DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
 
 
BCMR Docket  
No. 2001-075 

 
 
Application for Correction of  
Coast Guard Record of: 
 
 
 
xxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxx 
 
    

  FINAL DECISION 

This final decision, dated April 11, 2002, is signed by the three duly appointed 

 
ULMER, Chair: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on April 16, 2001, upon the 
BCMR’s  receipt  of  the  applicant’s  complete  application  for  correction  of  his  military 
record. 
 
 
members who were designated to serve as the Board in this case. 
 
 
The  applicant,  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  asked  the 
Board  to  correct  his  record  by  modifying  his  officer  evaluation  report  (OER)  for  the 
period from May 5, 1999, to April 30, 2000 (disputed OER).  He further requested that 
his record be corrected in accordance with a record review performed by the Reserve 
Officers  Association  (ROA).    The  ROA  noted  that  the  applicant’s  record  does  not 
contain OERs for the periods from November 1, 1985 to December 28, 1985, November 
1, 1987 to January 22, 1988, and July 1, 1991 to July 31, 1991.  The ROA’s report further 
noted  that  there  were  no  OERs  for  these  periods  when  the  applicant’s  record  was 
considered by the 1999 and 2000 CDR selection boards.  Therefore, the Board interprets 
the applicant’s request for relief to include the removal of his 1999 and 2000 failures of 
selection for promotion to CDR.   
 

EXCERPTS FROM RECORD AND SUBMISSIONS 

 

 
The  applicant  stated  that  several  marks  of  4  on  the  disputed  OER  should  be 
raised  to  a  5  or  higher  (on  a  scale  of  1  to  7,  with  7  being  the  highest)  because  the 
comments support higher marks.  He stated that the 4 in adaptability should be raised 
to at least a 5.  Adaptability measures an officer’s “ability to modify work methods and 
priorities  in  response  to  new  information  changing  conditions,  or  unexpected 
behavior.”  The  applicant  stated  that comments such as the following support a mark 
higher than a 4 in adaptability. 
 

 
 
The applicant claimed that the 4 in the speaking and listening dimension should 
be raised to a 5.  This dimension measures an officer’s “ability to speak effectively and 
listen to understand.”  He stated that comments such as the following support his claim 
for higher marks.  “Briefed officers of all grades/services & civilian personnel from xxx 
agencies  to  improve  port  readiness.    Fostered  clear  communication  resulting  in 
clarification of roles/missions of the xxx.  Accurately revised xxxxx, which was praised 
as  best  in  the  nation.  .  .  Co-authored  concise  xxx  xx  xx  xx  xx  xx  x  xxx  x  xxx  xx 
xxxxxxxxxxx  xxxxxxxxx. 
 
 
The  applicant  asserted  that  the  comments  under  the  leadership  skills  section, 
support  a  mark  higher  than  a  4  in  the  developing  others  category.    The  developing 
others  dimension  measures  an  officer’s  ability  “to  support,  develop,  direct,  and 
influence  others  in  performed  work.”    The  following  are  some  of  the  comments  the 
applicant claims supports a mark of 5 or higher. 
 

Articulate,  hard  working  individual  who  worked  extremely  well  with 
staff  from  MSO,  xxx  and  other  agencies  .  .  .  Provided  key  training  and 
technical guidance to xxx agencies during the development and update of 
the  xxxx.  .  .  .  Gained  high  level  cooperation  critical  to  performance  & 
mission completion demonstrated during Harbor Defense Command . . . 
exercise. . . .  Lead role in developing the xxxxxxxx.  Gave feedback and 
advice on unfamiliar components of EXLAN resulting in a highly valued 
document. . . .  [P]repared and forwarded  lessons learned to national Port 
Readiness  Network.    Consistently  upheld  CG  policies  on  diversity; 
ensured  compliance  with  human-relations  policies  in  all  contacts  with 
service & non-service personnel.   

for  military  outload. 

Amplified member understanding/role of xxx to new members.  Resulted 
in  continued  strong  participation/significant  enhancement  on  Port’s 
revising 
readiness 
the 
in 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 
  Aggressively 
sought accurate/up to date information.  Made significant improvements. 
.  .  .    Worked  within  stringent  budgetary  &  time  lines  to  accomplish  all 
goals as projected.   

  Lead 

role 

 
 
The applicant further complained that the 4 in health and well being under the 
Personal  and  Professional  Qualities  section  of  the  OER  is  inconsistent  with  the 
comments and should be higher.  The mark in the health and well being category is a 
judgment of an officer’s “ability to invest in the Coast Guard’s future by caring for the 
physical health an emotional well-being of self and others.”  In support of his claim the 
applicant  quoted  the  entire  section  of  comments  under  Personal  and  Professional 
Qualities section of the OER, which include the health and well being category:  Some of 
the comments were as follows: 
 

Maintained flexibility in civilian work schedule to provide sufficient time  
to  prepare  critical  CG  tasks  and  requirements.    Highly  knowledgeable 
about CG Protocol, military customs and uniform standards.  Displayed 

poise  and  confidence  during  numerous  xxx  briefings  to  senior  officers, 
impeccable uniform appearance.  Maintains healthy lifestyle with regular 
exercise. 

 
The applicant stated that he should have been assigned a mark of 5 (“excellent 
 
performer; give toughest, most challenging leadership assignments”) when compared 
with other officers of the same grade that the reporting officer has known throughout 
his career (block 9).  The applicant was assigned a mark of 4 (“Good performer; give 
tough,  challenging  assignments”).    The  applicant  also  argued  that  the  mark  on  the 
comparison scale in block 9 should be a 5, rather than a 4, because the average of all the 
other marks on the OER is 4.722, rounded up is a 5.  Moreover, he stated that the block 
9 comments describing his potential support a mark of 5.  The comments describing the 
applicant’s potential were as follows: 
 

Extremely  valuable  and  talented  member  of  MSO  SFB  Planning  Team. 
Exceeded  expectations  in  all  assignments.    Provided  key  port  readiness 
training  contributions.    xxxxxxxxxxxxxxxxxxx,  recognized  nationwide as 
the  most  effective,  thorough  &  comprehensive  manual  for  local  PRC 
members.    Always  worked  to  improve  operations  &  helped  coordinate 
reserve/regular  integration  for  port  planning  unit  functions.    Excels  in 
critical thinking skills.  Can be depended to respond and react well in any 
circumstances.    Provided  key  information  while  serving  on  Reserve 
Officer Selection Board.  Strongly recommended for promotion to CDR.   

 
 
In support of his allegations, the applicant submitted a copy of his service record, 
with a report from the ROA officer who reviewed it.  The applicant also alleged that 
neither his supervisor nor his reporting officer counseled him on the disputed OER. 
 
Views of the Coast Guard  
 
On  October  29,  2001,  the  Board  received  an  advisory  opinion  from  the  Chief 
 
Counsel  of  the  Coast  Guard.    He  recommended  that  the  Board  deny  relief  to  the 
applicant.   
 
 
With respect to the gaps in the applicant’s record, the Chief Counsel stated that it 
was the applicant’s responsibility to ensure the accuracy of his record.  He stated that 
Article 10.A.2.c.2.i. of the Personnel Manual states that the reported-on officer has the 
responsibility of ensuring “that all days of commissioned service are covered by OERs.  
If an OER is missing or a gap in coverage exists, [the Reported-on Officer] informs the 
appropriate  rating  chain.    The  rating  chain  shall  take  necessary  action  to  correct  the 
discrepancy.”  The Chief Counsel stated that steps would be taken to correct these gaps 
in the applicant’s record. 
 
 
The Chief Counsel stated that even with the gaps in his record, the applicant was 
selected for promotion to lieutenant (LT) and LCDR.  He stated that there were no OER 
gaps  in  the  applicant’s  record  in  close  proximity  to  the  applicant’s  consideration  for 
commander (CDR) by either the 1999 or 2000 CDR selection boards.   

 
 
The  Chief  Counsel  disagreed  with  the  applicant  that  the  comments  on  the 
disputed  OER  were  inconsistent  with  the  assigned  marks.    The  Chief  Counsel  stated 
that  the  disputed  numerical  marks  compare  reasonably  with  the  narrative  comments 
contained in the associated blocks.  Except for his interpretation of the comments, the 
applicant did not submit any evidence corroborating his contention that he should have 
received  higher  marks.    The  Chief  Counsel  stated  that  the  applicant  had  failed  to 
overcome the strong presumption that his rating officials acted correctly, lawfully, and 
in  good  faith  in  making  their  evaluation  under  the  Coast  Guard’s  Officer  Evaluation 
System.  Arens v. United States, 969 F.2d 1034, 1037 (1992).   
 
 
The Chief Counsel noted that the applicant did not file a reply to the OER.  The 
applicant’s failure to submit a reply to the OER was an indication that he accepted the 
rating officials’ characterization of his performance at that time.  The Chief Counsel also 
noted  that  the  applicant  took  advantage  of  the  opportunity to communicate by letter 
with the 1999 CDR selection board.  (The applicant also communicated by letter with 
the 2000 CDR selection board.) 
 
 
The Chief Counsel stated that the applicant’s supervisor gave him a copy of the 
disputed OER.  The supervisor wrote the following in a signed statement attached to 
the advisory opinion: 
 

My standard procedure is to provide a copy of their OER to the officer, 
give them time to read it and then make myself available for counseling.  I 
distinctly remember giving [the applicant] a copy of his OER because of a 
comment he made about the number of 7s that should be on it due to his 
upcoming  Commander  selection  board.    [The  applicant]  is  a  steady 
performer who’s very favorable OER reflects his performance.  When he 
did  not  request  a  counseling  session,  I  was  not  alarmed  as  I  felt  it 
unnecessary to counsel him on his performance, as it was satisfactory. 

The  Chief  Counsel  did  not  provide  a  nexus  analysis,  stating  that  since  the 

On January 14, 2002, the Board received the applicant’s response to the views of 

 
 
application lacked merit any such analysis was considered unnecessary.   
 
Applicant's Response to the Views of the Coast Guard 
 
 
the Coast Guard.  
 
 
The  applicant  stated  that  gaps  in  a  military  OER  record  play  a  potential  role 
during the selection board process.  He argued that it is possible that the CDR selection 
board could have compared his record, which included periods not covered by OERs, 
against another officer with similar time in grade.  He stated that no one knows how the 
CDR selection board treated the gaps in his record because selection board proceedings 
are secret.  The applicant stated that the Coast Guard should not be allowed to argue 
that the gaps in his OER record were too remote to have impacted the CDR selection 
board.   

 
 
In support of his claim that the gaps in his OER record were a factor in his failure 
to  be  selected  for  promotion  to  CDR,  the  applicant  stated  the  Article  14.A.5.b.  of  the 
Personnel  Manual  states  “In  recommending  each  officer  it  considers,  the  [selection] 
board  should  compare  him  or  her  to  the  present  grade  and  those  in  the  next  higher 
grade to determine how well the individual measures up to such officers according to 
the overall criteria the board established.  If the [selection] board believes the officer has 
demonstrated  by  past  performance,  fitness,  and  potential  to  perform  creditably  those 
duties to which he or she reasonably might be assigned, the board should recommend 
him or her [for promotion].”  He stated that Article 14.A.6.b. of the Personnel Manual 
requires that the selection board compare officers among themselves in accomplishing 
past  assignments  and  potential  for  greater  responsibility  according  to  the  criteria 
adopted by the selection board.   
 

The applicant stated that he did not receive counseling on or a copy of his marks 
from the supervisor.  In fact, the applicant stated that he was asked by the supervisor to 
write the comments for the OER and to leave the marks sections blank.  He stated that 
the supervisor did not give him a copy of the OER or discuss it with him before sending 
it for review and signature by the reporting officer and reviewer.  The applicant stated 
that  the  supervisor’s  action  in  this  regard  was  wrong.    He  stated  that  Article  10-A-
2.d(2)(e) of the Personnel Manual provides for “performance feedback to the Reported-
on  Officer  upon that officer’s request during the period or at such other times as the 
supervisor deems appropriate.” 
 

FINDINGS AND CONCLUSIONS 

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

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's  submissions  and  military  record,  the  Coast  Guard's  submission,  and 
applicable law: 
 
 
United Stated Code, and the application was timely. 
 
 
2.    The  short  gaps  in  the  applicant’s  military  OER  record  existed  prior  to  the 
convening of the 1999 and 2000 CDR selection boards.  They were present in his record 
at that time.  The applicant had a responsibility to review his record, and therefore, he 
either knew or should have known about this discrepancy.  The applicant has failed to 
explain to this Board why he did not notice these gaps in his military record prior to the 
first CDR selection board.  The applicant also failed in his responsibility to ensure that 
that all periods in his military record were covered by OERs, as required by 10.A.2.c.2d. 
of the Personnel Manual.  Notwithstanding the applicant’s failure to ensure that he had 
a complete OER record, the Deputy General Counsel ruled in BCMR Docket No. 101-91 
that  “[Article  10.A.2h  of]  the  Personnel  Manual  clearly  places  the  primary  onus  of 
responsibility  on  the  Commandant’s  administrative  reviewers,  rather  than  on  the 
reported-on officer, to manage the officer evaluation system, maintain the records, and 
ensure completeness.”  The Chief Counsel has stated that the Coast Guard will correct 
these gaps in the applicant’s OER record. 

 
 
3.    The  applicant  has  not  submitted  sufficient  evidence  to  show  that  the 
challenged marks on the disputed OER are inconsistent with the written comments and 
should be raised higher.  The 4 in adaptability appears to be consistent with comments 
such as: “Strategically developed objectives to ID shortfalls & problems to address in 
future” and “worked within stringent budgetary and time lines to accomplish all goals 
projected.”   
 
 
4.  The 4 in speaking and writing appears to the Board to be consistent with such 
comments as:  “Briefed officers of all grades . . . Fostered clear communication resulting 
in clarification of roles/missions of the xxx. . . .  Accurately revised xxxxxx, which was 
praised as best in the nation.”  While the applicant believes these comments describe 
accomplishments of a caliber that require a 5, it is the opinion of the rating chain that 
must be respected, unless the applicant produces sufficient evidence that the marks are 
erroneous, which he has not done.   
 
 
5.    Similarly,  the  Board  finds  that  the  comments  with  respect  to  developing 
others  and  health  and  well-being  are  not  inconsistent  with  the  4s  assigned  to  those 
categories.    Again,  unless  the  applicant  submits  persuasive  evidence  that  the  marks 
assigned in these categories should have been higher, the Board will not act to modify 
them.  The Board finds that the applicant’s evidence, consisting mainly of his opinion, 
that the comments deserve higher marks is not sufficient to prove error or injustice with 
respect to the challenged marks.   
 
 
6.    The  mark  on  the  comparison  scale,  contrary  to  the  applicant’s belief, is not 
based on an average of all the marks on an OER, but rather it is the reporting officer’s 
opinion of the applicant’s performance in comparison to all other LCDRs the reporting 
officer  has  known  throughout  his  career.    See  Article  10.A.4.c.8  of  the  Personnel 
Manual.  Therefore, unless the applicant can show that this reporting officer’s opinion 
of his performance, as compared with other LCDRs the reporting officer has known, is 
inaccurate, the result of bias or the result of some other consideration that should not 
have been included in the evaluation process, the Board will respect the judgment of the 
reporting officer. 
 
 
7.    Disagreement  exists  between  the  applicant  and  the  supervisor  whether  the 
applicant requested a counseling session about the marks on the disputed OER.  The 
applicant  has  the  burden  of  establishing  by  a  preponderance  of  the  evidence  that  he 
requested a counseling session from the supervisor, which was refused.  He has not met 
that burden.  Even if he had met the burden, he has not offered any evidence that such a 
counseling session would have caused a change in the marks assigned.  The applicant 
had a responsibility to seek counseling earlier in the reporting period to ensure that he 
was meeting his supervisor’s expectations.  The ability to request counseling from the 
rating chain is available throughout the reporting period at the request of the reported-
on  officer  or  at  the  discretion  of  the  supervisor.    See  Articles  10.A.2.d.(2)(e)  and 
10.A.2.(2)(f) of the Personnel Manual.  
 

 
8.  To obtain the removal of his failures of selection for promotion to CDR, the 
applicant must establish a causal connection between any errors found in his military 
record and his failures of selection for promotion to CDR before the 1999 and 2000 CDR 
selection  boards.    In  determining  whether  a  nexus  exists,  the  Board  applies  the 
standards set forth in Engels v. United States, 230 Ct. Cl. 465 (1982).  The standards are 
as follows:  "First, was the claimant's record prejudiced by the errors in the sense that 
the record appears worse than it would in the absence of the errors?  Second, even if 
there was some such prejudice, is it unlikely that he would have been promoted in any 
event?"  Engels at 470.  
 

9.  The  Board  finds  that  the  applicant’s  record  does  not  appear  worse  than  it 
would in the absence of the errors.  The Board found neither error nor injustice with 
respect to the challenged marks on the disputed OER.  Therefore, the disputed OER was 
an accurate assessment of the applicant’s performance and was properly considered by 
the 2000 CDR selection board.   

 
10.  It is unlikely that the applicant would have been selected for promotion in 
any event.  Although there were three short periods for which there were no OERs in 
the  applicant’s  record,  the  Board  finds  that  his  failures  of  selection  for  promotion  to 
CDR  should  not  be  removed.  In  this  regard,  the  applicant  has  failed  to  persuade  the 
Board that the short periods of time for which there were no OERs in his record make it 
likely that he would have been selected for promotion had these periods been covered 
by  OERs.      These  periods  were  early  in  the  applicant’s  Coast  Guard  career,  with  the 
latest  two-month  period  ending  on  July  31,  1991.    The  first  CDR  selection  board  to 
consider the applicant’s record met over eight years later, in October 1999.  In addition, 
as the Chief Counsel stated the applicant was selected for promotion to LT and LCDR 
with these gaps in his OER record.  He has provided no evidence that the evaluation of 
his performance for these short periods would have been of a higher caliber than that 
which existed in his record when it was considered by the 1999 and 2000 CDR selection 
boards.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 

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

[ORDER AND SIGNATURES ON NEXT PAGE] 

The application of xxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCGR, for correction of his 

ORDER 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 

 
Terence W. Carlson 

 

 

 

 
 
Robert A. Monniere 

 

 
 
Mark A. Tomicich 

 

 

 

 

 

 

 

 

 

 

 

 

 
 
military record is denied.