DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
 
 
BCMR Docket  
No.  2000-183 

 
 
Application for Correction of  
Coast Guard Record of: 
 
 
 
XXXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXXX 
 
    

  FINAL DECISION 

This  final  decision,  dated  July  3,  2002,  is  signed  by  the  three  duly  appointed 

 
ULMER, Chair: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425  of  title  14,  United  States  Code.    It  was  docketed  on  September  7,  2000,  upon  the 
BCMR’s  receipt  of  the  applicant’s  complete  application  for  correction  of  his  military 
record. 
 
 
members who were designated to serve as the Board in this case. 
 
 
The applicant, a drilling reservist at the time he filed his application, asked the 
Board to correct his record by removing the reviewer comment page from the officer 
evaluation  report    (OER)  for  the  period  from  October  1,  XXXX  to  April  30,  XXXX 
(subject OER) and replacing it with a “for continuity purposes only” reviewer comment 
page.  The applicant also requested that the decision of the captain retention board not 
to  retain  him  in  an  active  drilling  status  be  set  aside  and  that  he  be  reinstated  as  an 
active driller.  He was involuntarily removed from an active status on XXXXXXXX, after 
his non-selection for retention by the captain retention board.     
 

Subsequent to filing his application with the Board, the applicant amended it to 
request  that  a  special  selection  board  be  convened  to  evaluate  him  for  promotion  to 
admiral  because  his  record  was  not  considered  by  the  most  recent  admiral  selection 
board  that  convened  after  his  failure  to  be  selected  for  retention  in  an  active  drilling 
status.   
 

EXCERPTS FROM RECORD AND SUBMISSIONS 

 

 
The applicant alleged that the reviewer comments should not have been placed 
in his military record because he had not been given an opportunity to file a reply to 
them before they were submitted to the retention board for use in that selective process.  
He  further  alleged  that  the  reviewer  committed  other  violations  of  the  Personnel 

Manual  in  preparing  his  comments  and  rating  scale  mark.    He  also  alleged  that  the 
reviewer comments were inaccurate. 
 

The  OER  rating  chain  consists  of  a  supervisor,  reporting  officer  and  reviewer.  
Reviewer  comments  are  prepared  on  a  separate  sheet  called  the  reviewer  page  and 
attached  to  the  OER  after  the  supervisor  and  reporting  officer  have  completed  their 
portions of the OER. Reviewer comments are not always necessary.  However, in this 
case,  reviewer  comments  were  necessary  because  the  applicant’s  supervisor  and 
reporting  officer  for  the  OER  in  question  were  not  members  of  the  Coast  Guard  but 
members  of  another  branch  of  the  service.  Pursuant  to  Article  10-A-2f(2)1  of  the 
Personnel Manual, reviewer comments were required to be attached to the OER.   
 

The applicant’s marks in the performance dimensions (given by the supervisor 
and reporting officer) of the subject OER were mostly 5s and 6s, with 4s in developing 
others  and  evaluations.    The  supervisor’s and reporting officer’s comments described 
the applicant’s performance in complimentary terms.  They described his achievements 
as  XXXXXXXXXXXX,  serving  as  XXXXXXXXXXXXXX,  obtaining  the  appropriate 
security clearance, attending a two-day training course, participating in an exercise at 
the  XXXXXXXXXX,  and  qualifying  as  a  duty  officer.    The  reporting  officer  rated  the 
applicant  as  a  7  (on  a  scale  of  1  to  7,  with  7  being  the  highest)  in block 9 (the rating 
scale).  Article 10.A.4.a.8.b. of the Personnel Manual states that the mark assigned to a 
captain  in  this  area  should  be  “that  [which]  most  closely  reflects  the  Reported-on 
Officer’s  performance  in  consideration  of  information  contained  in  the  OER.2    The 
reporting officer recommended the applicant for promotion to flag grade (pay grade O-
7)  “ahead  of  the  best  of  his  peers,”  in  block  10    (potential)  of  the  subject  OER.    The 

                                                 
1  Article  10.A.2.f.2..  of  the  Personnel  also  states  in  pertinent  part:    “Responsibilities.    The 
Reviewer:    a.  Ensures  the  OER  reflects  a  reasonably  consistent  picture  of  the  Reported-on 
Officer’s performance and potential. . . b.  Adds comments as necessary . . . that further address 
the performance and/or potential of the Reported-on Officer.  For any officer whose Reporting 
Officer is not a Coast Guard commissioned officer, member of the Coast Guard, member of the 
Coast Guard Executive Service (SES), or a USPHS flag officer serving with the Coast Guard  . . . 
the  reviewer  shall  describe  the  officer’s  “Potential”  and  include  an  additional  “Comparison 
Scale”  or  “Rating  Scale”  mark.    The  comparison  scale  is  not  to  be  completed  unless  the 
Reviewer comments are mandatory  . . .” 
 
2 A mark of 4 on the block 9 rating scale for a captain describes “[a] good solid captain.  Skilled 
in  management  and  leadership.    Respected  for  views  and  ability  to  contribute  to  the  [Coast 
Guard] and its work. 
 
A  mark  of  5  describes  a  captain  who  “[h]as  flag  POTENTIAL.  Should  be  given  challenging 
assignments and considered with peers.”   
 
A mark of 6 on block 9 describes a captain who is “[r]ecommended for flag selection at a future 
board.” 
 
A mark of 7 on block 9 describes a captain who is “[r]ecommended for flag selection at next 
board.” 

applicant stated that the following comments by the reporting officer fully supported 
that officer’s rating scale mark. 

 
An outstanding, exceptionally skilled officer . . . is respected by superiors, 
peers  and  subordinates  alike.    My  “Go-To”  person  for  all  CG  related 
issues  .  .    his  expertise  is  impressive and advice always on target.  Will 
make an outstanding Flag Officer in 2001. (Emphasis in brief.) 
 
[The  applicant]  has  what  it  takes  to  be  an  outstanding  Flag  Officer:  
Command background from OPERATION DESERT SHIELD/STORM . . . 
Is most highly recommended for promotion to Rear Admiral ahead of 
best of peers.  (Emphasis in brief) 

 

 

The  reviewer,  a Coast Guard officer, prepared a separate rating scale (block 9) 
from that of the reporting officer as required by regulation.  In contrast to the reporting 
officer’s  mark  in  block  9,  he  gave  the  applicant  a  4  in  block  9.    He  also  wrote  the 
following comments: 
 

[The  applicant’s]  service  .  .  .  has  enhanced  mutual  understanding  and 
improved  interoperability  between  the  Coast  Guard,  the  joint  staff,  and 
the  other  four  services.    He  has  jumped  into  a  new  position and built a 
significant role in ensuring that the Coast Guard is well represented and 
regarded as an equal in the XXXXXXXX. 
 
I concur with the assigned marks and comments in this report.  It is clear 
that [the applicant] has quickly earned the respect of his supervisor and 
reporting officer.   
 
[The  applicant]  is  an  excellent  officer  with  demonstrated  potential  for 
challenging  assignments  and  positions  of  greater  responsibility.    His 
performance of duty as a XXXXXX and action officer as well as his broad 
base  of  expertise  in  the  Coast  Guard  Reserve  makes  him  exceptionally 
well qualified for retention, for which he has my highest recommendation. 

The  applicant  argued  the  reviewer’s  rating  scale  mark  is  inconsistent  with  the 
reviewer’s  own  comments  and  therefore  it  should  be  removed.    In  this  regard,  the 
applicant  stated  that  the  reviewer  wrote  that  he  concurred  with  the  marks  and 
comments on the OER, but then assigned a rating scale mark of 4, which was lower than 
the  reporting  office’s  rating  scale  mark.    According  to  the  applicant,  based  on  the 
reviewer’s  concurrence  with  the  marks  of  the  supervisor  and  reporting  officer,  the 
reviewer should have assigned the applicant a rating scale mark equal to that given by 
the reporting officer.  
 

The applicant alleged that the reviewer’s comments were not a “fair accurate and 
objective”  appraisal  of  his  performance  and  therefore  the  comments  violated  Article 
10.A.1.b  of  the  Personnel  Manual.  He  also  argued  that  the  reviewer  violated  Article 

10.A.4.c.11.g.3 of the Personnel Manual, which states the following:  “The Reviewer   . . . 
may explain or reconcile discrepancies or conflicts reflected in the completed report, if 
these  inconsistencies  cannot  be  resolved  by  returning  the  report  to  concerned  rating 
chain members or personal discussion.  Additionally the Reviewer shall limit comments 
to performance or behavior observed during the reporting period and/or discussion of 
the  Reported–on  Officer’s  potential.”  In  this  regard,  the  applicant  claimed  that  the 
reviewer comments could not have been based on the reviewer’s personal knowledge 
because the reviewer had just arrived at the command a few weeks prior to the end of 
the reporting period.  He alleged that the reviewer relied on information supplied by 
one of his subordinates, “who also did not know anything about [the applicant].”  He 
argued because of this violation the reviewer’s comments should be removed. 

 
The  applicant  stated  that  if  the  reviewer  wanted  to  provide  comments  “to 
explain or reconcile discrepancies or conflicts reflected in the complete report,” he could 
do so only after he had returned the OER to the concerned rating chain members.  He 
argued that the reviewer failed to comply with that portion of Article 10.A.4.c.11.g. of 
the  Personnel  requiring  him  to  return  the  OER  to  the  rating  chain  to  resolve  any 
discrepancies.    He  reasoned  that  the  reviewer  did  not  do  so  because  there  were  no 
discrepancies  in  the  OER.    He  stated  that  the  reporting  officer’s  comments  fully 
supported his rating scale mark.   
 
The applicant also claimed that the reviewer’s comments and rating scale mark 
 
should be removed because they are inconsistent with the supervisor’s and reporting 
officer’s  evaluation  of  his  performance  and  potential.    He  further  claimed  that  the 
reviewer’s  comments  and  rating  scale  mark  are  inconsistent  with  his  most  recent 
captain OERs.   
 
 
 
The  applicant  further  alleged  that  the  reviewer’s  comments  violated  Article 
10.A.4.g. of the Personnel Manual because he was not afforded his right to reply to the 
OER  and  to  have  it  filed  in  his  record  as  part  of  the  OER.    This  provision  gives  a 
reported-on officer the right to reply to any OER and to have that reply filed with the 
OER.      Specifically,  the  applicant  alleged  that  he  was  prejudiced  before  the  captain 
retention board by the denial of an opportunity to have a reply to the OER considered 
by the captain retention board, which met on July 10, 2001.  In this regard, he stated the 
following: 
                                                 
3  Article  10.A.4.c.11.g.  of  the  Personnel  Manual  states  the  following:    “[T]he  Reviewer  may 
comment on the Reported-on Officer’s performance, qualities, potential, or value to the Coast 
Guard  if  these  areas  need  to  be  expanded  or  explained  further.    Comments  and  a 
comparison/rating  scale  mark  are  required  if  the  Reporting  Officer  is  not  a  Coast  Guard 
Officer, Coast Guard Senior Executive Service (SES) member, or the USPHS flag officer serving 
as Chief, Office of Health and Safety, Commandant (G-WK) . . .  The Reviewer also may explain 
or reconcile discrepancies or conflicts reflected in the completed report, if these inconsistencies 
cannot  be  resolved  by  returning  the  report  to  concerned  rating  chain  members  or  personal 
discussion.    Additionally,  the  reviewer  shall  limit  comments  to  performance  or  behavior 
observed  during  the  reporting  period  and/or  discussion  of  the  Reported-on  Officer’s 
potential.” 
 

 

 

Had  [I]  been  able  to  reply,  and  have  that  reply  considered  by  the 
Retention  Board,  [I]  would  have  brought  to  their  attention  the  errors 
outlined in this application.  Indeed, [I] would have been able to explain 
that  [my]  service  justified  the  marks  given  by  [my]  Supervisor  and 
Reporting  Officer.    [I]  would  have  also  established  that  because  of  the 
tremendous service [I] provided to the Coast Guard, [I] should not only 
have  been  retained,  but  also  that  the  Coast Guard should promote [me] 
just  as  recommended  by  [my]  chain  of  command.    Because  [I]  was  not 
given  the  chance  to  reply  to  the  Reviewer  Comments,  as  required  by 
Coast  Guard  Regulations,  the  Reviewer  Comments  page  should  be 
removed  and  replaced  with  a  “FOR  CONTINUITY  PURPOSES  ONLY” 
Reviewer Comments page. 

With respect to the timeline for completion of the OER, the applicant stated he 
received a copy of the OER, without reviewer comments, on June 7, XXXX.   He stated 
that on June 30, XXXX, the reviewer signed the reviewer comments page, and on July 
10,  XXXX,  the  OER  was  sent  to  the  PY  (promotion  year)  XXXX  Reserve  Captain 
Retention Board.  The applicant stated that he received a copy of the OER that had been 
approved  by  Coast  Guard  Headquarters,  on  July  12,  XXXX,  two  days  after  the 
Retention Board convened.  He stated this was the first time he had seen the reviewer 
comments, which he described as damning with faint praise.  The Retention Board met 
on July XXXXXX, but did not select the applicant for retention.   
 
 
The applicant stated that the decision of the retention board not to retain him in 
an active drilling status was based, in part, on the disputed reviewer comments, which 
should not have been considered by the board because he did not have an opportunity 
to reply to them.  Therefore, his record was not considered on a fair and equitable basis 
by  the  retention  board.    He  stated  that  the  BCMR  is  required  to  determine  whether 
there is a nexus between the alleged defects in the reported-on officer’s PDR (Personal 
Data Record) and his passover or non-retention. 
 
 
The applicant stated that Engels v. United States, 230 Ct. Cl. 465 (1982) prescribes 
the test to be applied in determining whether a nexus exists between the alleged error 
and  the  applicant’s  failure  to  be  selected  for  retention.    Based  on  Engels,  that  test 
requires a two-step evaluation: “(1) would the officer’s record have been stronger if it 
had not been [in]correctly constituted, and (2) would the officer have been passed over 
or not retained in any event.”   
 
 
With respect to the first prong, the applicant argued that it is indisputable that 
his record would have been stronger were it not for the reviewer’s “damning “4” rating 
and comments.”  He stated that his previous OERs show and unbroken record of highly 
distinguished service and multiple awards and decorations.  He argued that he would 
have  had  a  much  stronger  case  for  retention  and  promotion  had  his  reviewer’s 
comments been in accord with those of his Supervisor’s and reporting Officer’s rating 
and comments. 
 

 
Regarding  the  second  prong,  the  applicant  stated  that  the  record  reveals  no 
reasonable ground for not retaining the applicant, other than the 4 in block 9.  He stated 
that even as the reviewer assigned a mark lower than that of the reporting officer, he 
stated that the applicant was “exceptionally well qualified for retention,” for which he 
gave his “highest recommendation.”  The applicant further stated that “[g]iven that the 
Coast Guard has long refused to release its data on the distribution . . . of OER marks, 
there is no way that the Coast Guard can satisfy its burden of showing that an officer 
with  OERs  like  [the  applicant’s]  would  not  have  been  retained  regardless  of  [the] 
reviewer’s comments and “4” rating.” 
 
The Applicant’s Other Captain OERs 
 
 
Footnote 1 (see page 2) explains the rating scale for captains.  On the applicant’s 
first OER as a captain, he received a rating scale mark of 4.  On the next two OERs he 
received a 5 on each of these rating scales.   
 

His fourth OER was the first of two OERs with a reporting officer and reviewer 
rating scale.  On this OER, the non-Coast Guard reporting officer rated the applicant as 
a 7 on the reporting officer’s scale, while the reviewer rated him a 5 on his rating scale. 
The applicant received performance marks of 5s and 6s, with two 7s, in the performance 
categories of this OER. The reviewer for this particular OER wrote that “[t]he Reporting 
Officer’s Block 9 comparison scale is high for Coast Guard OERs for [the applicant’s] 
grade, but is indicative of the valuable service he has provided to his host command.”  
 

For the OER in question, the applicant’s last OER to be considered by the XXXX 
retention board, the reporting officer rated the applicant as a 7 on his rating scale, while 
the reviewer rated the applicant as a 4 on his rating scale. On this report the applicant 
received two performance marks of 4 in developing others and evaluations.  He did not 
receive any marks of 7 in the performance categories of this OER.   
 
Personnel Records Review Board (PRRB) Review 
 
 
Prior  to  the  Board’s  processing  of  this  case,  it  was  considered  by  the  PRRB  as 
required  under  the  doctrine  of  exhaustion  of  administrative  remedies.    On  May  21, 
2001, the PRRB refused to grant the applicant any relief.  Upon notification of denial by 
the PRRB, the Board began its review of this application. 
 
 
 

In denying relief to the applicant, the PRRB made the following conclusions: 

‘1.  The disputed OER was fairly and properly prepared and executed by 
all members of applicant’s OER rating chain. 
 
‘2.    Applicant  has  submitted  insufficient  evidence  to  rebut  the  strong 
presumption of regularity afforded the comparison scale assigned by his 
reviewer. 
 

“3.  There is no evidence that Applicant submitted a timely reply to the 
disputed OER or that his due process rights were abridged. 
 
“4.  Applicant has failed to prove a nexus between the disputed OER and 
his  failure  of  retention  before  the  XXXXX  XXXXX  Captain  Retention 
Board. “  

 
Views of the Coast Guard 
 
 
On  February  25,  2002,  the Board received the advisory opinion from the Chief 
Counsel  of  the  Coast  Guard.    Noting  that  there  was  no  provision  in  the  Personnel 
Manual for a “for continuity purposes only reviewer page,” he recommended that the 
Board  deny  relief.  The  Chief  Counsel’s  advisory  opinion  relied  heavily  on  a 
memorandum from the Commander, Coast Guard Personnel Command (CGPC), which 
was attached to the advisory opinion as Enclosure (1). 
 
 
The  Chief  Counsel  argued  that  the  comparison  scale  mark  is  not  erroneous 
because  it  is  lower  than  the  performance  marks  in  other  portions  of  the  OER.    The 
advisory opinion stated that in assigning a comparison scale mark “the marking official 
is  required  to  compare  the  Reported  on  Officer  against  all  other  officers  of  the  same 
grade and [to] determine how that officer compares.”4  The advisory opinion states that 
while the applicant may have objectively performed his assigned duties at a very high 
level  as  documented  by  his  OER  supervisor  and  reporting  officer,  it  was  not 
inconsistent or erroneous for the reviewer to determine that the applicant did not have 
flag (admiral) potential.   
 
 
CGPC stated that the applicant failed to prove a lack of due process regarding 
his  right  to  submit  an  OER  reply.    He  stated  there  is  no  evidence  that  the  applicant 
exercised his right to submit a reply within the 14 days after receipt of an official copy 
of  the  OER,  as  permitted  under  regulation.    Moreover,  CGPC  was  not  aware  of  any 
regulation  entitling  applicant  to  a  right  of  reply  before  review  of  the  OER  by  the 
retention  board.    Therefore,  he  argued  the  applicant’s  allegation  in  this  regard  is 
without merit.   
 
 
validated in a timelier manner.  The Chief Counsel stated the following:   
 

The  Chief  Counsel  blamed  the  applicant  for  not  ensuring  that  his  OER  was 

Applicant  was  responsible  for  the  completion  of  his  OER  in  a  timely 
manner  and  the  lack  of  any  evidence  showing  that  Applicant  had  been 
proactive  in  the  completion  of  his  OER,  must  lead  this  Board  to  the 
conclusion  that,  though  unfortunate,  Applicant  failed  to  ensure  the 
timeliness of the validation of his OER.   

                                                 
4   According to Article 10.A.4.c.8. of the Personnel Manual the comparison scale is for  officers  
from warrant officer (W-2) through commander (O5).  Captains (O6) receive a rating scale mark 
“that  most  closely  reflects  the  Reported-on  Officer’s  performance  in  consideration  of 
information contained in the OER.” 

 
 
CGPC  argued  that  even  if  the  applicant  could  prove  error  with  respect  to  the 
subject  he  OER,  he  has  failed  to  establish  a  nexus  between  the  alleged  error  and  his 
failure to be retained in an active status.  He stated that even if the applicant could show 
that  the  alleged  error  made  his  record  appear  worse,  it  was not likely that he would 
have been selected for retention in any event.  CGPC stated that the applicant’s first two 
captain OERs were average ones, particularly for a captain with flag aspirations.   
 
Applicant's Response to the Views of the Coast Guard 
 

On  April  12,  2002,  the  Board  received  the  applicant's  response  to  the  advisory 
opinion.  He disagreed with the Chief Counsel that he bore any responsibility for the 
tardiness  associated  with  the  completion  of  the  OER.    He  stated  that  the  reporting 
period ended on April 30, XXXX and the OER, without the reviewer comment, arrived 
at Coast Guard Headquarters, on June 7, XXXX.  The applicant questioned why it took 
from June 7 until July 6, XXXX to obtain the reviewer comments.  He concluded that the 
OER was submitted in a timely manner and it was up to the Coast Guard to explain 
why the OER was not validated in a timely manner.   
 

FINDINGS AND CONCLUSIONS 

1.    The  Board  has  jurisdiction  of  this  case  pursuant  to  section  1552  of  title  10, 

 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
 
applicant's  submissions  and  military  record,  the  Coast  Guard's  submission,  and 
applicable law: 
 
 
United Stated Code.  It was timely. 
 
2.    The applicant requested an oral hearing.  The Chair, under section 52.31 of 
 
title 33, Code of Federal Regulations, recommended disposition on the merits without a 
hearing.  The Board concurred in that recommendation. 
 
 
3.  The applicant has not produced sufficient evidence to persuade the Board that 
the  reviewer  comment  page  of  the  subject  OER,  which  included  the  reviewer  rating 
scale, was in error or unjust because the comments were not as complimentary and the 
rating  scale  mark  not  as  high  as  those  of  the  reporting  officer.    The  reporting  officer 
gave the applicant a 7 on his rating scale, but the reviewer gave the applicant a 4 on his 
rating scale.  Article 10.A.2.f.2.b of the Personnel Manual states that in situations where 
reviewer comments are necessary, “the Reviewer shall describe the officer’s ‘Potential’ 
and include an additional . . . ‘Rating Scale Mark.’”  Reviewer comments and a rating 
scale mark were necessary in this case because the applicant’s reporting officer was not 
a  Coast  Guard  officer,  a  Coast  Guard  senior  executive  service  member,  or  a  United 
States Public Health Services (USPHS) Officer.  Id. 
 
 
4.    As  required  by  Article 10.A.2.f.2.b. of the Personnel Manual, the reviewer’s 
comments  addressed  the  applicant’s  potential.  He  described  the  applicant  as  an 
excellent officer with demonstrated potential for challenging assignments and positions 

of  greater  responsibility.    The  reviewer  wrote  that  the  applicant  had  his  highest 
recommendation  for  retention  in  an  active  drilling  status,  but  his  comments  did  not 
include a recommendation that the applicant should be promoted to flag grade (O-7).  
The reviewer marked the applicant accordingly on the rating scale by giving him a 4, 
which  describes  the  applicant  as  “a  good  solid  captain.  Skilled  in  management  and 
leadership.  Respected for views and ability to contribute to the [Coast Guard] and its 
work.”  
 
 
5.    The  applicant’s  claim  that  the  reviewer’s  comments  violated  the  Personnel 
Manual because they were not based on his personal observation since he had arrived 
for duty only a few weeks before the reporting period ended is without merit.  He did 
not provide any evidence of this; nor did he provide any evidence to substantiate his 
allegation that the staff member who provided the input to the reviewer for the OER 
had no personal knowledge of him. The Board disagrees with the applicant that Article 
10.A.4.c.11.g.  of  the  Personnel  Manual  limits  the  reviewers  comments  to  his  direct 
observation  of  the  applicant’s  performance.    The  provision  states  in  pertinent  part:  
“The  reviewer  shall  limit  comments  to  performance  or  behavior  observed  during  the 
reporting  period  and/or  discussion  of  the  Reported-on  Officer’s  potential.”    This 
provision  does  not  state  that  the  reviewer  must  directly  observe  the  applicant’s 
performance to comment on it.  Therefore, the Board concludes that any comment must 
be based on observed performance or behavior during the reporting period, but it need 
not be that directly observed by the reviewer.   
 

6.    This  interpretation  is  consistent  with  Article  10.A.2.e.2a  of  the  Personnel 
Manual  which  allows  the  reporting  officer  to  base  an  evaluation  of  performance  on 
direct  observation,  information  provided  by  the  supervisor,  or  other  reliable  reports 
and records.  Therefore, the Board finds that the limiting words in Article 10.A.4.11.g. of 
the  Personnel  Manual  are  meant  to  ensure  that  the  evaluation  of  an  applicant’s 
performance  is  based  on  reliable  information  about  events  that  occurred  during  the 
reporting  period.    (Emphasis  added.)    Even  if  the  Board  were  to  agree  that  reviewer 
comments should have been based on the reviewer’s direct observation, the comments 
are  complimentary  and  not  prejudicial  to  the  applicant.  The  Board  finds  no  error  or 
injustice with respect to the contents of the reviewer comments and will not direct that 
they be removed.   

 
7.  Moreover, Article 10.A.2.f.1.a. of the Personnel Manual states that “while the 
supervisor  and  reporting  officer  are  specific  individuals,  the  Reviewer  is  a  position.”  
Emphasis  added.    The  provision  further  states  that  “[t]he  officer  occupying  [the 
reviewer]  position  has  a  definite  OES  [Officer  Evaluation  System]  administrative 
function  .  .  .”    Reviewer  OES  responsibilities  are  not  dependent  on  his  direct 
observation of the reported-on officer. 

 
8.  The applicant’s real complaint is with the reviewer’s rating scale mark, which 
he believes was, in part, responsible for his failure to be retained in an active drilling 
status.  He argued that the reviewer’s rating scale mark was inconsistent with that of 
the reporting officer, who had an opportunity to observe his performance.  However, 
nothing in Article 10.A.2.f.2.b. or Article 10.A.4.c.11.g of the Personnel Manual required 

the reviewer to give the applicant the same rating scale mark as the reporting officer 
assigned on his rating scale.  If the two rating scale marks were required to be the same, 
there would be no need for a separate reviewer rating scale.  In addition, in situations 
such as the applicant’s, where the reporting officer is a non-Coast Guard officer or civil 
servant, the Coast Guard is probably looking for a seasoned Coast Guard employee’s 
assessment of a reported-on officer’s potential for service in a higher grade.  After all a 
member of another service probably would not be as knowledgeable about the Coast 
Guard’s  officer  evaluation  system  or  service  needs  as  would  individuals  who  are 
members of the Coast Guard.     
 
 
9.  The only direction the Personnel Manual provides on completing the rating 
scale  mark  is  Article  10.A.4.c.8.  of  the  Personnel  Manual.    This  provision  states  that 
“[t]he reporting officer shall fill in the circle that most closely reflects the Reported-on 
Officer’s  performance  in  consideration  of  information  contained  in  the  OER.”  In 
contrast, the reviewer is only required to describe the applicant’s potential and provide 
a  rating  scale  mark.    No  evidence  has  been  presented  that  the  mark  of  4  reflected 
anything other than the reviewer’s honest assessment of the applicant’s potential for the 
period under review.  The 4 on the reviewer’s rating scale, although lower than the 7 
given  by  the  reporting  officer  on  his  rating  scale,  is  not  so  inconsistent  with  the 
applicant’s other performance marks that the Board is compelled to find it inherently 
erroneous or unfair.  For example, the applicant was given two 4s in evaluations and 
developing  others  categories,  with  the  remainder  of  his  performance  marks  being  5s 
and  6s.    The  Board  notes  that  the  applicant  did  not  receive  a  7  in  any  of  the  18 
performance categories on the subject OER.  Based on all of the applicant’s marks and 
comments on this OER, the reviewer’s rating scale mark of 4 is not unreasonable.   

 
 
10.  The more difficult issue is whether the Coast Guard should have submitted 
the  OER  to  the  retention  board  before  the  expiration  of  the  14  days  allotted  to  the 
applicant to reply to the OER.  The OER was validated by Coast Guard Headquarters 
on July 10, XXXX and provided to the retention board that same day.  The applicant did 
not receive his official copy of the OER until July 12, XXXX.  Article 10.A.4.g. gives the 
reported-on  officer  the  right  to  submit  a  statement  within  14  days  of  receipt  of  the 
official  copy  of  the  OER  from  CGPC.    According  to  this  provision  of  the  Personnel 
Manual,  the  purpose  of  the  reply  is  to  “provide  an  opportunity  for  the  reported-on 
officer  to  express  a  view  of  his  performance  which  may  differ  from  that  of  a  rating 
official.” 
 
 
11.  While the Personnel Manual gives an officer the right to reply to an OER, it 
does  not  address  whether  the  Coast  Guard  can  use  that  OER  in  any  selection  board 
process before the reported-on officer is given an opportunity to reply to it. The Chief 
Counsel argued that there was no denial of due process with respect to the applicant’s 
right  file  a  reply  to  the  OER  and  he  was  not  aware  of  any  regulation  entitling  the 
applicant to such a right before the OER could be considered by a selection board, in 
this case the captain retention board.  However, the Board questions the purpose of a 
regulation that provides an officer with a 14 day period to reply to an OER, but permits 
the Coast Guard selection boards to consider that OER before the expiration of the 14 
days.  This is particularly so in light of Article 10.A.1.d. of the Personnel Manual which 

states that OERs are used by the Coast Guard to make management decisions related to 
promotion,  assignment,  and  career  development.    The  information  provided  by  an 
officer in a reply could possibly impact a Coast Guard decision in one of these areas. 
 
12.  The Chief Counsel suggested that the applicant’s failure to file a reply to the 
 
OER  at  all,  even  if  the  retention  board had already convened, defeated his argument 
that  he  was  denied  an  opportunity  to  reply  to  the  OER.    Under  a  best  case  scenario, 
three  days  would  have  been  an  insufficient  amount  of  time  to  prepare  a  draft  OER 
reply, submit it to the three members of the rating chain for their review and comment, 
and get it to Coast Guard Headquarters prior to the adjourning of the retention board 
on July 15, XXXX.  Even if this could have been accomplished, it seems a heavy burden 
to  place  on  a  reported-on  officer  who  should  have  had  14  days  to  submit  a  reply  as 
required  by  regulation.  Accordingly,  the  Board  is  persuaded  that  the  Coast  Guard 
committed  an  injustice  by  providing  the  OER  to  the  retention  board  before  the 
expiration of the 14 days allowed for the applicant to submit a reply. 
 
 
13.  Having found that the Coast Guard committed an injustice by submitting the 
OER to the retention board before the 14 days for the applicant to submit a reply had 
expired,  the  Board  must  determine  whether  the  lack  of  an  OER  reply  prejudiced  the 
applicant before the retention board.  In determining whether a nexus exists between 
the errors or injustices and the applicant’s failure to be retained, the Board applies the 
standards set forth in Engels v. United States, 230 Ct. Cl. 465 (1982). The standards are 
as follows:  "First, was the claimant'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 he would have been [retained] in any 
event?"  Engels at 470. 
 
 
14.    With  respect  to  the  first  prong  of  the  Engels  test,  the  Board  finds  that 
applicant's performance record would appear essentially the same even if the applicant 
had  submitted  a  reply  to  the  OER.    Although  the  applicant  would  probably  have 
disagreed  with  the  reviewer’s  comments  and  rating  scale  mark  in  any  reply  that  he 
would  have  submitted,  he  did  not  point  to  or  provide  concrete  proof  of  any  factual 
error  in  the  reviewer  comments  or  the  rating  scale  mark.    Nor  has  he  stated  that  his 
rating  chain  failed  to  include  in  the  OER  any  of  his  accomplishments  during  the 
reporting period.  He offered only his opinion as proof that the reviewer’s comments 
and judgment of his potential were inaccurate.   
 

15.  Moreover, the OER in question was the second of two captain OERs in the 
applicant’s  military  record  in  which  a  reviewer  prepared  a  separate  rating  scale 
containing  a  lower  mark than that given by the reporting officer.  On the applicant’s 
previous  OER  the  reviewer  gave  the  applicant  a  5  on  the  rating  scale,  where  the 
reporting  officer  had  marked  him  a  7  on  his  rating  scale.    It  was  clear  to  anyone 
reviewing the applicant’s record, that Coast Guard rating chain reviewers evaluated the 
applicant’s  potential  differently  than  did  his  non  Coast  Guard  rating chain members.  
An OER reply, based on the information in this application, would not change that fact. 
Based on the information of record, the Board finds the lack of an OER reply did not 
make the applicant’s record appear worse. 

 
16.  The Board further finds that is unlikely that the applicant would have been 
selected  for  retention  in  any  event.  The  Board  finds  that  the  applicant  had  a 
substantially  accurate  and  correct  record  before  the  retention  board.    He  also  had  a 
strong recommendation for retention by the reviewer of the subject OER.  The applicant 
does not claim that any awards or other pertinent material was missing from his record.  
An  OER  reply  offering  his  view  of  his  performance  would  not  have  changed  the 
reviewer’s  evaluation  of  that  performance  and  he  has  offered  nothing,  except  for  his 
own  view  of  his  performance,  to  show  that  a  reply  would  have  likely  enhanced  his 
performance record.  Therefore, the Board finds that it is not likely that the applicant 
would have been retained in an active status in any event. 
 
 
 
18.    The  Board  notes  that  there  are  no  provisions  in  law  or  regulation  that 
 
authorize  special  selection  boards  for  the  Coast  Guard.    The  Board  also  notes  that 
submitting incomplete OERs to retention Boards carries at least the appearance of a lack 
of due process and recommends that the Coast Guard resolve this issue. 
 

17.  Accordingly, the applicant's request for relief should be denied. 

The  application  of  XXXXXXXXXXXXXXX,  USCG,  for  correction  of  his  military 

ORDER 

 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Barbara Betsock 

 

 

 
Charles Medalen 

 

 

 

 

 
 
Thomas A. Phemister 

 

 

 

 

 

 

 

 
 
record is denied.