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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CG | BCMR | OER and or Failure of Selection | 2006-085
Additionally, he hosted a meeting of the Standardiza- tion Team Chiefs and Headquarters program managers at xxxxx School to review the … Manual … [The applicant] encouraged and supported professional growth of xxxxx personnel. The reporting officer’s part of the OER includes block 7, in which the reporting officer com- ments on the supervisor’s evaluation of the officer; block 8, in which the reporting offi- cer assigns numerical marks for the categories “Initiative,” “Judgment,”...
CG | BCMR | OER and or Failure of Selection | 2008-106
In support of this allegation, he submitted a statement from the commanding officer (CO) of the Training Center, who signed the 2003 OER as the Reporting Officer, even though he was not a designated member of the applicant’s rating chain: After reviewing the statements of personnel directly involved with [the applicant’s] performance during the marking period, I do not feel that the marks and comments in [his] OER for the above period accurately reflect his accomplishments during the period....