraphs 5 and 11.  Those two paragraphs are modified as discussed below.  
 
Paragraph 5 addresses the applicant’s request to remove the two sentences in section 10 
of the second (or regular) OER.  The two sentences state that  
 

is not recommended for command cadre position at this time, but would do 
well in a staff position.  Not recommended for promotion with her peers. 

 
This second OER, for the period February 1, 199x, to July 23, 199x, was filled out by the 
same  supervisor/reporting  officer  as  the  special  OER.    A  note  in  this  second  OER 
indicates  that  it  only  comments  on  the  first  27  days  in  February  199x  because  the 
applicant  spent  the  rest  of  that  period  on  extended  temporary  assigned  duty  (TAD).  
The two sentences recommending against promotion are not supported by any marks 
or comments in the OER. 
 
The  Board’s  recommended  decision  construes  Article  10.A.4.C.9.  of  the  Personnel 
Manual as not requiring that the reporting officer’s assessment of an officer’s potential 
be based “exclusively” on the Reported-on Officer’s performance during the reporting 
period.  However, that seems at clear variance with the language of the Article itself.  
The  Article  states  that  when  a  Reporting  Officer  comments  on  “the  Reported-on 
Officer’s potential for greater leadership roles and responsibilities in the Coast Guard . . 

.  [t]hese  comments  shall  be  limited  to  performance  or  conduct  demonstrated  during  the 
reporting period” (emphasis supplied).  
 
The Board provides two other reasons in support of its decision to deny the applicant’s 
request  to  remove  the  two  challenged  sentences  from  the  second  OER,  but  neither 
reason is convincing.   
 
First, the Board speculates that “although the behavior criticized in the special OER is 
not  repeated  in  the  second  disputed  OER,  the  time  periods  of  the  OERs  overlap, 
indicating that the reporting officer’s negative comments . . . were likely based on [the 
applicant’s]  poor  performance  at  her  permanent  unit  during  the  reporting  period.”  
Board’s  Final  Decision  at  14.    However,  if  there  was  indeed  overlap,1  either  the 
Supervisor  or  the  Reporting  Officer  had  a  duty  to  describe  the  information  and 
observations upon which the rated performance is based.  PERSMAN 10.A.4.c.  And, 
the  Supervisor,  at  least,  is  given  explicit  instruction  “to  compare  the  officer’s 
performance  and  qualities  against  the  standards  –not  .  .  .  to  the  same  officer  in  a 
previous reporting period.”  PERSMAN 10.A.4.c.4 .b.   Because the Coast Guard failed 
to  supplement  the  record  with  a  copy  of  the  underlying  investigation  report,  it  is 
unclear  as  to  which  of  the  instances  of  poor  judgment,  if  any,  occurred  during  the 
second OER reporting period.   
 
Second, the Board suggests that the comments and marks are not so positive that they 
can be considered “clearly inconsistent with the reporting officer’s comments.”  Board’s 
Final Decision at 14.  I disagree.  The comments and marks are mundane and average, 
with  nothing  adverse;  the  recommendation  against  promotion  is  very  negative,  with 
nothing stated to support it.  The inconsistency almost could not be clearer. 
 
Therefore, I disapprove the Board’s recommendation on this point and will grant the 
applicant’s request to strike the challenged sentences.   
 
The  controlling  case  law  holds  that  it  is  unnecessary  to  remove  the  failure  to  select 
when it is unlikely that the applicant would have been promoted even if the error did 
not exist.  Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982).  The recommendation 
in  the  special  OER  would  have  made  it  unlikely  for  the  selection  board  to  grant  the 
applicant’s promotion even if the two offending sentences in the second OER did not 
exist.    Thus,  the  applicant’s  previous  failures  for  promotion  selection  will  not  be 
removed from her record. 
 

                                                 
1 Given the TAD, there was a maximum window of 27 days of overlap between the two 
OERs. 

The application to correct the military record of, is granted as follows:  (1) expunge the 
comments in section 10 of the OER for the period February 1, 199x, to July 23, 199x.   All 
other relief is denied.   
 
 
DATE:  July 5, 2001   

 

 
 
 
 

______________________________ 
Rosalind A. Knapp 
Deputy General Counsel 
As designated to act for the Secretary              

 
 

 
 

 
 

 
 

 
 
 
 
 
 

 
 

 

 
 

DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2000-163 
 
 
   

FINAL DECISION 

This is a proceeding under the provisions of section 1552 of title 10 and section 

 
ANDREWS, Attorney-Advisor: 
 
 
425 of title 14 of the United States Code.  It was docketed on July 19, 2000.2 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  May  17,  2001,  is  signed  by  two  of  the  three  duly 

                                                 
2  The BCMR received the application in November 1999 but the Chairman determined that the applicant 
had  not  yet  exhausted  her  administrative  remedy  via  the  Personnel  Records  Review  Board  (PRRB)  as 
required  by  33  C.F.R.  § 52.13(b).   The applicant had simultaneously applied to the PRRB, but when no 
decision was forthcoming from that Board by July 17, 2000, the Chairman informed the applicant that her 
case would be docketed.  The PRRB issued a decision in the case on xxxxxxxx. 

APPLICANT’S REQUEST FOR RELIEF 

 

 
The  applicant,  a  xxxxxxxxxxxxxxx  in  the  Coast  Guard,  asked  the  Board  to 
remove  a  special  officer  evaluation  report  (OER)  from  her  record  for  the  period 
December 1, 199x, to May 6, 199x, documenting an allegedly inappropriate relationship 
with a subordinate.  She also asked the Board to remove two sentences from a second 
OER, which she received when her commanding officer (CO) was transferred from her 
unit and covers the period February 1 to July 23, 199x.  The applicant also asked the 
Board to remove her two failures of selection for promotion to lieutenant and, if she is 
selected  for  promotion  by  the  next  lieutenant  selection  board  to  consider  her  record 
after it is corrected, to backdate her promotion and award her back pay and allowances. 

 
In the event that her case is not decided by June 1, 2001, when she is scheduled to 
revert  to  enlisted  status,  the  applicant  asked  that  she  be  “unreverted  and  restored  to 
commissioned officer status, with corresponding back pay and allowances.” 

 

SUMMARY OF THE RECORD 

 

The  applicant  enlisted  in  the  Coast  Guard  in  xxxxxx  and  attained  the  rank  of 
xxxxxxxxxx  before  being  accepted  at  Officer  Candidate  School.    She  graduated  as  an 
ensign in xxxxx and was promoted to lieutenant in xxxxx.  During her first two years as 
an officer, the applicant worked at the xxxxxxxxxxxxxxx and received excellent OERs.  
Most of the marks she received were 5s and 6s (on a scale of 1 to 7, with 7 being best).  
Her rating chain highly recommended her for promotion to lieutenant. 

 
In  June  199x,  the  applicant  began  serving  as  the  xxxxxxxx  of  a  Coast  Guard 
station.  In the first three OERs she received at the station, most of her marks are 5s and 
6s,  and  her  CO  recommended  her  for  promotion  to  lieutenant.    However,  in  March 
199x, she was apparently removed from the station and sent on a temporary active duty 
(TAD) assignment to another for the remainder of her tour of duty. 

 
On  May  17,  199x,  her  rating  chain  submitted  a  special  OER  for  the  period 
December 1, 199x, to May 6, 199x, under the provisions of Article 10.A.3.c.(1)(d) of the 
Personnel Manual “to document a significant historical performance of substance and 
consequence  which  was  previously  unknown.    This  OER  documents  a  personal  rela-
tionship [the applicant] conducted with a unit xxxxxxxxx which adversely affected the 
good  order  and  discipline  of  the  unit.”    The  applicant  received  marks  of  2  in  the 
performance categories Teamwork, Workplace Climate, Judgment, and Responsibility.  
She  also  was  assigned  a  mark  of  2  on  the  Comparison  Scale.    All  other  performance 
categories  in  the  special  OER  were  marked  “N/O,”  which  means  not  observed.    The 
marks of 2 were supported by the following written comments: 

 

•  Used  position  as  xxxxxxxx  to  manipulate  duty  assignments/rotations  to  provide  a  xxx  with 
privileges  not  provided  to  the  rest  of  the  crew  (arrive  late,  depart  early,  not  doing  clean-up 
details, not subject to recall as duty coxswain).  These actions had an extremely detrimental effect 
on the unit’s cohesiveness and work environment. 
 

•  Demonstrated extremely poor judgment:  her personal vehicle was logged, 3 separate times after 
2200,  into  the  apt  complex  of  a  unit  XXX  with  the  destination  section  of  the  log  indicating  the 
XXX’s  apartment;  Vehicle  was  also seen at the XXX’s apartment complex by another crewman.  
Demonstrated  poor  judgment  in  recommending  a  junior  enlisted  mbr  for  a  formal  psychiatric 
evaluation  without  the  knowledge  or  consent of the Commanding Officer.  Mbr recommended 
was also involved in a relationship with the XXX.  Failed to keep Commanding Officer informed 
of probable incidents of improper relationships among crew members, despite extensive evidence 
and witnesses provided by senior enlisted personnel.  These incidents resulted in a loss of unit 
morale and were not in keeping with the concepts of good order and discipline. 
 

•  Recommend  [the  applicant]  be  relieved  as  xxxxxxx  of  Station  …  and  reassigned  elsewhere.  
Despite  the  technical  expertise  of  [the  applicant],  her  lack  of  character  and  self  accountability 
make it impossible to recommend her for positions of authority.  Her actions are not in keeping 
with  the  core  values  of  Honor,  Respect,  and  Devotion  to  Duty.    She  is  specifically  not 
recommended for promotion with her peers. 
 

The  applicant’s  CO  served  on  her  rating  chain  as  both  the  supervisor  and 
reporting  officer.    An  admiral,  the  district  commander,  served  as  the  reviewer.    The 
special OER was validated by CGPC and entered in her record on June 3, 199x. 

 
On June 1, 199x, the applicant submitted a FOIA request for a copy of the inves-
tigative  report.    In  response,  she  received  a  letter  acknowledging  her  request  and 
stating that her request would not be processed promptly because of a backlog.3  

 
On September 10, 199x, CGPC sent the applicant a letter indicating that her reply 
to the special OER, which had been sent in June, was never received.  CGPC indicated 
that  it  had  reviewed  a  recently  faxed  copy  of  the  reply,  but  could  not  enter  it  in  her 
record  because  of  references to an investigative report.  CGPC stated that such refer-
ences were prohibited under Article 10.A.4.f.1. of the Personnel Manual.  CGPC granted 
the applicant 30 days to submit a revised copy of the reply. 

 
On  September  30,  199x,  the  applicant  submitted  a  revised  reply  to  the  special 
OER, in which she stated the following: “I am unable to rebut this report at this time 
because I have not seen the underlying documentation referred to in the preparation of 
this evaluation.  The documents have been requested but have not been received in time 
to meet the reply deadline as per [the Personnel Manual].”  The reply was initialed by 
her CO on October 6, 199x, and by the district commander on October 19, 199x.  The 
Coast  Guard  Personnel  Command  (CGPC)  stamped  it  as  received  on  xxxxxxx,  and 
apparently placed it in her record on xxxxxxxxx. 

 
On  July  23,  199x,  the  applicant’s  CO  was  transferred  from  the  unit.    Prior  to 
leaving, he completed an OER for her in accordance with Article 10.A.3.a.2.a.  The OER, 
which technically covers the period from February 1 to July 23, 199x, notes that it actu-
ally reflects only the 27 days that the applicant herself remained at the unit before she 
was sent to another unit on TAD.  On this OER, the applicant received two marks of 5 
and sixteen marks of 4 in the performance categories and a mark of 4 on the Compari-
son Scale.  The comments describing her duties and work were all generally positive.  
However, in section 10, which is for comments about an officer’s “potential,” her CO 
wrote the following:  “[The applicant] is not recommended for command cadre position 
at this time, but would do well in a staff position.  Not recommended for promotion 
with  her  peers.”    This  OER  was  signed  by  the  reviewer  on  September  9,  199x,  and 
entered  in her record by CGPC on xxxxx, 199x, two days before the xxxxxx selection 
board met on xxxxxxxxx, 199x. 

 
On  October  26,  199x,  the  applicant  submitted  a  reply  to  this  second  disputed 
OER.  She stated that the “comments in section 10 are unsupported by and inconsistent 
                                                 
3  On xxxxxxxx, the Coast Guard responded to the applicant’s FOIA request by sending her 73 heavily 
redacted  pages  of a 109-page report on the investigation.  Aside from the names and other identifying 
information of witnesses, the written statements of witnesses were apparently redacted. 

with the performance of duties described in the balance of the report.”  On November 9, 
199x, her CO forwarded her reply to the deputy group commander with an accompa-
nying letter stating that he had reviewed the OER and that his comments in section 10 
accurately reflect his judgment of her potential for greater leadership and responsibili-
ties.  The reply was initialed by the deputy group commander on November 11, 199x; 
received  by  CGPC  on  November  29,  199x;  and  entered  in  the  applicant’s  record  on 
December 1, 199x. 

 
In  September  199x,  the  applicant  received  a  “concurrent”  OER  for  her  TAD 
assignment to another district from March 29 to August 23, 199x.  She received many 
positive comments, nine marks of 4, seven marks of 5, two marks of 6, a Comparison 
Scale mark of 5, and a recommendation for promotion to lieutenant.  This concurrent 
OER was also entered in her record on September 23, 199x. 

 
After  completing  her  TAD  assignment,  the  applicant  received  orders  to  a  new 
unit.  In this new billet, she has received two strong OERs with Comparison Scale marks 
of 5.  On the most recent OER, the reviewer stated that she had “earned [his] highest 
possible recommendation for immediate promotion to xxxxxxxx.” 

 
On xxxxxxxxx, the promotion year (PY) 2000 xxxxxxx selection board convened.  
The  applicant  was  “passed  over”  for  promotion.    She  was  also  passed  over  for 
promotion by  the PY 2001 selection board. 
 

APPLICANT'S ALLEGATIONS 

 

The applicant alleged that the special OER should be removed from her record 
because it accuses her of a criminal offense of which she was never convicted.  She also 
alleged that the Coast Guard “thwarted her ability to exercise her right of reply by fail-
ing to furnish her with a copy of the investigative report on which the OER rests.” 

 
The applicant alleged that after she was accused of having an improper relation-
ship with a XXX at her unit, she received the special OER, which was based entirely on 
innuendo.  She then asked to see whatever evidence her command had but was shown 
only a few heavily redacted pages of a much larger report by Coast Guard Investigative 
Services.    She  alleged  that  she  was  allowed  neither  to  copy  those  pages  nor  to  make 
notes, and she was given only 10 minutes to read the redacted pages she was shown.  
The  applicant  alleged  that  she  quickly  submitted  a  request  under  the  Freedom  of 
Information  Act  (FOIA)  for  a  copy  of  the  investigation  on  June  1,  199x,  but  received 
only an acknowledgement of her request from the Coast Guard and did not receive a 
copy of the investigation.4   
                                                 
4  The applicant alleged that the Coast Guard had not responded to her FOIA request even by the time she 
submitted her application to the BCMR on November 22, 199x, almost six months after she submitted her 
FOIA request. 

 
The applicant alleged that because she was not given sufficient access to the evi-
dence against her, she did not know how to respond to the special OER and was unable 
to submit a proper reply within 14 days of receiving it, as was her right under Article 
10.A.4.h. of the Personnel Manual.  However, she submitted a reply to the special OER 
anyway on June 17, 199x, and her command mailed it to CGPC on June 20, 199x, but it 
was apparently mislaid.  After she telephoned CGPC on September 7, 199x, to check on 
it, she was told that her reply was unacceptable because it referred to an ongoing inves-
tigation.  The applicant alleged that CGPC was wrong to reject her reply because the 
prohibition  against  mentioning  an  ongoing  investigation  in  Article  10.A.4.f.1.  applies 
only to actual OERs, not to OER replies.   

 
The  applicant  stated  that  CGPC  then  granted  her  another  30  days  to  submit  a 
new  reply.    However,  because  she  still  had  not  received  any  response  to  her  FOIA 
request, she could only resubmit the same reply with the words “investigation report” 
and “report” replaced by the words “documentation” and “document.”  The applicant 
argued that by denying her access to the report of the investigation, the Coast Guard 
nullified her right to reply to the special OER.  She argued that until she is permitted to 
reply properly to the special OER after seeing the full report, the OER remains incom-
plete  and  cannot  lawfully  be  made  a  part  of  her  record  and  should  not  have  been 
entered into it.  

 
The applicant further alleged that the special OER was used, in effect, to convict 
her of an offense under the Uniform Code of Military Justice (UCMJ)—fraternization or 
dereliction  of  duty  or  both—without  sufficient  evidence  and  without  giving  her  a 
chance to defend herself.  She alleged that it was “highly improper to take action that 
‘sounds in’ the UCMJ without having afforded [her] any of the procedural protections 
that  are  associated  with  the  criminal  process.”    She  alleged  that  her  command  had 
“highjacked”  the  performance  evaluation  process  to  convict  her  without  having  to 
submit evidence or allow her to confront witnesses.  She argued that the remainder of 
her record is free of any sign of misconduct or unprofessionalism, and that the absence 
of such signs “casts grave doubt” on the validity of the charges leveled against her in 
the special OER. 

 
The applicant alleged that the regular OER for the period February 1 to July 23, 
199x,  should  be  removed  from  her  record  because  the  negative  comments  about  her 
potential  and  qualification  for  promotion  in  that  OER  are  unsupported  by  any  other 
remarks in the OER.  She alleged that the OER is therefore unfair because it is internally 
inconsistent.  Moreover, she alleged that because 16 of the 18 possible marks in the OER 
are 4s, it is obvious the OER was “prepared in a perfunctory manner.”  In addition, she 
alleged  that  in  his  negative  remarks  about  her  potential,  her  CO  was  trying  to  “per-
petuat[e]  the  adverse  effect  of  [the  special  OER],  even  though  there  was  no  basis  for 

doing  so.”    She  argued  that  CGPC  should  have  remanded  the  OER  because  of  the 
inconsistency as part of its review under Article 10.A.4.j. of the Personnel Manual. 

 
The unfairness of this second disputed OER, she alleged, is shown by the much 
higher marks and recommendations for promotion in the concurrent OER she received 
for her TAD assignment to another unit from March 29 to August 23, 199x. 

 
The  applicant  alleged  that  her  failures  of  selection  for  promotion  to  xxxxxxxx 
should  be  removed  from  her  record  because  her  record  would  have  appeared  much 
stronger if the special OER and disputed sentences in the second OER.  Without them, 
she  alleged,  she  would  certainly  have been selected for promotion since the selection 
rate for promotion by the 199x Board (for promotion year 2000) was 93 percent.  There-
fore, she argued, her case meets both prongs of the Engels test.  She alleged that without 
the disputed OERs in her record, she would have been promoted because the rest of her 
record  is  strong,  with  marks of 5 on the Comparison Scale and recommendations for 
promotion from her rating chains.  

 
The applicant further alleged that her record was incomplete when it was con-
sidered  by  a  xxxxx  selection  board  in  199x  because  the  reply  that  she  submitted  in 
response  to  the  second  disputed  OER  was  not  in  her  record  before  the  Board.    She 
alleged that CGPC told her it was not in her record and even telephoned her command 
to try to expedite transmission of the reply to CGPC, but her command did not forward 
the  reply  to  CGPC  in  time  to be placed in her record before the selection board met.  
Therefore, she alleged, the selection board considered her record, including the negative 
comments in the second OER, without seeing her reply.  

 

 

 
The applicant alleged that, under Sanders v. United States, 594 F.2d 804, 814 (Ct. 
Cl.  1979),  officers  have  a  right  to  have  their  consideration  for  promotion  based  on  a 
record that is “substantially complete.”  She alleged that because her reply to the second 
disputed OER was not in her record before the selection board, her record cannot be 
considered “substantially complete” under Weiss v. United States, 408 F.2d 416, 419 (Ct. 
Cl. 1969) (holding that if a military service “place[s] before the Board an alleged officer’s 
record filled with prejudicial information and omits documents equally pertinent which 
might have mitigated the adverse effect of the prejudicial information, then the record 
is not complete, and it is before the Selection Board in a way other than as the statute 
prescribes.”).    Therefore,  she  alleged,  under  Muse  v.  United  States,  21  Cl.  Ct.  592,  606 
(1990), her failure of selection in 1999 must be set aside not only because of the unfair 
comments and marks in the special OER and second disputed OER, but also because 
her record was incomplete before the selection board.  

DECISION OF THE PERSONNEL RECORDS REVIEW BOARD 

On xxxxx, the PRRB denied the applicant’s request for relief.  The PRRB included 
a  captain,  commander,  lieutenant  junior  grade,  and  civilian  employee  of  the  Coast 
Guard.  The decision was approved by the Deputy Director of Personnel Management, 
who was also a civilian. 

 
The  PRRB  found  that  “[r]egulations  governing  the  Officer  Evaluation  System 
(OES)  do  not  require  that  a  Special  OER  should  only  be  submitted  after  an  officer  is 
found  guilty  of  a  criminal  offense.”    The  PRRB  found  that  Article  10.A.3.c.1.d.  of  the 
Personnel  Manual  allows  “rating  chains  to  document  conduct  that  is  not  reportable 
under Article 10.A.3.c.1.b.” as long as it is “undisputed, supportable and relevant in the 
rating official’s mind.”  The PRRB also found that the quality of the rest of the appli-
cant’s record did not prove that the challenged OERs were in error. 

 
With  respect  to  her  OER  replies,  the  PRRB  found  that  her  first  reply  was 
properly  returned  to  her  because,  under  Article  10.A.4.g.2.,  the  restriction  in  Article 
10.A.4.f.1. prohibiting a reference to an investigation applies to OER replies.  The PRRB 
pointed out that the applicant was free to dispute the allegations against her but failed 
to do so in her replies.  The PRRB found that her record could be considered “complete” 
before the selection board even if the OER reply was not yet entered in her record. 

 
Regarding her allegation that the comments in section 10 of the second disputed 
OER  are  inconsistent  with  the  other  comments  and  marks  and  inconsistent  with  the 
concurrent OER, the PRRB found no error or injustice.  It found that because the poor 
conduct documented in the special OER overlapped the time frame of the second OER, 
her rating chain could properly take into account that conduct when preparing section 
10.  The PRRB also found that the better marks in the concurrent OER merely indicate 
that “she took advantage of the ‘fresh start’ offered her to improve her performance” 
when she was sent on TAD. 

 

APPLICANT’S FURTHER ALLEGATIONS 

 
 
On November 8, 2000, the applicant submitted further arguments in response to 
the decision of the PRRB.  She protested the fact that the one member of the PRRB was 
an officer junior to her; that another member was a civilian; and that the approving offi-
cial was not an officer.  She alleged that under paragraph 6.a. of COMDTINST 1070.10C, 
PRRB decisions must be approved by the Director of Personnel Management, not the 
Deputy Director.  She alleged that the Deputy Director’s approval was invalid because 
it did not indicate that he was serving as the Acting Director or that he had approved 
the decision “by direction.” 
 
 
The applicant alleged that in response to her FOIA request submitted on June 1, 
199x,  she  received  on  xxxxxx,  2000,  a  very heavily redacted copy of the investigative 
report that left “many sentences, paragraphs and pages incomprehensible.”  She alleged 

that she appealed the Coast Guard’s response on April 19, 2000, but does not expect a 
response to her appeal soon because the backlog of appeals is “years-long.”  Therefore, 
she  alleged,  she submitted a further reply to the special OER indicating that she was 
still  “unable  to  rebut  this  evaluation  due  to  the  extent  of  the  redactions  made  to  the 
released documents and withholding of numerous pages in their entirety.”  The appli-
cant argued that as a result of the Coast Guard’s heavy redaction of the investigative 
report, her “opportunity to reply to the Special OER in time for the PY2001 selection 
board was no better than was her opportunity to reply to it in time for the PY2000 selec-
tion board.” 
 
 
The applicant alleged that she had effectively been “convicted by OER” because 
she  was  never  made  a  party  to  the  investigation,  never  charged,  and  never  taken  to 
mast or court-martialed.  She alleged that including findings of criminality in an OER 
without affording her procedural protections or a chance to defend herself is a “misuse 
of the OER process,” which the Board encountered in BCMR Docket No. 251-88.  She 
alleged  that  in  a  meeting  with  the  Group  Commander,  Station  Commanding  Officer, 
and Assistant Group Operations Officer, she was told that the special OER would be 
prepared  because  there  was  not  enough  evidence  to  court-martial  her  and  she  could 
refuse to be taken to mast.  She alleged that she was later told by the Assistant Group 
Operations Officer that the District Legal Officer had advised that the case against her 
be  dropped  because  the  only  solid  evidence,  the  vehicle  log-in  sheet  from  the  XXX’s 
apartment complex, was over xxx years old. 
 
 
The applicant argued that the PRRB was wrong to find that her record could be 
considered “complete” without her OER reply because the Personnel Manual “confers a 
right  of  reply,  and  where  that  right  is  denied—here,  by  withholding  documentation 
needed to frame a reply—an error and injustice has occurred.”  The applicant argued 
that in BCMR Docket No. 86-83(P), the BCMR had granted relief when a reporting offi-
cer had truncated the allowed period for submitting a reply and found that the “Board 
has  long  recognized  the  right  to  comment  on  unsatisfactory  fitness  reports  as  a  right 
separate and apart from the entitlement to relief from an inaccurate or biased report.”  
The applicant argued that just as the officer in that case merited relief because he or she 
could have made stronger arguments in the OER reply if allowed more time, she should 
be  granted  relief  because  she  can  make  stronger  arguments  now that she has seen at 
least a redacted version of the investigative report.  She submitted a copy of a new reply 
to the special OER, which states that, although she has received a response to her FOIA 
request,  
 

[t]he redactions in the document belatedly furnished to me are so pervasive as to make a 
mockery  of  my  right  to  know  even  who  my  accusers  are,  much  less  to  examine  them 
under oath.  I have never been afforded any of the procedural protections Congress has 
provided for personnel who are suspected of offenses.  This OER basically seeks to con-
vict me without a trial—or even mast—based on mere innuendo.  In my opinion this is an 
abuse of the Officer Evaluation System machinery and I object to it. 

 
 
The applicant asked that this reply be added to her record and that her failures of 
selection be removed so that she could be considered for promotion with a record con-
taining her new reply. 
 
 
The applicant alleged that the PRRB finding that the comments in section 10 of 
the second disputed OER are justified by the comments in the special OER is erroneous.  
She alleged that the disputed OER must be internally consistent and “judged on its own 
terms, and not by reference to some other OER.” 
 

VIEWS OF THE COAST GUARD 

 
 
On February 2, 2001, the Chief Counsel of the Coast Guard submitted an advi-
sory  opinion  in  which  he  recommended  that  the  Board  deny  relief  in  this  case.    He 
adopted by reference the analysis and conclusions of the PRRB. 
 
 
The Chief Counsel argued that, “[t]o establish that an OER is erroneous or unjust, 
the  applicant  must  prove  that  the  challenged  OER  was  adversely  affected  by  a  clear, 
material error of objective fact, factors which ‘had no business being in the rating proc-
ess,’ 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 (Ct. Cl. 1980); 
CGBCMR Dkt. No. 86-96.  He also argued that 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 (1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. 
Cl. 1979).  In addition, the Chief Counsel argued that under the decision of the Deputy 
General Counsel in BCMR Docket No. 2000-037, an applicant can only rebut this pre-
sumption with “clear, cogent, and convincing evidence to the contrary.”  Furthermore, 
he argued that the BCMR should not expunge an entire OER unless the whole report is 
“infected”  with  errors  or injustice or it is impossible to sever the error or unjust part 
from the rest of the OER.  BCMR Docket No. 151-87. 
 
The Chief Counsel alleged that under Frobish v. United States, 766 F. Supp. 919, 
 
927  (D.  Kan.  1991),  “[w]ords  in  an  OER  that  denote  an  inappropriate  officer-enlisted 
relationship are not deemed improper if accurate and true despite the absence of any 
criminal  action.”    He  argued  that  because  in  Frobish  the  court  found  that  the  words 
“fraternizing”  and  “fraternization”  in  the  plaintiff’s  OER  did  not  denote  a  criminal 
offense  and  were  deemed  appropriate  if  true,  “the  descriptive  language  use  in  [the 
applicant’s  special  OER]  does  not  carry  the  stigma  of  criminality  and  is,  therefore, 
proper.”  He argued that, while an intimate relationship between an officer and enlisted 
member is a criminal offense under the UCMJ, it can also be defined as poor judgment 
and inappropriate conduct, which “can and should be documented in an OER.”   
 

 
The Chief Counsel alleged that the applicant was not denied the opportunity to 
submit a meaningful OER reply.  He called her allegation that she was denied such an 
opportunity  because  she  did  not  see  a  full  copy  of  the  investigative  report  “disin-
genuous” and an attempt to shift the burden of proof to the Coast Guard.  He argued 
that because the applicant submitted no evidence that the statements in the special OER 
were erroneous, she has not presented a prima facie case that requires the Coast Guard 
to prove that those statements are true.  He alleged that her allegation that she can only 
rebut the statements if she sees the full report on the investigation meritless. 
 

The Chief Counsel pointed out that the applicant had failed to deny or to submit 
any evidence refuting the statements of fact or conclusions in the special OER.  There-
fore,  he  argued,  the  Board  should  assume  that  those  statements  and  conclusions  are 
true because “as one of the participants in the inappropriate conduct referred to in the 
Special OER, Applicant has first hand knowledge of the facts, if any, to dispute those 
stated in her OER.”  He further alleged that Article 10.A.3.c.1.d. permits a rating chain 
to  base  a  special  OER  on  the  facts  discovered  in  an  investigation  even  if  she  is  not 
named a party to it as long as the investigation itself is not mentioned in the OER.  He 
argued that under Article 2.B.2.c. of the Administrative Investigations Manual, she was 
not entitled to be named a party to the investigation because it was an “informal” inves-
tigation convened. 

 
The  Chief  Counsel  alleged  that  the  applicant’s  allegations  about  her  FOIA 
request  are  irrelevant  because  the  BCMR  “is  not  the  proper  venue  for  adjudicating  a 
complaint under FOIA or the Privacy Act.”  BCMR Docket No. 1999-160. 

 
The Chief Counsel alleged that no regulations were violated in the composition 
of  the  PRRB  or  approval  of  its  decision.    Article  6.a.  of  COMDTINST  1070.10C,  he 
argued,  states  only  that  “normally  a  majority  of  the  members  shall  be  senior  to  the 
applicant.”    He  alleged  that  three  of  the  four  members  of  the  PRRB  that  decided  the 
applicant’s case were senior to her.  He also alleged that the Deputy Director of Person-
nel Management acted as a valid approving official since Article 12.a. of the instruction 
states  only  that  “in  most  cases,  the  Director  of  Personnel Management will take final 
action on recommendations of the PRRB involving active duty members.”  He alleged 
that  the  Deputy  Director,  as  a  member  of  the  Senior  Executive  Service,  was  “the 
equivalent of a military flag officer.” 

 
The Chief Counsel declined to submit an argument concerning the alleged errors 
and their effect on her failures of selection in “the interests of administrative efficiency.” 

 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On  February  5,  2001,  the  BCMR  sent  the  applicant  a  copy  of  the  views  of  the 
Coast Guard and invited her to respond within 15 days.  The BCMR received the appli-
cant’s response on February 21, 2001. 
 
 
The  applicant  argued  that  the  Chief  Counsel’s  statements  about  her  burden  of 
proof  are  irrelevant  because  her  objections  are  procedural.    She  alleged  that  “if  the 
Coast  Guard  were  right,  an  officer  could  be  treated  totally  unfairly  and  still  have 
nothing to complain about unless she could disprove the facts stated in an OER.” 
 
The applicant alleged that the Chief Counsel’s reliance on the decision in Frobish 
 
is inappropriate because the case is from another circuit, was not subject to appellate 
review,  and,  according  to  Shepard’s  Citations  and  LEXIS,  has  not  been  cited  by  any 
state or federal court.  She alleged that the Frobish court cited no authority for its deci-
sion.  She also argued that, because the court’s decision “reflects the limits” of judicial 
review of an executive agency’s decision, it does not prove “what a correction board can 
or  should  do  in  the  circumstances,  given  its broad charter under a remedial statute.”  
She  alleged  that  Frobish  decision  is  inapplicable  because  the  plaintiff  in  Frobish  never 
sought review from Army BCMR, received a complete copy of the investigative report, 
resigned from the Army, expressly admitted in his OER reply that he had exercised bad 
judgment,  and  never  disputed  the  letter  of  reprimand  he  received.    Moreover,  she 
alleged,  the  Army  admitted  in  that  case  that  an  OER  was  “not  the  proper  forum  in 
which to charge an officer with fraternization.” 
 
The  applicant  alleged  that  the  Coast  Guard’s  reliance  on  her  failure  to  obtain 
 
extrinsic evidence to rebut the findings of the investigation is facetious because she has 
been denied an unredacted copy of the report.  She alleged that “[i]t is outrageous to 
say that all she has to do is give her own version of events, since it is perfectly obvious 
that the Coast Guard has taken the position (with considerable success) that mere alle-
gations by an applicant are insufficient.” 
 
The  applicant  alleged  that  her  right  to  the  investigative  report  surpasses  her 
 
rights under FOIA because she needs the report to be able to exercise her right to reply 
to  the  special  OER.    Because  the Coast Guard has “truncated” her right to reply, she 
argued, the special OER should be removed from her record “regardless of the appli-
cation of the FOIA.” 
 

Coast Guard Personnel Manual  (COMDTINST M1000.6A)  
 
 
Article 10.A. of the Personnel Manual governs the preparation of OERs. Article 
10.A.1.b.1. provides that “Commanding officers must ensure accurate, fair, and objec-
tive evaluations are provided to all officers under their command.”  Each OER is pre-
pared by the reported-on officer’s “rating chain” of senior officers:  the supervisor, the 

APPLICABLE LAW 

 

reporting  officer,  and  the  reviewer.    Officers  with  the  rank  of  xxxxxxxxxxxx  receive 
regular,  semi-annual  OERs  for  periods  ending  each  xxx  and  xxx.    Article  10.A.3.a.1.  
They  also  receive  OERs  whenever  their  reporting  officer  leaves  their  unit.    Article 
10.A.3.a.2.b.  Concurrent OERs are prepared when members perform TAD assignments 
away from their permanent stations for at least 60 consecutive days.  Article 10.A.3.c.2. 
 
 
 

Article 10.A.3.c.1., dealing with special OERs, states the following:  

Special OERs.  The Commandant, commanding officers, higher authority within the chain 
of command, and Reporting Officers may direct these reports.  The circumstances for the 
Special  OER  must  relate  to  one  of  the  situations  described  in  subsections  a.  through  e.  
The authorizing article listed below should be cited in Section 2 of the OER along with a 
brief description of the circumstance which prompt the OER’s submission. 

•  •  • 

d.  To document significant historical performance or behavior of substance and conse-
quence which was unknown when the regular OER was prepared and submitted.  This 
report should not normally reflect performance reportable under --> Article 10.A.3.c.1.b.  
The special OER should be initiated  by the original rating chain unless they are unavail-
able or disqualified.  --> Article 10.A.2.g. applies.  The Reviewer must be a flag officer.  
The  special  OER  normally  addresses  only  those  performance  or  behavior  dimensions 
relevant to the special OER since all other dimensions will have been properly evaluated 
in the regular OER.  

 

chain may not 

Article 10.A.4.f., which covers OER restrictions, states that members of a rating 

 
1.  Mention [that] the officer's conduct is the subject of a judicial, administrative, or inves-
tigative proceeding, including criminal and non-judicial punishment proceedings under 
the Uniform Code of Military Justice, civilian criminal proceedings, PRRB, CGBCMR, or 
any other investigation (including discrimination investigations) except as provided in --
> Article 10.A.3.c.  Referring to the fact conduct was the subject of a proceeding of a type 
described above is also permissible when necessary to respond to issues regarding that 
proceeding first raised by an officer in a reply under --> Article 10.A.4.g.  These restric-
tions  do  not  preclude  comments  on  the  conduct  that  is  the  subject  of  the  proceeding.  
They only prohibit reference to the proceeding itself. 
 
Article 10.A.4.c.9. governs the reporting officer’s comments about the reported-
on  officer’s  “potential”  in  section  10  of  an  OER.    The  reporting  officer  is  directed  to 
“comment  on  the  Reported-on  Officer's  potential  for  greater  leadership  roles  and 
responsibilities in the Coast Guard.  These comments shall be limited to performance or 
conduct demonstrated during the reporting period.”  In addition, the reporting officer 
should comment on the reported-on officer’s qualification to assume the duties of the 
next higher grade and types of assignments for which the officer shows aptitude. 
 
Article 10.A.4.g. states an officer may submit a reply to any OER within 14 days 
 
of receiving it and have this reply filed with the OER.  The purpose of the reply is to 
“provide an opportunity for the Reported-on Officer to express a view of performance 

which may differ from that of a rating official.”  The article states that the restrictions in 
Article 10.A.4.f. apply to OER replies.  It also states that an OER reply should be proc-
essed by the rating chain to  arrive at CGPC with 30 of the day it is submitted and that 
the reported-on officer should notify CGPC if he or she does not receive a receipt for the 
reply within 60 days of the day it was submitted to the rating chain.        
 
Administrative Investigations Manual (COMDTINST M5830.1) 
 

Article 1-E-1.c. provides that “[a]n informal investigation will ordinarily be ade-
quate in most cases, including most death cases, and many casualties of an operational 
nature  which  are  of  less  serious  consequence.    Most  instances  requiring investigation 
can be adequately addressed by this type [of] investigation.” [Emphasis in original.] 
 

  
Article 1-D-4 requires an informal investigation to be conducted by one or more 
commissioned officers, who use informal procedures and interviews to report findings, 
opinions, and recommendations to the convening authority.  Article 1-E-2.b.(2) prohi-
bits the designation of parties during an informal investigation.   However, if an investi-
gation “involves such disputed issues of fact that a substantial risk of injustice to a per-
son or persons would exist if they were not afforded the rights of a party during the 
investigation, a court of inquiry or a formal investigation should be ordered, and parties 
should be designated.” [Emphasis in original.] 

PRRB Instruction (COMDTINST 1070.10C) 
 

Paragraph 6.a. of the PRRB Instruction states that “[n]ormally a majority of the 
members shall be senior to the applicant, but in cases where this is not practicable, the 
report of the approving authority shall so indicate.” 

 
Paragraph 12.a. of the instruction states that “[i]n most cases, the Director of Per-
sonnel Management will take final action on recommendations of the PRRB involving 
active duty members.” 
 

 

1. 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submissions, and appli-
cable law: 
 
 
§ 1552.  The applicant was timely. 
 
 
The applicant did not allege that any single statement in the special OER 
is untrue.  No evidence in the record indicates that any of the statements in the OER are 
untrue.  Therefore, the Board assumes that the statements regarding her conduct in the 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 

2. 

3. 

special OER are true because, absent strong evidence to the contrary, rating officials are 
presumed to have acted correctly, lawfully, and in good faith.  Arens v. United States, 
969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
 
 
The applicant alleged that the presence of the special OER in her record is 
nonetheless  unfair  because  (a)  she  was  not  provided  with  an  unredacted  copy  of  the 
report of the investigation that uncovered the facts reported in the special OER to use in 
preparing her OER reply and (b) the effect of the comments in the special OER was to 
“convict”  her  of  a  criminal  offense  with  insufficient  evidence  and  no  opportunity  to 
defend herself or cross-examine the witnesses against her. 
 
 
Article  10.A.4.g.  of  the  Personnel  Manual  allows  OER  replies  so 
that  the  officer may “express a view of performance which may differ from that of a 
rating official.”  The applicant has not proved by a preponderance of the evidence that 
the  Coast  Guard  deprived  her  of  anything  which  she  needed  or  to  which  she  was 
entitled to express a different view of her performance than that presented in the special 
OER.  She has not shown that knowledge of the names of her accusers, for example—
which were apparently redacted from the report she was shown and later provided5—
was necessary to deny any of the comments in the OER; to explain why her actions as 
described  in  the  OER  were  justified  by  legitimate  purposes;  or  to  gather  statements 
from other members that would contradict the comments in the OER or explain why 
her actions were justified by legitimate purposes.  No one was in a better position than 
the  applicant  to  explain  or  justify  in  an  OER  reply  why  she  made  certain  duty 
assignments, why her car was logged into the XXX’s apartment complex late at night, 
why she recommended the junior officer for a psychiatric evaluation without informing 
her CO, or why she failed to inform the CO about evidence of improper relationships 
among the crew.  Therefore, the Board finds that the applicant has not proved that the 
Coast Guard denied her the right to reply to the special OER as prescribed by Article 
10.A.4.g.  because  she  has  not shown that it prevented her from denying or justifying 
any of her actions or from gathering statements from other members who might explain 
her actions or present a different view of her performance.  Nor has she proved that she 
was  entitled  to  be  given,  rather  than  shown,  a  redacted  or  unredacted  copy  of  the 
investigative report during the 14 days provided for drafting an OER reply. 
 
 
The  special  OER  does  not  accuse  the  applicant  of  any  crime.    It 
describes  her  actions—such  as  her  manipulation  of  duty  assignments,  visitation  of  a 
XXX’s apartment late at night, failure to notify her CO of evidence of improper relation-
ships, and recommendation of an enlisted member for psychiatric evaluation with con-
                                                 
5  Although the applicant protested the extent of redaction in the report on the investigation she was first 
shown and later provided, she did not submit a copy of the redacted report.  Because the applicant did 
not deny the truth of any of the comments in the special OER, the Board was able to reach a decision on 
the procedural issues presented in this case without seeing the investigative report. 

(b) 

 

(a) 

 

4. 

sulting her CO—and reasonably concludes that she showed extremely poor judgment 
and  undermined  the  morale  of  her  unit.    The applicant alleged that the Coast Guard 
had insufficient evidence to court-martial her and so “convicted” her “by innuendo” in 
the special OER, which she alleged was a misuse of the Officer Evaluation System.  By 
the applicant’s logic, rating chain officials could not mention any poor performance in 
an OER that could conceivably be considered evidence of a crime unless they actually 
court-martialed the officer.  If they could not mention unwise actions that suggest the 
existence  of  an  inappropriate  relationship,  for  example,  they  also  could  not  mention 
careless storekeeping unless they had sufficient evidence to court-martial a member for 
theft.  The Board refuses to reach such an absurd conclusion.  Rating chain officials are 
permitted to describe an officer’s injudicious actions in an OER.  Moreover, even if the 
applicant had been acquitted of fraternization by a court-martial, her rating chain could 
still have prepared this same special OER under Article 10.A.3.c.1.d. of the Personnel 
Manual to document her actions.  Under Article 8.H. of the Personnel Manual, Coast 
Guard officers are required to avoid creating even the appearance of favoritism or an 
inappropriate relationship.  
 
 
In BMCR Docket No. 251-88, the Board removed a comment that the offi-
cer had “physically attacked” another member from an OER.  However, the Board in 
that  case  found  that  the  statement  was  both  “highly  inflammatory”  and  completely 
unexplained since no other facts concerning the background of the “attack” were pro-
vided and there was evidence in the record indicating that the comment was exagger-
ated.  In this case, however, there is no evidence that the comments in the special OER 
were exaggerated; the comments include significant detail to provide context; and no 
inflammatory language is used, although the facts related reflect very poor judgment on 
the part of the applicant. 
 
 
The applicant alleged that the comments in section 10 of the second dis-
puted OER should be removed because they are inconsistent with the comments in the 
remainder  of  that  OER  and  in  the  concurrent  OER  she  received  for  the  same  period.  
Under Article 10.A.4.c.9. of the Personnel Manual, a reporting officer’s comments about 
an officer’s potential in section 10 of an OER “shall be limited to performance or con-
duct  demonstrated  during  the  reporting  period.”    While  this  regulation  prohibits  a 
reporting  officer  from  mentioning  performance  that  occurred  outside  the  reporting 
period, it does not state that the reporting officer’s assessment of an officer’s potential 
must be based exclusively on her performance during the reporting period.  Moreover, 
the Board notes that, although the behavior criticized in the special OER is not repeated 
in the second disputed OER, the time periods of the OERs overlap, indicating that the 
reporting officer’s negative comments in section 10 of the second disputed OER were 
likely  based  on  her  poor  performance  at  her  permanent  unit  during  the  reporting 
period.   In addition, the Board notes that the applicant has not proved that the com-
ments and marks describing her performance in the rest of that OER are so positive as 
to make them clearly inconsistent with the reporting officer’s comments in section 10. 

5. 

6. 

Likewise, the number of marks of 4 she received does not prove that the OER is invalid, 
but only that her CO found most aspects of her job performance during the 27 days she 
was observed to be consistent with the standards prescribed for a mark of 4. 
 
 
The  applicant  alleged  that  her  failures  of  selection  for  promotion  to 
xxxxxx should be removed from her record because her reply to the second disputed 
OER was not in her record when the xxxxxxxxx selection board convened on xxxxxxxx, 
199x.    According  to  CGPC’s  validation  stamps  on  her  replies  to  both  the  special  and 
second  disputed  OER, neither reply was in her record when the selection board met.  
Her reply to the special OER was stamped by CGPC as being entered in her record on 
xxxxxxxx, and her reply to the second disputed OER was stamped on December 1, 199x.  
Her  reply  to  the  special  OER  was  not  submitted  in  proper  form  before  the  selection 
board met because her first draft, which she submitted on June 17, 199x, mentioned the 
investigation,  in  violation  of  Articles  10.A.4.g.  and  10.A.4.f.  of  the  Personnel  Manual.  
Under Article 10.A.4.g., when she did not receive a receipt from CGPC for this reply 
within  60  days  of  submitting  it,  she  was  supposed  to  notify  CGPC.    However,  she 
apparently waited until September 7, 199x, to notify CGPC and thus did not submit a 
revised version of the reply to the special OER until September 30, 199x, five days after 
the selection board had convened.  She did not submit her reply to the second disputed 
OER  until  October  26,  199x,  presumably  because  it  was  not  completed  by  her  rating 
chain and validated by CGPC until xxxxxxx 199x. 
 
 
The applicant alleged that it was unjust and improper for her record to go 
before  the  selection  board  without  her  OER  replies.    She  alleged  that  without  those 
replies, her record could not be considered “substantially complete,” as required under 
Weiss v. United States, 408 F.2d 416 (Ct. Cl. 1969).  However, the court in Weiss, based its 
decision on a Navy regulation that stated that adverse matter could not be placed in a 
member’s record until he was given an opportunity to reply.  Id. at 419.  No regulation 
prohibited the Coast Guard from entering the disputed OERs in the applicant’s record 
even though she did not submit her replies before the selection board met.  Moreover, 
much more than an OER reply was missing from the plaintiff’s record in Weiss; other 
significant exculpatory reports were also absent; and the court explained its ruling by 
stating that “[i]f a Service Secretary place[s] before the Board an alleged officer’s record 
filled with prejudicial information and omits documents equally pertinent which might 
have mitigated the adverse impact of the prejudicial information, then the record is not 
complete,  and  it  is  before  the  Selection  Board  in  a way other than as the statute pre-
scribes.” Id.  The Board finds that the applicant’s OER replies could not possibly have 
mitigated the adverse impact of the prejudicial information because she did not bother 
in those replies to contradict or justify any of the negative comments about her perform-
ance.  At most, her replies would have informed the selection board that she objected to 
her limited procedural rights under the Personnel Manual and thought the comments in 
section  10  were  inconsistent  with  the  remainder  of  the  second  disputed  OER.    Such 

7. 

8. 

statements are not the kind of “equally pertinent [documents] which might have miti-
gated the adverse impact of the prejudicial information” that were at issue in Weiss.  Id.  
 
In Engels v. United States, 678 F.2d 173, 175-76 (Ct. Cl. 1982), the Court of 
 
Claims held that the BCMR should decide whether his failures of selection for promo-
tion  should  be  removed  by  answering  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?    Second,  even  if  there  was  some  such  prejudice,  is  it 
unlikely that [the applicant] would have been promoted in any event?”  As indicated in 
Finding  7,  the  applicant’s  OER  replies  would  not  have  provided  the  selection  board 
with any view of her performance contrary to the views in the disputed OERs, and their 
inclusion  would  not  have  made  her  record  appear any better.  Moreover, even if the 
omission  of  her  replies  were  considered  an  error  or  injustice,  it  is  extremely  unlikely 
that the applicant would have been promoted in any event given the undisputed facts 
described in the special OER.  Therefore, the Board finds that neither part of the Engels 
test  is  met  in  the  applicant’s  case.    She  has  not  proved  that  either  of  her  failures  of 
selection should be removed because of an error or injustice in her record that unfairly 
prejudiced her record before the selection boards. 
 
 
The applicant alleged that the PRRB that considered her case was improp-
erly composed and that the official who approved the PRRB’s decision was improper.  
The Board agrees with the Chief Counsel that in composing the PRRB and approving 
that board’s decision, the Coast Guard complied with the provisions in paragraphs 6.a. 
and 12.a. of COMDTINST 1070.10C. 
 
 
The applicant asked the Board to replace her previous OER reply to the 
special OER with a new one.  The proposed new reply does not present any different 
view of her performance.  It merely indicates that she protests the extent of the Coast 
Guard’s  redaction  of  the  investigative  report  under  FOIA  and  objects  to  the  fact  that 
officers  who  receive  derogatory  OERs  have  fewer  procedural  protections  that  those 
facing a court-martial or mast.  The Board finds that the applicant has not proved that 
her previous OER reply, which lacks these complaints, was entered into her record in 
error or constitutes an injustice.  She has not proved that she is entitled to revise her 
reply, and no regulation provides for such revision. 
 
 
 

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

9. 

10. 

The application of XXXXXXXXXXXX, USCG, for correction of her military record 

ORDER 

 
 
is denied. 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

(see dissenting opinion)                    
Robert C. Ashby 

______________________________ 
Mark A. Holmstrup 

______________________________ 
Karen L. Petronis 

DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2000-163 
 
   

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

 
 

DISSENTING OPINION 

 

I  respectfully  disagree  with  the  decision  of  the  Board  in  this  case.    Briefly,  applicant 
requested  that  the  Board  remove  a  special  OER  from  her  record  as  well  as  two 
subsequent  failures  for  selection  for  promotion  to  xxxxx.    The  special  OER  contains 
damaging  allegations  concerning  the  applicant’s  professional  conduct  which,  if  true, 
cast  serious  doubt  on  her  fitness  for  further  exercise  of  responsibility  in  the  Coast 
Guard, let alone promotion.   
 
The  allegations  in  the  special  OER  were  based,  at  least  in  part,  on  the  report  of  an 
investigation  by  the  Coast  Guard  Investigative  Services.    The  Coast  Guard  did  not 

provide  her  a  copy  of  the  report.    She  made  a  Freedom  of  Information  Act  (FOIA) 
request for the report, which the Coast Guard did not release to her in a timely fashion.  
When  the  Coast  Guard  belatedly  provided  her  a  copy  of  the  report,  it  was  heavily 
redacted.6   The Board accepted the Coast Guard’s position that, because the applicant 
did  not  controvert  or  refute  the  facts  alleged  in  the  special  OER,  the  truth  of  the 
allegations should be assumed.  The apparent legal basis of this conclusion is that Coast 
Guard personnel actions enjoy a presumption of regularity, which the applicant has the 
burden of rebutting. 
 
Here  is  the  situation:    A  Coast  Guard  personnel  document  makes  probably  career-
ending comments about an officer.  The Coast Guard refuses to provide – in a timely 
and  complete  fashion  --  the  only  information  that  will  allow  the  officer  to  refute  the 
allegations.   The report would allow her to check the accuracy of the facts alleged, learn 
the  identity  of  any  witnesses  that  her  representative  could  interview,  find  any 
inconsistencies in the information relied upon for the special OER, etc.  It is a key piece 
of  evidence,  without  which  she  is  quite  unable  to refute meaningfully the allegations 
against her.7   The Board’s decision, however, stands for the proposition that the Coast 
Guard’s  allegations  against  her  must  stand  because  she  has  not  rebutted  the 
presumption of regularity those allegations enjoy, because the Coast Guard refuses to 
give her the means to make such a rebuttal.   Only if Joseph Heller had chosen to write 
about the Coast Guard, rather than the Air Corps, could there be a more classic Catch-
22.   
 
This result is so fundamentally unfair, such an open and blatant denial of the most basic 
requirements  of  due  process,  that  it  cannot  be  permitted  to  stand.    The  Board  has  a 
responsibility to correct injustice, and it should do so here.   
 
To correct the manifest injustice in the Coast Guard’s action, the Board should take the 
following action: 
 

1.  The  Board  should  request  that  the  Coast  Guard  immediately  provide  a  full, 
unredacted copy of the investigative report to the applicant, giving the applicant 
90 days to respond to its allegations.  The Coast Guard would then consider the 

                                                 
6  The  Coast  Guard  did  not  provide  a  copy  of  the  report  to  the  Board’s  staff,  in  either  its  original  or 
redacted form, so the Board has not had the opportunity to review it to determine the credibility of its 
information or the utility of the redacted version to the applicant. 
 
7  It does not save the Board’s position to assert that the applicant failed to controvert the allegations of the 
special OER.  In the absence of facts with which to make the refutation, a simple denial would not have 
been viewed as sufficient by the Coast Guard or the Board to overcome the presumption of regularity that 
the Board cites.  The applicant should not be penalized for failing to take an action which everyone knows 
would be futile.  
 

applicant’s response and recommend to the Board the corrective action, if any, 
that it believes to be appropriate. 

2.  The Board would retain jurisdiction of the case.  If the applicant failed to provide 
a reply responding to the special OER’s allegations within the 90-day period, the 
Board would affirm the Coast Guard’s present action.  If the applicant did reply 
within this period, the Board would then review the Coast Guard’s subsequent 
recommendation with respect to any further action that should be taken. 

3.  If the Coast Guard declines the Board’s request in paragraph (1), then the Board 
would  order  the  removal  of  the  special  OER  and  the  applicant’s  subsequent 
failures of selection for xxxxxxx, as the only steps that could correct the injustice 
to which the applicant was subjected. 

 
 

 
 

 
 

 
 

 
 

_______________________ 
Robert C. Ashby