DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2002-134 
 
 

 

 
 

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  July  5,  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  8,  2003,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

 

The applicant asked the Board to correct three officer evaluation reports (OERs) 
in  his  record  by  including  recommendations  for  promotion  in  block  11,  where  the 
reporting officer (RO) makes comments about an officer’s leadership and potential.  As 
a  less  preferred  alternative,  he  asked  the  Board  to  remove  the  three  OERs  from  his 
record. 
 
The applicant alleged that the three OERs, which cover the consecutive periods 
from  December  1,  1992,  to  May  31,  1993  (OER1);  June  1,  1993,  to  November  30,  1993 
(OER2); and December 1, 1993, to June 7, 1994 (OER3), are inconsistent in that they con-
tain  high  marks  and  positive  comments  but  no  recommendation  for  promotion.    He 
alleged  that  the  absence  of  such  recommendations  is  unjust  because  selection  board 
members expect to see them.  He alleged that the RO for OER2 and OER3 told him that 
he  could  not  expect  to  be  recommended  for  promotion  on  his  OERs  because  he  had 
only  recently  been  promoted  to  lieutenant,  on  September  4,  1992.    The  applicant  also 

alleged that the marks of 3 that he received on the comparison scales in OER1 and OER3 
should have been marks of 4, which he received on the comparison scale in OER2.1 
 

SUMMARY OF  THE RECORD 

 

The  applicant,  after  serving  in  the  Air  Force  for  four  and  one-half  years  and 
attaining  the  rate  of  E-5,  enlisted  in  the  Coast  Guard  Reserve  in  September  1987  to 
attend Officer Candidate School.  He was appointed an ensign in the Reserve on Febru-
ary  9,  1988.    His  first  assignment  was  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxx.  He received three semi-annual OERs while working in 
that  position.    On  the  first,  he  received  an  average  mark  of  4.35  in  the  performance 
categories and a mark of 4 on the comparison scale; on the second, an average mark of 
4.78 and a 5 on the comparison scale; and on the third, an average mark of 4.35 and a 4 
on the comparison scale.  On each of these OERs, he was recommended for promotion 
“with his peers” in block 11. 

 
In  August  1989,  the  applicant  was  transferred  to  a  marine  safety  office  as  a 
Marine Inspector Trainee.  He was promoted to lieutenant junior grade (LTJG) on Sep-
tember  9,  1989.    On  his  first  semi-annual  OER  as  a  trainee  and  LTJG,  he  received  an 
average mark of 4.64 and a comparison scale mark of 5.  On his second, he received an 
average mark of 4.82 and a comparison scale mark of 5.  On his third, he received an 
average mark of 4.95 and a comparison scale mark of 5.  On his fourth, he received an 
average  mark  of  4.18  and  a  comparison  scale  mark  of  4.    On  the  first  three  of  these 
OERs, he was described as being “well qualified” for promotion in block 11; on the last, 
he  was  recommended  for  promotion  “with  [his]  peers.”    The  LT  selection  board  that 
met in the summer of 1991 selected him for promotion. 

 
In  July  1991,  the  applicant  was  transferred  to  another  marine  safety  office 
(MSOX) as a Marine Inspector.  He ultimately received eleven OERs while serving in 
various positions at MSOX from July 1991 through May 2000, including the three dis-
puted OERs.  On his first OER as a Marine Inspector at MSOX, he received an average 
mark of 5.27 and a comparison scale mark of 5.  On his second, by which time he had 
become the Senior Resident Inspector, he received an average mark of 4.86 and a com-
parison scale mark of 4.  On both of these OERs, his reporting officer remarked in block 
11 that his recent selection for promotion to LT was well deserved.  On the latter, pre-
pared  in  July  1992,  he  was  recommended  for  integration  from  the  reserve  into  the 
regular officer corps. 

                                                 
1  The comparison scale is not actually numbered.  However, there are seven possible marks on the OER 
form  from  1  (unsatisfactory  performance)  to  7  (best  officer  of  this  grade).    A  mark  of  3  on  the  form  is 
supposed to denote an “excellent performer; recommended for increased responsibility,” whereas a mark 
of  4  denotes  an  “exceptional  performer;  very  competent,  highly  respected  professional.”    A  mark  of  2 
would  mean  the  officer  was  a  “good  performer,  but  limited  potential.”    Marks  of  5  and  6  on  the  com-
parison scale denote “distinguished performers” and those “strongly recommended for accelerated pro-
motion,” respectively. 

 
The applicant was integrated into the regular Coast Guard on August 24, 1992, 
and promoted to LT on September 4, 1992.  On his third OER while serving at MSOX, 
he received an average mark of 4.96, a comparison scale mark of 4, and he was “strong-
ly recommended for promotion [with his] peers” in block 11. 

 
In December 1992, the applicant changed jobs and departments at the MSOX.  As 
an  Investigating Officer, he investigated marine casualties and accidents to determine 
their causes and any violations of law.  The three disputed OERs are the semi-annual 
evaluations that he received as an Investigating Officer.   

 
OER1 covered his service as an Investigating Officer from December 1, 1992, to 
May 31, 1993.  He had a new rating chain in this position,2 except that the commander 
who had been serving as the reviewer on his rating chain as a Marine Inspector became 
his reporting officer (RO).  The applicant received an average mark of 4.83, several posi-
tive comments, and a comparison scale mark of 3 on OER1.  In lieu of a recommenda-
tion for promotion, the RO made the following comments in block 11: 

 
… Has good potential to assume tasks of greater responsibility including Dept. Head at 
small MSO, Ass’t. Dept. Head at large MSO; presently concentrating on becoming even 
more competent [investigating officer], leading to full quals & possible Asst. Dept Head 
position.    Needs  Port  Operations  exposure  to  complete  Marine  Safety  officer  quals/ 
experience. 
 
OER2 covered his service as an Investigating Officer from June 1 to November 
30,  1993.    The  members  of  his  rating  chain  were  all  new.    The  applicant  received  an 
average mark of 4.74, several positive comments, and a comparison scale mark of 4 on 
OER2.    In  lieu  of  a  recommendation  for  promotion,  his  new  RO  made  the  following 
comments in block 11: 

 
… An excellent candidate for positions of increased responsibility within marine inspec-
tion field.  Recommended for assignment requiring trustworthy, qualified officer able to 
make  independent  decisions  such  as  Activities  Europe  [Vessel]  Inspection  Duty  or,  to 
further develop [leadership] potential, Asst Chief INSP Dept at large MSO. 
 
OER3 covered his service as an Investigating Officer from December 1, 1993, to 
June  7,  1994.    The  supervisor  and  RO  for  OER3  were  the  same  as  for  OER2,  but  the 
reviewer  was  new.    The  applicant  received  an  average  mark  of  4.30,  several  positive 
comments, and a comparison scale mark of 3 on OER3.  In lieu of a recommendation for 

                                                 
2  Coast Guard officers are evaluated by a “rating chain” of three officers:  the “supervisor,” who com-
pletes the first half of the OER by assigning marks and comments in the various performance categories; 
the “reporting officer,” who completes the second half of the OER, by assigning marks and comments in 
various performance categories, assigning a comparison scale mark, and providing comments about the 
officer’s potential and leadership abilities; and a “reviewer,” who checks the OER for errors and incon-
sistencies.  Personnel Manual, Article 10.A.2. 

 
In December 1994, the applicant became the assistant supervisor of the Foreign 
Vessel Section at MSOX.  In this position, he received three semi-annual OERs.  On the 
first, he received an average mark of 4.96 and a comparison scale mark of 4.  On the sec-
ond,  he  received  an  average  mark  of  5.09  and  a  comparison  scale  mark  of 4.  On the 
third, he received an average mark of 5.00 and a comparison scale mark of 4.  On each 
of these OERs, he was “highly recommended for promotion” by his RO in block 11. 

 
In June 1996, the applicant became an Inspection Coordinator and Reviewer for 
MSOX.  On the OER he received in November 1996, he received an average mark of 4.83 
and a comparison scale mark of 5.  In December 1996, the applicant became the supervi-
sor  for  Inspection,  Coordination,  and  Review  at  MSOX.    On  the  three  OERs  that  he 
received in this position he received, on the first, an average mark of 5.00 and a com-
parison scale mark of 5.00; on the second, an average mark of 5.39 and a comparison 
scale mark of 5; and on the third, an average mark of 5.22 and a comparison scale mark 
of 5.  On all of these OERs, the RO either “highly” or “strongly” recommended him for 
promotion and also recommended him for a position as either a department head or an 
assistant  department  head  at  an  MSO.    On  September  1,  1998,  he  received  a  letter  of 
commendation from the Commandant for protecting people and property from a car on 
fire in a Coast Guard parking lot. 

 
From June 1, 1999, to May 31, 2000, the applicant served as the supervisor of a 
Port State Control inspection detail at MSOX.  He supervised twelve subordinates con-
ducting safety inspections of foreign commercial vessels.  On his annual OER for this 
work, he received an average mark of 5.89 and a comparison scale mark of 5.  He was 
also  “highly  recommended  for  promotion.”    Upon  leaving  MSOX,  the  applicant 
received an Achievement Medal for superior performance from July 1994 to June 2000. 

promotion in block 11, his RO wrote that he was “recommended for & needs increased 
responsibility to further test leadership/management/technical capabilities.” 

 
In June 1994, the applicant became the assistant supervisor of an inspection detail 
at MSOX, with nine subordinate inspectors and a new rating chain.  On his semi-annual 
OER  in  November  1994,  he received an average mark of 5.22 and a comparison scale 
mark of 5, and he was “strongly recommended for promotion” in block 11 by his RO. 

 
In June 2000, the applicant was transferred to another MSO, and began working 
as a Marine Inspector again.  On his first annual OER, he received an average mark of 
5.06  and  a  comparison  scale  mark  of  5.    On  his  most  recent  OER,  as  a Senior Marine 
Inspector, he received an average mark of 5.33 and a comparison scale mark of 5.  On 
both  OERs,  the  applicant  was  “strongly recommended for promotion” by his RO.  In 
addition, on both OERs, the reviewer added an extra page of comments to concur in the 
RO’s assessment, strongly recommend the applicant for promotion to lieutenant com-
mander,  and  also  recommend  him  for  a  supervisory  position  at  a  small  or  medium-
sized MSO.   

 

VIEWS OF THE COAST GUARD 

 
On January 27, 2003, the Chief Counsel of the Coast Guard submitted an advi-
 
sory opinion in which he recommended that the Board deny the applicant’s request for 
“lack of proof, lack of merit and lack of timeliness.”   
 
 
The  Chief  Counsel  argued  that  the  application  was  untimely  because  the 
applicant  was  aware  of  the  lack  of  recommendations  for  promotion  in  the  disputed 
OERs in 1993 and 1994.  He alleged that it is not in the interest of justice to waive the 
three-year filing requirement under 33 C.F.R. § 52.22.  Therefore, he asked the Board to 
dismiss the case. 
 
 
The Chief Counsel argued that the applicant has failed to prove that either the 
lack of recommendations for promotion or the comparison scale marks in the disputed 
OERs constitute error or injustice.  The Chief Counsel argued that “[p]romotion recom-
mendations are within the discretion of the Reporting Officer based on his or her sub-
jective evaluation of the Reported-on Officer’s ability to assume the duties of the next 
higher grade.  PERSMAN 10.A.4.d.8.(b)  From the evidence in the record, it cannot be 
said that the Reporting Officer’s decision not to include a promotion recommendation 
was either erroneous or arbitrary and capricious.”  He alleged that the same holds true 
for  the  comparison  scale  marks.    He  argued  that  the  content  of  applicant’s  prior  and 
subsequent OERs does not prove that the disputed OERs are erroneous because “[e]ach 
OER is independent … designed to capture the performance during a specific marking 
period without regard to prior marking periods.” 
 
 
The Chief Counsel also pointed out that the applicant did not take advantage of 
his  opportunity  to  file  replies  to  the  disputed  OERs.    He  alleged  that  the  applicant’s 
failure  to  file  replies  “should  be  considered  as  relevant  evidence  that  he  accepted  his 
rating official’s characterization of his performance.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  February  3,  2003,  the  Chairman  forwarded  a  copy  of  the  Chief  Counsel’s 
advisory  opinion  to  the  applicant  and  invited  him  to  respond.    No  response  was 
received.  
 

APPLICABLE REGULATIONS 

 

 
Under 33 C.F.R. § 52.12, the function of the BCMR is to determine “[w]hether an 
error has been made in the applicant’s Coast Guard military record, whether the appli-
cant has suffered an error or injustice as the result of an omission or commission in his 
or  her  record,  or  whether  the  applicant  has  suffered  some  manifest  injustice  in  the 

treatment accorded him or her; and … [w]hether the Board finds it necessary to change 
a military record to correct an error or remove an injustice.” 
 
Under 33 C.F.R. § 52.24(b), “[t]he board begins its consideration of each case pre-
 
suming administrative regularity on the part of the Coast Guard and other Government 
officials.  The applicant has the burden of proving the existence of an error or injustice 
by the preponderance of the evidence.” 
 
 
Article  10.A.  of  the  Coast  Guard  Personnel  Manual  (COMDTINST  M1000.6A) 
governs  the  preparation  of  OERs.    Each  OER  is  prepared by the reported-on officer’s 
“rating chain” of three senior officers:  the supervisor (the officer to whom the reported-
on officer answers on a daily basis), the reporting officer (the supervisor’s supervisor), 
and the reviewer (normally the reporting officer’s supervisor).  Article 10.A.4.d. of the 
Personnel Manual governs the preparation of OERs.  In 1993 and 1994, paragraphs (4) 
and (7) of that article instructed the rating chain members as follows: 
 

(b) 
For each evaluation area, the Reporting Officer [or Supervisor] shall review the 
Reported-on Officer’s performance and qualities observed and noted during the report-
ing  period.    Then,  for  each  of  the  performance  dimensions,  the  Reporting  Officer  [or 
Supervisor]  shall  carefully  read  the  standards  and  compare  the  Reported-on  Officer’s 
performance to the level of performance described by the standards.  The Reporting Offi-
cer  [or  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.[3]  After determining which block best describes the Reported-on Offi-
cer’s  performance  and  qualities  during  the  marking  period,  the  Reporting  Officer  [or 
Supervisor] fills in the appropriate circle on the form in ink. 

• • • 

tion of block 11: 

(d) 
In the “Comments” sections following each evaluation area, the Reporting Offi-
cer  [or  Supervisor]  shall  include  comments  citing  specific  aspects  of  the  Reported-on 
Officer’s performance and behavior for each mark that deviates from a “4.”. . .    
 
Paragraph (8) of Article 10.A.4.d. provided the following regarding the comple-

The  Reporting  Officer  shall  comment  on  the  Reported-on  Officer’s  leadership 

 
(a) 
ability and potential for greater responsibility in the Coast Guard. … 
(b) 
and may include, but are not limited to, the following: 
  How qualified the Reported-on Officer is to assume the duties of the next grade. 
  For what specialties, or types of assignment, such as command, the Reported-on Offi-

Comments in this section reflect the legitimate judgment of the Reporting Officer 

cer is qualified or shows aptitude. … 

 
Paragraph (9)(a) of Article 10.A.4.d. provided the following regarding the report-

ing officer’s completion of the comparison scale: 

 

                                                 
3  The  shaded  language  appears  only  in  the  instructions  for  supervisors  in  paragraph  (4)  of  Article 
10.A.4.d., not in the instructions for reporting officers in paragraph (7). 

COMPARISON  SCALE:    The  Reporting  Officer  shall  fill  in  the  circle  that  most  closely 
reflects  the  Reporting  Officer’s  ranking  of  the  Reported-on  Officer  relative  to  all  other 
officers of the same grade the Reporting Officer has known.  NOTE:  This section repre-
sents a relative ranking in relation to peers of the Reported-on Officer, and not necessari-
ly  a  trend  of  performance.    Thus,  from  period  to  period,  an  officer  could  improve  in 
performance but drop a category.  This could occur if peers had improved more, or if the 
Reporting Officer had the opportunity to observe other peers who performed at a higher 
level. 
 
According  to  Article  10.A.2.f.(2)  of  the  Personnel  Manual,  which  listed  the 

 
responsibilities of the reviewer, the reviewer  
 

 
 
Article 10.A.4.h. allows the reported-on officer to reply to any OER and have the 
reply filed with the OER in order to “provide an opportunity for the Reported-on Offi-
cer to express a view of performance which may differ from that of a rating official.” 

 

[e]nsures  the  OER  reflects  a  reasonably  consistent  picture  of  the  Reported-on 

[i]f necessary, adds comments on a separate sheet of paper further addressing the 

[c]hecks  for  obvious  errors,  omissions,  or  inconsistencies  between  numerical 

(a)  
Officer’s performance and potential. 
(b)  
evaluations and written comments and any failures to comply with instructions. . . . 
(c)  
performance and/or potential of the Reported-on Officer. … 
(d)  
[e]nsures  the  Supervisor  and  the  Reporting  Officer  have  adequately  executed 
their responsibilities under the [Officer Evaluation System].  The Reviewer shall return an 
OER to the Reporting Officer to correct errors, omissions, or inconsistencies between the 
numerical evaluation and written comments. . . . 

FINDINGS AND CONCLUSIONS 

1. 

2. 

3. 

 
 
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: 
 
 
The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 
§ 1552.  Under Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 1994), the application was timely 
since  the  applicant  continued  to  serve  on active duty between the date of the alleged 
error and the date he filed his application. 
 
 
The  applicant  alleged  that  the  quality  of  his  overall  record  and  of  the 
marks  and  comments  in  OER1,  OER2,  and  OER3  prove  that  (a)  his  ROs’  failure  to 
include a recommendation for promotion in block 11 of those OERs and (b) their assign-
ment of a mark of 3 on the comparison scales in OER1 and OER3 were erroneous and 
unjust.  Apart from his own claims and military record, he submitted no other evidence 
in support of his allegations. 
 
 
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.4  Once an applicant has rebutted the presumption of regularity by present-
ing at least some evidence that “specifically and convincingly contradicts his rating offi-
cials’ marks and comments,” the Board weighs the evidence in the record to determine 
whether  the  applicant  has  met  his  burden  of  proof—the  preponderance  of  the  evi-
dence—with respect to the challenged OER.5  The Board determines whether the appli-
cant  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 regula-
tion.6  With this standard in mind, the Board has carefully considered all of the evidence 
presented  regarding  the  OERs  disputed  in  this  case  and  draws  the  following  conclu-
sions with respect to the evidence. 
 
 
The  applicant  has  failed  to  overcome  the  presumption  of  regularity 
accorded to the challenged OERs.  Although the OERs each contain positive comments 
and  marks,  nothing  in  them  is  clearly  inconsistent  with  the  ROs’  choice  of comments 
about the applicant’s potential and leadership in lieu of a recommendation for promo-
tion.  Moreover, the fact that other ROs chose to recommend him for promotion when 

4. 

                                                 
4  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). 
5  Final  Decision,  BCMR  Docket  No.  2000-194.  Moreover,  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). 
6  Hary v. United States, 618 F.2d 704, 708 (Cl. Ct. 1980); CGBCMR Docket No. 86-96. 

he was serving in other positions at other times does not prove that the ROs for OER1, 
OER2, and OER3 erred or committed an injustice in failing to include express recom-
mendations for promotion.  Although Article 10.A.4.d.(8) of the Personnel Manual cer-
tainly allowed the ROs to make express recommendations for promotion, they were not 
required to do so.   
 

5. 

Moreover, the applicant’s own testimony indicates that the lack of such a 
recommendation in OER2 and OER3 was intentional and not an accidental omission by 
the RO.  He alleged that, when he asked the RO about the absence of a recommendation 
for  promotion,  the  RO indicated that he felt that the applicant had been promoted to 
lieutenant too recently to receive a recommendation for promotion to lieutenant com-
mander.  Article 10.A.4.d.(8) clearly makes the recommendation for promotion in block 
11 of an OER a discretionary matter for the RO.  Although the three disputed OERs con-
tain positive marks and comments and although the applicant received recommenda-
tions for promotion from his other ROs, the Board cannot find that the RO for OER1 or 
the  RO  for  OER2  and  OER3  abused  their  discretion  in  failing  to  recommend  him  for 
promotion. 
 

6. 

The same holds true for the comparison scale marks in OER1 and OER3.  
No  comment  or  other  mark  in  those  OERs  is  clearly  inconsistent  with  a  comparison 
scale mark of 3, denoting an “excellent performer; recommended for increased respon-
sibility,” as indicated on the OER form.  Moreover, the ROs’ comments about the appli-
cant’s  potential  seem  quite  consistent  with  the  description  for  the  comparison  scale 
mark of 3.  In addition, the fact that the RO for OER3 chose to assign the applicant a 
comparison scale mark of 4 on OER2 and the fact that other ROs at other times have 
assigned the applicant higher comparison scale marks do not prove that the comparison 
scale marks on OER1 and OER3 are erroneous or unjust.  Article 10.A.4.d.(9)(a) of the 
Personnel Manual indicates that a comparison scale mark is inherently a highly subjec-
tive mark that the RO assigns based on his or her experience with other officers of the 
same rank as the reported-on officer.  There is no basis in the record for the Board to 
find  that  the  RO  for  OER1  or  the  RO  for  OER3  abused  their  discretion  in  failing  to 
assign the applicant higher comparison scale marks. 

 
 

 
7. 

The  Board  finds  that  the  applicant  has  failed  to  submit  any  specific  and 
credible  evidence  to  indicate  that  his  ROs  for  OER1,  OER2,  or  OER3  committed  any 
error or injustice in completing the comparison scales, assessing his potential and lead-
ership, and omitting an express recommendation for promotion in those OERs.  Nor has 
he alleged or proved any irregularity or bias on the part of the rating chains for the dis-
puted  OERs.    The  applicant  has  failed  to  overcome  the  presumption  of  regularity 
accorded the marks and comments in the disputed OERs. 
 

8. 

Accordingly, the applicant’s request should be denied. 

 

[ORDER AND SIGNATURES APPEAR ON FOLLOWING PAGE] 

 

ORDER 

 

The application of xxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 

 
 
 James K. Augustine 

 

 

 

 

 
 Quang Nguyen 

 

 

 
 Dorothy J. Ulmer 

 

  

 

 

 

 

 

 

 
 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

military record is denied.