DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                       BCMR Docket No. 2002-007 
 
 
   

DECISION OF THE DEPUTY GENERAL COUNSEL 

ACTING UNDER DELEGATED AUTHORITY 

______  I approve the recommended Order of the Board. 

______  I disapprove the recommended Order of the Board.  

______  I concur in the relief recommended by the Board. 

 

 
 
 
 

 

 
 
 
 

 

 
 
 
 

 

 

 
 
 
 

 
 
 
 
 
 

 

     

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

 

 

 

 
 

       
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Date:  
 
 
 
 
 
 

Final Decision in BCMR Docket No. 2002-007                                                               p. 2  

DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                       BCMR Docket No. 2002-007 
 
 
   

 

 
 

FINAL DECISION 

 
ANDREWS, Deputy 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 November 14, 2001, upon 
the BCMR’s receipt of the applicant’s completed application. 
 
 
members who were designated to serve as the Board in this case. 

This  final  decision,  dated  July  18,  2002,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST FOR RELIEF 

 

 
 
The applicant asked the Board to replace an officer evaluation report (OER) cov-
ering  his  performance  from  June  1,  1998,  to  June  29,  1999,  with  a draft OER that had 
previously  been  prepared  for  him and that contained five marks that are higher than 
those in the disputed OER.1  He also asked the Board to remove his failure of selection 
for promotion.  If he is selected for promotion after his record is corrected, he asked that 
his date of rank be changed to what it would have been had he been selected for promo-
tion in August 2001, and that the Board award him back pay and allowances.  Finally, 
he asked that he be reinstated in a post-graduate educational program. 
 

APPLICANT'S ALLEGATIONS 

 

The  applicant  alleged  that  in  June  1999,  when  he  was  assigned  to  an  overseas 
unit, his supervisor prepared an OER for him, signed it, and had his reporting officer 
(RO)  sign  it  before  the  RO  was  transferred  from  the  unit.    The  marks  in  this  original 

                                                 
1  In an email message to the Chair of the BCMR dated November 26, 2001, the applicant indicated that he 
was  only  asking  for removal of the disputed OER.  However, on July 10, 2002, he clarified his request, 
indicating that his preferred relief would be to retain the OER in his record but have the five marks raised 
to their original level.  However, if that were not possible, he would like the entire OER to be expunged. 

Final Decision in BCMR Docket No. 2002-007                                                               p. 3  

OER, he alleged, were all 5s and 6s.  (Officers are rated in various performance catego-
ries on a scale of 1 to 7, with 7 being best.)  The supervisor used this OER to counsel him 
about his performance.  However, after the RO signed the OER and before it was sub-
mitted to the reviewer, the supervisor lowered five marks on the OER without the RO’s 
knowledge or approval.  In support of this allegation, the applicant submitted a copy of 
the original OER that his RO reviewed and signed and an email message from his RO. 

 
The applicant alleged that he did not realize that the lower marks would harm 
his  career  until  he  was  passed  over  for  promotion  and  lost  his  “post graduate school 
slot.”    In  addition,  he  alleged  that,  by  the  time  he  saw  the  final  OER,  “following  the 
chain of command was unable to communicate [his] position (at that time) to the CO 
and  XO  who  were  in  [another country],” and he was “consumed in a new job.”  The 
applicant alleged that the lower marks on the disputed OER, especially the mark of 4 in 
technical expertise, are clearly erroneous in light of his efforts and record.  He alleged 
that the supervisor who lowered the marks harbored “ill will” toward him. 
 

SUMMARY OF THE RECORD 

 
 
 
The  applicant  served  in  the  xxxx  for  six  years  before  joining  the  Coast  Guard 
Reserve  in  19xx  to  attend  Officer  Candidate  School.    In  19xx,  he  was  appointed  an 
ensign and began serving on active duty as a marine safety inspector.  The marks in his 
ten most recent OERs and the original draft of the disputed OER are shown in the table 
below.  He received the first four OERs as a lieutenant junior grade working at a marine 
safety office (MSO).  He was awarded an Achievement Medal for this work. 
 
 
In 19xx, the applicant was promoted to lieutenant and transferred to an overseas 
MSO.  He received a Letter of Commendation and OER 5 through the disputed OER 8 
for his work at this office.  The comments in OER 8 are all quite positive.  They indicate 
that he was the office’s acting supervisor for six months and did the work of four offi-
cers  during  “peak  transfer  season.”    The  RO  wrote  that  he  “[f]ully  concur[red]  w/ 
supervisor’s marks & comments” and that the applicant was “[s]trongly recommended 
for  promotion  with  peers.”    The  RO  signed  the  disputed  OER  on  June  16,  1999;  the 
supervisor signed it on July 13, 1999; and the reviewer signed it on August 19, 1999.  
 
In the draft OER 8 that was allegedly reviewed by the RO on June 16, 1999, a few 
 
of  the  comments  on  the  first  two  pages  (which  are  completed  by  the  supervisor)  are 
slightly different than those on the disputed OER.  They are all quite positive and very 
similar to those on the disputed OER, but there are small stylistic differences.  However, 
as  shown  in  the  table  below,  five  of  the  marks  are  higher  than  those  in  the  disputed 
OER.  The RO’s page is identical to the RO’s page in the disputed OER, including the 
statement that he “[f]ully concur[red] w/ supervisor’s marks & comments.” 
 
 
In  xxxxxxxx  1999,  the  applicant  was  transferred  to  another  overseas  marine 
safety  office,  at  which  he  received  OER  9  and  OER  10,  as  shown  in  the  table  below.  

Final Decision in BCMR Docket No. 2002-007                                                               p. 5  

5 
5 
4.8 
5 

6 
5 
5.0 
5 

5 
5 
4.7 
5 

5 
5 
4.6 
5 

5 
5 
4.9 
5 

Professionalismc 
Dealing with the Publicc 
Average Mark in OER 
Comparison Scaled 
a    Some  categories’  names  have  changed  slightly  over  the  years.    Supervisors  fill  in  the  marks  for  the  first  16  categories,  and 
b  Averages are rounded and do not include marks from shaded columns. 
c  Category discontinued or nonexistent until later years. 
d  The comparison scale is not numbered.  However, as with the performance categories, there are seven possible marks.  Officers 
are supposed to be marked in comparison with all other officers of the same rank known to the reporting officer.  A “5” means the 
applicant was rated to be a “distinguished performer; give tough challenging, visible leadership assignments,” or, in the new for-
mat of OER 8, OER 9, and OER 10, an “excellent performer; give toughest, most challenging leadership assignments.”  

reporting officers complete the remaining marks. 

6 
6 
5.2 
5 

5 
 

4.8 
5 

5 
 

5.3 
5 

5 
 

5.0 
5 

6 
 

5.7 
5 

6 
 

6.0 
5 

5.4 
5.2 
5.1 
5 

Final Decision in BCMR Docket No. 2002-007                                                               p. 6  

VIEWS OF THE COAST GUARD 

On April 29, 2002, the Chief Counsel of the Coast Guard submitted an advisory 

 
 
opinion in which he recommended that the Board grant partial relief in this case.  
 
 
The Chief Counsel argued that the applicant has proved that the disputed OER 
was improperly processed and reviewed by his rating chain and should be expunged.  
He argued that the RO’s email and the dates on the OER prove that it was improperly 
prepared  and  reviewed.    Moreover,  he  stated,  in  response  to  the  applicant’s  BCMR 
application, an officer in the Coast Guard Personnel Command (CGPC) spoke with the 
supervisor, who stated that he “recalled preparing an OER with the 5/6s, not one with 
4s.  He stated that the OER with the 4s in his section wasn’t the one he submitted and he 
does not recall having his submission returned to him for correction.  He further went 
on  to  say  that  the  [applicant]  was  his  ‘right-hand’  and  did  a  very  good  job  for  him.” 
Therefore, the Chief Counsel recommended that the Board expunge the disputed OER. 
 
  
The  Chief  Counsel  further  argued,  however,  that  the  applicant  has  not  proved 
that any nexus exists between the disputed OER and his failure of selection for promo-
tion  to  lieutenant  commander  (LCDR).2    He  admitted  that  the  disputed  OER  “makes 
Applicant’s record as a whole worse” and that the “opportunity of selection by the 2001 
LCDR selection board was 88%.”  But he argued that, because the lowest mark in the 
OER was a 4 and it contained many positive comments, it was not an adverse evalua-
tion.    Moreover,  the  Chief  Counsel  argued,  none  of  the  applicant’s  assignments  have 
been  supervisory  positions.    He alleged that the development of leadership skills is a 
very  important  criterion  for  promotion  to  LCDR,  as  stated  in  the  selection  board 
precept  and  the  Personnel  Manual.    Therefore,  he  argued  that  the  Board  should 
“conclude that the Applicant has not demonstrated the leadership growth required for 
promotion.” 
 
 
Finally, the Chief Counsel recommended that the Board issue an “interim deci-
sion” granting partial relief before the next LCDR selection board meets in August 2002.  
He stated that, if the Board were to grant full relief, the case would have to be reviewed 
by  the  Deputy  General  Counsel,  which  might  indefinitely  delay  the  final  decision.  
“However, if the Board were to issue an interim decision ordering the expulsion of the 
disputed  OER  prior  to  August  2002  and  Applicant  was  selected  by  the  August  2002 
[LCDR] selection [board] on the basis of a corrected record, the Coast Guard would be 
willing  to  concede  nexus  and  remove  its  objection  to  Applicant’s  request  to  have  his 
failure of selection removed.” 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

                                                 
2    In  its  memorandum  on  the  case,  CGPC  recommended  removing  the  applicant’s  failure  of  selection.  
However, the Chief Counsel rejected CGPC’s recommendation. 

Final Decision in BCMR Docket No. 2002-007                                                               p. 7  

On May 20, 2002, the applicant responded to the Chief Counsel’s advisory opin-
ion.  He stated that his preferred relief was to have the five erroneous marks in the OER 
raised, but if that were not possible, he agreed that the OER should be expunged.  How-
ever, he disagreed about the alleged lack of nexus between the OER and his failure of 
selection.  He stated that several high ranking officers had reviewed his entire record 
and told him that “the single most glaring area of concern” were the marks of 4 in the 
disputed OER.  He repeated his request to be eligible for post graduate school. 

 

RELEVANT LAW 

 
Under  Article  10.A.  of  the  Personnel  Manual,  each  OER  is  prepared  by  the 
reported-on officer’s “rating chain” of senior officers:  the supervisor, the reporting offi-
cer (RO), and the reviewer.  Article 10.A.3.a.2.a. provides that an OER must be prepared 
when  an  RO  leaves  the  unit  “if  more  than  six  months  have  elapsed  since  the  ending 
date of the last regular OER … .”   

 
Article 10.A.4.d.(4) instructs supervisors to prepare their sections of an OER by 
assigning the reported-on officers marks in the various performance categories in accor-
dance  with  the  written  descriptions  of  performance  on  the  OER  form.    Written  com-
ments are to be added to support marks that are higher or lower than a 4.  Supervisors’ 
comments are supposed to be consistent with the marks.   
 

Article  10.A.2.d.2.  provides  that  the  supervisor  first  prepares  his  section  of  the 
OER and then forwards it to the RO for further completion and review.  The RO com-
pletes  his  section  of  the  OER  and,  under  Article  10.A.2.e.2.,  “[e]nsures  the Supervisor 
fully  meets  responsibilities  for  administration  of  [the  evaluation  system].  Reporting 
Officers are expected to hold designated Supervisors accountable for timely and accu-
rate evaluations.  The Reporting Officer shall return a report for correction or reconsid-
eration, if the Supervisor's submission is found inconsistent with actual performance or 
unsubstantiated by narrative comments.  The Reporting Officer may not direct that an 
evaluation mark or comment be changed … .”  The RO then forwards the OER to the 
reviewer, who “[e]nsures the OER reflects a reasonably consistent picture of the Report-
ed-on  Officer’s  performance  and  potential,”  but  is  not  necessarily  personally  familiar 
with the reported-on officer’s performance.  Personnel Manual, Article 10.A.2.f. 

 
 
Article 10.A.4.g. allows the Reported-on Officer to file a reply to any OER, within 
15 days of receiving a copy of it, to “express a view of performance which may differ 
from that of a rating official.”  The reply is forwarded up the rating chain, like the OER 
itself, before being entered in the record by CGPC.  The reply procedure does not per-
mit rating chain members to correct an OER if an error is discovered.  Instead, a mem-
ber of the rating chain who agrees that an OER was prepared erroneously is supposed 
to  help  the  reported-on  officer  seek  a  correction  of  the  record  through  the  Personnel 
Records Review Board (PRRB) or this Board.  
 

Final Decision in BCMR Docket No. 2002-007                                                               p. 8  

Under 14 U.S.C. § 283, a lieutenant who twice fails to be selected for promotion 

 
to LCDR by selection boards must be separated from the service. 
 

FINDINGS AND CONCLUSIONS 

1. 

2. 

3. 

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  record  indicates  that  the  RO  did  not  review  the  final  version  of  the 
OER  that  was  forwarded  to  the  reviewer,  as  required  under  Article  10.A.2.e.2.  of  the 
Personnel Manual.  Instead, it was apparently signed by the RO before it was finished 
by the supervisor, and the supervisor submitted it directly to the reviewer because the 
RO had been transferred.  Moreover, according to CGPC, the supervisor has stated that 
he did not assign the applicant the marks of 4 that appear in the disputed OER.  There-
fore, the Board agrees with the Chief Counsel that the applicant has rebutted the pre-
sumption of regularity normally accorded military records and proved by a preponder-
ance of the evidence that the disputed OER was not prepared in accordance with regu-
lation.  
 
 
 The RO indicated that the marks on the OER he did review were higher 
than those on the OER in the applicant’s record.  He stated that he would not have con-
curred  in  those  marks,  as  one  of  his  comments  in  the  disputed  OER  states,  if  he  had 
seen them.  Furthermore, the supervisor has repudiated the lower marks that appear in 
the disputed OER and has indicated that he submitted (or intended to submit) an OER 
with higher marks of 5 and 6.  The applicant has submitted what appears to be a draft of 
the OER, signed by both the supervisor and the RO, with five higher marks.  Therefore, 
the Board finds that the applicant has proved by a preponderance of the evidence that 
the disputed OER in his record is erroneous and unjust.  Moreover, the preponderance 
of  the  evidence  in  the  record  indicates  that  the  five higher marks shown on the draft 
OER  are  the  marks  that  the  supervisor  and  the  RO  intended  to  submit.    There  are 
sufficient positive comments in the OER to support the higher marks. 
 
 
The Chief Counsel argued, based on the applicant’s modified request for 
relief on November 26, 2001, that the entire OER should be expunged, but the applicant 
has indicated that his preferred relief is to retain the OER but to have the marks that his 
supervisor originally assigned and that the RO approved.  In BCMR Docket No. 151-87, 
it was held that “an OER will not be ordered expunged unless the Board finds that the 
entire report is infected with the errors or injustices alleged; unless the Board finds that 
every significant comment in the report is incorrect or unjust; or unless the Board finds 
it impossible or impractical to sever the incorrect/unjust material from the appropriate 
material.”  In this case, the Board finds that the entire OER is not infected with errors 

4. 

Final Decision in BCMR Docket No. 2002-007                                                               p. 9  

5. 

and that raising the five marks is the most appropriate and fairest way to correct the 
disputed OER.  Expunging the OER in its entirety would leave an obvious gap in the 
applicant’s record and remove important information about his work and abilities. 
 
 
The applicant might have avoided having the disputed OER in his record 
before the August 2001 selection board if he had filed a reply, in accordance with Article 
10.A.4.g. of the Personnel Manual.  If he had filed a reply, the erroneous marks would 
have been discovered in 1999, and his record could have been corrected by the PRRB or 
this  Board  before  August  2001.    Although  the  applicant  was  aware  in  1999  that  the 
official OER contained marks of 4, he was not aware until the RO’s 2001 statement that 
those marks were assigned in violation of the Personnel Manual.  Therefore, and in light 
of  the  extra  difficulties  in  replying  to  the  OER  posed  by  the  applicant’s  transfer  to 
another overseas station before he saw the disputed OER and the RO’s transfer to still 
another overseas station, the Board finds that the applicant’s failure to file a reply to the 
OER or to seek correction of his record before the selection board met in August 2001 
should not bar his request to have his failure of selection removed from his record. 
 
Under Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982), to determine 
 
whether  the  applicant’s  failure  of  selection  before  the  board  that  met  in  August  2001 
should  be  removed  because  of  the  errors  in  his  record  when  it  was  reviewed  by  that 
board,  this  Board  must  answer  two  questions:    “First,  was  [the  applicant’s]  record 
prejudiced by the errors in the sense that the record appears worse than it would in the 
absence of the errors?  Second, even if there was some such prejudice, is it unlikely that 
[the applicant] would have been promoted in any event?”  

6. 

 
7. 

8. 

With respect to the first part of the Engels test, the Board agrees with the 
applicant and the Chief Counsel that the lower marks in the disputed OER, especially 
the mark of 4 for professional competence, make the applicant’s record appear worse 
than it would in the absence of the error even though the disputed OER is not adverse 
as a whole. 
 
With  respect  to  the  second  part  of  the  Engels  test,  the  Chief  Counsel 
 
opined that the applicant did not have very much leadership experience, so he would 
not  have  been  promoted  in  any  event.    However,  the  opportunity  of  selection  by  the 
2001 LCDR selection board was 88 percent.  The applicant’s record contains no negative 
information that would necessarily have precluded his promotion even if his record had 
not contained the five erroneous marks.  Moreover, one of the performance marks that 
the Board is raising is the mark for Directing Others, which reflects directly on his abil-
ity to lead.  Therefore, the Board cannot state with any confidence that, absent the erro-
neous marks, it is unlikely that he would have been promoted in any event.  Thus, the 
Board finds that the applicant’s failure of selection by the August 2001 LCDR selection 
board should be removed. 
 
 
The  applicant  asked  that  his  eligibility  for  post  graduate  studies  be 
restored.  The record indicates that he lost his eligibility because he failed of selection in 

9. 

Final Decision in BCMR Docket No. 2002-007                                                               p. 10  

August 2001.  Therefore, the Board finds that, if the applicant is selected for promotion 
by  the  first  LCDR  selection  board  to  review  his  record as corrected, his selection and 
eligibility for post graduate studies should be restored. 
 

10. 

The  Chief  Counsel  recommended  that  an interim decision with a partial 
grant of relief be issued lest another selection board review the applicant’s record in an 
uncorrected  state  if  the  Deputy  General  Counsel’s  review  of  this  decision  is  delayed.  
However,  the  Board  believes  that  there  remains  sufficient  time  before the next LCDR 
selection board meets in August 2002 for the Deputy General Counsel’s review. 
 
 
 

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

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

Final Decision in BCMR Docket No. 2002-007                                                               p. 11  

 

ORDER 

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

 
 
record is granted as follows: 
 
 
The officer evaluation report (OER) covering the period June 1, 1998 to June 29, 
1999, shall be corrected by raising the marks for Adaptability, Professional Competence, 
Workplace Climate, and Evaluations from 4s to 5s and by raising the mark for Directing 
Others from 5 to 6.  
 
 
His failure of selection for promotion to LCDR shall be removed from his record.  
If he is selected for promotion to LCDR by the first selection board to review his record 
after it is corrected according to this order, (1) his date of rank shall be changed to what 
it  would  have  been  had  he  been  selected  for  promotion  by  the  first  LCDR  selection 
board  that  reviewed  his  record,  (2)  the  Coast  Guard  shall pay him any back pay and 
allowances he would then be due, and (3) his selection and eligibility for the Advanced 
Education Program shall be restored.   

  

 
 
 
 
 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 

 

 
 
John A. Kern  

 

 

 
Astrid Lopez-Goldberg 

 

 

 

 
Coleman R. Sachs