Search Decisions

Decision Text

CG | BCMR | OER and or Failure of Selection | 2002-015
Original file (2002-015.pdf) Auto-classification: Denied
DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                 BCMR Docket No. 2002-015 
 
Xxxxxxxxxxxxxxxxx 
 xxxxxxxxxxxxxxxx 

 

 
 

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 January 7, 2002, 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 April 30, 2003, is signed by the three duly appointed 

APPLICANT’S REQUEST FOR RELIEF 

 

 
 
The applicant asked the Board to correct his military record either by raising two 
evaluation  marks  he  received  from  3s  to  4s,  or  higher,  and  removing  the  supporting 
comments in an officer evaluation report (OER) he received for the period July 16, 1998, 
through May 28, 1999, or by removing the entire OER from his record.   
 

SUMMARY OF THE APPLICANT’S MILITARY RECORD 

 
On July 19, 1995, the applicant, a xxxxxxxxxxxxxx, accepted an appointment as a 
lieutenant (O-3) in the Coast Guard Reserve and began serving on extended active duty.  
Previously, he had served as a captain (O-3) in the Air Force Reserve for several years. 

 
From July 21, 1995, to May 31, 1996, the applicant served as a project officer in 
the xxxxxxxxxxxxxxxxxxxx Division of a Support Center.  He received two OERs in this 
position.  On the first, his performance was described as “excellent” and he was recom-
mended  for  integration  into  the  regular  Coast  Guard  and  for  positions  of  greater 
responsibility.  He received sixteen marks of 4 (on a scale of 1 to 7, with 7 being best) 
and six marks of 5 in the various performance categories, several complimentary com-

Final Decision in BCMR Docket No. 2002-015                                                                p. 2  

ments, and a comparison scale mark of 4.1  On the second OER, he received six marks of 
4, thirteen marks of 5, and four marks of 6 in the performance categories, many positive 
comments, and another 4 on the comparison scale.  In addition, he was recommended 
for promotion with his peers and for more challenging xxxxxxing positions. 

 
In June 1996, the applicant became the Assistant Chief of the xxxxxxxxxxxxxxx 
Division at the Support Center, supervising 77 members and employees.  On the OER 
he received in December 1996, he received four marks of 4, thirteen marks of 5, and six 
marks of 6 in the performance categories, many positive comments, and a comparison 
scale mark of 5.  In addition, he was “heartily recommended for integration & promo-
tion”  and  for  “challenging  leadership  assignments.”    On  the  OER  that  he  received  in 
June  1997,  by  which  time  he  had  been  serving  as  acting  chief  of  the  division  for  two 
months, he received one mark of 4, sixteen marks of 5, and six marks of 6 in the per-
formance  categories,  many  positive  comments,  and  a comparison scale mark of 5.  In 
addition, he was “strongly” recommended for integration and promotion.  

 
In  September  1997,  a  new  division  chief  was  appointed,  and  the  applicant 
became the Chief xxxxxxxxxxxxxxxxxxxxx in the division, supervising 16 military and 
57 civilian employees.  On the OER that he received in July 1998, he received thirteen 
marks of 4 and five marks of 5 in the performance categories and a comparison scale 
mark  of  4.    Many  of  the  comments  in  this  OER  are  guardedly  positive,  mediocre,  or 
negative.  The reporting officer noted that the applicant had been “placed in a very dif-
ficult and challenging situation as acting Division Chief for an extended period of time, 
a job that demands the full attention/experience of a CDR [commander].”  He described 
the applicant as a “very capable xxxxxxxx with an extremely solid work ethic” but did 
not include a recommendation for integration or promotion. 

 
In  July  1998,  the  applicant  was  transferred  to  the  Xxxx  xxxx  Xxxxx  to  serve  as 
Chief of the xxxxxxxx Branch.  His branch was part of the xxxxxxxxxxxxxxxxxxx Divi-
sion, which was overseen by the xxxxxxxxxxxx (ZZ), a commander.  His direct supervi-
sor, Mr. G, was a civilian who reported to the ZZ.  As branch chief, the applicant super-
vised three civilian employees: two xxxxxxxxx inspectors, Mr. A (GS-9) and Mr. B (GS-
11), and a secretary, Ms. C (GS-7). 
 

The first OER the applicant received as branch chief is the disputed OER in this 
case.  On it, he received a mark of 3 for the performance category “Evaluations”2 from 
                                                 
1 The comparison scale is not actually numbered.  However, there are seven possible marks on the OER 
form from 1 (unsatisfactory performer) to 7 (best officer of this grade).  A mark of 3 on the scale denotes 
an “excellent performer; recommended for increased responsibility.”  A mark of 4 denotes an “exception-
al performer; very competent, highly respected professional.”  A mark of 5 on the scale denotes a “dis-
tinguished performer; give tough, challenging, visible leadership assignments.” 
2    The  “Evaluations”  category  is  defined  as  the  “extent  to which an officer, as Reported-on Officer and 
rater,  conducted  or  required  others  to  conduct  accurate,  timely  evaluations  for  enlisted,  civilian  and 
officer personnel.”  The OER form indicates that to merit a mark of 4 in this category, an officer must meet 
the  following  standard:    “Reports  consistently  submitted  on  time.    Narratives  were  fair,  concise  and 

Final Decision in BCMR Docket No. 2002-015                                                                p. 3  

his supervisor, Mr. G, and a mark of 3 for “Judgment”3 from his reporting officer, the 
ZZ.  The applicant also received seven marks of 4, nine marks of 5, and a comparison 
scale mark of 4.  On the first draft of this OER, which was provided to the applicant in 
July 1999, no negative comments supported the marks of 3.  Instead, the comments indi-
cated that he “[s]et high standards for his personnel and provided means to accomplish 
same”  and  “[a]ttempted  to  seek  out  recommendations  and  opinions  of  others  before 
acting on sensitive personnel issues.” 

 
The draft OER was initiated by the applicant on May 11, 1999; signed by Mr. G 
on  June  3,  1999,  by  the  ZZ  on  June  30,  1999,  and  by  the reviewer, CDR I, on July 14, 
1999; and forwarded to the Coast Guard Personnel Command (CGPC).  On August 23, 
1999, CGPC rejected and returned the OER, stating that the OER 

 
contains  deficiencies  that  must  be  corrected  before  it  will  be  accepted  into  the  officer’s 
record. …  The marks awarded in [Sections 5 and 8] are not adequately supported by the 
comments in the OER.  It is not clear how the Reported-on Officer failed to meet the “4” 
standard.  …  Provide  either  specific  performance  observations  which  indicate  how  the 
officer  was  less  successful  than  the  “4”  standard  or  adjust  the  mark  to  align  with  the 
information already provided in the OER. … Please return a revised OER and one photo-
copy to the Coast Guard Personnel Command … within thirty days of the receipt of this 
letter. 
 
The revised, final version of the disputed OER was received by CGPC on Octo-
ber 13, 1999.  It contains most of the positive comments contained in the draft, and a few 
positive  words,  such as “excelled” and “consistently,” have been added to the text to 
support the performance category marks above 4.  The mark for the category “Devel-
oping Others,” however, had been lowered by the supervisor from a 6 to a 5.  In addi-
tion, the mark of 3 for the category “Evaluations” is supported by the following com-
ment:    “Submission  of  civilian  evaluations  were  [sic]  not  timely  and  had  inaccurate/ 
insufficient  comments.    Evaluation  narratives  were  of  poor  quality  and  required  sub-
stantive  revisions  by  supervisor  before  submission.”    The  mark  of  3  for  the  category 
“Judgment” was supported by the following negative comment:  “Judgment on some 
sensitive personnel issues & interactions w/ others sometimes missed the mark—often 
required involvement or intervention of superiors to adequately resolve/remedy prob-
lems.”  The final version of the OER shows May 19, 1999, as the date Mr. G signed, June 
30, 1999, as the date the ZZ signed, and October 5, 1999, as the date the reviewer signed. 

 

                                                                                                                                                             
contained specific observations of action and impact.  Assigned marks against standards.  Few reports, if 
any, returned for revision.  Met own [officer evaluation system] responsibilities as Reported-on Officer.” 
3   The “Judgment” category is defined as the officer’s “ability to make sound decisions and provide valid 
recommendations  by  using  facts,  experience,  common  sense,  and  analytical  thought.”    The  OER  form 
indicates  that  to  merit  a  mark  of  4  in  this  category,  an  officer  must  meet  the  following  standard:  
“Demonstrated  analytical  thought  and  common  sense  in  making  decisions.    Used  facts,  data,  and 
experience and considered the impact of alternatives.  Weighed risk, cost and time considerations.  Made 
sound decisions promptly with the best available information.” 

Final Decision in BCMR Docket No. 2002-015                                                                p. 4  

Neither the draft OER nor the final version contains a recommendation for pro-
motion or integration, but the ZZ wrote that, “[w]ith additional experience and expo-
sure  to  CG  processes/procedures,  he  should  be  suited  to  major  project  management 
duties at FDCC or comparable staff positions.” 

 
On the applicant’s next OER as chief of the xxxxxxxxxxxxx Branch, covering the 
period May 29, 1999, to July 31, 2000, he received six marks of 4, twelve marks of 5, and 
a comparison scale mark of 4.  His supervisor was still Mr. G, and CDR I was still the 
reviewer, but the new ZZ, another commander, served as the reporting officer. 

 
On August 1, 2000, the applicant was released from active duty into the Reserve.  
His record was reviewed by the Reserve LCDR selection boards in 2000 and 2001, but 
he was not selected for promotion by either board.  In 2002, he was released from the 
Coast Guard Reserve to accept a commission in the Air National Guard. 
 

 

SUMMARY OF APPLICANT'S ALLEGATIONS 

 
The  applicant  alleged  that  the  two  marks  of  3  he received for the performance 
 
categories “Judgment” and “Evaluations” in the disputed OER are inconsistent with his 
actual performance and with statements made by his supervisors and others who had 
opportunity to witness his performance. 
 
 
The applicant stated that, soon after arriving at the Xxxxx, he learned that one of 
his  subordinates,  Mr.  A,  had  a  lawsuit  pending  against  the  Xxxxx,  naming  the  appli-
cant’s predecessor as branch chief; his supervisor, Mr. G; and his reporting officer, the 
ZZ, as defendants who allegedly harassed, discriminated, and retaliated against Mr. A.  
He alleged that Ms. C had also filed several “actions” through her union against Mr. G.  
Moreover, he learned that Mr. G had been a defendant in at least one and possibly two 
lawsuits filed by former employees, who had alleged harassment, discrimination, and 
retaliation.  The applicant stated that he never met the two former employees who had 
filed the lawsuits, but “the adverse OER marks that [he] received are a direct reflection 
of  the  poison  that  remained  in  the  office  after  their  departure.”    He  alleged  that  the 
atmosphere of the office was “tense, polarized, and stressful.” 

 
The applicant stated that in response to this news, he stayed neutral and tried to 
form independent opinions of his supervisors and subordinates.  However, he became 
convinced that his supervisor, Mr. G, “was largely responsible for the hate, discontent 
and subversive nature” in the office.  He alleged that there was constant fighting and 
that Mr. G and Mr. B were aligned together against Mr. A and Ms. C. 

 
The applicant stated that Mr. A and Mr. B “were both competent at their jobs.”  
However, Mr. G “tried to convince [him] that [Mr. A] was incompetent.”  He alleged 
that  Mr.  G  criticized  Mr.  A  for  “minor  indiscretions  that  were  largely  ignored  when 
committed  by  others.”    He  routinely  saw  Mr.  G  display  “hostile  and  disparate  treat-

Final Decision in BCMR Docket No. 2002-015                                                                p. 5  

ment” toward Mr. A and sometimes toward Ms. C.  Mr. G tried to pit Mr. B and Mr. A 
against each other and resented the applicant’s refusal to “buy into this tactic.” 

 
The applicant stated that in October 1998, three months after assuming his posi-
tion, he sent the ZZ a memorandum expressing concern about the “hostile, subversive 
and threatening comments and actions” of Mr. G, including threats of physical violence 
that were seemingly in jest.  However, the ZZ dismissed his concerns, stating that the 
applicant had only been at the branch for three months and that he “misunderstood” 
Mr. G.  When the applicant complained about Mr. G’s abusive and offensive language, 
the ZZ told him he was “hearing things.”  The applicant also alleged that the ZZ “made 
no discernable effort to ease the tension” in the office. 

 
The applicant stated that he worked to the best of his ability and regularly met 
with each of his subordinates to discuss performance expectations.  He submitted copies 
of mid-period evaluations that he provided to his employees even though they were not 
required.  In April 1999, Mr. G asked him to complete their performance evaluations for 
the  year  ending  March  31,  1999,  and  “strongly  suggested”  that  he  mark  Mr.  B  at  the 
“meritorious” level.  Because Mr. A’s performance was at least as good as, if not better 
than, Mr. B’s (since Mr. A “made fewer administrative mistakes and seemed to keep a 
tighter  rein  on  his  assigned  Contractors”),  he  also  rated  Mr.  A  at  the  “meritorious” 
level.  He did this not because he believed that either employee clearly deserved that 
mark but because, in light of their relatively equal performances, it would be unfair to 
mark one “meritorious” and the other merely “proficient.” 

 
The applicant alleged that he went to the ZZ with his concerns about the evalua-
tions and Mr. G’s instructions, but the ZZ would not address the problem and told him 
just to evaluate his subordinates as he saw fit.  He therefore initially rated Mr. A and 
Mr.  B  at  the  “meritorious”  level  and  Ms.  C  at  the  “needs  improvement”  level.    He 
thought that Ms. C merited that rating because she continually ignored his requests to 
complete  administrative  work.    However,  he  then  learned  that  she  was  ignoring  his 
requests because Mr. G had told her to do so in order to give his own requests priority.  
The applicant alleged that Mr. G’s actions would not have caused a problem if he had 
told the applicant what he had done.  However, Mr. G rarely told the applicant that he 
had told Ms. C to delay his work, and Mr. G often told Ms. C that he had so informed 
the  applicant.   In this way, Mr. G created unnecessary friction and misunderstanding 
between himself and Ms. C, which was ultimately resolved when she complained about 
it to her union.  The applicant alleged that when he left the office, he was on very good 
terms with Ms. C and the union president. 

 
The applicant alleged that Mr. G returned all three evaluations to him and told 
him  they  were  unacceptable  because  the  ratings  did  not  match  his  perception  of  the 
employees’  performance.    He  asked  the  applicant  to  revise  the  evaluations  within  a 
couple of hours.  Therefore, the applicant decided to rank all three of his subordinates 
as “proficient” and to include no comments at all.  Before revising the evaluations, how-

Final Decision in BCMR Docket No. 2002-015                                                                p. 6  

ever, he consulted with CDR S, the second highest ranking person in the division.  CDR 
S  expressed  doubt  about  the  wisdom  of  not  including  comments  but  concurred  that, 
under the guidelines for evaluating civilian personnel, a supervisor could mark some-
one as “proficient” without adding comments.  The applicant alleged that he then con-
sulted  LCDR  Y,  the  attorney  who  was  defending  the  Xxxxx  against  Mr.  A’s  lawsuit. 
LCDR Y told him that since the case would be going to trial soon, the less said on the 
evaluations, “the better for us (the lawyers).”   

 
The applicant stated that this comment by a Coast Guard attorney convinced him 
that “making no comment on this round of civilian appraisals was an appropriate and 
allowable course of action.”  Therefore, he rated all three subordinates as “proficient” 
and included no comments, as allowed by the regulations.  He alleged that he did so 
“against  [his]  better  judgment”  because,  over  the  past  year,  his  subordinates  had  fre-
quently twisted words and used innocent comments against their supervisors.  He also 
alleged that because of the “cloud of a federal lawsuit, regular visits to the legal office, 
fabricated union grievances and mind numbing control games by [Mr. G] and [his] own 
subordinates, the option to make no comment was a wise one.”   

 
At  a  meeting  soon  thereafter,  Mr.  G  and  the  ZZ  indicated  that  they  disagreed 
with his decision and told him that the lack of comments “might not be well received” 
by the employees.  However, since they did not tell him that it was a major concern, he 
stood by his decision.  The applicant stated that if Mr. G or the ZZ had asked him to add 
comments,  he  would  have  done so, but they never requested it.  When the ZZ asked 
him if he thought it was fair to the employees not to include comments, the applicant 
told him that “under the circumstances, the employees, the lawyers, their union stew-
ards and a pending court date … there were few comments that I needed to add or was 
required to make.”  At that point, he alleged, he was not given a chance to add com-
ments.  Instead, Mr. G took the evaluations, said he would add comments, and left.  The 
ZZ told the applicant that he questioned his judgment in including no comments.  The 
applicant alleged that the ZZ must have been unaware that no comments were required 
for “proficient” evaluations, that he had consulted the Xxxxx’s attorney and CDR S, and 
that the attorney had suggested that “the less we say, the better.” 

 
The  applicant  stated  that  he  was  never  expressly  asked  to  add  comments.    He 
stated that Mr. G ultimately added “a few meaningless sentences” to each evaluation, 
but the overall marks remained “proficient.”  Moreover, he was never told that Mr. G 
and the ZZ would adversely evaluate him for not including comments.  He alleged that 
this was the only time his judgment was ever called into question. 

 
The applicant alleged that the disputed OER is erroneous in that it states that his 
evaluations  for  his  three  subordinates  were  late.    He  submitted  copies  of  the  evalua-
tions, which show that both he and Mr. G signed them on April 26, 1999—well within 
the 60-day period for completing civilian evaluations.   

 

Final Decision in BCMR Docket No. 2002-015                                                                p. 7  

The applicant’s own evaluation period ended on May 28, 1999, after which the 
ZZ  was  transferred  to  another  station,  and  Mr.  A’s  lawsuit  was  settled.    In  late  July 
1999, the applicant stated, he received one version of his OER with the marks of 3 for 
“Judgment” and “Evaluations” but no supporting negative comments.  In October 1999, 
he received the final version of the OER with new derogatory and inaccurate comments 
that “vaguely” supported the low marks.  Since the latter version indicates that Mr. G 
signed  it  on  May  19,  1999,  whereas  on  the  July  version,  Mr.  G’s  signature  was  dated 
June 3, 1999, the applicant alleged that it may be that the better comments that appear in 
the “draft” OER were supposed to constitute the final version.  He also alleged that the 
reviewer unduly delayed his review of the draft and the final OERs. 

 
The applicant stated that the reviewer of the disputed OER, CDR I, had little or 
no opportunity to observe his performance and should not have concurred in the OER 
by signing it.  He alleged that he never knew CDR I was a member of his rating chain, 
since the ZZ reported to the Xxxxxx Xxxxxxxxxx of the Xxxxx. 

 
The  applicant  alleged  that  even  if  Mr.  G  and  the  ZZ  were  right  to  criticize  his 
judgment in not adding comments to the evaluations, it was wrong for them to base his 
marks for the whole evaluation period on this one incident.  He alleged that apart from 
this  incident,  his  judgment  and  ability  to  evaluate  his  subordinates  were  never  criti-
cized.  The applicant argued that because comments were not required by regulation, 
his  performance  fell  within  the  guidelines,  and  he  should  not  have  received  the  low 
marks.    He  alleged  that  he  was  never  advised  that  his  judgment  was  in  question  or 
given an opportunity to correct his rating chain’s misperception. 

 
The applicant noted that when he applied for an extension of his active duty con-
tract in January 1999, the middle of the evaluation period, the ZZ strongly recommend-
ed approval.  The ZZ’s strong endorsement, he alleged, is inconsistent with his receipt 
of a mark of 3 in judgment for his performance during the whole year.  He also pointed 
out  that  he  received  an  “Officer  of  the  Day”  award  from  the  Xxxxxx  Xxxxxxxxxx  on 
January  25,  1999.    The  citation  for  the  award  states  that  it  is  “[i]n  recognition  of  [the 
applicant’s] judgment and professional abilities.”  Moreover, the applicant pointed out, 
he received an Achievement Medal at the end of his tour for “superior performance” 
and “diligence, perseverance and devotion to duty … from July 1998 to July 2000.”  

 
The applicant argued that, as a junior officer, his career should not suffer because 
of legal actions by his subordinates against his superiors over issues that arose before he 
was assigned to the unit.  He alleged that in the eyes of his supervisors, “failure to take 
their side meant that [he] sided with the employee.”  He alleged that the Coast Guard 
forced  him  to  act  as  a  witness  against  both  his  subordinate,  his  supervisor,  and  the 
Coast  Guard.    He  argued  that,  judging  by  the  OER  he received, it seems that he was 
expected to lie to save his career.  He argued that he should not have been punished 
with  low  marks  after  having  been  ordered  by  his  supervisor  to  give  one  subordinate 

Final Decision in BCMR Docket No. 2002-015                                                                p. 8  

 

higher  marks  than  he  deserved  and  after  correspondingly  raising  the  marks  of  an 
equally competent subordinate whom his supervisor detested.   

 
The  applicant  alleged  that  he  refrained  from  filing  a  reply  to  the  OER  because 
Mr. G was still his supervisor, and so he feared retribution.  In addition, he alleged that 
after he left active duty in July 2000, he failed twice to be selected for promotion to lieu-
tenant commander.  He alleged that those failures were “certainly and adversely influ-
enced” by the low marks he received on the disputed OER. 

 
The applicant asked the Board for an opportunity to appear before it and answer 

any questions the Board members might have.   

SUMMARY OF APPLICANT’S DOCUMENTARY EVIDENCE 

 
The  applicant  submitted  the  following  statements  and  copies  of  his  own  notes 
and correspondence, which, he alleged, prove the ongoing hostile attitude of his superi-
ors and subordinates and the fact that he showed good judgment and provided his sub-
ordinates with proper counseling and evaluations: 
 

1.  The  applicant  submitted  a  copy  of  a  memorandum  from  himself  to  the  ZZ 
dated October 23, 1998.  In it, he expressed concern about supervising someone who 
had already filed a complaint against the command and reporting to the person (Mr. G) 
against whom the complaint was made.  The applicant stated that upon his arrival, his 
predecessor told him that the Xxxxxxxxxx had “a horrible civilian work force,” that his 
subordinates were incompetent and lazy, that he should “watch his back,” and that he 
should not trust Mr. G.  He stated that he had tried to remain neutral during his first 
three months.  However, he had recently received a call from a private attorney and 
was  growing  concerned.    He  stated  that  the  work  environment  was  hostile,  with 
people  being publicly discredited and feeling threatened and intimidated.  He stated 
that he himself was concerned about mentioning the problems to the ZZ “for fear of 
retaliation.”    He  alleged  that  Mr.  G  knew  of  his  concerns  and  was  attempting  to 
discredit  him.    The  applicant  asked  that  he  be  allowed  to  report  directly  to  the  ZZ 
instead of to Mr. G or that he be transferred to another office. 

 

 

2.  A  copy  of  an  undated  email4  from  the  applicant  to  LCDR  Y,  the  attorney, 
stating  that  he  had  received  a  telephone  call  from  a  civilian  attorney  and  was  “very 
concerned about being placed in the middle of this matter, and the potentially harmful 
impact that telling the truth, about [his] observations, may have on [his] career.” 

3.  In an undated note to himself, the applicant stated that, after receiving a call 
from an “outside attorney,” he had informed both LCDR Y and the ZZ.  The ZZ ques-
tioned whether the “outside attorney” should be calling the applicant and warned him 

                                                 
4  Because the email has no “from” line and no time and date line, it is unclear if or when it was sent. 

Final Decision in BCMR Docket No. 2002-015                                                                p. 9  

that the attorney might try to get the applicant’s opinion as to whether there was a hos-
tile work environment.  In the same breath, the applicant noted, the ZZ told him that 
there  was  no  hostile  work  environment.    The  applicant  noted  that  he  said  nothing 
although he disagreed strongly with that statement.  He noted that he felt sick about 
having to be deposed on the subject in the near future because he thought that Mr. G 
would retaliate against him. 

4.  An email message dated October 26, 1998, from LCDR Y to several members 
of the division, including the applicant, notes the schedule for witness interviews for 
Mr. A’s case against the Xxxxx. 

5.  In a note to himself dated December 15, 1998, the applicant stated that he had 
first noticed the smell of alcohol on Mr. A’s breath in early October but took no action. 
When  he  noticed  it  again  in  late  October  or  early  November,  he  asked  Mr.  A  if  he 
smelled the odor of alcohol.  Mr. A replied, “No, it’s not me” and stated that he might 
have body odor since he did not have time to shower that morning.  The applicant fur-
ther  stated  that  in late November, Mr. A arrived at work incoherent, with bloodshot 
eyes, and smelling of alcohol.  When questioned, Mr. A stated that he would never do 
anything like that to jeopardize his job and suggested that it might be his aftershave.  
The applicant sought the advice from the personnel office, noting that Mr. A was an 
inspector who had to work on xxxxxxxxxxxxxxxxx.  He referred Mr. A to the Employee 
Assistance Program.  He alleged that his command “stonewalled” him on the matter. 

6.  The  applicant  submitted  a  copy  of  notes  of  a  mid-period  meeting  between 
him and Mr. G, which he alleged that he received from Mr. G.  In the notes, the appli-
cant is described as having “excellent people skills,” having done a good job communi-
cating  with  his  subordinates  about  goals  and  expectations,  having  prepared  timely 
mid-term  evaluations,  and  having  avoided  a  serious  conflict  with  the  secretary  “by 
stepping back for a couple of weeks and then counsel[ing] [her] on acceptable behav-
ior.”  The notes also indicate that Mr. G raised several issues with the applicant, such as 
improving his working relationship with the union, cutting back on the number of his 
e-mails, and “think[ing] before responding.” 

7.  Ms. C wrote in a statement for the applicant that she had worked for Mr. G 
since 1988 and filed a grievance against him in 1995.  She alleged that the applicant’s 
predecessor had gone along with Mr. G in favoring one inspector and being inconsid-
erate  to  the  other  and  to  herself.    Ms.  C  stated  that  when  the  applicant  first  arrived, 
they worked well together, but Mr. G resented their good working relationship.  She 
stated that Mr. G “never wanted anyone he was in charge of to like anyone outside [of] 
‘his boys’.”  She stated that the applicant was prevented from doing his job sometimes 
because  of  Mr.  G’s  interference.    She  stated  that  Mr.  G  sometimes  went  to  people 
behind the applicant’s back and often overturned people’s decisions. 

 

 

 

 

 

Final Decision in BCMR Docket No. 2002-015                                                                p. 10  

 

 

8.  In response to a January 2, 1999, email from the applicant recommending that 
a civilian employee serving as an xxxxxxxxxx be thanked for cutting short his holiday 
to  make  rapid  emergency  repairs  in  a  xxxxxxxx,  the  Xxxxxx  Xxxxxxxxxx agreed and 
extended his thanks to the applicant and the entire duty section for a “great job.” 

9.  In a note to himself dated January 21, 1999, the applicant stated that after he 
had set up a meeting with a union representative and Ms. C, the union representative 
refused  to  continue  the  meeting  or  indicate  the  nature  of  the  grievance  because  the 
applicant had invited a witness and did not have copies of personal notes to himself 
that he had made about Ms. C’s conduct.  The applicant stated that he was entitled to 
have  a  witness  present  at  the  meeting  and  that  he  did  not  bring  his  notes  simply 
because he had not been asked to do so.  Moreover, the legal office had told him that it 
would be unwise to provide Ms. C with written counseling because of an ongoing law-
suit  she  had  brought  against  the  government.    An  attached  email  message  from  the 
shop steward indicates that the union representative was to call the applicant to set up 
another meeting.  However, the applicant’s note indicates that instead of doing so, the 
union representative took the matter to the Xxxxxx Xxxxxxxxxx, and the ZZ came to 
the applicant accusing him of causing the delay in the resolution of the matter. 
 

10. The applicant submitted a series of email messages beginning with one from 
Mr. A dated February 8, 1999, in which he complained that other people in the office 
were  getting  overtime  work  for  special  projects  and  he  was  not.    Mr.  A  stated  that 
“[t]his is how [Mr. G] creates hate and discontent in this office.”  The applicant appar-
ently replied to him, stating that the chain of command always strove to ensure that all 
employees were treated fairly and objectively and offering to meet with him to discuss 
his concerns.  The applicant emailed this exchange to the ZZ along with a note indicat-
ing that he had met with Mr. A and told him that the overtime was authorized to com-
plete some xxxx work and that he could get further clarification from the ZZ or Mr. G.  
In response, the ZZ thanked the applicant for meeting with Mr. A. 

11. The applicant submitted a note he made to himself in which he alleged that 
on March 12, 1999, he entered Mr. A’s office and overheard the end of a conversation 
between Mr. A and Ms. C in which Mr. A stated, laughing, “That ought to shake him 
up!”  When the applicant asked to whom he was referring, Mr. A refused to answer.  
When  he  returned  to  his  office,  the  applicant  found  that  Mr.  A  had  just  sent him an 
email message asking why the applicant would not sign a leave slip for Mr. A since he 
had been late to work that morning.  Mr. A had sent copies of the email to the union 
president, the ZZ, the Xxxxx’s attorney, and Ms. C.  In the note, the applicant further 
observed that Mr. A had been reporting to work (a) late, (b) with the smell of alcohol 
on  his  breath,  and  (c)  apparently  “hung  over”  or  incoherent  with  slurred  speech, 
bloodshot eyes, and an inability to understand simple concepts.  The applicant stated 
that he had mentioned these problems to the ZZ and was told that, because of Mr. A’s 
lawsuits  against  the  government,  the  applicant  should  wait  until  later  to  raise  the 
issues with him.  He also stated that the ZZ tried to “shoot the messenger” by discred-

Final Decision in BCMR Docket No. 2002-015                                                                p. 11  

iting his observations about Mr. A’s behavior.  In addition, the applicant noted to him-
self that Mr. A’s gun-collecting hobby was a cause of concern to him. 

12. In a memorandum dated May 14, 1999, the applicant told the ZZ and Mr. B 
that,  now  that  the  final  grievance  in  the  office  had  been  resolved,  he  wanted  to  add 
several positive, substantive comments to his subordinates’ evaluations.  He stated that 
he had not provided comments before on the advice of the Xxxxx attorney and another 
officer.  He stated that he and they had been afraid that any comment could have been 
used against him or the Coast Guard by the employees and their attorneys and union 
representatives.    He  stated  that  it  was  not  out  of  laziness  that  he  did  not  previously 
submit comments but out of concern for how they might be used. 

13. In a note to himself dated May 26, 1999, the applicant summarized his coun-
seling session with Mr. B concerning the latter’s performance appraisal.  Mr. B had told 
him that he felt he deserved a “meritorious” rating because of his xxxxxxxxx xxxxs, his 
overtime work, and his being made project manager for several jobs.  Mr. B told him 
that  he  believed  the  “proficient”  rating  showed  that  he  was  “being  used  as a pawn” 
because of Mr. A’s suit against the command.  The applicant wrote that he told Mr. B 
that because all of the xxxx work had been assigned to Mr. B by Mr. G and the appli-
cant’s requests to see the work had been denied, the applicant could not verify that any 
of Mr. B’s xxxxs merited a “meritorious” rating.  When Mr. B suggested that he work 
the issue out with Mr. G, the applicant stated that he had already asked to be involved 
to  no  avail,  so  he  could  not  substantiate  that  Mr.  B  had  performed  xxxx  work  at  a 
“meritorious”  level.    He  stated  that  when  he  asked  Mr.  B  for  examples  of  his  xxxx 
work, Mr. B refused and sounded disgusted. 

 

 

 

 

The applicant further stated in this note that he did not consider working paid 
overtime to be a justification for a “meritorious” rating per se and that if Mr. B would 
show him his overtime xxxx work, the applicant would consider raising the rating.  The 
applicant stated in the summary (though he indicated that he did not say this to Mr. B) 
that he believed that Mr. B had been assigned unnecessary paid overtime work by Mr. 
G as a form  of bonus, while Mr. A had been denied overtime for legitimate requests, 
such as inspecting work performed by contractors at night.  However, he wrote, since 
he “was kept out of the decision loop,” he could be mistaken. 

 
Regarding Mr. B’s work as project manager, the applicant stated that he told Mr. 
B that he would have to provide more specifics about his work before raising his rating.  
However, Mr. B again said that he did not want to do more paperwork. 
 

• • • The evaluation period for the disputed OER ended on May 28, 1999.  Mr. G 

completed his part of the draft OER on June 3, 1999.• • • 

14. In  a  note  to  himself  dated  June  15,  1999,  the  applicant  stated  that  Mr.  G 
became  extremely  angry  because  the  new  ZZ  sent  an  email  informing  not  only  his 

Final Decision in BCMR Docket No. 2002-015                                                                p. 12  

direct subordinates, but also his subordinates’ subordinates, such as the applicant, that 
another officer would be in charge for a week while the new ZZ was away.   
 

15. In an email message dated June 17, 1999, Mr. A complained that a rumor was 
circulating  that  he  had  made  disparaging  remarks  about  an  xxxxxxxxx  xxxxxxxxxxx 
and that he had suggested someone throw water on a xxxxxxxxxxx to test it.  He also 
complained that the ZZ had sent Mr. B to assess Mr. A’s project.  The applicant wrote a 
note to himself stating that he had investigated the matter after Mr. G indicated that he 
had heard the rumors and asked him to handle it.  The applicant stated that no contrac-
tor admitted to having heard Mr. A make disparaging remarks and that the contractors 
stated that the comment about throwing water on the xxxxx had been an obvious joke.  
 

16. In  a  note  to  himself  dated  June  18,  1999,  the  applicant  stated  that  Mr.  G 
entered his office and asked for the xxxxx for a project that the applicant was manag-
ing.  Mr. G told him that he was meeting someone about the project.  When the appli-
cant asked why he was not invited to the meeting, Mr. G began swearing at him.   

17. An  email  message  that  the  applicant  sent  to  the  new  ZZ  on  June  24,  1999, 
relates an incident in which Mr. G “stormed into” his office and asked the applicant to 
meet him in the conference room at ten o’clock.  When the applicant told Mr. G that he 
was doing urgent work for the new ZZ, Mr. G asked him if he was refusing to meet 
with him and, when the applicant denied it, told the applicant to be in the conference 
room at ten o’clock and that Mr. G would arrange things with the new ZZ.  The appli-
cant stated that he felt Mr. G was trying to intimidate and demean him. 

18. An email message from the applicant to the new ZZ dated July 8, 1999, refers 
to the disputed OER signed by the previous ZZ and states that he was never counseled 
by Mr. G about the content of the OER.  In response, the new ZZ stated that he thought 
the applicant was doing “a fine job.” 

19. In an email message to the new ZZ dated July 19, 1999, the applicant stated 
that Mr. G had reacted very strongly and negatively to the applicant’s decision to noti-
fy the Xxxxxxxxx Section about the removal of a xxxxxxxxxxx.  In his response, the new 
ZZ indicated that he thought that the applicant had used “common sense” and that he 
should “keep[] using [his] good judgment” in dealing with such issues. 

20. LCDR W stated in a letter dated December 15, 1999, that he worked closely 
with the applicant as a project manager during the evaluation period.  He stated that 
the applicant had confided in him about some of the problems he was experiencing in 
the Xxxxxxxxx Branch.  LCDR W stated that he himself felt a “tremendous amount of 
tension” in the office when he visited, apparently because of Mr. A’s grievance.  LCDR 
W stated that the grievance concerned, in part, Mr. G’s alleged habit of assigning the 
best work to Mr. B and the worst work to Mr. A.  He stated that the applicant told him 
he was trying to assign the work evenly and fairly but felt “trapped between” Mr. G 

 

 

 

 

Final Decision in BCMR Docket No. 2002-015                                                                p. 13  

and Mr. A.  LCDR W further stated that the applicant was “very personable and pro-
fessional” and that he displayed good judgment as an xxxxxx. 

21. The applicant submitted excerpts from a February 29, 2000, decision in a law-
suit brought by a former employee of the office.  He alleged that although the lawsuit 
concerns incidents that occurred in the mid 1990s, prior to his arrival at the Xxxxx, and 
although he never met most of the witnesses named in the case, the “common thread” 
between  the  events  described  in  the  decision  and  his  case  is  the  “abusive,  vindictive 
and retaliatory actions” by Mr. G.  

 

 

 

 

In the decision, the Administrative Review Board (ARB) of the U.S. Department 
of Labor found that the Coast Guard had created a “hostile work environment” for the 
plaintiff,  who  had  been  an  xxxxxxxxx  xxxxxx  in  the  Xxxxx’s  xxxxxxx  Division  under 
Mr.  G’s  supervision.    The  ARB  found  that  Mr.  G  had  harassed  the  plaintiff  for 
attempting  to  bring  the  Xxxxx  into  compliance  with  federal,  state,  and  Coast  Guard 
laws  and  policies  concerning  hazardous  waste.    The  ARB  found  that  Mr.  G  had 
“engaged  in  tirades,  threatened  [the  plaintiff]  with  a  lawsuit,  and  removed  many  of 
[his] xxxxxxxxx duties or diminished his position” and that his actions had caused the 
plaintiff  “great  stress  and  anxiety.”    The  ARB  noted  that  Mr.  G had reacted similarly 
when the previous xxxxxxx xxxxxx at the Xxxxx reported a xxxxxxxx xxxxxxxx problem 
to the State’s regulatory agency.  The ARB stated that it was clear from the record that 
Mr.  G  had  revised  the  plaintiff’s  duties  because  of  his  efforts  to  obtain  xxxxxxxxx 
compliance.  The ARB found that because the chain of command had not reacted prop-
erly when the plaintiff complained about Mr. G’s harassment, the Xxxxx was liable as 
respondeat superior.  

22. In addition, the applicant submitted several email messages from other offi-
cers thanking him for completing various tasks; email messages from xxxxxxs praising 
him and thanking him for serving as their academic advisor; notes to himself about Mr. 
G’s behavior from October 1999 to February 2000; and emails mentioning incidents in 
which he had praised or critiqued his subordinates’ work appropriately; and notes to 
himself.  The applicant also submitted four letters of reference from Coast Guard offi-
cers, including two who worked with him at the Xxxxx: 
 

23. The  Chief  of  xxxxxx  xxxxxx  at  the  Xxxxx  stated  that  the  applicant  had  an 
extraordinarily large workload but displayed great stamina in managing it.  He praised 
several aspects of the applicant’s work.  

24. The  Chief  of  the  xxxxxxxx  Section  at  the  Xxxxx  stated  that  he  had  always 
found the applicant to be professional in his dealings at work and to maintain a posi-
tive attitude.  He stated that the applicant had an “ability to focus on the essential ele-
ments of a problem, develop a course of action, and implement the solution.”  

 

Final Decision in BCMR Docket No. 2002-015                                                                p. 14  

VIEWS OF THE COAST GUARD 

 
 
On May 24, 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  by 
raising the applicant’s mark for “Evaluations” from 3 to 4 and redacting the two nega-
tive  comments  that  support  the  mark  of  3:    “Submission  of  civilian  evaluations  were 
[sic] not timely and had inaccurate/insufficient comments.  Evaluation narratives were 
of  poor  quality  and  required  substantive  revisions  by  supervisor  before  submission.”  
However, the Chief Counsel recommended that no other relief be granted.  
 

The  Chief  Counsel  based  his recommendation on a memorandum prepared by 
CGPC.  Attached to the memorandum were affidavits by Mr. G and the ZZ, the super-
visor  and  reporting  officer  for  the  disputed  OER,  and  notes  they made regarding the 
low marks when preparing the OER. 
 
Affidavit and Notes of Mr. G (the Supervisor) 
 
In supporting the mark of 3 for “Evaluations,” Mr. G repeated the comments that 
 
appear in block 5 of the disputed OER.  In addition, he stated that the applicant’s civil-
ian evaluations “did not reflect actual performance.”  He stated that 
 

3. 
… [t]he 1st draft of the evaluations for the inspectors rated them both the same 
even though their performances were different; the 2nd submittal provided no write-up 
on their performance and rated them both equal even though their performance was dif-
ferent;  refused  to  provide  a  valid  evaluation/written  comments  on  the  two  employees.  
[The applicant] was given an opportunity to correct the evaluations and flat refused! 
 
4. 
The  revised  OER  (additional  information  was  provided  to  substantiate  the 
marks) was routed through the chain of command.  The discrepancy between the date of 
the rejected OER and the final OER was simply due to a wrong date being carried over 
from the draft that I had provided [the ZZ] on 5/19/99. 
 
5. 
[The applicant] was rated a 3 in block 8b (Judgment) for his dealings with per-
sonnel both at the Xxxxx and outside personnel.  He was counseled multiple times on his 
tone/comments in e-mails and at one time was prohibited from sending e-mails outside 
of the immediate office; his actions with Xxxxx personnel required me to counsel him on 
his  attitude  and  treatment  of  people  and  required  my  personal  involvement  to  resolve 
both grievances and union complaints; correspondence to contracting staff was at times 
unprofessional and extremely antagonistic and unprofessional [sic].  Used poor judgment 
in dealing with peers and supervisors. 

 

 

The notes Mr. G made about the mark of 3 in “Evaluations” appear as follows: 

 

[The applicant] supervised three civilian employees and was required to submit complete 
evaluations  to  supervisor  in  time  for  review  and  processing  by  supervisor  so  that  they 
would be in Civilian Personnel [no later than] Friday 23 April 1999. 
 

Final Decision in BCMR Docket No. 2002-015                                                                p. 15  

 

[He] delivered the evaluations on his employee’s [sic] late Friday afternoon.  The ratings 
were not documented by specific examples and were general.  [He] was on leave the fol-
lowing  week  and  not  available  for  rewrite  (he  boxed  me  in  because  of  the  last  minute 
submission of the evaluations and he left me no time for review).  When I discussed the 
evaluations [with him] and asked him to provide specifics for the ratings, he was unable 
to document high or low performance.  He used general number [sic] for both [Mr. B and 
Mr. A] that had no basis in reality.  When questions [sic] on the ratings for [them], he said 
he rated them the same to avoid a grievance.  Ratings for [Ms. C] were based on his poor 
interaction with her the last couple of months (a grievance was filed by her) and did not 
take into account her excellent performance for the majority of the marking period. 
 

  The  next  submission  of  the  ratings  for  his  folks  showed  them  all  as  proficient  with  no 

 

 

comments. 
 
I had to personally place comments on all three evaluations of his folks. 
 
[He] was rated as a three in this block for the following reasons: 
∗  Narratives were inaccurate and of poor quality 
∗  Failed  to  uphold  service  performance  standards  by  assigning  marks  based  on  per-

formance 

∗  Reports required revision by supervisor and were not timely 
 

Affidavit and Notes of the ZZ (the Reporting Officer) 
 
 
The ZZ stated that he prepared his part of the OER, including the mark of 3 for 
“Judgment” and supporting comments, and forwarded it to the reviewer in early July 
1999.  After the reviewer signed and submitted the OER to CGPC, it was returned with 
a  letter  on  August  23,  1999,  for  additional  work.    The  ZZ  stated  that  he  received  a 
revised copy of the OER and CGPC’s letter in a fax from Mr. G on September 16, 1999.  
He  reviewed  the  new  OER  and  found  Mr. G’s changes to be consistent with his own 
recollection of the circumstances.  On September 20, 1999, he received another fax from 
Mr. G with his final version of the supervisor’s section of the OER.  The ZZ stated that 
he concurred with it and, on September 21, 1999, edited his own comments in the OER 
to support the mark of 3 he had assigned for “Judgment.”  He forwarded the final ver-
sion of the OER to the reviewer, who signed it on October 5, 1999.  Regarding the mark 
of 3 for “Judgment,” the ZZ stated that the applicant 
 

did not always keep the chain of command informed on his proposed actions, including 
consultation with legal staff and civilian personnel advisor.  [This was considered impor-
tant due to a sensitive personnel issue concerning one of [the applicant’s] subordinates.]  
On more than one occasion, [his] interaction with others showed poor judgment, in that 
his reaction or method of interaction proved problematic (his involvement did not resolve 
a situation but sometimes made it more difficult).  His dealings with the contracting staff 
…, union officials …, and his subordinates are examples.  [He] was counseled on using 
good judgment in communicating with others; his method of using impersonal means (e-
mail) appeared ineffective at times and led to misunderstandings.  He was also advised 
to  be  very  thorough  in  understanding  and  researching  Commandant  directives  and 
guidance  on  issues  pertaining  to  civilian  personnel;  he  often  seemed  to  be  acting  in 
contradictory  manner  to  advice  issued  by  civilian  personnel  liaison  …  .    In  conclusion, 

Final Decision in BCMR Docket No. 2002-015                                                                p. 16  

there were a number of situations where [he] did not demonstrate the common sense and 
sound decision-making that is expected of a senior [LT]. 

The notes the ZZ made about the mark of 3 in “Judgment” appear as follows: 

 
 
 

[The applicant] was directed numerous times to inform the chain of command, including 
legal and civilian personnel on any proposed actions which were of a sensitive nature; he 
did not always do this. 
 
[He] had difficulty at times in knowing what actions (or lack of action) was appropriate 
based on the circumstances; specifically he would react in an e-mail in a manner which 
often  exacerbated  a  situation  rather  than  resolve  it—dealing  with  …  contracting  staff, 
union officials, subordinates, etc. 
 
[He] had a habit of sending e-mails rather than speaking to an individual face to face or 
even on the phone, which in many cases may have prevented misunderstandings or mis-
communication. 
 
[He] was reminded on numerous occasions to be thorough in researching the background 
references  (COMDTINST’s,  etc)  to  make  sure  he  firmly  established  the  applicable 
guidelines or directives which applied to particular situations.  It was not always appar-
ent the he had done so. 
 
In summary, [he] did not always demonstrate the common sense, experience, and sound 
decision-making that would be expected of a senior [LT]. 

 
Memorandum of the Coast Guard Personnel Command 
 
 
 CGPC stated that the record indicates that the applicant’s proper rating chain, 
including Mr. G, the ZZ, and the appointed reviewer, completed the disputed OER and 
forwarded it to CGPC in August 1999.  CGPC stated that the Xxxxxxxxxx of the Xxxxx 
properly designated reviewer duties to someone other than the ZZ’s supervisor.  When 
CGPC returned the OER because of inconsistencies between the marks and comments, 
the  rating  chain  “had  the  latitude  to  address  the  disparity  in  whichever  manner  they 
deemed appropriate.  In this case the Rating Chain amended the narrative to support 
the  ‘below-standard’  mark  of  ‘3’.”    CGPC  indicated  that  the  rating  chain  could  have 
chosen to raise the marks to match the narrative but apparently “deemed the numerical 
mark to accurately reflect his performance, and as required, provided documentation in 
the re-submitted report.” 
 
 
CGPC  stated  that,  although  the  dates  of  two  of  the  signatures  on  the  disputed 
OER reflect the dates of earlier drafts of the OER and not the dates Mr. G and the ZZ 
actually signed the final version, the reviewer’s hand-written signature and the affida-
vits of Mr. G and the ZZ prove that the disputed OER in the applicant’s record is the 
final version that was reviewed, revised, and endorsed by the rating chain after CGPC 
returned  their  original  submission  because  of  the  inconsistencies.    CGPC  pointed  out 
that the ZZ concurred in the mark of 3 for “Evaluations” on the original OER and con-
curred in Mr. G’s comments supporting the mark of 3 in the final version of the OER.  

Final Decision in BCMR Docket No. 2002-015                                                                p. 17  

CGPC stated that the inaccurate dates beside the signatures on the disputed OER are 
“administrative discrepancies [that] do not detract from the overall OER and are not a 
basis to change marks or withdraw this OER from the service record.”  
 
 
With respect to the mark of 3 for “Evaluations,” however, CGPC stated that Mr. 
G’s  statements  and  the  applicant’s  evidence  indicate  that  the  applicant’s  “attempt  to 
draft and submit accurate evaluations on his subordinates was stymied.”  CGPC stated 
that, under the regulations for civilian performance evaluations, Mr. G should have dis-
cussed  any  disagreement  he  had  about  the  evaluations  with  the  applicant  and  could 
himself have made any changes he wanted to them as long as he documented the rea-
sons for the changes.  CGPC further stated that Mr. G could properly have returned the 
evaluations to the applicant and asked him to improve the quality of the narratives, but 
it was not proper for Mr. G to return them with a direction to change the ratings to cer-
tain  levels.    CGPC  stated  that  Mr.  G,  “if  he  was  not  satisfied  with  the  evaluations, 
should have accepted the evaluations as submitted, changed the rating, and document-
ed the performance-based reason for the change.”  
 
Regarding the timeliness of the civilian evaluations, CGPC stated that the record 
 
indicates that the applicant submitted them on April 16, 1999, just before going on leave 
and one week before April 23, 1999, when the supervisor wanted to submit them to the 
Civilian  Personnel  office.    Moreover,  they  were  completed  “well  within  the  60-day 
period”  following  the  end  of  the  evaluation  period.    CGPC  stated  that  if  Mr.  G  was 
unsatisfied  with  the  evaluations  and  wanted  them  completed  within  a  “self-imposed 
three-week deadline,” he could have suspended the applicant’s leave instead of waiting 
for him to return to discuss them.   
 

In light of these facts, CGPC recommended that the Board raise the applicant’s 
mark for “Evaluations” to a 4 and remove the negative comments that were added to 
support the mark of 3. 
 
 
Regarding the mark of 3 for “Judgment,” CGPC alleged that the ZZ’s declaration 
and  notes  on  the  OER  fully  support  the  low  mark.    CGPC  also  argued  that  the  ZZ’s 
declaration and notes prove that the applicant was counseled on numerous occasions to 
use  better  judgment  in  his  communications  and  to  be  more  thorough  in  his  work.  
CGPC  pointed  out  that  the  notes  on  mid-term  counseling  submitted  by  the  applicant 
include some criticisms about the applicant’s e-mail communications.  Therefore, CGPC 
argued,  the  applicant  is  wrong  to  claim  that  he  was  given  “no  warning  and  no  fair 
opportunity to correct” his performance.  CGPC recommended against raising the mark 
for “Judgment” or removing the supporting comments. 
 
 
CGPC stated that the workplace climate depicted by the applicant “was tense but 
not hostile where the Applicant could not bring issues forward for fear of retaliation.”  
CGPC pointed out that the applicant sent a memorandum to the ZZ on the office cli-
mate in October 1998 and, in response to other such correspondence, was advised by 

Final Decision in BCMR Docket No. 2002-015                                                                p. 18  

the  ZZ  to  consult  with  the  Civilian Personnel office.  CGPC also pointed out that the 
applicant  frequently  consulted  Coast  Guard  Legal  Officers  about  sensitive  personnel 
matters, but submitted no evidence to indicate that he had ever addressed any concerns 
for  himself  with  them  or  expressed  to  them  his  alleged  fear  of  retaliation  by  Mr.  G.  
Moreover, CGPC pointed out, most of the evidence that the applicant submitted about 
Mr. G is dated after the end of the evaluation period for the disputed OER.  CGPC con-
cluded  that  the  applicant  “did  not  provide  convincing  evidence  that  he  worked  in  a 
hostile environment and could not bring issues forward for fear of retaliation.”  
 
 
With  respect  to  the  applicant’s  failures  of  selection  for  promotion  to  LCDR, 
CGPC stated that, although the applicant has a good record, he “lacked promotion rec-
ommendations to the grade of LCDR beginning with the June 1997 evaluation period 
through his failed promotion cycles in 2000 and 2001.  The stated opportunity of selec-
tion for the 2000 LCDR Reserve Selection Board was 65% and 2001 LCDR Reserve Selec-
tion Board was 70%. …  Lacking promotion recommendations that would validate that 
the member could serve the [Coast Guard] well at the next higher grade or recommen-
dations for increased responsibility at the current grade held, could be interpreted by 
selection boards as an indicator that he could not serve the [Coast Guard] well in posi-
tions  of  greater  rank.”    CGPC  stated  that,  while  the  applicant’s  recent  OERs  show 
“technical competence,” they do not show “leadership growth within his specialty.  As 
officers  get  more  senior,  they  are  expected  to  progress  from  technical  competence  to 
demonstrating leadership.”  Therefore, CGPC concluded that, although the changes the 
applicant is seeking on the disputed OER would improve his record, “there is no nexus 
between [his] requested relief and his non-selection to LCDR, as his career progression 
has not shown the growth required for promotion.” 
 
Advisory Opinion of the Chief Counsel of the Coast Guard 
 
 
The Chief Counsel “fully concur[red] in CGPC’s analysis of the case.  The Chief 
Counsel  stated  that  the  applicant  has  proved  that  Mr.  G  failed  to  follow  established 
procedures  with  respect  to  the  civilian  evaluations.    However,  he  argued,  the  record 
does not support the applicant’s allegations with respect to his mark of 3 in “Judgment” 
and the supporting comments.   
 

The  Chief  Counsel  argued  that  Board  should  apply  the  following  standards  in 

deciding whether to grant relief: 
 

To establish that an OER is erroneous or unjust, the applicant must show a misstatement 
of hard fact or a clear violation of a statute or regulations.  Germano v. United States, 26 
Cl. Ct. 1446, 1460 (1992); CGBCMR Dkt No. 86-96.  In determining whether Applicant has 
met  this  burden,    Applicant’s  rating  officials  are  strongly  presumed  to  have  acted  cor-
rectly, lawfully, and in good faith in executing their duties.  Arens v. United States, 969 
F.2d 1034, 1037 (1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979).   
 

Final Decision in BCMR Docket No. 2002-015                                                                p. 19  

The Chief Counsel argued that the applicant has failed to rebut the presumption 

 
of regularity with respect to his mark for “Judgment” and the supporting comments. 
 
The Chief Counsel further argued that the applicant failed to establish the “sub-
  
stantial  connection  or  nexus”  between the disputed OER and his failures of selection.  
He  alleged  that,  while  the  mark  of  3  in  “Evaluations”  and  the  supporting  comments 
arguably made the applicant’s record appear worse than it would have otherwise, it is 
unlikely that the applicant would have been selected for promotion in any event. 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

 

On June 3, 2002, the BCMR sent the applicant a copy of the Coast Guard’s views 
and  invited  him  to  respond.    The  Coast  Guard  did  not  initially  provide copies of the 
declarations  of  Mr.  G  and  the  ZZ.    On  August  16,  2002,  these  were  received  by  the 
BCMR and forwarded to the applicant with another invitation to respond.   

 
In response to the views of the Coast Guard, the applicant stated that Mr. G and 
the ZZ had lied in characterizing his work during the marking period.  He alleged that 
he  never  refused  an  order  to  add  comments  to  the  evaluations.    He  alleged  that  the 
mark  of  3  for  “Judgment”  was  based  solely  on  his  preparation  of  the  civilian evalua-
tions  and  so  should  be  corrected  along  with  the  mark  and  comments  he  received  for 
“Evaluations.”   

 
The applicant stated that the Coast Guard’s allegation that he did not make his 
command or the Legal Office aware of his hostile work environment during the evalua-
tion period is “preposterous and beyond laughable.”  He alleged that he made the ZZ 
and  the  Xxxxx’s  attorney  aware  of  numerous  threats  and  hostile  and  demeaning 
remarks by Mr. G during the period.  Moreover, he alleged that in response to his com-
plaints,  the  Legal  Office  forbade  him  from  speaking  to  Mr.  A’s  attorney.    He  alleged 
that  his  low  marks  resulted  from  the  command’s  dislike  of  his  assessment  of  the 
performance  of  his  subordinates  and  of  the  workplace  environment.    He  asked  the 
Board to raise his marks for “Evaluations” and “Judgment” to 5s. 

 
On  October  23,  2002,  the  applicant  contacted  the  Board  again,  requesting  to 
appear at a hearing and indicating that he might submit more evidence.  The Chair told 
him that because the Board might not grant him a hearing, he should submit copies of 
all relevant evidence.  In November 2002, the applicant called requested and received a 
complete copy of the contents of his case file.  He stated that he might submit more evi-
dence.    On  January  5,  2003,  the  applicant  wrote  to  inform  the  Chair  that  the  Board 
should not consider his case “ready for decision” until he had an opportunity to receive 
feedback from the Board on his application and to respond to any questions the Board 
might have.  He stated that he could provide more documentation and information but 
wanted feedback from the Board on his application before he would do so.  On January 
7, 2003, the Chair replied, informing the applicant that the Board does not provide feed-

Final Decision in BCMR Docket No. 2002-015                                                                p. 20  

back about applications and encouraging him to submit any further evidence he might 
have promptly to prevent any further delay in his case being ready for decision.   

 
On February 3, 2003, the applicant sent the Board his “Closing Statement.”  In it, 
he repeated his allegation that he had received no prior warning of the low marks and 
had  had  no  opportunity  to  correct  his  rating  chain’s  misperception,  to  “present  [his] 
case  to  [his]  chain  of  command,”  or  to  comment  on  the  marks.    He  alleged  that  the 
marks were assigned by Mr. G and the ZZ “wrongfully and maliciously.”  He alleged 
that they assigned the low marks because he would not lie for them about “their weak, 
ineffective  and  abusive  …  leadership  and  management  styles.”    He  alleged  that  he 
“became  their  easiest  target  of opportunity in May of 1999 … just before we were all 
scheduled  to  be  deposed  and  interviewed  [for  Mr.  A’s  lawsuit]  …  and  coincidentally 
the time that my first OER from the Xxxxx was due.”  He stated that although he tried 
to engage the attention of the ZZ’s superiors, no one saw the conflict of interest inherent 
in his being evaluated by officers he was having to testify against.  He alleged that his 
career suffered because he told the truth—that Mr. G and the ZZ “were so blinded by 
their dislike and distrust” of Mr. A that they could not be convinced that Mr. A was still 
performing his job in an acceptable manner—and it reflected poorly on both Mr. G and 
the ZZ.  He stated that Mr. G and the ZZ probably “caught wind” of his testimony from 
the Xxxxx’s attorney at the same time they were preparing his OER.  He alleged that 
they  must  have  learned  something  about  what  his  testimony  would  be  because  the 
attorney  would  have  questioned  them  to  try  to  find  ways  to  discredit  his  damaging 
observations.  He alleged that they assigned him the marks of 3 to “save face” and as a 
preemptive strike to discredit his testimony.  Although he never actually had to testify 
because  the  case  was  settled  out  of  court,  he  alleged  that  Mr.  G  and  the  ZZ  already 
knew from the attorney about what he would have said and were angry.  He alleged 
that if he had testified, the Coast Guard would likely have used the low marks in the 
disputed OER to discredit his testimony on the stand. 

 
The applicant alleged that Mr. G had a “reputation for having numerous formal 
and informal complaints that centered on such subjects as harassment, manipulation of 
performance evaluations, hostile and degrading treatment of subordinates, stalking of 
[Xxxxx] employees, throwing a telephone across an office nearly striking an office secre-
tary,  slashing  tires  and  keying  a  personal  vehicle  after hours, threatening to ‘execute’ 
and ‘kill’ individual [Xxxxx] employees, etc.  These traits were well known and ignored 
by  the  Coast  Guard  or  dismissed  as  not  serious.”    He  alleged  that  the  Coast  Guard’s 
typical  response  was  to  “circle  the  wagons  and  deny  everything.”    He  stated  that  by 
placing him in between Mr. G and Mr. A and failing to provide “support, integrity, and 
guidance from the top,” the Coast Guard let him “twist in the wind.” 

 
The applicant repeated his allegation that the only time the ZZ had indicated to 
him that his judgment was in question was when he asked the applicant about his deci-
sion not to include comments on the civilian evaluations.  The applicant argued that, in 
light  of  the  pending  lawsuit  and  complaints,  he  showed  “exceptional”  judgment  in 

Final Decision in BCMR Docket No. 2002-015                                                                p. 21  

including  no  comments  in  the  evaluations.    He  alleged  that  including  no  comments 
“was within [his] supervisory right and not subject to question by [the ZZ].”  Moreover, 
he alleged that the ZZ never said a single word to him about the low mark for “Judg-
ment” before he was transferred to Miami in June 1999. 

 
The applicant stated that the ZZ’s declaration is misleading in suggesting that his 
relationship with the union representative and Ms. C was difficult or reflective of any 
poor judgment on his part.  He alleged that there were initially some misunderstand-
ings caused by the pre-existent tense atmosphere in the office, but that all such prob-
lems  were  resolved  after  a  few  days  and  the  three  of  them  developed  a  professional 
working  relationship.    He  alleged  that  the  ZZ  must  have  been  given  misinformation 
about this matter by Mr. G, “a proven and documented liar.” 

 
The applicant alleged that if the first draft of the OER was truthful, CGPC should 
not  have  given  his  rating  chain  the  opportunity  “to  doctor,  fabricate  and  manipulate 
those  remarks  to  assist  them  in  creating  fictional  marks  of  three  that  were  wrongly 
assigned in the first place.” 

 
Finally, the applicant alleged that it was absurd for the Coast Guard to allow two 
selection boards to review his record after he had already quit the Service “in disgust.”  
Therefore, he asked the Board to remove those failures of selection as well as raise the 
low marks.  He stated that he is now a captain in the Air National Guard and that the 
negative evaluations in his Coast Guard record would hamper his promotion to major. 

 

APPLICABLE REGULATIONS 

 
Composition of the Rating Chain 
 
 
Articles 10.A.2.d.1., e.1., and f.1. of the Personnel Manual provide that each OER 
is  prepared  by  the  reported-on  officer’s  “rating  chain”  of  three  senior  officers:    the 
supervisor  (usually  the  officer  to  whom  the  reported-on  officer  answers  on  a  daily 
basis), the reporting officer (usually the supervisor’s supervisor), and the reviewer (usu-
ally the reporting officer’s supervisor).  The reviewer’s function is primarily administra-
tive,  and  there  is  no  requirement  that  he  or  she  have  occasion  to  closely  observe  the 
reported-on officer’s performance. 
 
 
Article 10.A.2.g.1. of the Personnel Manual provides that an officer may be “dis-
qualified” from serving on a subordinate’s rating chain.  Article 10.A.2.g.2.b. provides 
that the term “’Disqualified’ includes relief 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.”    Article  10.A.2.g.2.c.  provides  that 
“[i]f not already determined by the commanding officer, it is incumbent on the Report-

Final Decision in BCMR Docket No. 2002-015                                                                p. 22  

ed-on  Officer  to  identify  to  the  next  senior  officer  in  the  chain-of-command  that  an 
exception to the designated rating chain may exist.  This issue should be raised as soon 
as practicable prior to the completion of the reporting period.” 
 
Responsibilities of the Rating Chain 
 
 
Article 10.A.1.b.(1) of the Personnel Manual provides that “[e]ach commanding 
officer must ensure that accurate, fair, and objective evaluations are provided to all offi-
cers under their command.” 
 
Article 10.A.1.b.(2) states that “[t]here is only one person responsible for manag-
 
ing the performance of an individual officer .... and that is the officer himself or herself.  
He  or  she  is  ultimately  responsible  for  finding  out  what  is  expected  on  the  job,  for 
obtaining sufficient feedback or counseling, and for using that information in adjusting 
as necessary to meet or exceed standards.” 
 
 
Article  10.A.1.c.(9)  states  that  “no  specific  form  or  forum  is  prescribed  for  per-
formance feedback.  It may be formal or informal.  Performance feedback (or counsel-
ing) actually occurs whenever a subordinate receives from a rating officer any advice or 
observation related to the subordinate's performance or any other matter on which he 
or  she  may  be  evaluated.    Performance  feedback  can  occur  in  a  conference,  during  a 
consultation  or  counseling  session,  or  through  on-the-spot  comments  about  perform-
ance, or when the evaluation is returned.  Each officer must be continuously alert for the 
"signals"  received  in  one  of  these  ways  from  seniors.    If  the  signals  are  not  clear  (or 
understood), the officer should seek clarification or expansion on his or her own voli-
tion.”  Article 10.A.2.c. provides that it is the responsibility of the reported-on officer to 
seek performance feedback, “as necessary,” from the supervisor.  It also provides that 
the reported-on officer “[a]ssumes ultimate responsibility for managing own perform-
ance, notwithstanding the responsibilities assigned to others in the rating chain.  This 
includes ensuring performance feedback is thorough ... .” 
 
 
Article  10.A.2.d.(2)  provides  that  it  is  the  supervisor’s  responsibility  to  “[p]ro-
vide[] performance feedback to the Reported-on Officer upon that officer's request dur-
ing the period or at such other times as the Supervisor deems appropriate.” Under Arti-
cle 10.A.2.e.(2)(h), the reporting officer should also provide performance feedback “as 
appropriate.” 
 
 
ting input to the supervisor at least 21 days before the end of the evaluation period. 

Article 10.A.2.c.2. provides that an officer should initiate his own OER by submit-

 

Instructions for Preparing an OER 

 
Article 10.A.4.d.4. instructs supervisors to assign marks and write comments for 
the first 16 performance categories on an OER, including “Evaluations,” as follows (vir-

Final Decision in BCMR Docket No. 2002-015                                                                p. 23  

tually  identical  instructions  are  provided  in  Article  10.A.4.d.7.  for  reporting  officers, 
who complete the rest of the OER, including the mark for “Judgment”): 
 

(b)  For each evaluation area, the Supervisor shall review the Reported-on Officer's per-
formance and qualities observed and noted during the reporting period.  Then, for each 
of  the  performance  dimensions,  the  Supervisor  shall  carefully  read  the  standards  and 
compare the Reported-on Officer's performance to the level of performance described by 
the standards.  The Supervisor shall take care to compare the officer's performance and 
qualities  against  the  standards--NOT  to  other  officers  and  not  to  the  same  officer  in  a 
previous reporting period.  After determining which block best describes the Reported-
on Officer's performance and qualities during the marking period, the Supervisor fills in 
the appropriate circle on the form in ink. 

•   •   • 

(d)    In  the  "Comments"  sections  following  each  evaluation  area,  the  Supervisor  shall 
include  comments  citing  specific  aspects  of  the  Reported-on  Officer's  performance  and 
behavior for each mark that deviates from a "4."  (Comments are required for Work-Life 
Sensitivity/Expertise, Operational/Specialty Expertise and Collateral Duty/Administra-
tive Expertise regardless of mark assigned.)  The Supervisor shall draw on his/her own 
observations,  from  those  of  any  secondary  supervisors,  and  from  other  information 
accumulated during the reporting period. 
 
 (e)  Comments should amplify and be consistent with the numerical evaluations in the 
evaluation area.  They should identify specific strengths and weaknesses in performance. 
Well-written comments must be sufficiently specific to paint a succinct picture of the offi-
cer's performance and qualities which compares reasonably with the picture defined by 
the standards marked on the performance dimensions in the evaluation area.  Mere repe-
tition  of  the  phrases  used  in  the  standards  is  not  sufficient  narrative  justification  for 
marks. 

Article 10.A.2.e.2.e. provides that the reporting officer shall forward an OER to 

 
 
Article 10.A.4.d.(9)(a) instructs the reporting officer to complete the Comparison 
Scale on an OER by “fill[ing] in the circle that most closely reflects the Reporting Offi-
cer's ranking of the Reported-on Officer relative to all other officers of the same grade 
the Reporting Officer has known.” 
 
 
the reviewer within 30 days of the end of the reporting period. 
 
OER Review 
 
 
Article 10.A.2.f.2.c. provides that, after the supervisor and reporting officer have 
completed an OER, the reviewer “[e]nsures that the Supervisor and Reporting Officer 
have  adequately  executed  their  responsibilities  under  the  OES.    The  Reviewer  shall 
return  an  OER  to  the  Reporting  Officer  to  correct  errors,  omission,  or  inconsistencies 
between  the  numerical  evaluation  and  written  comments.”    Article  10.A.2.f.2.e.  pro-
vides that the reviewer shall forward the OER to CGPC within 45 days of the end of the 
reporting period. 
 

Final Decision in BCMR Docket No. 2002-015                                                                p. 24  

Article 10.A.2.h. provides that, when an OER is received by CGPC, it undergoes 
a  “thorough  quality  review.”    Article  10.A.4.j.  provides  that  in  CGPC’s  review  of  an 
OER,  “[p]articular attention is given to inconsistencies between the numerical evalua-
tions and written comments.  The review is not intended to question a rating official's 
judgment about a subordinate's performance, but to ensure OERs have been prepared 
in  accordance  with  OES  guidelines.”    The  rating  chain  is  supposed  to  complete  any 
required revision of an OER and return it to CGPC within 30 days. 
 
Replies to OERs 
 
Article 10.A.4.g. allows the Reported-on Officer to file a reply to any OER within 
 
14 days of receiving it to “express a view of performance which may differ from that of 
a rating official.”  The reply is forwarded up the rating chain so that each member has a 
chance to respond to the Reported-on Officer’s statements.  The reply and any respons-
es by rating chain members are filed in the officer’s record with the OER.   
 
Civilian Evaluations 
 
 
Under  the  Performance  Management  System of the Department of Transporta-
tion, civilian performance evaluations must be completed within 60 days of the end of 
the evaluation period.  Performance ratings are assigned by the employee’s immediate 
supervisor.  If the second-level supervisor disagrees with a rating, he or she should dis-
cuss  it  with  the  immediate  supervisor.    The  second-level  supervisor  may  change  any 
rating assigned by the supervisor but must document the reason for the change.  Expla-
nations are only required for ratings above or below the “proficient” level. 

FINDINGS AND CONCLUSIONS 

 

  
1. 

2. 

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 Chair, act-
ing 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. 
 
 
Absent  specific  evidence  to  the  contrary,  the  Board  presumes  that  an 
applicant’s  rating officials acted correctly, lawfully, and in good faith in making their 
evaluations.5  Once an applicant has rebutted the presumption of regularity by present-
                                                 
5  33 C.F.R. § 52.24(b); Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 
594 F.2d 804, 813 (Ct. Cl. 1979). 

3. 

Final Decision in BCMR Docket No. 2002-015                                                                p. 25  

4. 

ing at least some evidence that “specifically and convincingly contradicts his rating offi-
cials’ marks and comments,”6 the Board weighs the evidence in the record to determine 
whether the applicant has met his burden of proof—the preponderance of the evidence 
—with  respect  to  the  challenged  OER.7    The  Board  determines  whether  the applicant 
has proved by a preponderance of the evidence that the disputed OER was 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.8  With 
this standard in mind, the Board has carefully considered all of the evidence regarding 
the disputed OER and draws the following conclusions with respect to the evidence. 
 
The applicant challenged the validity of the disputed OER based in part 
 
on  the  dates  of  the  signatures.    The  final  version  of  the  OER  that  was  approved  by 
CGPC anomalously indicates that Mr. G signed it on May 19, 1999—that is, before he 
signed  the  version  of  the  OER  that  the  applicant  saw  in  July  1999—and  that  the  ZZ 
signed it on June 30, 1999, which is the same day he signed the other version.  However, 
the  Board  is  not  persuaded  that  the  dates  prove  some  mix-up  between  the  draft  and 
final OERs.  The draft OER that the applicant was given in July 1999 contains no com-
ments supporting the low marks and so is clearly the one that was rejected by CGPC for 
inconsistency.  The OER that CGPC approved in October 1999 was signed and dated by 
the reviewer just a few days before.  Moreover, the declarations of Mr. G and the ZZ 
indicate  that  they  both  remember  revising  and  adding  the  disputed  comments  to  the 
OER that was finally accepted by CGPC on October 13, 1999. 
 
 
The  applicant  alleged  that  CGPC  erred  in  giving  his  rating  chain  an 
opportunity to add negative comments to his OER.  However, under Articles 10.A.2.h. 
and 10.A.4.j. of the Personnel Manual, CGPC must return an OER for revision if it con-
tains an inconsistency between the marks and the corresponding comments.  The draft 
OER clearly contained such inconsistencies since the marks of 3 were unsupported by 
any  critical  comment  about  the  applicant’s  judgment  and  preparation  of  evaluations.  
Moreover, CGPC did not direct the rating chain to fix the OER in any particular way 
other than to make it more consistent.  The rating chain was free to do so either by sup-
porting the chosen marks with consistent comments or by raising the marks to match 
the comments.  Under Articles 10.A.4.d.4. and 10.A.4.d.7 of the Personnel Manual, rat-
ing  chain  officials  are  supposed  to  pick  the  numerical  marks  first  and  then  add  com-
ments that support them.  The applicant has not proved that CGPC erred in requiring 
the revision of the OER or that his rating chain erred in how it chose to make the marks 
and comments consistent. 
 

5. 

                                                 
6 Final Decision, BCMR Docket No. 2000-194. 
7 33 C.F.R. § 52.24(b).  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). 
8  Hary v. United States, 618 F.2d 704, 708 (Cl. Ct. 1980); CGBCMR Docket No. 86-96. 

Final Decision in BCMR Docket No. 2002-015                                                                p. 26  

6. 

 
The applicant challenged the validity of the disputed OER based in part 
on delays by his rating chain.  Although the ZZ missed meeting the 30-day deadline, 
under Article 10.A.2.e.2.e. of the Personnel Manual, for submitting the draft OER to the 
reviewer by a couple of days and the reviewer missed the 45-day deadline under Article 
10.A.2.f.2.c.  for  submitting  the  draft  OER  to CGPC by a couple of days, the applicant 
has not proved that he was harmed in any way by these delays.  A small, harmless pro-
cedural error is insufficient to justify invalidating an otherwise valid OER.  Moreover, 
the record indicates that the applicant himself failed to meet his deadline of providing 
his input for the OER at least 21 days before the end of the reporting period.  The OER 
shows that he submitted his input on May 11, 1999; the normal evaluation period for 
lieutenants ended on May 31, 1999; and because his reporting officer, the ZZ, was leav-
ing,  the  applicant’s  own  evaluation  period  for  the  disputed  OER  ended  on  May  28, 
1999.  Similarly, the applicant has failed to prove that he was harmed by the fact that his 
rating chain took more than the 30 days provided under Article 10.A.4.j. to revise and 
resubmit  the  OER  to  CGPC.    Therefore,  the  Board  concludes  that  the  small  delays  in 
submissions by the rating chain did not constitute prejudicial violations of regulation. 
 
The  applicant  challenged  the  validity  of  the  disputed  OER  based  on  the 
 
fact that the reviewer, CDR I, was not the supervisor of the ZZ and had little occasion to 
observe his work.  However, according to CGPC, CDR I had been properly designated 
as the reviewer on the applicant’s rating chain by the Xxxxxxxxxx of the Xxxxx.  While 
reviewers are often the supervisors of reporting officers, the Personnel Manual does not 
require that the reviewer be the reporting officer’s supervisor or even that the reviewer 
have  much  occasion  to  observe  the  reported-on  officer’s  performance.    Under  Article 
10.A.2.f.2. of the Personnel Manual, unless a reporting officer is a civilian (which is not 
the case here, since the ZZ was a CDR), the reviewer merely reviews the OER for consis-
tency and for compliance with the rules of the Officer Evaluation System.   
 

7. 

8. 

The applicant alleged that he should never have been placed between Mr. 
G, an officer who was a defendant in a lawsuit, and Mr. A, the plaintiff in the lawsuit.  
The record indicates that he asked to be removed from this awkward position in Octo-
ber 1998, three months after starting the job.  Under Article 10.A.2.g.2., an officer may 
be disqualified from serving on a rating chain if the officer is “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.”  
Article 10.A.2.g.2.c. provides that a reported-on officer should report a potentially dis-
qualified  member  of  his  rating  chain  to  the  next  senior  officer  as  soon  as  practicable.  
The applicant was not a party to the lawsuit, which arose before his arrival at the office.  
Although the applicant’s position between Mr. G and Mr. A was undeniably awkward, 
he has submitted no evidence to corroborate his allegation that Mr. G and the ZZ were 
particularly  biased  against  him  during  the  evaluation  period  because  of  the  lawsuit. 
Neither  Ms.  C  nor  LCDR  W,  whose  statements  on  behalf  of  the  applicant  mention 
problems in the office, indicated that Mr. G or the ZZ was particularly biased against 

Final Decision in BCMR Docket No. 2002-015                                                                p. 27  

9. 

the applicant or that they viewed the applicant as being an ally of Mr. A in the lawsuit.  
Ms. C stated that Mr. G resented her and the applicant’s good working relationship and 
that Mr. G sometimes “interfered” with the applicant’s work, but she was not in a posi-
tion to determine whether Mr. G’s actions were professionally necessary and appropri-
ate.  The Board finds that the applicant has failed to prove by a preponderance of the 
evidence  that  his  subordinate’s  lawsuit  against  his  rating  chain  created  a  “substantial 
question as to whether [he would] receive a fair, accurate evaluation.”  Therefore, the 
Board  finds  that  the  applicant  has  not  proved  that  any  member  of  his  rating  chain 
should have been disqualified under Article 10.A.2.g.2. of the Personnel Manual. 
 
The  applicant  alleged  that  neither  Mr.  G  nor  the  ZZ  ever  told  him  he 
 
might receive a mark of 3 on his OER.  The Personnel Manual does not require officers 
to  warn  subordinates  about  any  particular  numerical  mark  they  are  considering 
assigning.  Articles 10.A.2.d.(2) and 10.A.2.e.(2)(h) of the Personnel Manual do require 
rating chain members to provide appropriate feedback to officers on their performance, 
but  under  Article  10.A.1.c.(9),  such  feedback  may  be  “formal  or  informal”  and  it  is 
deemed  to  have  occurred  “whenever  a  subordinate  receives from a rating officer any 
advice or observation related to the subordinate’s performance or any other matter on 
which  he  or  she  may  be evaluated.”  The record indicates that the applicant received 
mid-term counseling from Mr. G that included both praise and constructive criticism of 
his performance.  In addition, the applicant’s submissions indicate that Mr. G occasion-
ally reversed his decisions and that the applicant, at least, was aware that he and Mr. G 
disagreed on several matters.  Articles 10.A.1.b.(2) and 10.A.1.c.(9), and 10.A.2.c. of the 
Personnel Manual place the primary burden for ensuring performance feedback on the 
reported-on officer.  The Board finds that the applicant has failed to overcome the pre-
sumption of regularity or to prove by a preponderance of the evidence that his rating 
chain committed any error or injustice in providing feedback to him about his perform-
ance.  
 
 
The mark of 3 for “Evaluations” in the disputed OER is supported by the 
following comments: “Submission of civilian evaluations were [sic] not timely and had 
inaccurate/insufficient  comments.    Evaluation  narratives  were  of  poor  quality  and 
required substantive revisions by supervisor before submission.”  The record indicates 
that  the  applicant  first  submitted  his  civilian  evaluations  to  his  supervisor,  Mr.  G,  on 
Friday,  April  16,  1999.    According  to  CGPC,  this  date  was  one  week  before  Mr.  G’s 
“self-imposed” deadline of submitting them to the Civilian Personnel office by Friday, 
April 23, 1999, and well within the 60-day period after March 31, 1999, in which they 
had to be completed and submitted in accordance with the Performance Management 
System for civilian personnel.  Mr. G thereafter reviewed the evaluations and, when the 
applicant returned from a week’s leave on Monday, April 26th, directed him to submit 
revised versions within a couple of hours, which he did. 
 

10. 

11. 

The  record  indicates  that  on  April  16,  1999,  the  applicant  submitted 
evaluations in which he assigned both Mr. A and Mr. B, “meritorious” ratings and Ms. 

Final Decision in BCMR Docket No. 2002-015                                                                p. 28  

C a “needs improvement” rating and supported the ratings with comments.  He alleged 
that he gave Ms. C the low rating because, due to Mr. G’s interference, he mistakenly 
thought she had been ignoring work he had assigned her.  He alleged that he gave Mr. 
A  the  “meritorious”  rating  because  he  thought  that  Mr.  A’s  work  was  comparable  to 
Mr.  B’s,  and  Mr.  G  had  “strongly  suggested”  that  he  rate  Mr.  B  as  “meritorious.”  
According to Mr. G’s declaration, however, the applicant told him that he gave Mr. A 
the same rating as Mr. B just to avoid a grievance.  Mr. G also stated that the poor rating 
for Ms. C was based on just a few recent weeks of poor interactions, rather than on her 
“excellent  performance  for  the  majority  of  the  marking  period.”    Mr.  G’s  declaration 
and notes support his comments in the OER about the inaccuracy of these evaluations.  

 
12.  Given a couple of hours to revise the evaluations, the applicant decided to 
rate  all  three  employees  as  “proficient”  and  provide  no  comments, as allowed by the 
regulations.  He alleged that he consulted the Xxxxx’s attorney, LCDR Y, and the ZZ’s 
second  in  command,  CDR  S.    According  to  the  applicant,  LCDR  Y  told  him  that  it 
would probably be best for the Xxxxx if the evaluations contained no comments, and 
CDR  S  questioned  the  wisdom  of  not  including  comments.    Therefore,  the  applicant 
said, he proceeded with his plan, “against [his] better judgment,” because of the “cloud 
of  a  federal  lawsuit”  and  because  he  feared  how  his  employees  might  use  any  com-
ments against him.  The applicant admitted that at a meeting with Mr. G and the ZZ, 
both questioned his decision not to include comments, and he explained his reasoning.  
The  applicant  alleged  that  he  was  given  no  chance  to  add  comments  because  Mr.  G 
grabbed the evaluations to work on them himself, but Mr. G stated in his declaration 
that the applicant actually refused to add comments. 
 

13. 

In light of the above evidence, CGPC concluded that Mr. G “stymied” the 
applicant’s  efforts  to  submit  accurate  and  timely  evaluations.    Regarding  their  timeli-
ness, CGPC stated that Mr. G should have canceled the applicant’s annual leave if he 
really needed the evaluations revised and completed prior to his “self-imposed” three-
week deadline.  Regarding their accuracy, CGPC alleged that Mr. G should have dis-
cussed his disagreements with the applicant and, if the applicant stood by his evalua-
tions, changed the ratings himself and added comments to explain the changes. 

 
14.  Under  the  Performance  Management  System,  the  evaluations  had  to  be 
completed between April 1 and June 30, 1999.  However, supervisors may certainly cre-
ate shorter or interim deadlines for interim steps in the evaluation process.  The record 
indicates that Mr. G found the evaluations to be untimely because he did not approve of 
their content and chose to wait until after the applicant returned from leave on April 26, 
1999,  to complete them.  He could have changed the ratings himself and added com-
ments with his reasoning, but he waited until the applicant’s return and then gave him 
just a couple of hours to revise the evaluations.  The Board agrees with CGPC that the 
applicant’s submission of the evaluations on April 16, 1999, just two weeks after the end 
of  the  evaluation  period,  should  not  have  been  deemed  untimely  simply  because  his 
supervisor disagreed with the ratings.  The Board finds that the applicant has proved by 

Final Decision in BCMR Docket No. 2002-015                                                                p. 29  

a preponderance of the evidence that the OER comment regarding the untimeliness of 
the civilian evaluations is erroneous and unjust and should be removed. 

 
15. 

The disputed comment about the civilian evaluations also criticizes their 
accuracy and narrative content, which are clearly within the purview of the supervisor 
to criticize, since the definition of the category “Evaluations” is the “extent to which an 
officer, as Reported-on Officer and rater, conducted or required others to conduct accu-
rate,  timely  evaluations  for  enlisted,  civilian  and  officer  personnel.”    The  applicant 
alleged that Mr. G caused him to prepare inaccurate evaluations by interfering with Ms. 
C’s work without telling him, by “strongly suggesting” that he assign Mr. G a “merito-
rious”  rating,  and  by  being  “blinded”  regarding  the  quality  of  Mr.  A’s  work.    Mr.  G 
strongly  supported  the  disputed  comments  about  the  inaccuracy  and  poor  quality  of 
the evaluations in his declaration and in his notes for the OER.  It is unclear from the 
record whose assessment of the employees’ performance was accurate.  The applicant 
alleged that he thought Mr. A’s work was comparable to Mr. B’s because Mr. A “made 
fewer administrative mistakes and seemed to keep a tighter rein on his assigned Con-
tractors.”    However,  his  notes  indicate  that  Mr.  A  frequently  came  to  work  late  and 
occasionally came to work inebriated.  No similar criticisms about Mr. B’s work appear 
in the record.  Moreover, the applicant indicated that his fear of a potential legal conse-
quences was a major consideration in his preparation of the civilian evaluations. 

 
16.  Under  the  Performance  Management  System  for  civilian  evaluations, 
however, Mr. G should not have tried to direct how the applicant evaluated his subor-
dinates.    From  the  record,  it  appears  that  Mr.  G  was  either  unaware  of  the  rules  or 
unwilling  to  exercise  his  own  authority  to  change  the  evaluations  to  reflect  his  own 
assessment  of  the  employees’  relative  merits.    In  light  of  Mr.  G’s  stance,  the  Board 
agrees  with  CGPC  that  the  applicant  has  proved  that  he  was  not  free  to  evaluate  his 
subordinates in accordance with his true assessment of their relative merits.  Therefore, 
the  final  two  comments  in  block  5  of  the  disputed  OER  should  be  removed,  and  the 
numerical mark should be raised from 3 to 4.  Although the applicant asked for an even 
higher mark, the Board is not persuaded that he merited a mark of 5.  Evidence in the 
record  indicates  that—whereas  accuracy  and  fairness  to  the  employees  should  have 
been  his  only  considerations—he  allowed  his  concern  for  the  potential  legal  conse-
quences of the evaluations and his resentment over not overseeing Mr. B’s xxxx work 
affect  the  content  of  the  evaluations.    The  applicant  repeatedly  stressed  the  fact  that 
comments are not legally required for “proficient” ratings, but this does not mean that 
deleting all performance-based comments from an evaluation is fair to the employee or 
a better-than-average evaluation technique. 

 
17. 

The mark of 3 for “Judgment” was supported by the following comment:  
“Judgment  on  some  sensitive  personnel  issues  &  interactions  w/  others  sometimes 
missed the mark—often required involvement or intervention of superiors to adequate-
ly resolve/remedy problems.”  The applicant alleged that the mark was based solely on 
his preparation of the evaluations.  Therefore, he argued, if the mark and comments for 

Final Decision in BCMR Docket No. 2002-015                                                                p. 30  

“Evaluations” are to be corrected, the mark and comment for “Judgment” should be as 
well.  However, in standing by his decision not to include any comments in the second 
round of evaluations, the applicant admitted that he acted against his “better judgment” 
as well as the advice of CDR S, Mr. G, and the ZZ.  Moreover, in his declaration and 
notes, the ZZ amply supported the low mark for “Judgment” that he assigned the appli-
cant.  Although the applicant did receive an Achievement Award at the end of his tour 
and although other evidence in the record also indicates that the applicant sometimes 
exercised good judgment, the Board finds that the applicant has not proved by a pre-
ponderance of the evidence that the mark of 3 for “Judgment” and the corresponding 
negative comment in the disputed OER are erroneous or unjust. 

 
18. 

 
19. 

The  applicant  asked  the  Board  to  remove his failures of selection by the 
Reserve LCDR selection board from his record.  To determine whether the applicant’s 
failures of selection should be removed because he has proved that the mark of 3 for 
“Evaluations”  and  supporting  comments  in  the  disputed  OER  were  erroneous  and 
unfair, the Board must answer two questions:  “First, was [the applicant’s] record preju-
diced  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 v. United States, 678 F.2d 173, 176 
(Ct. Cl. 1982).  The Board finds that the applicant’s record was clearly prejudiced by the 
low mark and negative comments regarding the civilian evaluations.  However, when 
his record was reviewed by the selection boards in 2000 and 2001, it also showed (a) a 
mark of 3 for “Judgment” in the disputed OER, (b) a July 1998 OER with many com-
ments that are guardedly positive, mediocre, or negative, and (c) no recommendation 
for promotion in an OER since June 1997.  Therefore, the Board finds that, even without 
the  low  mark  of  3  for  “Evaluations”  and supporting negative comments in the appli-
cant’s record, it is unlikely that he would have been promoted in any event.  

 
The applicant made numerous allegations with respect to his rating chain 
and  other  employees  and  officers  at  the  Xxxxx.    Those  allegations  not  specifically 
addressed above are considered to be without merit and/or not dispositive of the case. 
 

20.  Accordingly, the applicant’s request should be granted in part by raising 
the mark for “Evaluations” on the disputed OER from 3 to 4 and by deleting the final 
two sentences in block 5: “Submission of civilian evaluations were [sic] not timely and 
had inaccurate/insufficient comments.  Evaluation narratives were of poor quality and 
required substantive revisions by supervisor before submission.”  The remainder of his 
request for relief should be denied. 

Final Decision in BCMR Docket No. 2002-015                                                                p. 31  

 

ORDER 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

military record is granted in part as follows: 

 
On  his  OER  for  the  reporting  period  July  16,  1998,  through  May  28,  1999,  the 
mark of 3 he received for “Evaluations” in block 5.f. shall be corrected to a mark of 4.  In 
addition,  the  following  two  comments  from  block  5  shall  be  deleted  from  the  OER: 
“Submission  of  civilian  evaluations  were  [sic]  not  timely  and  had  inaccurate/insuffi-
cient comments.  Evaluation narratives were of poor quality and required substantive 
revisions by supervisor before submission.” 

 

 
 

 
 
 
 

 
 
 
 

 
No other relief is granted.  

 

 

 

 

  

 

 

 

 
 

 

 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 

 
 Nancy Lynn Friedman 

 

 

 

 
 Gerald H. Meader 

 

 

 
 Dorothy J. Ulmer 

 

 

 

 

 

 

 

 

 



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