DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2002-084 
 
XXXXXX, XXXXXX X. 
XXX XX XXXX, XXX 
   

 

 
 

FINAL DECISION 

 
GARMON, Attorney-Advisor: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the  United States Code.  It was docketed on April 8, 2002, upon the 
BCMR’s receipt of the applicant’s request for correction. 
 
 
members who were designated to serve as the Board in this case. 

This final decision, dated March 13, 2003, is signed by the three duly appointed 

 

APPLICANT’S REQUEST 

 

The  applicant  asked  the  Board  to  remove  an  officer  evaluation  report  (OER) 
issued  for  the  period July  1,  19XX through June  21,  19XX  (disputed  OER).    He  stated 
that he “believe[s] that a gross error has been made to his service record” and without 
Board correction, he would suffer a second non-selection for promotion and thereafter, 
involuntary separation from the Coast Guard. 
 

APPLICANT’S ALLEGATIONS AND EVIDENCE 

 

The  applicant  alleged  that  he  was  denied  due  process  in  connection  with  the 
disputed  OER  and  was  passed  over  for  promotion  by  a  selection  board  that  met  in 
November 19XX as a result of the injustice.  He alleged that he did not receive a copy of 
the disputed OER until December 29, 19XX, after the selection board had seen it.  He 
alleged  that  because  his  command  failed  to  follow  Coast  Guard  regulations  in  timely 
processing the disputed OER, he was “deprived of two opportunities to have mitigating 

and/or  extenuating  information  placed  in  [his]  official  service  record  for  the  Chief 
Warrant Officer (CWO) Promotion Board to consider.”   

 
In support of his claim, the applicant stated that under Coast Guard regulations, 
he had the right to submit a reply to the disputed OER and the right to submit a written 
communication  to  the  CWO  promotion  board.    Personnel  Manual,  Articles  10.A.4.g. 
and 5.B.3.  He alleged that instead, he received the disputed OER after the promotion 
board results had been posted.  He contended that had he been given the opportunity to 
place explanatory information before the selection board, he might have been selected 
for promotion.    

 
The  applicant  alleged  that  the  adverse  comments  he  received  in  the  disputed 
OER  concerning  his  “alleged  wearing  of  an  unauthorized ribbon”  were  unwarranted.  
He alleged that after he was notified about the unauthorized ribbon violation, he was 
placed on report and the matter was investigated under Article 15 of the Uniform Code 
of  Military  Justice  (UCMJ).    The  applicant  alleged  that  when  the  investigation  was 
complete,  he  was  taken  to  Captain’s  mast  where  his  Commanding  Officer  (CO) 
dismissed  the  pending  charges.    The  applicant  contended  that  because  Article  15 
proceedings are governed by a standard of proof lower than that of civilian courts, his 
CO  would  have  imposed  punishment  had  he  found  compelling  evidence  that  the 
applicant  committed  the  alleged  offense.    He  alleged  that  in  the  absence  of  further 
action on his CO’s part, the incident should have been considered a “closed” matter and 
not mentioned in the disputed OER. 

 
The  applicant  contended  that  the  marks  of  “3”1  that  he  received  for  the 
performance factors of “judgment,” “responsibility,” and “professional appearance” in 
the  disputed  OER  fail  to  accurately  reflect  his  overall  performance.    As  evidence  in 
support of his application, he offered his assessment of “specific instances of superior 
performance that [he] believe[s] warrant a higher number than the 3s [he] received.”  In 
general, he alleged that he (1) solved major problems by using sound judgment; (2) was 
entrusted  with  the  responsibility  to  represent  the  Coast  Guard  at  sensitive  meetings; 
and (3) projected the ideal Coast Guard image expected of officers whether in high level 
meetings or when giving boating safety presentations.   

 
The applicant alleged that because his dedication to the Coast Guard is evident 
by  both  his  career  advancement  and  the  many  achievement  medals  and  letters  of 
commendation he has received, the Board should grant him relief.  
 

SUMMARY OF  THE RECORD AND SUBMISSIONS 

 

                                                 
1 Members are evaluated on a scale from 1 to 7, with 7 being the best possible mark. 

 
On March 30, 1987, the applicant enlisted as a seaman recruit in the Coast Guard 
for  four  years.    His  record  contains  numerous  favorable  page  7s,  which  date  back  to 
1987, in commendation of his service. 

 
On June 1, 1998, the applicant was appointed to chief warrant officer (pay grade 
W2).  An OER was prepared in evaluation of his performance for the reporting period 
from  June  1,  1998  to  June  30,  1999  (first  OER).      The  first  OER  shows  that  on  the 
comparison  scale,  he  was  given  a  mark  of  “6,”  which  is  defined  as  “an  exceptional 
officer.”    In  the  block  for  “leadership  and  potential,”  the  Reporting  Officer  (RO) 
concluded  his  evaluation  by  stating 
[his]  highest 
recommendation  for  promotion  with  peers  to  W-3,”  and  that  the  applicant  is  “an 
excellent candidate for CWO-LT selection.” 

the  applicant  “has 

that 

 
The applicant’s rating chain prepared an OER to evaluate his performance for the 
reporting period from July 1, 1999 to June 30, 19XX (second OER).  In the second OER, 
the applicant was again found to be “an exceptional officer” on the comparison scale.  
Moreover,  in  the  block  for  “leadership  and  potential,”  the  RO  concluded  that  the 
applicant was “highly recommended for CWO to LT program.” 

 
On April 18, 19XX, the CO initiated an investigation into the applicant’s wearing 
of  an  unauthorized  ribbon.    The  investigation  resulted  in  his  being  charged  with 
wearing  an  unauthorized  ribbon.    On  May  15,  19XX,  the  applicant  was  taken  to 
Captain’s  mast,  where  his  CO  set  aside  the  misconduct  charges  by  disposition  of 
“dismissal with warning.” 

 
The applicant’s rating chain prepared the disputed OER, covering the reporting 
period  from  July  1,  19XX  to  June  21,  19XX.    The  applicant’s  supervisor,  the  unit’s 
Executive Officer (XO), prepared his section of the disputed OER and forwarded it to 
the RO for further completion and review.  The applicant’s CO, who served as the RO, 
completed his section of the disputed OER and forwarded it to the reviewer on June 26, 
19XX.  On July 9, 19XX, the reviewer signed the disputed OER and submitted it to the 
Commander  of  the  Coast  Guard  Personnel  Command  (CGPC)  for  review  and 
validation.  On August 6, 19XX, the disputed OER was returned to the rating chain, via 
the reviewer, for the correction of several vague or non-specific comments regarding the 
performance  and  behaviors  of  the  applicant  (the  reported-on  officer).    In  accordance 
with the Personnel Manual, the issues identified by CGPC were to be corrected and the 
disputed  OER  was  to  be  re-submitted  to  CGPC  within  30  days  of  the  rating  chain’s 
receipt.  On September 7, 19XX, the reviewer notified CGPC that because the RO had 
been deployed to the Arctic, the disputed OER would not be timely re-submitted.   

 
On  October  16,  19XX,  CGPC  received  the  disputed  OER  with  corrections  and, 
upon review, validated it on the same date.  The applicant was given marks of 7 in the 
categories  of  adaptability,  professional  competence,  looking  out  for  others,  and 

initiative.    He  was  given  marks  of  6  in  the  categories  of  planning  and  preparedness, 
using  resources,  result/effectiveness,  speaking  and  listening,  writing,  developing 
others,  directing  others,  teamwork,  workplace  climate,  evaluations,  health  and  well-
being.  He was given a mark of 4 on the comparison scale which is defined as “one of 
the  many  competent  professionals  who  form  the  majority  of  this  grade”  and  given 
marks  of  3  in  the  categories  of  judgment,  responsibility,  and  professional  presence.  
Under the blocks where the marks of 3 were assigned, the disputed OER contained the 
following comments: 
 

Hard  driving  self-starter;  initiated  towline  inspect  that  uncovered  entire  lot  of  faulty 
material.    Created  extensive  procurement  program  that  successfully  addressed  new 
engine  warranty  demands-  a  shift  in  warranty  paradigm.    Expansion  of  Std  Discrep 
Report sys distribution & tracking from paint prep to delivery trials expedited cornx of 
production defects.  Completed investigation that uncovered wrong fuel injector settings 
by  vendor.  Assembled  detailed  raw  water  retrofit  pkg  for  fleet  instruction.    Skillfully 
mngd $10K dept budget & $500 morale account. Recommendations to fleet COs/OinCs 
&  EPOs  are  highly  respected.    Inputs  to  CO/KO  are  used  to  formulate  CG  positions 
w/Kr.  Outstanding CG rep.  Respected by Kr even though his job is to identify discreps. 
[S]poke  at  local  high  school  on  CG  mission  during  Armed  Forces  Day  observance.  
Participated in community construction of new playground.  Faithfully rendered military 
customs  &  courtesies  in  all  situations.    Wore  unauthorized  high  level  decoration  and 
fabricated story regarded earning/wearing of medal.  Personal grooming of the highest 
stds.  Active mbr of basketball & softball leagues, encouraged participation of other staff 
mbrs. 

 
Under  the  category  of  “Potential,”  the  following  comments  were  included  in  the 
disputed OER: 
 

[The applicant] has become a truly versatile officer, able to skillfully address a variety of 
organizational  needs;  admin,  ops,  engineering  or  finance.    Took  a  mis-step  when  he 
wasn’t straight in responding to [questions] about wearing unauthorized ribbon.  Out of 
character  behavior  for  him  &  I  have  no  doubt  he  learned  a  valuable  lesson.    Deserves 
chance  to  redeem  himself!    Still  an  extremely  valuable  &  capable  officer…tremendous 
knowledge,  versatility  &  energy,  very  strong  leader,  thoroughly  devoted  to  the  CG.  
Recommended for positions of greater responsibility incl promotion to W3.  Would make 
a great instructor, Group OPS & would be a strong station CO. 

 

On  November  5,  19XX,  the  applicant’s  CWO  selection  panel  convened.    The 
applicant was not selected for promotion to the next higher warrant officer grade.  On 
December  29,  19XX,  the  applicant  received  a  copy  of  the  disputed  OER  by  mail 
delivery.   

 
To date, he continues to serve as a CWO2 (pay grade W2) on active duty. 

 

 

VIEWS OF THE COAST GUARD 

 
On  November  12,  2002,  the  Chief  Counsel  of  the  Coast  Guard  submitted  an 
advisory opinion to which he attached a memorandum on the case prepared by CGCP.  
In adopting CGCP’s analysis, the Chief Counsel recommended that the Board deny the 
applicant’s request for relief. 
 
 
The  Chief  Counsel  admitted  that  in  connection  with  processing  the  disputed 
OER, the applicant’s command did not submit his OER within the time limits imposed 
by the Personnel Manual.  However, he argued that the error was “due to operational 
demands” and not made in bad faith.   
 

The Chief Counsel stated that validated OERs are normally mailed to a member 
within one day of  validation.  He contended that although the applicant received the 
disputed OER more than two months after the date it was validated, the applicant took 
no action to ensure that he received the OER prior to November 5, 19XX, the date that 
the applicant’s CWO selection board convened.   

 
The Chief Counsel stated that the Personnel Manual defines the responsibilities 
of the reported-on officer in “managing his or her own performance,” which includes, 
“ensuring  that  performance  feedback  is  thorough  enough  and  received  in  a  timely 
manner  and  that  OERs  and  associated  documentation  are  timely,  complete  and 
accurate.”  He contended that it was the applicant’s responsibility to notify CGPC when 
he did not receive the contested OER 90 days after the end of the reporting period.  He 
argued that the applicant could have taken the initiative to notify CGPC that he did not 
have the disputed OER as early as September 21, 19XX, particularly with the knowledge 
that his selection board was to meet in November 19XX.   

 
The Chief Counsel argued that “there is no correlation” between the applicant’s 
non-receipt  of  the  disputed  OER  and  the  opportunity  to  communicate  with  the 
President of his CWO promotion board, as the two are independent.  He contended that 
Article  10.A.2.c.2.f.  of  the  Personnel  Manual  provides  the  applicant  the  right  to  have 
met  with  his  supervisor  to  discuss  the  anticipated  content  of  the  disputed  OER.    He 
argued that had the applicant requested such a meeting, he would have discovered that 
“the improper wearing of a [Coast Guard] medal and discovery of lies associated with 
that action would be reflected in the OER.”  He further argued that in the absence of 
proactive efforts on the applicant’s part to obtain a copy of the disputed OER, there is 
no  basis  for  him  to  claim  that  he  was  prejudiced  before  the  CWO  promotion  board 
because he received the disputed OER on December 29, 19XX. 
 
 
 
The Chief Counsel argued that the applicant’s rating officials properly prepared 
the  disputed  OER  when  they  assigned  and  supported  the  marks  of  “3”  for  the 
applicant’s  lapse  of  “judgment,”  “responsibility,”  and  “professional  presence.”  He 
asserted that the specific instances that the applicant provides to justify higher marks 
are actually reflected in the disputed OER.  He stated that at an Article 15 hearing, the 

CO  determines  the  facts  of  the  case,  considers  mitigating  evidence,  and  has  the 
discretion  to  award  punishment.    He  alleged  that  although  the  evidence  against  the 
applicant, which included his own admission, was sufficient to find the applicant guilty 
of the offenses, the CO decided to dismiss the violation with a warning.  He contended 
that  the  CO’s  disposition  of  the  applicant’s  case,  however,  fails  to  indicate  that  the 
applicant was not guilty of the offense, nor precludes its inclusion and consideration in 
the disputed OER. 
 
 
The Chief Counsel alleged that the applicant has failed to rebut the presumption 
that  the  rating  chain  executed  their  duties  correctly,  lawfully,  and  in  good  faith  in 
preparing  the  disputed  OER.    Arens  v.  United  States,  969  F.2d  1034,  1037  (Fed.  Cir. 
1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979).  He argued that for the 
applicant  to  establish  that  the  disputed  OER  is  erroneous  or  unjust,  he  must  show  a 
misstatement  of  a  significant  hard  fact  or  a  clear  violation  of  a  statute  or  regulation.  
Germano  v.  United  States,  26  Cl.  Ct.  1446,  1460  (1992);  BCMR  Docket  No.  86-96.    He 
contended  that  absent  a  showing  that  the  error  or  injustice  affected  the  challenged 
record, it is inappropriate for the Board to change the evaluations of those responsible 
for  evaluating  the  reported-on  officer  under  Coast  Guard  regulations.  BCMR  Docket 
No. 84-96, citing Grieg v. United States, 226 Ct. Cl. 258 (1981). 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On November 18, 2002, the Chair sent a copy of the views of the Coast Guard to 
the applicant and invited him to respond within 15 days.  He did not submit a response.  
 

APPLICABLE LAW 

 
 
Article  5.B.3.c.1.  of  the  Personnel  Manual  (COMDTINST  M1000.6A)  provides 
that  members  who  are  “eligible  for  consideration  by  a  selection  board  may 
communicate directly with the board by letter arriving by the date the board convenes,” 
pursuant to 10 U.S.C. § 573(f). 
 
 
Article 10.A. of the Personnel Manual governs the preparation of OERs.  Article 
10.A.1.b.1.  provides  that  “Commanding  officers  must  ensure  accurate,  fair,  and 
objective evaluations are provided to all officers under their command.”  Each OER is 
prepared by the reported-on officer’s rating chain of senior officers:  the supervisor, the 
reporting officer, and the reviewer.   
 
 
Article  10.A.2.c.2.  sets  forth  the  responsibilities  of  the  reported-on  officer.  
Among the duties of managing his or her performance, the reported-on officer requests 
an  “end-of-period  conference”  not  later  than  21  days  before  the  end  of  the  reporting 
period with his supervisor and informs the Commander of CGPC “directly by written 
communication … if the official copy of the OER has not been received 90 days after the 

end to the reporting period.”  Personnel Manual, Articles 10.A.2.c.2.f. and 10.A.2.c.2.g.  
Moreover,  Articles  10.A.2.c.2.j.  and  10.A.2.c.2.k.  provide  that  the  reported-on  officer 
“[a]ssumes  ultimate  responsibility…,”  to  ensure  that  “OERs  are  not  delayed  when 
eligible for promotion.” 
 
 
Article 10.A.4.c.4. provides the following: 
 

Article 10.A.4. describes how members of a rating chain should prepare an OER.  

b.  For  each  evaluation  area,  the  Supervisor  shall  review  the  Reported-on  Officer’s 
performance  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” block 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  four.    The  Supervisor  shall  draw  on  his  or  her 
observations,  those  of  an  secondary  supervisors,  and  other  information  accumulated 
during the reporting period. 
 
e.    Comments  should  amplify  and  be  consistent  with  the  numerical  evaluations.    They 
should identify specific strengths and weaknesses in  performance.  Comments  must be 
sufficiently specific to paint a succinct picture of the officer’s performance and qualities 
which  compares  reasonably  with  the  picture  defined  by  the  standards  marked  on  the 
performance dimensions in the evaluation area. … 

The standards on the OER form for a mark of 4 for the performance categories 

 
 
“judgment,” “responsibility,” and “professional presence” are as follows: 
 

Judgment 

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. 

Responsibility  Held  self  and  subordinates  personally  and  professionally  accountable.  
Spoke  up  when  necessary,  even  when  expressing  unpopular  positions.  
Supported  organizational  policies  and  decisions  which  may  have  been 
counter  to  own  ideas.    Committed  to  the  successful  achievement  of 
organizational goals 
Knowledgeable  in  how  [Coast  Guard]  objectives  serve  the  public; 
cooperative  and  fair  in  all  interactions.    Composed  in  difficult  situations.  
Conveyed positive image of self and [Coast Guard]. Well versed in military 
etiquette;  precise  in  rendering  and  upholding  military  courtesies.    Great 
care in uniform appearance and grooming. 

Professional 
Presence 

 
 

Article 10.A.4.c.9. governs the reporting officer’s comments about the reported-
on  officer’s  “potential”  in  section  10  of  an  OER.    The  reporting  officer  is  directed  to 
“comment  on  the  Reported-on  Officer’s  potential  for  greater  leadership  roles  and 
responsibilities in the Coast Guard.  These comments shall be limited to performance or 
conduct demonstrated during the reporting period.”  In addition, the reporting officer 
should comment on the reported-on officer’s qualification to assume the duties of the 
next higher grade and types of assignments for which the officer shows aptitude. 
 
 
Article  10.A.4.g.  describes  how  members  should  reply  to  an  OER,  should  they 
choose to do so.  Article 10.A.4.g.1. states that “[t]he Reported-on Officer may reply to 
any OER regardless of its content and have this reply filed with the OER,” allowing a 
member the opportunity to “express a view of performance which may differ from that 
of a rating official.”  Members are to submit OER replies within 14 days from the receipt 
of the official copy from CGPC.  Personnel Manual, Article 10.A.4.g.4. 
 
 
Under  Article  10.A.4.j.2.,  OERs  are  reviewed  by  the  Commander  of  CGPC  for 
substantive errors.  While ensuring that OERs have been prepared in accordance with 
the  Officer  Evaluation  System  (OES),“[p]articular  attention  is  given  to  inconsistencies 
between  the  numerical  evaluations  and  written  comments.”    When  an  OER  is  found 
unacceptable,  the  Commander  returns  the  report  to  the  RO,  via  the  reviewer,  with  a 
letter identifying areas for correction.  “When corrected by the appropriate member(s) 
of  the  rating  chain,  OERs  are  returned  to  [the]  Commander  …  via  the  rating  chain 
within 30 days.”  Article 10.A.4.j.4. provides that after the OER has been accepted, the 
Commander of CGPC forwards an “Official Receipt“ stamped copy of the OER to the 
member. 
 
Article  14.A.4.d.  of  the  Personnel  Manual  states  that  the  materials  and 
 
paperwork  furnished  in  personnel  records  for  consideration  by  personnel  boards 
include such items as “statements of service and sea service, the record of emergency 
data,  page  7  entries,  documentation  of  alcohol  incidents,  and  reports  of  civil  arrests, 
performance  evaluations,  education 
information,  and  awards  and  discipline 
documentation.”  
 
 
Under Chapter 1.D.17. of the Military Justice Manual, once a member is charged 
with  a  UCMJ  offense  and  agrees  to  go  to  mast  (thereby  avoiding  a  potential  court-
martial), the CO may take the member to mast but “decide not to punish a member by 
dismissing the matter with a warning.  Such a decision may be based on either a lack of 
proof or a determination that punishment is not appropriate even though the member 
committed  an  offense(s).”    A  dismissal  with  warning  is  not  considered  non-judicial 
punishment (NJP), and no entry is made in the member’s record. 
 

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  Board  finds  that  the  applicant  has  failed  to  establish  by  a 
preponderance of the evidence that the  comments in the disputed OER regarding his 
wearing  of  an  unauthorized  ribbon  were  erroneous.    The  Personnel  Manual  directs 
supervisors  to  include  comments  about  specific  aspects  of  the  reported-on  officer’s 
behavior by “draw[ing] on his or her observations” during the evaluation period, and it 
requires  ROs  to  comment  on  “performance  or  conduct  demonstrated”  during  the 
evaluation period.  Personnel Manual, Articles 10.A.4.c.4.d. and 10.A.4.c.4.e.  The record 
indicates that the applicant was found to be and charged with wearing an unauthorized 
ribbon  during  the  evaluation  period.    Absent  strong  evidence  to  the  contrary,  rating 
officials are presumed to have performed their duties correctly, lawfully, and in good 
faith in making marks and comments in an OER.  Arens v. United States, 969 F.2d 1034, 
1037  (Fed.  Cir.  1992);  Sanders  v.  United  States,  594  F.2d  804,  813  (Ct.  Cl.  1979).    The 
applicant  has  submitted  no  evidence  to  show  that  he  did  not  wear  the  unauthorized 
ribbon.    Moreover,  nothing  in  the  Personnel  Manual  precludes  comments  on  the 
wearing of an unauthorized ribbon.   
 
 
The  applicant  argued  that  the  OER  comments  about  the  ribbon  were 
inappropriate because the charge was dismissed at mast.  He argued that the dismissal 
with warning indicated that there was insufficient evidence to prove that he committed 
the offense.  However, under Chapter 1.D.17. of the Military Justice Manual, a CO may, 
at his or her discretion, dismiss a charge “with warning” at mast even if the evidence 
presented proves that the member committed the offense.  The applicant has not proved 
that his CO found insufficient evidence to prove that he committed the offense.  In fact, 
the fact that the CO commented on his misconduct in the OER proves that the CO was 
convinced that he committed the offense.  The fact that the CO apparently acted with 
leniency in dismissing the charge with warning so that no record of the mast would be 
included  in  the  applicant’s  personnel  record  does  not  mean that the  CO  could  not  or 
should not mention the matter in the OER.  The Board finds that the applicant has failed 
to  prove  that  his  rating  chain  committed  any  error  or  injustice  in  including  the 
comments about the unauthorized ribbon in the disputed OER. 
 

3. 

4. 

The applicant contended that the marks of 3 he received in the categories 
of “judgment,” “responsibility,” and “professional presence” did not accurately reflect 
his overall performance and that his performance warranted numbers higher than the 

3s he received.  However, in order for the applicant to be assigned the next higher mark 
of 4 in those three categories, he would have had to meet the performance criteria for at 
least  a  mark  of  4  in  each  category  during  the  evaluation  period.    His  rating  chain 
apparently  decided  that  he  did  not  and  supported  their  assessments  with  specific 
comments,  as  required  by  Personnel  Manual  Articles  10.A.4.c.4.d.,  10.A.4.c.4.e.,  and 
10.A.4.c.9.    Their  judgment  in  this  matter  is  accorded  a  strong  presumption  of 
regularity. 
 

5. 

7. 

In light of the presumption of regularity, the burden is on the applicant to 
prove by a preponderance of the evidence that the assigned marks of 3 were inaccurate 
or unjust.  In applying the presumption of regularity to the disputed OER, the Board 
finds that the applicant’s rating chain could reasonably have concluded that by wearing 
an “unauthorized high level decoration and fabricat[ing a] story regarding [the] earning 
[and]  wearing  of  [the]  medal,”  the  applicant  did  not  exercise 
judgment  that 
“demonstrated  analytical  thought  and  common  sense,”  or    “made  sound  decisions.”  
Furthermore,  the  applicant’s  rating  chain  could  reasonably  have  concluded  that  his 
behavior and statements regarding the unauthorized ribbon failed to demonstrate the 
level of responsibility showing that he “held [him]self …accountable” and “[s]upported 
organizational policies and decisions which may have been counter to [his] own ideas.”  
The applicant’s rating chain also could reasonably have concluded that he did not bring 
credit to the Coast Guard by his misconduct, and that his being taken to Captain’s mast 
failed to “[convey a] positive image of [him]self and the [Coast Guard].” Therefore, the 
Board is not persuaded that the numerical marks or the written comments in support of 
the marks were erroneous or unjust.  The applicant has failed to rebut the presumption 
of regularity that his rating officials acted “correctly, lawfully and in good faith.” Arens 
v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992).   
 
 
The record shows, and the Chief Counsel admits, that the disputed OER 
was not timely processed in accordance with Article 10.A.4.j.2. of the Personnel Manual.  
The disputed OER was re-submitted to CGPC more than 30 days after the rating chain’s 
receipt, due to the RO’s deployment to the Arctic, and validated by CGPC on October 
16, 19XX.  As a result of this delay, the Board finds that the Coast Guard committed an 
error  by  failing  to  process  the  disputed  OER  within  the  time  limits  prescribed  in  the 
Personnel Manual.  Although no regulation prohibits a selection board from reviewing 
an  OER  that  has  been  approved  so  recently  that  the  reported-on  officer  has  had  no 
chance to file a reply, when confronted with its untimely processing of OERs, the Coast 
Guard  is  encouraged  to  make  a  concerted  effort  to  ensure  that  a  member  promptly 
receives a copy of his or her OER.  The Board finds such lack of effort on the part of the 
Coast  Guard  to  be  a  particularly  troubling  issue,  which  under  certain  circumstances, 
though not here presented, work an injustice against the member. 
 
 
A member’s opportunity to write his or her selection board is controlled 
by whether the member is eligible for consideration before the selection board.  Article 

6. 

8. 

5.B.3.c.1.  of  the  Personnel  Manual.    Despite  the  knowledge  of  his  eligibility  for 
consideration and his knowledge of what information might be in the OER, the fact that 
the applicant decided not to communicate with the selection board supports a finding 
that  the  untimely  OER  was  not  the  reason  for  his  missed  opportunity  “to  have 
mitigating  …  information  placed  in  his  official  service  record  ….”    Moreover,  the 
applicant  could  have  requested  an  “end-of-period”  conference  with  his  supervisor  to 
ascertain  what,  if  any,  issues  he  might  consider  discussing  in  a  letter  to  the  selection 
board.  Articles 10.A.2.c.2.f. and 10.A.2.c.2.j. of the Personnel Manual.  The Board finds 
that the applicant has failed to present any evidence that actions on the part of the Coast 
Guard prevented him from writing his selection board. 
 
 
Furthermore,  although  the  applicant  apparently  did  not  receive  the 
disputed OER until December 29, 19XX, at least some of the blame for this delay must 
go to the applicant himself.   According to the Personnel Manual,  reported-on officers 
are to directly inform the Commander of CGPC “if the official copy of the OER has not 
been  received  90  days  after  the  end  of  the  reporting  period.”    Personnel  Manual, 
Articles 10.A.2.c.2.f. and 10.A.2.c.2.g.  After the ninety-day lapse, the applicant should 
have notified the Commander of CGPC beginning on September 21, 19XX that he had 
not  received  the  disputed  OER.    Even  if  he  knew  that  the  RO  was  in  the  Arctic,  he 
should have stayed abreast of the situation instead of passively waiting to receive the 
OER.    The  applicant  has  submitted  no  evidence  to  prove  that  he  made  any  efforts  to 
obtain a copy of the disputed OER or to discover its contents prior to the convening of 
the November 19XX selection board.  The record also indicates that the disputed OER 
was validated by CGPC on October 16, 19XX, slightly more than two weeks before the 
applicant’s  selection  board  convened.    The  Board  is  convinced  that  had  the  applicant 
taken action in accordance with the responsibility that the Personnel Manual assigns to 
him, as the reported-on officer, he could have utilized the more than 14 days remaining 
to  receive  and  file  a  response  to  the  disputed  OER.    Because  the  applicant  has  not 
established by a preponderance of the evidence that he fulfilled his own responsibilities 
in tracking the disputed OER, he cannot now complain about an adverse result due to 
his inaction.   
 
Even assuming arguendo that the untimely processing of the disputed OER 
 
prevented the applicant from communicating with the selection board about the ribbon, 
he  has  failed  to  state  what  he  would  have  or  could  have  told  the  selection  board  in 
mitigation of the marks and comments in the OER.  Certainly, nothing that he has told 
this  Board  about  his  wearing  of  the  unauthorized  ribbon  would  have  mitigated  the 
negative  information  in  the  OER.    Therefore,  even  if  his  personnel  record  were 
considered to be legally incomplete before the selection board because of the lack of an 
OER reply—despite the lack of a regulation requiring the expiration of the reply period 
before an OER can be reviewed by a selection board—the Board finds that the applicant 
has not proved that his record was significantly prejudiced by the lack of an OER reply.  
In addition, the Board finds that even if his record had been improperly prejudiced by 

9. 

the lack of a reply, the marks of 3 and comments in the disputed OER, which was the 
most recent OER in his record, made it unlikely that he would have been selected for 
promotion in any event.  Therefore, under Engels v. United States, 678 F.2d 173, 176 (Ct. 
Cl. 1982), the Board finds that, even assuming arguendo that the applicant’s inability to 
file an OER reply prior to the selection board did make his record incomplete when it 
was reviewed by the selection board, he is not entitled to the removal of his failure of 
selection by that board. 
 

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

 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

ORDER 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  the  correction  of  his 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Julia Andrews 

 

 

 
 Stephen H. Barber 

 

 

 

 

 
 
 Christopher A. Cook 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 
military record is denied.