DEPARTMENT OF TRANSPORTATION
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for Correction of
the Coast Guard Record of:
BCMR Docket No. 2001-017
Xxxxxxxxxxxxxxxxxx
Xxxxxxxxxxxxxxxxxx
FINAL DECISION
ANDREWS, Deputy Chair:
This is a proceeding under the provisions of section 1552 of title 10 of the United
States Code. It was docketed on April 4, 2001, upon the applicant’s completion of the
application with additional significant evidence.1
appointed members who were designated to serve as the Board in this case.
This final decision, dated November 26, 2002, is signed by the three duly
APPLICANT’S REQUEST FOR RELIEF
The applicant, a retired chief warrant officer (CWO3), asked the Board to correct
her record by expunging an officer evaluation report (disputed OER) she received for
the period July 1, 19xx, to July 31, 19xx, and by altering comments in a concurrent OER
she received for a temporary assignment writing contingency plans from March 3 to
August 24, 19xx. She also asked the Board to expunge her retirement and her failures of
selection for promotion by the PY (promotion year) xxxx and xxxx selection boards
from her record, return her to active duty, and award her back pay and allowances.2
SUMMARY OF THE APPLICANT'S ALLEGATIONS AND EVIDENCE
1 The applicant first submitted her application on January 11, 2001. On April 4, 2001, she submitted
significant new evidence, causing her application to be newly completed. She later received extensions of
the time to respond to the advisor opinion totaling more than five months.
2 The applicant was not selected for promotion in 19xx and 19xx and was slated to retire on November 1,
19xx. However, on August 19, 19xx, in Docket No. 1998-048, the BCMR ordered the removal of those
failures of selection because the Coast Guard had not obeyed the Board’s order in Docket No. 124-92 to
remove an OER from her record. In Docket No. 1998-048, the Board found that the erroneous continued
presence of that OER in her record when it was reviewed by the selection boards in 19xx and 19xx could
have caused her failures of selection. However, after her record was properly corrected, the applicant
failed of selection again in xxxx and xxxx by the PY xxxx and xxxx boards and was retired on July 1, xxxx.
The applicant stated that the disputed OER, the third she received while serving
as an administrative officer at a xxxxxxxxxxxxxxxxxxxx (XXX), is “filled with violations
of the Personnel Manual, lies, half-truths, and distortions of fact.” She stated that her
first two OERs as the Administrative Officer at the XXX from October 1, 19xx, through
June 30, 19xx, more accurately reflect her performance. She pointed out that nothing in
those first two OERs suggests that her performance at the XXX was lacking. She alleged
that after a new commanding officer (CO) arrived at the office at the beginning of her
third evaluation period at the XXX, she was not given a “fresh start” and was removed
from her position as Administrative Officer within a few weeks. The numerical marks
(on a scale of 1 to 7, with 7 being best) and comments in the disputed OER are as
follows:
MARKS AND COMMENTS IN DISPUTED OER
(The bold letters inserted in the text refer to correspondingly lettered allegations and supporting evidence below.)
#
3a Being Prepared/
MARK WRITTEN COMMENTS BY SUPERVISOR
4
CATEGORY
Planning
3b Using Resources
3c Getting Results
3d Adaptability
3e Professional
Competence
4a Speaking and
Listening
4b Writing
5a
Looking Out for
Others
5b Developing
Others
5c Directing Others
5d Teamwork
5e Workplace
Climate
3
4
4
3
5
4
4
4
4
3
3
“Continued with process improvement through assisting in departmental goals.
Consolidated unit instructions & migrated to SWS III. Provided positive support in
preparation of upcoming MLC compliance audit. Updated unit reserve personnel
roster on SWS III data base; result - 98% success rate in contacting reserve mem-
bers during OPERATION POSITIVE RESPONSE exercise. [A1] With some resis-
tance eventually agreed to provide weekend admin support to reservists; support
resulted in greater reserve satisfaction & increased development of reserve YN
skills. Identified shortcomings of new Tricare health care, developed survey to
measure customer satisfaction. [B] Administrative credibility at times in question,
professional competence supplemented by very capable YN1. As Mutual Assis-
tance Officer did not always follow program & command guidelines; recommended
loan approvals without informing cmd that they were outside prgm parameters;
failed to provide reference material w/ loan packages even after requested by XO;
[C] refused to learn computerized check-issuing system resulting in unfair delays to
applicants. Strong commitment to members as alcohol/substance abuse counselor
[D1] but failed to follow CG prgm guidelines & failed to inform/update XO on per-
sonnel problems & rehab recommendations; e.g. applied inappropriate & unrealistic
standard in selecting counselor, unnecessarily delaying essential patient
counseling.”
“Confident & articulate speaker; gave informative presentation on sensitive topics to
unit utilizing creative attention tactics, held all hands interest for duration of
program; received kudos from many attendees. Written material often superb,
demands higher standards from subordinates. Showed improvements on
proofreading through submission of migrated unit instructions resulting in a product
close to completion. Excellent vocabulary; written materials logically prepared &
required minimal correction.”
“Demonstrated concerned response to unit members in need of counseling for both
alcohol screening and mutual assistance requests; arranged counseling for mem-
bers at local military treatment facility, prepared request for member seeking
funding for relative’s funeral. Supported flex time arrangement for subordinate with
extensive commute. Compassionate towards needs of single parent requiring
special consideration. As CDAR, effectively provided alcohol-abuse training to all
hands. Supported decision to update unit instructions in preparation for MLC
compliance audit. Recognized need to send unit HS TAD to larger medical unit to
increase skill level. [A2] Resistant to full support to & from reservists. Created
5f
Evaluations
3
stressful workplace environment; e.g. [E] reprimanded senior POs in presence of
nonrates; e.g. displayed anxiety that POs were conspiring against her; e.g. [F] gave
poor advice about their low marks to two marginally performing POs; result:
subordinates involved CEA, XO in seeking relief fm her. [G] Her poor interaction w/
subords & failed leadership resulted in emergency meetings of CPO Mess, CEA, &
XO. Evaluations of subordinates on time & accurate. Rcvd no personal OER input
despite numerous requests.”
END OF SUPERVISOR’S SECTION/BEGINNING OF REPORTING OFFICER’S SECTION
“Concur w/ supervisor. [H] At beginning of the period, served as Admin Dept Chief which included F&S2 and
SKs. Dept was dysfuctional & Supply Branch was broken out as separate dept to allow [the applicant] to focus
on YNs & admin issues & regain leadership credibility. [I] Admin Dept cont’d to be dysfunctional despite
numerous command counseling sessions. Acted unprofessionally during counseling. Relieved as dept head
on 9/18/xx due to loss of command confidence in leadership abilities. She took initiative to request TAD to
XXXXX which was approved.”
Initiative
7
Judgment
8a
8b
8c Responsibility
8d Professional
Presence
8e Health &
Well-Being
9
Comparison
Scale
10 Potential
4
4
2
3
3
2
“Recognized & sought opportunity for personal growth in volunteering for TAD
assignment. Upon migrating to SWS III, aggressively sought knowledge & trng on
new applications resulting in new databases for personnel. Resourcefully ID’d &
utilized new application to run spreadsheet in response to D5 data call. Judgment
at times in question; requires supervision due to own interpretation of
regulation/policy; results in time wasted. More often finds roadblocks than solutions
when queried for advice by seniors. [D2] Held off on required counseling of
member involved in alcohol incident – requesting specific counselor – increasing
anxiety of member in need of counseling. [J] Took advantage of position; e.g.
refused to submit to direct-subordinate HS1’s repeated request for mandatory
weigh-in prior to TAD; XO led to believe weigh-in accomplished; e.g. [K] wrongly &
surreptitiously had orders for training issued by HQ, bypassed normal process
including Supervisor, Training Officer & XO; result – kept eligible member from
attending school.[3] Caused others, including subordinates, great emotional stress.
Occasionally showed pride as member; has potential to reflect positively upon CG.”
The Comparison Scale is not actually numbered. The reporting officer is instructed
to compare the evaluee with other officers of the same rank whom he has known
and assign one of seven possible marks. The second mark indicates that the
evaluee is merely “qualified,” which is better than “unsatisfactory” (the first mark) but
lower than “competent” (the third mark).
“Though technically a ‘qualified’ officer, overall performance, attitude and leadership was
unsatisfactory to marginal this period. Exhibits great difficulty working with others.
[L] Professional skills/position often used to “work the system” to own purposes/advantage,
adversely impacting subordinates and command good order; [she] lost credibility within this
command. Not recommended for promotion or leadership positions.”
The disputed OER was signed by the applicant’s supervisor—a lieutenant who
was assigned to serve as Administrative Officer after the applicant was removed from
that position—on August 4, 19xx; by her reporting officer, the executive officer (XO) of
the XXX, on November 3, 19xx; and by the reviewer, the CO of the XXX, on November
5, 19xx. The applicant submitted the following allegations and evidence concerning the
disputed comments marked [A1] through [L] in the OER:
COMMENTS [A1] & [A2]: “With some resistance eventually agreed to provide week-
end admin support to reservists.” & “Resistant to full support to & from reservists.”
The applicant alleged that she provided as much support to the reservists as she
could “under the circumstances.” She alleged that during the 19xx summer transfer
3 This shaded phrase was deleted from the OER by the Personnel Records Review Board (PRRB).
season, when she had just two active duty yeoman and one reserve yeoman, her prior-
ity was to process transferring active duty members. She alleged that both her com-
mand and the reserve command master chief were aware of her office’s personnel
shortage. She alleged that as soon as the transfer season was over, she arranged for the
active duty yeomen and another reserve yeoman to support the reservists on weekends.
In support of her allegations, the applicant submitted a copy of an email message
dated August 15, 19xx, from the reserve command master chief, who commented on
upcoming retirements and expressed frustration over the lack of administrative support
for reservists on weekends. She also submitted copies of email messages she sent to her
command in which she asked that the yeoman, YN1 Y, whom she had previously
“loaned” to the housing office be returned to the personnel office since the billet in the
housing office had recently been filled by another petty officer. In an email message
dated September 21, 19xx, she told her command that another reserve yeoman would
be assisting her office one day a week and that two active duty yeomen in her office had
agreed to work one Saturday a month each in exchange for the following Monday.
COMMENT [B]: “Administrative credibility at times in question, professional com-
petence supplemented by very capable YN1.”
The applicant alleged that the yeoman referred to in this comment, YN1 X, was
not “capable.” She stated that she was not impressed with his abilities when she
arrived at the XXX, but organized the office so that each yeoman would “have an area
of expertise or an opportunity to shine.” She alleged that YN1 X would do only what
was necessary to get by, and when she asked him to conduct some training at an
upcoming all hands meeting, he forgot. She alleged that YN1 X’s replacement in Octo-
ber 19xx complained to her about how badly the work was being done.
COMMENT [C]: “[R]efused to learn computerized check-issuing system resulting in
unfair delays to applicants.”
The applicant alleged that she knew the computerized check-writing system for
issuing mutual assistance checks. In support of this allegation, she submitted a state-
ment from the office’s current mutual assistance clerk, who stated that between January
19xx and March 19xx, the applicant processed 37 checks totaling $24,510.86, whereas all
other persons in the office had together issued 12 checks totaling $16,675.54. The appli-
cant alleged that delays in the system occurred because of “micro-management by the
command” and because, after new work stations were installed, the only work station
that could handle the check-writing software was in a different department and could
not be quickly accessed. She alleged that “there were no delays for checks that were
considered to be an emergency” and only short delays of a few days for other checks.
She alleged that her command was not actually dissatisfied with her performance at this
task but criticized it without justification in the OER to try to justify the low marks.
COMMENTS [D1] & [D2]: “[B]ut failed to follow CG prgm guidelines & failed to
inform/update XO on personnel problems & rehab recommendations; e.g. applied
inappropriate & unrealistic standard in selecting counselor, unnecessarily delaying
essential patient counseling.” & “Held off on required counseling of member
involved in alcohol incident – requesting specific counselor – increasing anxiety of
member in need of counseling.”
The applicant denied this comment. She alleged that she followed the program
guidelines and did not unnecessarily delay anyone’s treatment or cause anyone to be
“exceptionally anxious.” She stated that she had been a Collateral Duty Addictions
Representative (CDAR) for more than ten years. She alleged that anyone involved in an
“alcohol incident” is anxious and that no one had ever complained about her treatment
recommendations. She alleged that the comments in the OER reveal her command’s
lack of understanding of how the treatment program works. Treatment for these mem-
bers was “not held up by [her] unrealistic treatment recommendations but by the multi
levels of bureaucracy the paperwork had to move through and by the command’s own
delay in adjudicating NJP [nonjudicial punishment].”
The applicant also alleged that after she was demoted on September 18, 19xx, the
XO had a “closed door policy” for her and would not meet with her without someone
else present. Therefore, it was impossible for her to communicate with him on sensitive
issues, such as scheduling a member’s treatment.
The applicant stated that she had five CDAR cases during the evaluation period.
Two were easily resolved by sending the members to a Navy alcohol awareness pro-
gram; two had “other issues” that had to be resolved before treatment could start, and
the fifth member needed Level II Treatment, but the Navy required that the command
complete his NJP before he could attend. After his NJP, she recommended that he be
sent to a counseling center where there was someone trained to differentiate between
alcohol abuse and post traumatic stress disorder. However, her command rejected her
recommendation because of a scheduling problem. Therefore, she located a private
counselor with the necessary training and immediately notified the Maintenance and
Logistics Command (MLC). Unfortunately, there was some delay in MLC’s response.
tions Program Representative for MLC, who stated that he found her to be
In support of her allegations, the applicant submitted a statement by the Addic-
professional, truly caring, and [to] have extensive knowledge in the field of addictions.
[She] continually made extra efforts to find members at [the XXX] the best care possible.
She understood that often issues not directly related to chemical dependency, e.g. sup-
port of family, could have a profound effect on treatment success. With that understand-
ing she worked for approval of local care when appropriate, which was unfortunately a
lengthier process. One case in particular ended up “parked” on a Medical Officer’s desk
at MLC, while he was on temporary assignment, and was inordinately delayed through
no fault of [the applicant]. In my view she was an excellent … CDAR … .
COMMENT [E]: “[R]eprimanded senior POs in presence of nonrates.”
The applicant alleged that this accusation was made by YN1 X in a meeting on
September 17, 19xx (when she was not present), at which he defended himself for using
foul language and blamed her for his stress. She stated that, while she may have repri-
manded senior POs in the presence of nonrates during a previous evaluation period,
she never did so in the evaluation period for the disputed OER. She also alleged that
she herself was reprimanded in front of junior personnel when she was ordered by her
supervisor in September 19xx to “work for” YN1 X. She alleged that her supervisor
“continued to humiliate” her until she left the XXX on March 1, 19xx, for a temporary
active duty (TAD) assignment in the xxxxxxxxxxxxxxxxxxxxxxxx (XXXXX).
COMMENT [F]: “[G]ave poor advice about their low marks to two marginally per-
forming POs; result: subordinates involved CEA, XO in seeking relief fm her.”
The applicant alleged that the only “marginally performing” petty officer she
supervised was an HS1 (health services technician). She alleged that she thought the
HS1 was nevertheless “a capable caring professional and … evaluated her as such and
… recommended her for promotion.” However, the applicant’s supervisor, who acted
as the marking official for the HS1, did not recommend her for advancement. She
alleged that his decision was made based on only six weeks of observation, during
which the HS1 made a few mistakes. The applicant stated that she advised the HS1 to
appeal his decision, but after talking to a career counselor, the HS1 chose to retire.
COMMENT [G]: “Her poor interaction w/ subords & failed leadership resulted in
emergency meetings of CPO Mess, CEA, & XO.”
The applicant alleged that this comment refers to the incident on September 17,
19xx, when YN1 X used “foul and aggressive language” that was overheard by a master
chief. When called on it, YN1 X cried and blamed the applicant for not being “there for
him.” A meeting was called but her side of the story was never requested, and the com-
mand did not consider or investigate the yeoman’s background, which she alleged was
very troubled with continued drinking despite Level III treatment for alcohol abuse.
She stated that, based on the yeoman’s story, her command “turned its back” on her
and “convicted and executed” her without allowing her to defend herself. She was
removed from her position as Administrative Officer the next day.
COMMENT [H]: “At beginning of the period, served as Admin Dept Chief which
included F&S2 and SKs. Dept was dysfuctional & Supply Branch was broken out as
separate dept to allow [the applicant] to focus on YNs & admin issues & regain lead-
ership credibility.”
The applicant alleged that the Supply Branch was “broken out” as a separate
department only to avoid having one CWO (her) supervise another CWO. She alleged
that no one ever counseled her about the matter or suggested that the division was nec-
essary because she lacked “leadership credibility.” She alleged that the comment is
inconsistent with her previous OER and with the fact that the command later reor-
ganized the whole Administrative Department into a Support Services Branch headed
by a lieutenant commander.
COMMENT [I]: “Admin Dept cont’d to be dysfunctional despite numerous com-
mand counseling sessions. Acted unprofessionally during counseling.”
The applicant alleged that the only command counseling session she received
occurred in August 19xx, a few weeks into the evaluation period, when the new CO
arrived. She alleged that the actual purpose of the session was for her to brief the new
CO. She alleged that she later requested additional meetings to no avail. She alleged
that during their one session, she told the CO that she was short-staffed because it was
the height of transfer season and because, before the division of the department, she
had “loaned” two petty officers to other branches assuming that, as department head,
she would be able to move them back. However, since the division, she could no longer
move them back to her office. She alleged that her explanations “fell on deaf ears.”
The applicant further alleged that during the briefing, she realized that the out-
going CO had told the new CO about a memorandum she had written in June 19xx
describing three situations in which African-American petty officers in her department
had threatened white subordinates with physical violence. She stated that the outgoing
CO had not taken her allegations seriously and had told her to get counseling because
she was “hyper-sensitive to racial issues.” She stated that she was a trained civil rights
counselor and had graduated from the Defense Equal Opportunity and Management
Institute and could therefore recognize “situations that affect productivity in the work
place.”
In support of her allegations, the applicant submitted a memorandum she pre-
pared on her office’s organization. It indicates that of four yeoman (YN) positions, two
were filled, one was vacant because a YN1 was “on loan” to the housing office, and a
second was vacant because the member had transferred. It also indicates that a seaman
was getting on-the-job training to fill the second vacancy, but the applicant alleged that
other duties left the seaman little time for his training.
The applicant submitted a copy of the memorandum she wrote to the previous
CO on June 25, 19xx, about a “hostile and intimidating work environment” in her
department. It indicates that she had recently witnessed three incidences in which Afri-
can-American petty officers had “utter[ed] threats of violence to junior white memers.”
She stated that both supervisors and subordinates were tolerating the threats out of fear
of being “labeled racist.” She also stated that supervisors were assigning a dispropor-
tionate amount of work to white male subordinates “out of fear of reprisals” by women
and minorities. She indicated that African-American subordinates were challenging her
authority and asking to talk to the XO or CO.
The applicant submitted a statement by a fellow CWO who had served as the
Operations Officer of the XXX until July 19xx. The CWO stated that the previous
Administrative Officer at the XXX had been transferred early due to conflicts with the
XO. He stated that because the applicant had no prior experience as an Administrative
Officer, he “spent many sessions with [her] trying to provide guidance.” He stated that
she cried in his office many times after having frustrating meetings with the XO, whom
she believed had prejudged her “based on the way they felt toward the previous Admin
Officer.” She told him that “she could not get guidance or support from the command.”
The CWO stated that he did witness one occasion when the CO embarrassed the appli-
cant at an “All Hands Meeting” by commenting on her not being prepared to brief
them. He stated that in response to this “environment” she “went into a shell.” The
CWO stated that he sometimes felt frustrated with her because she and her staff seemed
unresponsive. He stated that her staff would go over her head to the XO, who would
then “call[] [her] on the carpet.” The CWO stated that he believes that after he left the
XXX, in August 19xx, the outgoing CO and XO briefed the new CO and XO about the
applicant’s “situation and thereby prejudiced her getting a fair chance to prove herself.”
The applicant also submitted a copy of an email message she received from the
new XO on August 12, 19xx, in which he stated that, before she discussed “the YN
situation” with the new CO, he wanted to meet with her to discuss it. He stated that
her office was supposed to have three yeomen—a YN1, a YN2, and a YN3—and that
she currently had a YN1, a YN2, and a seaman “striking” for YN3, so he did not
understand her problem. He stated that she herself had let the previous YN3 leave. He
stated, “I want to know how you can adapt and make it work to the best of your ability
and what compromises you will need to make, not just that it can’t work.” He further
stated, regarding “performance perceptions,” that the CO had been briefed on past
problems but had said that she would start with a “clean slate with him” and be judged
only on “the performance he observes on HIS watch.” He stated that she could meet
with the new CO but should present several alternative solutions to any problem,
instead of just one solution. He also stated that she should be ready to discuss the “pros
and cons” of each alternative, but he stressed that she should not argue with the CO.
COMMENT [J]: “Took advantage of position; e.g. refused to submit to direct-subor-
dinate HS1’s repeated request for mandatory weigh-in prior to TAD; XO led to
believe weigh-in accomplished.”
The applicant denied this comment. She alleged that she was weighed prior to
going on TAD and met the Coast Guard’s weight standards. She submitted a copy of
an email message in which the HS1 stated that the applicant was weighed but that the
HS1 “was never able to get the percent body fat so it was not adequate for the official
weight check.” The applicant pointed out that COMDTINST M1020.8C provides that, if
a member fails the weight standard but meets the percentage body fat test, an entry
must be made in their record noting that fact. She alleged that the absence of such an
entry in her record supports her claim that she met the weight standard since her “very
precise” supervisor was also the HS1’s supervisor. The applicant further alleged that
she does not “know who misled the XO as [she] never had direct contact with him after
18 Sept xx
COMMENT [K]: “[W]rongly & surreptitiously had orders for training issued by HQ,
bypassed normal process including Supervisor, Training Officer & XO; result – kept
eligible member from attending school. ”4
The applicant denied this comment. She stated that in January 19xx, when she
received the TAD orders to XXXXX, she learned that her job would be to write two
contingency plans. She then called Mr. X of xxxxxxxxxxxxxxxx to see if he had any
sample plans. Mr. X offered her a seat in a 12-day Contingency Plans Writing Class that
was to begin on March 28, 19xx. He stated that he would send a message to her Group,
which could either cut the orders for her to attend the class or forward the message to
XXXXX. The applicant alleged that she told her supervisor about the class. When the
message about the class arrived on February 24, 19xx, her last day at the XXX before
going on TAD, both her name and that of her supervisor appeared on the class list. She
stated that since her supervisor was aware of the message well in advance of the class,
there was plenty of time for another member from her Group to attend.
The applicant alleged that when she arrived at XXXXX on March 1, 19xx, she was
told that her orders to the class had been canceled so that someone with a “higher
operational need” could attend. However, she alleged, no one else from her Group was
ever enrolled in the class, the class was never filled, and she was not allowed to attend.
She alleged that the statement that she kept someone else from attending is false and
that her Group “set [her] up for failure at XXXXX by preventing [her] from attending
training necessary to do [her] job and by causing [her] to get off on the ‘wrong foot’
with the command at XXXXX.”
In support of her allegations, the applicant submitted a copy of the February 24,
19xx, message showing that both she and her supervisor were enrolled in the 20-mem-
ber class. She also submitted a copy of Mr. X’s class list and a letter from Mr. X, who
stated that after she contacted him, he had suggested she attend the class and included
her name on his “quota submissions to Commandant.” Mr. X further stated that, when
the XXX received the quota message, “they decided to send [her supervisor] to the
course instead of [the applicant]. However, since there were unused quotas for the
course, I decided to keep [the applicant’s] name on the list with the hope that XXXXX
would allow [her] to attend.” He also stated that the fact that the applicant’s name was
on the class list “did not prevent another person from attending the training.”
The applicant also submitted a copy of a letter she wrote to her command at
XXXXX dated March 25, 19xx, in which she asked to be allowed to attend the class. In
4 The shaded phrase was deleted from the OER by the PRRB.
it, she stated that although the XO of XXXXX, LCDR M, had told her she was bumped
from the class for someone with “higher operational need,” Mr. X had told her that
there was room for her in the class. She stated that, when she again asked LCDR M
about attending the class, he said she could not because her “housing situation” was
unresolved. She resolved it quickly, but then he told her that she could attend the next
class. However, when Mr. X told her that the next class would not occur until the fall,
she asked LCDR M again, and he said that she had “sold” herself to him as being able to
do the work and that she “should just do the job that [she] came down here to do.” The
applicant also stated in the letter that her attendance at the class would not cost XXXXX
anything, and she could not understand why she was not allowed to attend after she
had “taken the initiative to get the training.”
The applicant’s letter was forwarded to the Deputy Commander by the Opera-
tions Officer (OO), who stated that he “did not concur with the assertions made” in the
letter. He stated that LCDR M recollected the events differently. The OO stated that,
when she was first being considered for the TAD assignment, the applicant mentioned
the class, and he told her he did not care whether she attended as long as he did not
have to pay for it. Soon after that conversation, someone from her Group asked if
someone from the Group with a compelling, higher priority could be substituted, and
LCDR M agreed. The OO stated that he did not see the applicant’s attendance at the
class as “critical,” but would not object to her attending, although it might be an “inap-
propriate expenditure” of scarce funds.
COMMENT [L]: “Professional skills/position often used to ‘work the system’ to own
purposes/advantage, adversely impacting subordinates and command good order …
.”
The applicant alleged that this comment by the reporting officer in block 10 of
the disputed OER refers to her filing civil rights complaints and, as such, is a prohibited
comment in Article 10.A.4.f. of the Personnel Manual. She submitted a copy of a rough
draft for the disputed OER, in which her supervisor originally commented in block 5 of
the OER that she “[e]xhibits discriminatory tendencies; stirs the pot by creating gender
& racial issues where none exist. Uses civil rights issues as scare tactics towards super-
visor. Invited outside agency civil rights investigator to question command on CG
trends.” She alleged that, although these comments do not appear in the final version
of the disputed OER, the reporting officer’s negative comment on her ability to “work
the system” is a direct if veiled reference to her civil rights complaints.
Summary of Applicant’s Allegations and Evidence Concerning the Concurrent OER
The applicant asked the Board to alter two comments in the concurrent OER that
she received for her TAD assignment to XXXXX from March 1 to August 24, 19xx. The
concurrent OER contains many positive comments and has 12 marks of 4, 6 marks of 5,
and a comparison scale mark of 4.
The applicant pointed out that there is only one comment in the concurrent OER
about her work on the hurricane plan, which was her primary assignment. The com-
ment is that, upon her arrival at XXXXX, the applicant “[i]mmediately began work on
updating the hurricane plan … .” She alleged that because of her own command’s bias
against her, she was not allowed to attend the plan-writing class. Therefore, instead of
being assigned to write the plan alone, she was assigned to work on the project with a
lieutenant, who wasted time and effort writing the plan in the wrong format. The
applicant did not, however, request any specific correction to the concurrent OER to
address the lack of commentary on her work on the plan. The comments that she wants
corrected in the concurrent OER appear below.5
COMMENT [1]: “This officer also seemed to be dedicated to the CG.”
The applicant alleged that this comment is prejudicial because it suggests that
she was not actually dedicated to the service. She alleged that she was very dedicated
and that nothing in her performance at XXXXX would have led anyone to believe
otherwise. She asked the Board to change the phrase “seemed to be” to “is.”
COMMENT [2]: “This officer is considered qualified for promotion to CWO4.”
The applicant alleged that her performance at XXXXX justified an unqualified
recommendation for promotion. She asked the Board to change the phrase “considered
qualified” to “recommended.” She alleged that only the bias against her by her rating
chain at the XXX could have caused her XXXXX rating chain to use the phrase “con-
sidered qualified” instead of outright recommending her for promotion.
SUMMARIES OF OTHER EVIDENCE SUBMITTED BY THE APPLICANT
Applicant’s Civil Rights Complaint
On July 9, 19xx, before the disputed OER was completed, the applicant filed a
civil rights complaint against her rating chain at the XXX.6 She alleged that her com-
mand had removed her as Administrative Officer in September 19xx in reprisal for the
memorandum she wrote her previous CO in June 19xx about a hostile work environ-
ment. She stated that she was concerned about possible reprisal in her next OER and
that “[w]hat I mean by that is that I expect that my OER be the same or better than the
two previous OERs[;] any thing less I would consider to be still another form of repri-
sal.”
5 One comment in the concurrent OER has already been deleted by the PRRB: “However, external issues
seem to have impacted on fullest utilization & most effective performance.” The PRRB reasoned that it
should be removed because it “encompasses a matter outside the purview of XXXXX’s OER Rating Chain
and, while probably objective, it would serve to create an injustice if left undisturbed.”
6 The Department’s Office of Civil Rights responded to the applicant’s complaint by initiating an
investigation. However, in 2001, it notified the applicant that it would not issue a decision on her
complaint because she had chosen to submit an application to the BCMR on the same matter.
In the complaint, the applicant alleged that before leaving the XXX in February
19xx, she asked her supervisor about her OER. He told her that her only hope for a
good one was to get a separate (concurrent) OER from the XXXXX command or to get
good input from that command for her OER from the XXX command. He told her that
the XXX command would not give her a good OER. She alleged that this was unfair
because, after she was removed from her position as the Administrative Officer, she had
asked what she needed to do to get a good OER, and she had done “exactly what he
asked of me.” She alleged that the disputed OER must therefore be a result of the
memorandum she wrote to the previous CO in June 19xx.
The applicant alleged that, after she submitted her memorandum about the hos-
tile work environment, her previous CO told her she needed psychological counseling
because she was “hypersensitive” to racial issues and told the incoming CO about it.
Therefore, she did not have a “fresh start” with her new rating chain. She alleged that
on September 17, 19xx, YN1 X began crying after he was heard using foul language, but
he blamed her and she was immediately relieved of duty as Administrative Officer
without being allowed to state her case. She stated that, if her command had checked
his record, it would have found that YN1 X had a “long history of not getting along
with his supervisors.”
The applicant alleged that the XO and CO of the XXX had separate standards for
men and women. She was “given one strike” and was relieved of her duties without
being given a chance to present her side. She also alleged that she was not given any
recognition for her efforts and that she had witnessed “extremely hard treatment” of
herself and four of the other eight women at the XXX.
Statement of the CO at the XXX Regarding the Civil Rights Complaint
On December 17, 19xx, the CO of the XXX sent a letter to the District Com-
mander regarding the applicant’s complaint. He pointed out that the complaint was
not filed within 45 days of the day she was relieved of duty as the Administrative Offi-
cer and that it was filed before the disputed OER existed.
The CO stated that after the applicant was relieved of duty, she consulted with
the Commandant’s Gender Polity Advisor, who found no basis for gender discrimina-
tion. He stated that even after the applicant learned of a new process for filing a com-
plaint on May 6, 19xx, she waited 63 days to file the complaint. He stated that, although
the applicant’s complaint mentions the treatment of other women, no other women at
the XXX had filed complaints, and neither the XO nor the CO had heard of any harsh
treatment of women.
Affidavit of the Applicant’s Supervisor at the XXX to the Investigator
The investigator assigned to the applicant’s case interviewed her rating chain,
and on October 5, 2000, received a signed statement from her supervisor. The supervi-
sor stated that in September 19xx, the XO asked him to “try and clean up” the Adminis-
trative Department and appointed him to serve as the Administrative Officer in place of
the applicant. He stated that he kept the applicant as the supervisor for the yeomen in
the personnel office. He stated that at some point, she told him that she had filed a civil
rights complaint against a previous supervisor and had an application pending at the
BCMR. He denied that any part of the disputed OER was based on her race, sex, or
civil rights complaints.
The investigator questioned the supervisor about the comments he wrote in the
rough draft for the disputed OER about the applicant showing “discriminatory tenden-
cies,” “creating gender & racial issues where none exist,” using “civil rights issues as [a]
scare tactic” against him, and inviting an “outside agency civil rights investigator” to
question the command. The investigator also asked him about the bases for comment
[L] in the disputed OER, the mark of 2 on the comparison scale, and the lack of a rec-
ommendation for promotion. In response, the supervisor alleged that the applicant had
once unwisely delayed counseling for an African-American alcohol abuser because she
thought he should have an African-American counselor and one was not available. He
alleged that the applicant had told someone that he himself had said that he did not like
having women work for him. He alleged that she brought a civil rights investigator to
the command when she knew he was preparing the disputed OER. In addition, the
supervisor alleged that she caused XXXXX “a lot of difficulty” by taking her foster child
and daycare provider with her, who both required housing. He stated that he “had no
trust” in the applicant. He had asked for results in a compliance inspection and
received nothing. She came to work late or not at all and often in civilian attire.
The supervisor told the investigator that his own name was already on the list to
attend the plan-writing class when the applicant made a request to attend it through
Headquarters rather than through her chain of command at the XXX. Later, the com-
mand was surprised to see that she was assigned to the class and to learn that XXXXX
thought that the XXX had approved the training and would pay for the class. When he
saw the orders for the class with both his own and the applicant’s names, he inquired
about what office was paying for her attendance. He stated that the XXX was not
interested in paying for the training because it would not benefit the XXX. In addition,
he stated that attending the class was important for his own work at the XXX. More-
over, he stated, attending the class would have required her to go on TAD to xxxxxx
from her TAD at XXXXX, costing the XXX quite a bit for her airfare. He also claimed
that a member “can’t go TAD from TAD.” The supervisor gave the investigator a copy
of the official message dated March 2, 19xx, by which the applicant’s orders to attend
the class were cancelled. The message was sent to both Headquarters and XXXXX and
it states, “request can[cellation] of quota for [the applicant] for 29 March class and
reassign as necessary.”
The investigator asked the supervisor why the applicant had received good eval-
uations from her previous rating chain at the XXX. The supervisor stated that the appli-
cant’s former supervisor was a “very nice guy” who might have avoided “rocking the
boat.” He also stated that her previous supervisors might have been afraid to hold her
accountable for her performance.
The investigator asked if the supervisor had requested input from the applicant
for the disputed OER. He stated that he had asked her for it before she left the XXX on
TAD and she had stated that she would send it to him from XXXXX. However, he
never received any input from her.
Affidavit of the XO of the XXX to the Investigator
The investigator interviewed the XO of the XXX, who served as the applicant’s
reporting officer for the disputed OER. The XO stated that he did not sign the final
draft of the disputed OER until November 19xx because he had asked the supervisor to
correct some errors and because he was overseas on extended leave in August and Sep-
tember 19xx. He stated that he did not believe that the disputed OER was affected by
the applicant’s race, gender, or former civil rights complaints.
The investigator asked the XO about the bases for comment [L] in the disputed
OER, the mark of 2 on the comparison scale, and the lack of a recommendation for
promotion. In response, the XO stated that the applicant “was a disaster in terms of
leadership at this unit.” He received many complaints about her and, at about the time
he himself decided that “something needed to be done,” the chief petty officers held a
meeting about her, after which the Command Enlisted Advisor came to him and “said
something needed to be done.” The XO stated that the head yeoman under the appli-
cant’s supervision, YN1 X, had been found crying in the hall because “he just couldn’t
take it any more.”
The XO further stated that because the applicant was so familiar with the person-
nel system, she was “very dangerous.” He cited as an example the fact that, even after
she had failed of selection for promotion twice and was slated for retirement, she got
herself assigned to attend a class without her supervisor’s knowledge. He stated that
after members are slated for retirement, they are no longer eligible for such training and
that the applicant knew this policy. The XO also stated that, when going on TAD over-
seas, members are not allowed to take their dependents. However, the applicant “had
worked the system and gotten someone to sign off on taking her dependents down
there. That caused a lot of headaches for me: administratively coordinating with the
other unit, finding out how that had happened and determining who was going to pay
for it.” He also stated that he had once discovered she was married when she had
“made representations that she wasn’t married,” and that in looking at the “central
computer data on her dependents … things didn’t add up. It appeared to me that she
was drawing additional pay for dependents … .” The XO also stated that he believed
that the applicant delayed her separation by filing civil rights complaints so that she
would be able to retire with 20 years of service.
The investigator asked the XO why the applicant had received good evaluations
from her previous rating chain at the XXX. The XO stated that, when he first arrived at
the XXX, he saw the applicant in her previous CO’s office “crying and carrying on and
acting in a way that is totally inappropriate in front of a captain.” The XO alleged that
she was “negotiating” with the CO to have her previous OER upgraded.
The XO further told the investigator that the applicant was “hypersensitive when
it came to race and sex.” He stated that YN1 Y, one of the two African-American yeo-
men in her office, complained to him that she would not let him and the other African-
American yeoman eat lunch together in an office with the door closed because she
thought they might be “conspiring against the white people.” YN1 Y told him that the
applicant “looks at everyone in terms of their race and their sex. He gave me 4-6 exam-
ples for which I don’t recall the details.” He stated that in one example, YN1 Y told him
that the applicant had objected when a female petty officer was assigned to one of three
desks out “on the floor” because the applicant said the woman would feel intimidated,
but the woman “had no such feelings.”
The XO also stated that the applicant never submitted input to the OER despite
The XO stated that the command had supported the applicant when she was
right. As an example, he stated that when she wanted to transfer, he called another
XXX on her behalf but was told that the command “didn’t want her because they had
fired her from the legal office many years ago.” He also stated that, once when a bank
canceled the applicant’s government credit card because the balance was too high, the
XO directed the XXX’s finance and supply warrant officer to work on the matter for her
and get the card working again.
her supervisor’s request and never appealed the disputed OER.
Affidavit of the Applicant’s CO at the XXX to the Investigator
The CO, who served as the reviewer for the disputed OER told the investigator
that because the evaluation period ended on July 31, 19xx, the OER should have been
completed and submitted to Headquarters by September 15, 19xx. However, the appli-
cant would not provide them with any input as required by regulation to help them
write the OER. He denied that the applicant’s race, gender, or civil rights complaints
had any effect on the disputed OER and stated that he encouraged people who had
complaints to “pursue their rights.”
Regarding the negative recommendation for promotion in the OER, the CO
stated that he had discussed it with the XO. He stated that it resulted from the appli-
cant’s failure to comply with policies. An audit of the CDAR and Mutual Assistance
programs she headed had found “many inconsistencies” and failures to follow guide-
lines. He stated that she made unilateral decisions for personnel and failed to inform
the XO or CO about them. He also stated that her subordinates complained about her
leadership.
When asked about comment [L], the CO stated that the XO told him that the
applicant had become involved with “various inquiries and procedures” without the
command’s knowledge when she should have been working through the chain of
command.
The investigator also asked the CO why the applicant had received good evalua-
tions from her previous rating chain at the XXX. The CO stated that he had discussed
the applicant’s performance with the previous CO upon his arrival and had received a
copy of her prior OER. He stated that when he found that her performance “did not
jive” with the prior OER, he called the previous CO, who told him that he had raised
several of the marks on her last OER when she took exception to them in an “emotional
and tearful” meeting. He stated that he had “given her the benefit of the doubt” and
raised the marks “against his better judgment.” He apologized for leaving the new CO
with a difficult situation.
The CO further stated that neither he nor the XO had observed the applicant’s
performance on a daily basis but that the applicant had never complained to them
about discrimination by her supervisor.
The applicant alleged that her supervisor’s explanations to the investigator about
his comments in the rough draft for the disputed OER were erroneous. She alleged that
an email in the investigator’s report from a lieutenant at XXXXX to her supervisor at the
XXX shows that they were familiar with each other and that the command at XXXXX
became prejudiced against her because of the bias at the XXX. In that email, dated May
28, 19xx, the lieutenant at XXXXX told her XXX supervisor—who had sent him a
message concerning administrative steps the applicant needed to take because of her
upcoming retirement—that “[s]he has checked out cause she knows that she will not get
what she needs on an OER, so now she does bills and reads the paper.”
The applicant alleged that the XO’s affidavit is also full of errors and false infor-
mation. She stated that, contrary to the rules, he used examples of her performance
SUMMARY OF THE APPLICANT’S RESPONSE TO THE AFFIDAVITS
In response to the affidavits by her rating chain to the investigator, the applicant
alleged that their justifications for the disputed comments in the OER were erroneous.
She stated that her supervisor’s comment in block 3 of the disputed OER about her
support for the MLC compliance audit proves that his statement that he received “no
results” from her on the project is false and cannot justify comment [L]. She alleged that
his statements that her orders to attend the plan-writing class were canceled because he
did not know who would pay for it and “you can’t go TAD from TAD” are both false.
The copy of the orders for the class include a second page of accounting information,
from which she alleged he should have known that her attendance would be paid for by
Headquarters. In addition, she pointed out that nothing in the Joint Federal Travel
Regulations or Coast Guard policy prevents a member from going on TAD from TAD.
She alleged that, because the command at XXXXX thought that her orders were can-
celed so that someone with a higher operational need could attend, it is clear that her
supervisor has contradicted himself and must have canceled her orders because of his
bias against her.
outside the evaluation period to explain the disputed OER comments to the investiga-
tor, such as the complaint about her objections to the African-American yeomen lunch-
ing with the door closed; her prior work at a legal office; and the issue of her marriage
and dependents, which she alleged arose in October 19xx, after the end of the period.
Furthermore, she alleged that YN1 X was the only yeoman who ever complained about
her during the reporting period and he was one of the people she had cited in her
memorandum to the previous CO for using threatening language to a white subordi-
nate. She also alleged that there is no rule against someone about to retire taking a
class, and in any case she did not receive her mandatory retirement letter until after she
enrolled in the class. She also stated that there is no rule against taking one’s depend-
ents on TAD “as long as you pay their way out of your own pocket,” which she did.
She pointed out that since anyone with more than 18 years of service who is passed
over for promotion is allowed to retire after 20 years, the XO’s argument about her fil-
ing civil rights complaints and BCMR applications to attain a retirement is clearly false.
The applicant also alleged that the CO’s affidavit is full of errors and false infor-
mation. She alleged that she did not violate any Coast Guard or unit policies and that
her command may have thought she did only because they did not know the policies.
She stated that an MLC compliance inspection report dated September 19xx shows that
no discrepancies occurred in the Mutual Assistance program prior to her going on TAD
and that many discrepancies occurred in the Administrative Department after she was
relieved of duty as the Administrative Officer. She alleged that her previous CO did
not raise her marks in her prior OER as a result of their meeting. Finally, the applicant
argued that she did file a reply to the disputed OER (though none appears in her record
and she did not submit a copy of one).
DECISION OF THE PERSONNEL RECORDS REVIEW BOARD
On January 30, 2001, the Personnel Records Review Board (PRRB) issued a deci-
sion in this case. In addition to the evidence submitted by the applicant, the PRRB
sought and received statements from the applicant’s supervisor and reporting officer
(the XO) at the XXX, which are summarized below.
Declaration of the Applicant’s Supervisor at the XXX
The supervisor stated that he was the XXX’s training officer and the applicant
never gave him a training request form for the plan-writing class. He stated that when
she initially applied for the TAD assignment, Headquarters had stated that she was
already qualified for the work and did not need further training. When he saw her
name on the orders for the class, he called XXXXX and was told that that command
thought that the XXX was funding her attendance at the class. Therefore, he had her
name removed from the class list. He indicated that no one from the XXX was pre-
vented from attending the class because of her actions, contrary to one comment in the
disputed OER, although by removing her name from the class roster, her seat was made
available to members of other units.
The supervisor alleged that, before the applicant went on TAD, he had to sign a
paper verifying that she met the Coast Guard’s weight standards. When he asked the
unit’s HS1 about it, he was told that the applicant had refused to be weighed. He stated
that later the XO ordered the applicant to weigh in and she did and passed the test, so
no entry was made in her record.
The supervisor alleged that after an African-American member had an alcohol-
related car accident, the applicant delayed treatment and, when asked for an explana-
tion, stated that the member “should be counseled by an African American counselor”
because “only one from that member’s background would fully understand the issues
accurately.” No African-American counselor was available at the time.
The supervisor alleged that well in advance of an annual all-hands weekend for
the reservists, the applicant was asked to provide a CDAR presentation. She asked to
be exempt, but although her request was denied, she arrived late in civilian attire and
did not participate in the presentation. He also alleged that he received many com-
plaints about her lack of support from reservists, including the reserve Command
Enlisted Advisor, but he received compliments from the reservists about YN1 X.
Finally, regarding the applicant’s allegations with respect to comment [F], the
supervisor stated that the HS1 in question was not ready for promotion. He stated that
after he counseled the HS1, she agreed with his decision and signed the evaluation, but
the applicant advised her to appeal. The HS1 told him that she did not want to appeal,
and she ultimately decided not to appeal.
Declaration of the XO at the XXX
The XO, who served as the reporting officer for the OER, stated that the
applicant attempted to negotiate the contents of the disputed OER after it was
submitted, which is not permitted, and she did not file an OER reply. He stated that the
OER was submitted late because she did not respond to numerous requests for OER
input. He stated that he believed she wrote the civil rights complaint on July 9, 19xx,
before the disputed OER was even written “to lay the groundwork for having the OER
ultimately set aside” because she knew that it would reflect the fact that she had been
removed from her position as Administrative Officer.
The XO alleged that the applicant’s command at the XXX would not have
approved her request for training since she was expected to retire on November 1, 19xx.
When the orders arrived, they investigated how she got them without the knowledge of
her supervisor, who was the XXX’s training officer, or himself. He stated that whether
there was a seat for her in the class was not relevant to how she went about procuring
it.
The XO stated that he could not remember the specifics of the weigh-in issue, but
he did remember there was some concern about whether she would present herself to
be weighed in time.
The XO denied that he had a “closed door policy” but stated that he does “not
believe it is prudent for any male supervisor to be behind closed doors alone with a
female subordinate, especially under the trying circumstances in this case and I always
made sure that [the applicant’s] supervisor was present. [She] never brought to my
attention that it was necessary for her to discuss confidential CDAR matters alone with
me.” He alleged that he did discover that she was not keeping him informed about
CDAR matters and was making decisions that “were not hers to make.” He alleged that
her delaying a member’s counseling to wait for a “racially compatible counselor” was
an example of her “hypersensitivity to race.”
The XO alleged that because of the applicant’s poor leadership, the Supply
Branch was separated from the Administrative Department “to minimize the number of
personnel under her supervision. The conflict was not that one CWO worked for
another. The problem was that no one could work for [her].” He stated that at one time
or another, almost all of her subordinates complained to him about her, as did a reserv-
ist, and that members of the Planning Department reported witnessing unprofessional
behavior on her part and interactions “indicative of a total lack of leadership.” He
stated that, to his knowledge, her department was properly staffed.
Findings and Conclusions of the PRRB
Regarding comment [K] in the disputed OER, the PRRB found that the applicant
had proved that her enrollment in the plan-writing class did not keep anyone else from
attending the course. Therefore, the PRRB recommended that the phrase be removed.
However, it found that the statements of her rating chain support the remainder of the
comment. The PRRB stated that, while there is no regulation prohibiting retiring mem-
bers from attending classes, “it is the Command’s prerogative to decide whether or not
training is critical and necessary for their members” and that the record indicates her
command had previously concluded that no special training was necessary.
Regarding comments [D1] and [D2], the PRRB found that the applicant had
blamed her difficulties acting as CDAR on not being able to communicate privately
with the XO, but the XO stated that the applicant never told him she needed to speak to
him privately about a CDAR matter. It found that both the supervisor and reporting
officer had fully supported the comments and that other causes of delay cited by the
applicant did not excuse her failure to consult with the command before making impor-
tant decisions about members’ treatment.
Regarding comment [H], the PRRB found that the reporting officer had sup-
ported this comment in his declaration. The PRRB also found that comments [A1] and
[A2] were supported in the declarations. It pointed out that, while the applicant alleged
that she received only one counseling session from her command during the evaluation
period, Article 10.A.2.c. of the Personnel Manual states that the reported-on officer
should “seek performance feedback from the Supervisor during the period.”
Regarding the concurrent OER, the PRRB found that, while one comment should
be removed because it referred to matters at the XXX rather than at XXXXX,7 the
applicant had presented no “clear and convincing evidence” to show that comments [1]
and [2] were erroneous or that they resulted from bias.
The PRRB also held that the applicant’s failure to submit replies to the OERs was
a “tacit indication” that she accepted their characterization of her performance. It con-
cluded that aside from the removal of one phrase from the disputed OER and another
from the concurrent OER, no further corrections should be made to her record because
she did not present “clear and convincing evidence” that the other comments in the
OERs were in error or that she was evaluated unfairly.
APPLICANT’S RESPONSE TO THE DECISION OF THE PRRB
On April 4, 2001, the applicant sent the BCMR a response to the decision of the
PRRB. The applicant stated that her supervisor’s statement about her failing to make a
CDAR presentation to the reserves is an “outright lie.” She stated that the CDAR pres-
entation is the only one she ever made to a reserve all-hands meeting, and she submit-
ted a copy of an email message from the reserve command master chief, who—in
response to an email asking if she remembered the applicant giving CDAR training at a
reserve all-hands meeting in November 19xx—replied simply “Yes, I do remember you
giving training.”
The applicant alleged that the XO lied when he said he had to remove personnel
from her space because of her poor leadership. In support of her allegation, she submit-
ted a copy of an email message from a chief warrant officer, who stated that he thought
the Supply Department was moved because the Planning Department was growing and
needed more space.
The applicant argued that the rating chain’s statements about her weigh-in do
not actually support comment [J] in the OER, and she alleged that the HS1’s statement
that she submitted proves that comment [J] is false.
The applicant alleged that the PRRB ignored the fact that her supervisor “lied to
the command at XXXXX by saying that they were canceling my seat because of a higher
7 See footnote 5.
operational need,” and lied to the civil rights investigator by saying that she could not
“go TAD from TAD” and could not attend class because she was retiring. She also
stated that the PRRB ignored the supervisor’s lie about not knowing who was paying
for the class, when the information was contained in the orders, which he saw. The
applicant alleged that “the one person who could make the determination if I could use
this training” was Mr. X, who clearly thought she should attend the class. She sub-
mitted a letter from him in which he stated that she would have benefited from taking
the course and that her pending retirement would not have mattered. She further
alleged that her supervisor set her up by not asking her for a training request form.
Regarding the PRRB’s discussion of comments [D1] and [D2], the applicant
alleged that it wrongly blamed her for not focusing on the delay of the African-Ameri-
can member’s counseling. She alleged that her supervisor lied about this because the
member “had not yet been diagnosed and there was no determination that he needed
treatment.” She alleged that the diagnosis had not yet occurred because the Navy
required members to have disciplinary proceedings resolved before entering a treat-
ment center for screening, and the member in question had to go to NJP. In support of
her allegations, she submitted another email from the Addictions Prevention Specialist,
who stated that he could not remember her ever delaying treatment for a member and
could not recall that she ever asked for a specific counselor for a member based on his
race.
The applicant argued that the PRRB ignored the fact that, when questioned by
the civil rights investigator, the XO justified comment [L] by citing incidents that
occurred outside the reporting period and by misrepresenting Coast Guard regulations.
The applicant pointed out that other than the disputed OER, there were no nega-
tive entries in her record documenting her allegedly “atrocious performance and poor
leadership.” She alleged that if she had actually disobeyed an order to be weighed or to
conduct training for the reserves, her supervisor would have noted it in her record or
reported her for insubordination.
VIEWS OF THE COAST GUARD
On February 27, 2002, the Chief Counsel of the Coast Guard recommended that
the Board deny the applicant’s request for lack of merit. The Chief Counsel stated that
in making his recommendation, he adopted the analyses, findings, and conclusions of
the PRRB and would not duplicate them in his advisory opinion but would address
some other issues. Prior to issuing the advisory opinion, the Chief Counsel sought and
received new declarations from the applicant’s supervisor and XO at the XXX, as well as
declarations from the applicant’s previous XO and CO at the XXX, YN1 X, a CWO who
headed the Supply Branch at the XXX, and the command master chief at the XXX.
These declarations are summarized below.
Second Declaration of the Applicant’s Supervisor at the XXX
The supervisor stated that the Chief Counsel had sent him a copy of the applica-
tion and that none of the evidence in it changes his evaluation of her performance,
which was “both fair and objective.” He stated that, in addition to the comments he
made to the investigator of her civil rights complaint, he would add the following spe-
cific comments about her performance to explain disputed comments in the OER.
Regarding YN1 X, the supervisor alleged that contrary to the applicant’s state-
ment, the petty officer’s performance was “outstanding,” and he received an Achieve-
ment Medal prior to leaving the unit. Regarding the training for reserves, he alleged
that the applicant resisted providing it and “arranged tasks for all yeomen so that she
wouldn’t have to come in,” so he had to order her to provide the training. Regarding
the delay of treatment for an alcohol abuser, the supervisor stated that, when she told
him she had not yet scheduled screening for a member because she wanted to wait until
an African-American counselor was available, he reasonably concluded that such a
delay was not in accordance with policy.
Regarding the applicant’s allegation that the supervisor humiliated her in front
of her subordinates, he stated that when she consistently came to work an hour late and
would not get into uniform for several hours, he would call her into his office to ask
why. He stated that he did not close the door because he was afraid she would make a
false allegation of harassment. He stated that she may have felt humiliated, but he had
to hold her accountable for her actions.
The supervisor stated that, prior to going on TAD, the applicant was assigned
and expected to update and transfer the unit instructions from the SWII computer sys-
tem to the SWIII system, but she did not even come close to completing the work. He
stated that he himself counseled her to go on TAD to another unit so that she could get
a better OER and improve her chance of promotion. He alleged that he was not “out to
get her.” However, he alleged, she never told him that she had enrolled in the plan-
writing class through Headquarters before he received the orders. He alleged that the
applicant was qualified to write the plans without attending the class. When he saw her
name on the orders, he called XXXXX to see if XXXXX had approved her attendance at
the class, and the response was “no.” Then he called the program manager for the
course, who stated that the applicant’s supervisor and command had approved her
attendance, but he knew this not to be true. Regarding funding for the class, he stated
that while Headquarters would pay for the class itself, “it is well known that the unit
incurs the expense per-diem and travel.” He alleged that he never claimed any par-
ticular person with a higher operational need was denied enrollment because of the
applicant, only that her actions would keep “any” member with a such a need from
enrolling. He stated that after the applicant went to XXXXX, a lieutenant from that
command whom he had known at a previous station contacted him and complained all
she did was read the newspaper.
Regarding the applicant’s lack of input in the disputed OER, the supervisor
alleged that she had “every opportunity” to provide input but would not answer his
calls to her. He alleged that he asked her supervisor at XXXXX to tell her to send him
input but still received nothing.
Second Declaration of the XO at the XXX
The XO, who is now retired, stated that after arriving at the XXX in 19xx, he
became aware of the odd behavior and lack of leadership of the applicant “through
direct observation as well as being informed by my branch chiefs of problems my
personnel had encountered.” In the spring of 19xx when he learned that he would
become the XXX’s next XO, he spoke with the then current XO and CO, who “[b]oth
assured [him] that they would handle and resolve the problem before [he] assumed the
XO position.” Before he became XO, two African-American yeomen told him that it
was hard to work for the applicant because she was hypersensitive about race and gen-
der and “looked at them as black petty officers instead of petty officers.” They told him
that she did not allow them to eat lunch together behind a closed door.
The XO stated that after he became the XO on July 2, 19xx, he saw the memoran-
dum she had written, but he believed that the previous CO and XO had addressed the
allegations. He stated that he met with her and told her what his expectations were for
her performance. However, the applicant did not follow his instructions. She for-
warded correspondence for him to sign that was counter to policy. She recommended
that he approve mutual assistance requests that did not meet the guidelines and did not
provide him with a copy of the guidelines even after he asked for them. He stated that
she refused to learn the mutual assistance check-writing system and so checks were
often delayed because the assistance clerk who knew the system was frequently out of
the office conducting marine inspections. He also alleged that she went to another
command and “worked the system to get a very large mutual assistance loan,” which
created an administrative nightmare for others. In addition, the XO alleged that she set
her own hours, which was contrary to command policy, and retained her original medi-
cal record despite command directives that it be filed in the medical department. She
was able to do this because she supervised the HS1 who ran the medical department.
The XO stated that as a result of “a number of interactions and incidents, I began to lose
confidence in her integrity.”
The XO stated that after observing her performance, he discussed with the CO
possible solutions “on numerous occasions prior to relieving her as department head.”
After an “emergency meeting of the Chief’s Mess,” the command master chief came to
him and told him that the applicant “did not have the respect of her subordinates, was
causing them great apprehension, and was adversely affecting the entire command.”
The XO stated that this was not news to him. When the master chief reported finding
YN1 X in tears because he “could no longer stand to come to work,” the XO decided to
relieve the applicant of her position even though shifting another officer into the posi-
tion to be her supervisor would leave another important command position vacant.
The XO concluded that the disputed OER was “fact-based and objective” and not
in retaliation for the applicant’s civil rights complaint. He alleged that in prior OERs,
she “kept getting a free pass from her prior supervisors because, as I have now discov-
ered, it took too much time to deal with her.”
Declaration of the Previous CO at the XXX
The captain who served as the CO of the XXX until July 19xx and who signed her
previous OERs from that unit as the reporting officer is now retired. He stated that he
believed the applicant was “a very capable officer” but “had the potential to do better
and I generally gave her the benefit of the doubt in her evaluations.” He alleged that
she was “never happy with her OERs” and “often argued for higher numbers, although
I thought the supervisor and I were generally quite generous.” He believed that she
had several personal problems and that those might have negatively affected her job
performance and work relationships, causing “turmoil” in her department.
The captain stated that when he became CO of the XXX, a junior officer was the
Administrative Officer, supervising two CWOs who headed the storekeepers and yeo-
men. However, he wanted to use the junior officer elsewhere, so he made one of the
CWOs (the applicant) the Administrative Officer, supervising the other CWO. Unfor-
tunately, he alleged, the applicant “interjected herself” into some situations among the
storekeepers in a “less than helpful” way that caused a “downturn in attitude.” There-
fore, he decided to divide the department.
Regarding the applicant’s memorandum about a hostile work environment, the
captain stated that in response he first asked her why she had reported the matter to
him in such a formal manner since he “had always encouraged the staff to come for-
ward, directly to me if appropriate, to report any discriminating behavior.” Then he
personally investigated her allegations and spoke with the alleged victims but found
that the alleged threats of violence were either not serious or were made in jest. The
captain stated that he left a copy of the memorandum for the new CO and told him how
he had addressed the allegations but avoided making any remarks about the applicant’s
motives for writing it. He also told the new CO that the Administrative Department
was requiring too much of his attention and so “some reorganization was appropriate.”
The captain stated that sometime after he left the XXX, the new CO called him
about the applicant’s performance and her prior, positive OERs. He told the CO that
the applicant was “a capable officer with greater potential and, right or wrong, I tended
to give her the benefit of the doubt.”
Declaration of the Previous XO at the XXX
The commander who served as the XO of the XXX until July 1, 19xx, stated that
he remembers seeing the memorandum and briefing the incoming XO about it, but he
was not involved in the investigation. He alleged that, while he was at the XXX, the
applicant’s performance was “severely” affected by personal problems, and she came
late to work because of “family situations.” He believed she had a “fragile personality”
and sometimes thought she “was going to have a mental breakdown.” However, he and
the CO spoke about her almost daily and both of them “felt that we would do more
harm than good by holding [the applicant] strictly accountable for her performance.”
He chose not to deal with the problem because she had been passed over for promotion
many times and would be required to retire soon. He stated that the “department per-
formed well while she was the department head but it was not because of her leader-
ship but in spite of it.” The commander stated that he told the new XO about “the
problem he was inheriting” and was not surprised when he heard that the applicant
had later been relieved as Administrative Officer.
Declaration of YN1 X at the XXX
YN1 X stated that the applicant became his direct supervisor in early 19xx, when
YN1 Y was “loaned” to the Housing Branch. At that point, YN1 X became the supervi-
sor for the YN2 in the office. YN1 X alleged that, contrary to the applicant’s June 19xx
memorandum, he never threatened YN2 with violence, although he frequently had to
remind a YN2 not to “jump the chain of command” and to keep YN1 X informed of his
whereabouts during working hours. He recalled that on one occasion, his direction to
YN2 “became heated” but he alleged that he never threatened the YN2 with violence or
discriminated against him and that they had a good relationship. He further alleged
that the applicant told YN1 Y and him that they should eat lunch with YN2 so that he
would not feel discriminated against. He alleged that her comments caused tension in
the office.
YN1 X also alleged that the reserve personnel felt alienated because they were
not getting paid timely, not receiving orders on time, and not being informed of policy
changes. He had to cope with them because they “did not want to deal with [the appli-
cant] due to her attitude.” He also alleged that she frequently came to work late, did
not wear the proper uniform, and kept her office door closed because she was “on the
phone for hours at a time.” The previous XO had noticed this and eventually required
the applicant to check in and out with him.
YN1 X alleged that when the applicant submitted her request to go on TAD to
XXXXX, her supervisor told her she had to be weighed. He alleged that the applicant
“avoided doing this right up till it was time for her to go” because she was overweight
Regarding the applicant’s allegation that YN1 X undercut her authority by com-
plaining to the XO, he stated that he resorted to complaining to the XO and others
because, whenever he approached her, she “gave me the impression that her personal
problems far outweighed anything I had to say.” YN1 X alleged that in mid September
19xx, the applicant came to the office in a “foul mood” one day and accused him of not
completing a task that she had not even assigned to him. When he told her he did not
know what she was talking about, she told him he was a “’fuck up’ just like everyone
else in the department” in front of his subordinates. He left the office, ran into the mas-
ter chief, and told him what was going on. The next day, the applicant was relieved as
Administrative Officer. YN1 X alleged that the applicant was relieved of her position
because “she had created a hostile and detrimental working environment.”
YN1 X alleged that after the new Administrative Officer took over, he held
meetings at which he would assign tasks and deadlines and ask about results. He
alleged that the supervisor was very fair but the applicant “could not produce any
results” and gave excuses. Once when the new supervisor “became upset” with her
excuses, she was embarrassed. While at work, YN1 X alleged, she was either on the
phone or looking at the newspaper.
and did not want it to stop her from going on TAD. When the supervisor asked the
HS1 about it, he was told that the applicant had her medical record and had never
turned it in.
YN1 X also stated that contrary to the applicant’s statement, he had “never
attended [alcohol treatment] Level III nor was I ever directed not to use alcohol.” He
also alleged that other statements she had made about his record were also false.
Declaration of the CWO Who Headed the Supply Branch at the XXX
The CWO who headed the Supply Branch under the applicant’s supervision as
department head until the branch was made a separate department stated that he had
never been told about the applicant’s June 19xx memorandum and was unaware of any
threats of violence. He stated that YN1 X sometimes came to him for guidance about
leadership since he received very little from the applicant. Other members of her staff
also asked him for guidance. He stated that he was not told why the applicant was
relieved as Administrative Officer and he was told that his branch was moved physi-
cally away from the applicant’s branch because the Planning Department needed more
space.
The CWO stated that the applicant was “the least effective leader” he encoun-
tered in the Coast Guard. He alleged that her “complicated” personal life “had com-
plete priority,” causing her to be “away from work physically or mentally most of the
time” and leaving her staff “effectively rudderless.” He alleged that she “alienated the
reserve YNs to the point that most retired.”
Declaration of the Command Master Chief at the XXX
The master chief stated that in mid September 19xx, he ran into YN1 X, who
greeted him with “a negative comment.” He realized something was wrong and took
the yeoman to the Chief’s lounge for privacy. YN1 X disclosed many “issues” to him
and stated that because the applicant had shifted a lot of work onto him, he was work-
ing 12-hour days and most weekends to try to keep up. She was doing nothing to help.
When the yeoman began to cry, the master chief promised he would help him even if it
meant sharing his work. Because the applicant was not “on board,” he went to the XO,
who indicated that the problem would be fixed. The applicant was removed from her
position the next day.
The master chief alleged that he “never saw [the applicant] do anything to help
her staff. The door to her office was always closed and she routinely left early on lib-
erty.” He also stated that YN1 X was an “outstanding” petty officer with “exceptional
military bearing and ability.”
Advisory Opinion of the Chief Counsel of the Coast Guard
The Chief Counsel argued that the Military Whistleblowers Statute, 10 U.S.C.
§ 1034,8 does not apply to the applicant’s case even though she argued that the disputed
OER was prepared in retaliation for her June 19xx memorandum. He alleged that she
has never proved that the incidents alleged in her memorandum constituted illegal dis-
crimination based on race. He argued that merely indicating that the parties to the
alleged incidents were of different races does not prove that race was a contributing
factor. He further argued that her memorandum did not meet the third-party reporting
requirements for whistleblower status contained in Article 5.A.2.b. of COMDTINST
M5350.4 because she did not show that the situations had not been resolved, that
addressing the situations with the parties directly was unreasonable under the circum-
stances (since she was the supervisor of every person she mentioned in the memoran-
dum), or that the behavior reported was clearly criminal in nature. Therefore, he
argued, her June 19xx memorandum is not a protected complaint under the statute.
The Chief Counsel also argued that the applicant’s July 9, 19xx, civil rights com-
plaint is not a protected communication under the statute because she did not file it
within 45 days of her removal as Administrative Officer, as required by COMDTINST
M5350.4, and she filed it several months before the anticipated alleged reprisal—the dis-
puted OER—was completed. Therefore, he argued, her complaint cannot be considered
a valid discrimination complaint protected by 10 U.S.C. § 1034. However, he argued,
even assuming arguendo that her July 9, 19xx, civil rights complaint is a protected com-
munication within the meaning of the statute, the applicant has not made a prima facie
showing that either her removal as Administrative Officer or the preparation of the dis-
puted OER was retaliation because the record is “replete” with evidence of her sub-
standard performance during the evaluation period. Therefore, the Chief Counsel
argued, the Board should conclude that the procedures required by 10 U.S.C. Part 53
are inapplicable.9
Regarding the merits of the applicant’s allegations, the Chief Counsel argued
that she failed to provide clear and convincing evidence that “there was any reprisal or
bias in the disputed OERs.” He argued that, although the applicant repeatedly alleged
that her rating chain retaliated against her after she submitted her June 19xx
memorandum about a hostile work environment, “[n]othing in any of the testimony
8 The statute states that “[n]o person may take (or threaten to take) an unfavorable personnel action … as
a reprisal against a member of the armed forces for making or preparing … any communication that the
member reasonably believes constitutes evidence of … a violation of law or regulation, including …
sexual harassment or unlawful discrimination … that is made to a Member of Congress, an Inspector
General, or any other person or organization (including any person or organization in the chain of
command) designated by regulations or other procedures to receive such communications.” 10 U.S.C.
§ 1034(b).
9 Under 10 U.S.C. § 1034(f), if an applicant “has alleged a personnel action prohibited by subsection (b),”
the Board “shall review” the report of the Inspector General, “may request” the Inspector General to
gather more evidence, and must issue a final decision within 180 days.
provided by her superiors indicates that the June 19xx complaint played any role
whatsoever in their decision to relieve her in September 19xx nor in the evaluation
process completed in November 19xx.” The Chief Counsel built on the PRRB’s findings
about the case by making the following arguments about how the new declarations he
gathered reflect on the applicant’s allegations:
COMMENT [C]: The Chief Counsel argued that the applicant’s evidence indi-
cating that she issued many checks does not disprove the truth of the comment because
it does not negate her supervisor’s statement that during the evaluation period she
refused to learn the new system and delayed some members’ receipt of mutual
assistance checks. The Chief Counsel pointed out that the XO’s declaration supports the
supervisor’s comment in the disputed OER.
COMMENT [H]: The Chief Counsel stated that the PRRB “adequately
addressed the factual correctness of the comment” and that the comment’s accuracy is
further supported by the declarations of the applicant’s former CO and XO, who both
indicated that the applicant was negatively affecting the performance of her staff during
the final months of the previous reporting period. He pointed out that the former CO
particularly mentioned her negative impact on the Supply Branch, which made him
decide that that branch should be removed from her department. Therefore, he argued,
the Board should find that the applicant has failed “to overcome the presumption of
regularity afforded this comment.”
COMMENT [J]: The Chief Counsel stated that the applicant’s argument that she
met the weight standard are irrelevant to the truth of the comment. He argued that
YN1 X’s statements about this matter in his declaration support the comment and that
the applicant’s avoidance of her supervisor’s command by delaying her weighing
reflects on her “Responsibility,” one of the performance categories grouped with com-
ment [J].
COMMENT [K]: Regarding this comment, the Chief Counsel stated that her
supervisor’s declaration indicates that it reflects her conduct with respect to obtaining a
quota for the plan-writing class without her chain of command’s knowledge or permis-
sion. The Chief Counsel alleged that she has failed to prove that she followed normal
procedures for requesting training or that she received any kind of tacit approval from
her command. He argued that even if, as she alleged, she asked her supervisor at some
point to “look out for” a message about the class, such a statement would not amount to
following proper procedure or receiving her command’s consent to take the class.
Therefore, he argued, she has not proved that comment [K] is erroneous or unjust.
out, the applicant did not dispute in her application to the PRRB:
The Chief Counsel also addressed the following comments, which, he pointed
COMMENTS [A1] & [A2]: The Chief Counsel alleged that the applicant’s
excuse for resisting supporting the reservists (being short-staffed) “does not refute the
objectivity of the OER comment” and that there is “ample evidence indicating that the
comments were fundamentally fair.” He pointed out that the supervisor indicated in
his declaration that he had received numerous complaints from the reserve Command
Enlisted Advisor; that the CWO who headed the Supply Branch stated that she “alien-
ated the reserve YNs to the point that most retired”; and that YN1 X stated that he had
to deal with the reservists’ significant administrative problems because they would not
deal with the applicant “due to her attitude.” Therefore, he argued, the Board should
find that the applicant has failed “to overcome the presumption of regularity afforded
this comment.”
COMMENT [B]: The Chief Counsel stated that there is ample evidence in the
record to support the comment that the applicant’s “administrative credibility” came
into question and that she was aided by a very capable YN1. He pointed out that her
previous XO indicated that she came to the job with little experience and needed a lot of
help and that the declarations of both the new CO and YN1 X indicated why her
“administrative credibility” was in question. He also pointed out that both the Com-
mand Master Chief and the applicant’s supervisor praised YN1 X’s abilities. Therefore,
he argued, the Board should find that the applicant has failed “to overcome the pre-
sumption of regularity afforded this comment.”
COMMENT [E]: The Chief Counsel pointed out that the applicant provided no
evidence to disprove this comment. He also pointed out that in his declaration, YN1 X
stated that the applicant used very derogatory profanity to criticize his work “in plain
view of everyone in the Department.” Therefore, he argued, the Board should find that
the applicant has failed “to overcome the presumption of regularity afforded this com-
ment.”
COMMENT [F]: The Chief Counsel stated that the supervisor’s declaration
amply supports this comment and that, therefore, the Board should find that the appli-
cant has failed “to overcome the presumption of regularity afforded this comment.”
COMMENT [G]: The Chief Counsel stated that the applicant has admitted that
this statement is true but blamed the incident on YN1 X’s poor performance rather than
her lack of leadership. He alleged that comment [G] is amply supported by the declara-
tions of the applicant’s XOs and COs and by those of the CWO and Command Master
Chief. Therefore, he argued, the Board should find that the applicant has failed “to
overcome the presumption of regularity afforded this comment.”
Regarding the disputed comments in the concurrent OER (Comments [1] and
[2]), the Chief Counsel argued that the PRRB properly found that the applicant’s unsup-
ported allegations of bias and taint and her own opinion of her performance at XXXXX
are insufficient to overcome the presumption of regularity afforded the comments of
her rating chain at XXXXX.
The Chief Counsel did not include in the advisory opinion an analysis of whether
the alleged errors and injustices in the two OERs, if proven, could have caused her to be
passed over for promotion and consequently retired. However, he offered to provide
one or to address any other matter upon the Board’s request.
APPLICANT’S RESPONSE
On February 28, 2002, the Chairman forwarded copies of the Chief Counsel’s
advisory opinion and its attachments to the applicant and invited her to respond. The
applicant requested and was granted extensions totaling more than five months and
responded on September 3, 2002.
In her response, the applicant stated that she never alleged that the disputed
OER was prepared in retaliation for her civil rights complaint and she asked the Board
to “ignore the Coast Guard’s responses that contain any reference to Civil Rights issues
so they do not detract from the main focus of [the] application.” She stated that she is
asking the Board to remove the OER because it is an unfair evaluation of her perform-
ance and full of “lies, half truths and distortion of facts,” not because of any purported
retaliation.
The applicant stated that the declarations provided by the Coast Guard prove
her allegation that her CO and XO were prejudiced against her by negative reports they
received at the beginning of the reporting period and even before the period began. She
alleged that the XO’s statement proves that he prejudged her based on the negative
reports, removed her from her position “at the first opportunity,” and tried to substan-
tiate his decision afterward.
The applicant alleged that if her performance were truly lacking during the prior
evaluation period and if she were truly the “poor fragile person” they described in their
declarations, her previous CO and XO would not have allowed her to be the Adminis-
trative Officer for two and one-half years or given her positive OERs. She argued that
their recent declarations are less reliable indicators of her performance than the positive
OERs they timely prepared and that their declarations “were certainly colored by
information provided by” her rating chain for the disputed OER. She argued that the
statement she provided from the CWO who had served as the Operations Officer of the
XXX until July 19xx (see page 7 above) also proves that there was prejudice against her.
The applicant alleged that the supervisor’s statement in his declaration that she
did not complete the job of updating and transferring the unit instructions is contra-
dicted by his comment in the disputed OER that she “[c]onsolidated unit instructions &
migrated to SWS III.” She alleged that his comment that the unit would have been
required to pay for her per diem and travel costs for the plan-writing class is contra-
dicted by the message he received from Headquarters showing that they were both
enrolled in the class, which shows that Headquarters provided the travel orders and
“fully funded the school.” She alleged that he has provided three different stories about
her training the reservists: in the disputed OER, he wrote that she “effectively provided
alcohol-abuse training to all hands”; he told the PRRB that she showed up late in civil-
ian clothes and did not participate; and after she submitted a contrary statement by the
Reserve Command Master Chief, he stated that he had to order her to provide training
for the reservists.
Regarding the XO’s declaration, the applicant asked how she could have written
three times as many checks as all others at the command if she did not know the soft-
ware. She alleged that, in claiming that he discovered her marriage when she went on
TAD, the XO lied, because no interviews with spouses are required prior to TAD
assignments. She alleged that the XO only discovered her marriage after the evaluation
period, in November 19xx, because spouses must be interviewed prior to permanent
transfers. She alleged that he lied about the date he discovered her marriage because
she had shown that his prior claim that she would not have been allowed to take her
dependents on TAD was also false.
The applicant alleged that YN1 X’s declaration is “replete with lies.” She alleged
that she was not even at the office on September 17, 19xx, so she could not have used
profanity on him that day in the presence of others, as he alleged. She argued that the
Command Master Chief’s statement that she was “not on board” proved her allegation
and the falseness of YN1 X’s declaration. She also alleged that the negative compliance
report completed in September 19xx, six months after she left the office, proves that
YN1 X was not a capable yeoman.
The applicant stated that she believes that, in praising YN1 X, the former CO was
misremembering because the capable YN1 she had worked with while he was at the
XXX was YN1 Y, who no longer worked in her department during the evaluation
period for the disputed OER.
The applicant pointed out that the statement of the CWO who headed the Supply
Branch about her causing the reserve yeomen to retire is hearsay. She alleged that she
was friends with both of the reserve yeomen who retired while she was at the XXX and
that one retired for medical reasons and the other retired because she had had trouble
during a prior temporary active duty contract that “negatively affected her ability get
any more” contracts.
The applicant repeated her allegation that if her performance had been as bad as
is indicated in the disputed OER, other negative entries would have been made in her
record during the evaluation period. Finally, she argued that she only lacked credibility
when she arrived at the XXX because she had previously received “out of specialty
RELEVANT REGULATIONS
Article 10.A. of the Personnel Manual (COMDTINST M1000.6A) governs the
preparation of OERs. Each OER is prepared by the reported-on officer’s “rating chain”
of three officers: the supervisor (the officer to whom the reported-on officer answers on
a daily basis), who completes blocks 3, 4, and 5 of the OER; the reporting officer (the
supervisor’s supervisor), who reviews the supervisor’s blocks and completes blocks 7
through 10; and the reviewer (the reporting officer’s supervisor), who checks the OER
for errors, omissions, and inconsistencies. Article 10.A.1.b. states the following:
Each commanding officer must ensure that accurate, fair, and objective evalua-
17.
tions are provided to all officers under their command. . . .
Individual officers are responsible for managing their performance. This respon-
2.
sibility entails determining job expectations, obtaining sufficient performance feedback,
and using that information to meet or exceed standards.
assignments” as a result of the Coast Guard’s failure to timely remove an OER that the
BCMR had ordered removed from her record in Docket No. 124-92. Therefore, she
argued, her failure to be promoted and mandatory retirement are unjust results of the
Coast Guard’s failure to implement an order of the BCMR.
Article 10.A.2. provides that it is the responsibility of the reported-on officer to
seek performance feedback from the supervisor; the supervisor provides performance
feedback upon the reported-on officer’s request or whenever appropriate; and the
reporting officer provides performance feedback to the reported-on officer “as appro-
priate.” Article 10.A.1.c.5. provides that
[n]o specific form or forum is prescribed for performance feedback … . [It] occurs when-
ever a subordinate receives advice or observations related to their performance in any
evaluation area. Performance feedback can take place formally (e.g., during a confer-
ence) or informally (e.g., through on-the-spot comments). Regardless of the forum, each
officer should be clear about the feedback received. If the feedback is not fully under-
stood, it is the Reported-on Officer's responsibility to immediately seek clarification.
Article 10.A.2.g.2.b. provides that an officer may be disqualified from serving on
a rating chain if he or she has been relieved “for cause due to misconduct or unsatisfac-
tory performance, being an interested party to an investigation or court of inquiry, or
any other situation in which a personal interest or conflict on the part of the Supervisor,
Reporting Officer, or Reviewer raises a substantial question as to whether the Reported-
on Officer will receive a fair, accurate evaluation.”
instructions state the following:
Article 10.A.4.d. of the Personnel Manual governs the preparation of OERs. The
(d)
In the “Comments” sections following each evaluation area, the Reporting Offi-
cer [or Supervisor] shall include comments citing specific aspects of the Reported-on
Officer’s performance and behavior for each mark that deviates from a “4.”. . .
(e)
Comments should amplify and be consistent with the numerical evaluations in
the evaluation area. They should identify specific strengths and weaknesses in perform-
ance or qualities. Well-written comments must be sufficiently specific to paint a picture
of the officer’s performance and qualities which compares reasonably with the picture
defined by the standards marked on the performance dimensions in the evaluation area.
. . .
Article 10.A.4.f.1. prohibits a rating chain from mentioning any ongoing investi-
gation, including discrimination investigations, in an OER. However, “[t]his restriction
does not preclude comments on appropriate, undisputed, supportable and relevant
facts, so long as no reference is made to the pending proceedings.” Article 10.A.4.f.11.
prohibits a rating chain from discussing a “Reported-On Officer’s performance or con-
duct which occurred outside the reporting period.”
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.”
FINDINGS AND CONCLUSIONS
1.
The Board has jurisdiction concerning this matter pursuant to 10 U.S.C.
The Board makes the following findings and conclusions on the basis of the
applicant's military record and submissions, the Coast Guard's submission, and appli-
cable law:
§ 1552. The application was timely.
The applicant requested an oral hearing before the Board. The Chairman,
acting pursuant to 33 C.F.R. § 52.31, denied the request and recommended disposition
of the case without a hearing. The Board concurs in that recommendation.
In several documents the applicant submitted, she suggested that the dis-
puted OER and/or her removal as Administrative Officer, which is mentioned in the
disputed OER, were actions of reprisal for complaints she had made. The Chief Coun-
sel argued in his advisory opinion that the provisions of the Whistleblower Statute,
10 U.S.C. § 1034, regarding allegations of reprisal do not apply to her application. In
response to that advisory opinion, the applicant asked the Board essentially to ignore all
civil rights and retaliation arguments because she is asking the Board to remove the
OER because of its inaccuracy and unfair assessment of her performance, not because of
any alleged retaliation. Therefore, the Board finds that the applicant has waived the
2.
3.
4.
issue of whether her removal as Administrative Officer and the disputed OER were acts
of reprisal or retaliation, and the Board will not address it.
Absent strong evidence to the contrary, the Board presumes that rating
officials have acted correctly, lawfully, and in good faith.10 To overcome the presump-
tion of regularity, an applicant must present at least some “clear, cogent, and convinc-
ing” evidence—i.e., evidence that specifically and convincingly contradicts her rating
officials’ marks and comments. If the presumption is overcome, the Board will weigh
the evidence in the record to determine whether the applicant has met her burden of
proof—the preponderance of the evidence—with respect to the disputed comments and
marks.11 The Board determines whether the applicant has proved by a preponderance
of the evidence that the disputed OERs were adversely affected by a “misstatement of
significant hard fact,” factors “which had no business being in the rating process,” or a
prejudicial violation of a statute or regulation.12 With this standard in mind, the Board
has carefully considered all of the evidence presented regarding the disputed and con-
current OERs and draws the following conclusions with respect to the evidence.
COMMENTS [A1] & [A2]: “With some resistance eventually agreed to
provide weekend admin support to reservists.” & “Resistant to full support to & from
reservists.”
5.
The applicant alleged that she provided as much support to the reservists as she
could “under the circumstances,” given that she was short-staffed and in the middle of
the transfer season. An email message from the reserve command master chief indi-
cates that she provided training at a reserve all hands meeting in November 19xx.
Another message in the record indicates that, after the transfer season was over, she
arranged for two yeomen to assist the reservists once a month each on Saturdays. How-
ever, none of the applicant’s evidence contradicts comment [A1] or [A2]. The comments
do not state that she never supported the reservists but only that she resisted support-
ing them, and an email message from the reserve command master chief dated August
15, 19xx, clearly shows his frustration over a lack of administrative support. Although
the applicant was able to point out variations in her supervisor’s descriptions of her
performance with respect to the reserve all hands meeting, the Board finds that she has
not rebutted the presumption of regularity with respect to comments [A1] and [A2]
because she has not presented any evidence that directly contradicts them.
6.
COMMENT [B]: “Administrative credibility at times in question, profes-
sional competence supplemented by very capable YN1.”
10 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct.
Cl. 1979).
11 In determining the preponderance of the evidence, the Board continues to consider the evidentiary
weight of the rating chain’s assessment even though the presumption of regularity has been rebutted. See
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 n.10 (1981).
12 Hary v. United States, 618 F.2d 704, 708 (Cl. Ct. 1980); CGBCMR Docket No. 86-96.
The applicant challenged this comment by alleging that the YN1 in question,
YN1 X, was not “capable.” She submitted a copy of a compliance report dated Septem-
ber 19xx, which indicated that the department was not complying with several policies.
However, there is no evidence that YN1 X was responsible for the failures identified in
the compliance report, and the record includes many statements from officers attesting
to the capability of YN1 X. The record also contains many statements that support the
first half of comment [B]. The applicant did not submit a single statement from a col-
league to indicate that she was a hardworking, effective, or “credible” administrative
officer during the evaluation period. Therefore, the Board finds that the applicant has
failed to overcome the presumption of regularity with respect to comment [B].
7.
COMMENT [C]: “[R]efused to learn computerized check-issuing system
8.
resulting in unfair delays to applicants.”
The applicant alleged that she knew the computerized check-writing system for
issuing mutual assistance checks, and she submitted a statement from the office’s cur-
rent mutual assistance clerk, who stated that between January 19xx and March 19xx, the
applicant processed 37 checks totaling $24,510.86, whereas all other persons in the office
had together issued 12 checks totaling $16,675.54. However, this information does not
contradict comment [C], which indicates that at some point between the start of the
evaluation period on July 1, 19xx, and when she left the XXX in February 19xx, she
refused to learn a new check-issuing system and thereby unfairly delayed payments to
members. Although comment [C] was written by the supervisor, the XO supported it
in his declaration for the Chief Counsel. Therefore, the Board finds that the applicant
has failed to overcome the presumption of regularity with respect to comment [C].
COMMENTS [D1] & [D2]: “[B]ut failed to follow CG prgm guidelines &
failed to inform/update XO on personnel problems & rehab recommendations; e.g.
applied inappropriate & unrealistic standard in selecting counselor, unnecessarily
delaying essential patient counseling.” & “Held off on required counseling of member
involved in alcohol incident – requesting specific counselor – increasing anxiety of
member in need of counseling.”
The applicant submitted a statement by the Addictions Program Representative
for MLC, who described her as a very experienced, excellent CDAR who “continually
made extra efforts to find members at [the XXX] the best care possible.” Moreover, the
same officer stated in an email to the applicant that he could not recall her ever delaying
treatment for a member or asking for a specific counselor based on the race of the mem-
ber. The Board finds that these statements are sufficiently clear and convincing about
the applicant’s professional abilities and actions as a CDAR to overcome the presump-
tion of regularity afforded comments [D1] and [D2]. Moreover, the applicant’s abilities
as CDAR are supported in the disputed OER itself, as it includes comments that she had
a “[s]trong commitment to members as alcohol/substance abuse counselor”; “[d]emon-
strated concerned response to unit members in need of counseling for both alcohol
screening and mutual assistance requests”; and “[a]s CDAR, effectively provided
alcohol-abuse training to all hands.”
The applicant alleged that she failed to inform the XO about certain CDAR mat-
ters because he had a “closed door policy” for her. The XO admitted that he had some-
one else in the office with him whenever she came in, but he also stated that she never
told him that she needed to speak to him in private about a CDAR matter and made
unilateral decisions that “were not hers to make.” The applicant did not deny these
statements.
The applicant alleged that the African-American member’s counseling was
delayed not because of her desire that he be treated by an African-American counselor
but because the member had to undergo NJP before he could be diagnosed, and the
statement of the Addictions Program Representative supports her allegation. However,
the supervisor in his declarations to the PRRB and to the Chief Counsel indicated that
when he noticed that the member’s treatment was being delayed and asked the appli-
cant for an explanation, she told him that she was seeking an African-American coun-
selor for the member. The supervisor’s statement is supported by the XO in his declara-
tion to the PRRB. Therefore, although the Navy’s rule about treatment and NJP may
have caused a delay in the member’s treatment, the Board finds that the applicant has
not proved by a preponderance of the evidence that comments [D1] and [D2] are false
or that the disputed OER as a whole unfairly reflects her performance as CDAR during
the evaluation period.
COMMENT [E]: “[R]eprimanded senior POs in presence of nonrates.”
9.
10.
The applicant presented no evidence that contradicts this statement. Moreover, a
statement by YN1 X in his declaration to the Chief Counsel indicates that in front of his
subordinates one day she told him that he was a “’fuck up’ just like everyone else in the
department.” Therefore, the Board finds that the applicant has failed to overcome the
presumption of regularity with respect to comment [E].
COMMENT [F]: “[G]ave poor advice about their low marks to two mar-
ginally performing POs; result: subordinates involved CEA, XO in seeking relief fm
her.”
The applicant alleged that when her supervisor failed to recommend a “margin-
ally performing” HS1 for promotion, she advised the HS1 to appeal the decision
because it was based on only six weeks of observation and she believed the HS1 to be “a
capable caring professional.” However, the HS1 spoke to a career counselor and decid-
ed to retire. These allegations do not contradict comment [F] and the applicant present-
ed no evidence that does contradict the comment. Therefore, the Board finds that the
applicant has failed to overcome the presumption of regularity with respect to comment
[F].
11.
COMMENT [G]: “Her poor interaction w/ subords & failed leadership
resulted in emergency meetings of CPO Mess, CEA, & XO.”
The applicant alleged that this comment resulted from an incident in which YN1
X was caught using “foul and aggressive language” and blamed it on her. She alleged
that YN1 X was not credible because he had a history of having difficulty with super-
visors and was drinking despite having received Level III treatment for alcohol abuse.
She alleged that she was not even in the office that day and was never given a chance to
tell her side of the story. However, the applicant submitted no evidence whatsoever to
show that her interactions with her subordinates was not lacking or that emergency
meetings of those officers were not required because of her failed leadership. More-
over, the XO stated in his declaration to the PRRB that during the evaluation period
almost all of her subordinates complained to him about her, and other members also
reported her unprofessional behavior and interactions to him. In addition, the XO
stated that prior to her removal as Administrative Officer, he had several meetings with
other officers and petty officers concerning her failed leadership. Therefore, the Board
finds that the applicant has failed to overcome the presumption of regularity with
respect to comment [G].
12.
COMMENT [H]: “At beginning of the period, served as Admin Dept
Chief which included F&S2 and SKs. Dept was dysfuctional & Supply Branch was bro-
ken out as separate dept to allow [the applicant] to focus on YNs & admin issues &
regain leadership credibility.”
The applicant alleged that the Supply Branch was “broken out” as a separate
department only to avoid having one CWO (her) supervise another CWO who headed
that branch. She also alleged that her prior good OER proves that the department was
not dysfunctional and that she did not need to regain leadership credibility. In support
of her allegation, she submitted a copy of an email from the CWO who headed the Sup-
ply Branch. He stated that he was told his office was physically relocated to make more
room for the Planning Department, but this does not address why his branch was made
a separate department. Moreover, comment [H] is amply supported by the declarations
of the applicant’s former CO and the new XO regarding their reasons for removing the
Supply Branch from her control and by the their declarations and those of the same
CWO and the command master chief regarding the dysfunction of the department, her
failed leadership, and her interactions with personnel in the Supply Branch. Therefore,
the Board finds that the applicant has failed to overcome the presumption of regularity
with respect to comment [H].
13.
COMMENT [I]: “Admin Dept cont’d to be dysfunctional despite numer-
ous command counseling sessions. Acted unprofessionally during counseling.”
The applicant alleged that she had only one command counseling session and
that it was merely a briefing for the new CO when he arrived at the XXX. She submit-
ted no evidence of this allegation, but the CO did not mention any counseling sessions
in his statement to the civil rights investigator and no other declarant referred to a spe-
cific counseling session. However, a counseling session occurs whenever anyone desig-
nated by the command counsels the member, and it is clear from the record that the
applicant’s supervisor and XO frequently made her aware during the evaluation period
that she was not meeting their expectations. In addition, the record includes many
statements indicating that the department was dysfunctional under her leadership, and
the applicant did not deny that she acted unprofessionally during counseling sessions.
Therefore, the Board finds that the applicant has failed to overcome the presumption of
regularity with respect to comment [I].
COMMENT [J]: “Took advantage of position; e.g. refused to submit to
direct-subordinate HS1’s repeated request for mandatory weigh-in prior to TAD; XO
led to believe weigh-in accomplished.”
The applicant alleged that this comment is disproved by the lack of an entry in
her record showing that she failed to meet the weight standard and an email message
from the HS1 stating that the applicant was weighed but that the HS1 “was never able
to get the percent body fat so it was not adequate for the official weight check.” How-
ever, the fact that she ultimately was weighed and met the weight standard does not
prove that she did not refuse to submit to repeated requests to be weighed or that the
XO was not at some point wrongly led by her words or actions to believe that the
“weigh-in” requirements for her TAD assignment had been met. Moreover, both the
supervisor and the XO reconfirmed the truth of comment [J] in their statements to the
PRRB. Therefore, although the record indicates that the applicant was weighed before
she went on TAD, the Board finds that she has not proved by a preponderance of the
evidence that comment [J] is erroneous or unjust in how it characterizes her actions.
COMMENT [K]: “[W]rongly & surreptitiously had orders for training
issued by HQ, bypassed normal process including Supervisor, Training Officer & XO;
result – kept eligible member from attending school. ”13
The applicant alleged that she told her supervisor to expect a message about the
class and that he set her up by not asking her for a training request form. However, she
also admitted that she accepted Mr. X’s invitation to be enrolled in the class without
consulting her command. In their declarations, both the supervisor and the XO indi-
cated that they knew nothing about her enrollment until they received the message
from Headquarters on her last day at the XXX. Although the applicant and the Coast
Guard submitted many documents and allegations concerning her quota for the class
and why it was cancelled, these allegations are irrelevant to the issue addressed in com-
13 The shaded phrase was deleted from the OER by the PRRB.
14.
15.
ment [K]. Therefore, the Board finds that the applicant has failed to overcome the pre-
sumption of regularity with respect to comment [K].
16.
COMMENT [L]: “Professional skills/position often used to ‘work the
system’ to own purposes/advantage, adversely impacting subordinates and command
good order … .”
The applicant alleged that this comment is a direct if veiled reference to her filing
civil rights complaints and, as such, is prohibited by Article 10.A.4.f. of the Personnel
Manual. She submitted a copy of a rough draft for the disputed OER, which includes
the statements “[e]xhibits discriminatory tendencies; stirs the pot by creating gender &
racial issues where none exist. Uses civil rights issues as scare tactics towards supervi-
sor. Invited outside agency civil rights investigator to question command on CG
trends.” However, other than the fact that comment [L] did not appear in the supervi-
sor’s rough draft for the OER, and the fact that the language about her creating “racial
issues” and inviting an investigator did appear, there is no evidence that comment [L],
which appears in the XO’s part of the disputed OER, is a revised version of the deleted
language in the rough draft, which appeared in the supervisor’s part of the OER. More-
over, both the supervisor and the XO pointed to the applicant’s actions with respect to
her enrollment in the plan-writing class and her taking her dependents on TAD without
her command’s knowledge as examples of her “working the system” to her own advan-
tage, and the applicant provided no evidence, other than her own word, to refute these
statements.
In her arguments concerning comment [L], the applicant pointed out that her
supervisor and XO made several erroneous allegations about her actions with respect to
the TAD assignment and the class because they did not know the rules. For example,
they erroneously alleged that it is against regulations ever to “go TAD from TAD,” to
take a class when one is retiring soon, and to take dependents on TAD. She has proved
that they sometimes erroneously assumed she was breaking a regulation, when she
may only have been acting against the command’s general policy and without its
knowledge, but this does not disprove comment [L], which indicates only that her
knowledge and ability to “work the system” sometimes adversely affected her subordi-
nates and “command good order.” Although her rating chain’s declarations provided
no example of how her “working the system” negatively affected a subordinate, they do
indicate that “command good order” was adversely affected when she failed to follow
the chain of command to request training and moved her dependents without warning
her command or the command at XXXXX.
The applicant also pointed out that some of the examples of her “working the
system” described by her rating chain in their declarations occurred outside of the
evaluation period. Article 10.A.4.f.11. of the Personnel Manual prohibits a rating chain
from discussing a “Reported-On Officer’s performance or conduct which occurred out-
side the reporting period” in an OER. However, the fact that her rating chain cited such
examples in their statements to the investigator and declarations does not prove that
she did not also “work the system” to her own advantage and to the detriment of her
subordinates and “command good order” during the evaluation period. Therefore, the
Board finds that the applicant has not proved by a preponderance for the evidence that
comment [L] is prohibited by the Personnel Manual, erroneous, or unjust in its charac-
terization of her actions.
18.
COMMENTS [1] & [2]: “This officer also seemed to be dedicated to the
CG.” & “This officer is considered qualified for promotion to CWO4.”
The applicant alleged that these comments are unfair because her rating chain at
the XXX essentially sabotaged her reputation and performance at XXXXX by unfairly
canceling her orders to attend the plan-writing class and by biasing the XXXXX
command against her. She submitted evidence indicating that there was room for her
in the class and that it would have been helpful for her work at XXXXX. She alleged
that her supervisor’s explanation as to why he cancelled her quota is a lie because the
message he received from Headquarters indicated that Headquarters had issued the
travel orders, thereby fully funding the class. She also proved that her supervisor and
the lieutenant at XXXXX knew each other and had some communication about her
performance.
There is no evidence in the record, however, indicating that the applicant’s
supervisor was not honestly mistaken about the cost of the class to the XXX. In addi-
tion, the record indicates that her command had previously verified that she did not
need any training to do the work, and her command at XXXXX apparently agreed with
this assessment. While the class may have been helpful to her, as Mr. X stated, there is
no evidence in the record that it was necessary for her to do the work or that either
command denied her enrollment because of prejudice. Moreover, the record indicates
that the applicant did not work very hard at XXXXX to earn a good OER: in response to
an innocuous inquiry from her supervisor about her upcoming retirement, the lieu-
tenant at XXXXX wrote back on May 28, 19xx, that “[s]he has checked out cause she
knows that she will not get what she needs on an OER, so now she does bills and reads
the paper.” Therefore, the Board finds that the applicant has failed to overcome the
presumption of regularity with respect to comments [1] and [2].
The applicant alleged that she never got a “fresh start” with the new rat-
ing chain that formed in the summer of 19xx because they had heard complaints from
her subordinates and saw her June 19xx memorandum. The record indicates that the
new CO and XO did see her June 19xx memorandum and that her subordinates did
complain to the XO about her. However, the applicant has not proved that it was
improper or unfair for the previous CO to provide them with a copy of the memoran-
dum or to inform them of the status of her department. Moreover, an email message
from the XO dated August 12, 19xx, states that the CO had told the XO that the appli-
cant was to begin with a “clean slate,” and the applicant’s supervisor did not join the
19.
office until September 19xx, after she had already been removed from her position.
Although the applicant was removed from her post just a few weeks after the new CO
arrived, the record indicates that in that short time, he had already noticed a difference
between her actual performance and the comments and marks she had received in prior
OERs. In addition, the XO stated that before they decided to remove her, he had
received many complaints about her performance and he had consulted with the CO
about her several times. Under Article 10.A.2.g.2.b. of the Personnel Manual, an officer
is “disqualified” from serving on a rating chain only if he or she has been relieved “for
cause due to misconduct or unsatisfactory performance, being an interested party to an
investigation or court of inquiry, or any other situation in which a personal interest or
conflict on the part of the Supervisor, Reporting Officer, or Reviewer raises a substantial
question as to whether the Reported-on Officer will receive a fair, accurate evaluation.”
The Board finds that the applicant has not proved by a preponderance of the evidence
that any member of her rating chain at the XXX or at XXXXX was unfairly prejudiced
against her or was otherwise disqualified from serving on her rating chain.
The applicant alleged that if her performance had been as bad as the dis-
puted OER indicates, her supervisor would have made some other entry in her record.
She alleged that she was not properly counseled and that she met all her supervisor’s
expectations after he was made Administrative Officer. She stated that some of the
positive comments in the disputed OER prove that she performed work that he stated
she had not completed. However, the comments in the disputed OER indicating that
she did work on certain projects do not prove that she met her supervisor’s expectations
with respect to those projects. In addition, YN1 X indicated in his declaration that at
office meetings, the applicant “could not produce any results” and gave her supervisor
excuses about why her work was not done. Moreover, Articles 10.A.1. and 10.A.2. of
the Personnel Manual place the primary onus for ensuring performance feedback on the
reported-on officer. Officers are expected to make sure that they know their supervi-
sor’s expectations and meet them. The applicant has not proved that her rating chain
did not meet the requirements of the Personnel Manual with respect to evaluating her
performance.
20.
21.
The applicant made numerous allegations with respect to the actions and
attitudes of her command, her rating chains, and other Coast Guard members. Those
allegations not specifically addressed above are considered to be without merit and/or
not dispositive of the case.
The applicant has not proved that any comment or mark in the disputed
OER or the concurrent OER (as corrected by the PRRB) is erroneous or unfair. She has
not proved that the marks and comments in the OERs are the result of anything other
than her rating chain members’ fair and objective assessments of her performance dur-
ing the evaluation periods.
22.
23.
24.
The applicant argued that the Board should remove her failures of selec-
tion for promotion and expunge her retirement because the selection boards that failed
to select her reviewed her record with the disputed OERs in it. Although this Board has
not found any further errors in the disputed OERs to correct, the PRRB did find and
remove one erroneous comment from the disputed OER and another from the concur-
rent OER. Therefore, the Board must consider whether the erroneous comments
removed by the PRRB could have caused her failures of selection by the PY 2000 and
2001 CWO selection boards in 19xx and 2000, respectively.
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 an applicant’s failure of selection for
promotion should be removed by answering two questions: “First, was [the appli-
cant’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?” The Board
finds that the two phrases removed from the applicant’s OERs by the PRRB—“kept eli-
gible member from attending school” and “However, external issues seem to have
impacted on fullest utilization & most effective performance”—make her record appear
slightly worse than it would have in their absence. However, the Board further finds
that, in light of the many negative comments and low marks in the disputed OER and
the concurrent OER, it is very unlikely that the applicant would have been promoted
even if those two phrases had not been in the OERs when they were reviewed by the PY
2000 and 2001 CWO selection boards.
25. Accordingly, the applicant’s request should be denied.
[ORDER AND SIGNATURES APPEAR ON FOLLOWING PAGE]
The application of retired xxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction
ORDER
Kevin C. Feury
Donna L. O’Berry
Gareth W. Rosenau
of her military record is denied.
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