DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for Correction of
the Coast Guard Record of:
BCMR Docket No. 2002-141
XXXXXX, Xxxxxxx X.
xxx xx xxxx, XXXX
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 June 27, 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 June 26, 2003, is signed by the three duly appointed
APPLICANT’S REQUEST
The applicant, a retired XXXXXXXXXX (XXXX; pay grade xxx) asked the Board
to correct his military record to show that a “change in rating chain”1 officer evaluation
report (OER) was submitted on his performance for the period May 1, 19xx to
December 31, 19xx. He also requested that the Board correct an OER for the period May
1, 19xx to April 30, 19xx (the disputed OER) by:
(a) removing the comment in section 8 Comments, which states “[m]ade
inappropriate public statements about personal disagreement with CO”;
(b) upgrading the numerical scores in sections 8.c. and 8.d. from 3 to 5 as
warranted by the narrative correction in section 8 Comments; [and]
1 Upon the change of Reporting Officer (RO), Article 10.A.3.a.(2)(b) of the Personnel Manual provides
that “OERs for officers on an annual submission schedule are required if more than six months (i.e., 182
days) have elapsed since the ending date of the last regular OER or the date reported present unit,
whichever is later.”
(c) removing the Reviewer comments, entirely or correcting them by removing
the erroneous comments consisting of the second and third paragraphs of the
comments page.
He further requested that all references to the above erroneous comments in the
disputed OER be expunged from his official military record.
The applicant also requested that any and all administrative actions taken
against him based on the results of the Special Board be invalidated, including his
permanent removal from the 19xx XXXXX Promotion list and his failure of selection by
the 19xx XXXXX Selection Board. He further requested that all references to his
permanent removal from the 19xx XXXXX Promotion list and his failure of selection by
the 19xx XXXXX Selection Board be expunged from his official record.
Furthermore, the applicant asked the Board (a) to reinstate his position on the
19xx XXXXX Promotion list; (b) to promote him retroactively, as of July 1, 19xx, with a
date of rank (DOR) of July 1, 19xx; (c) to correct his DD form 214 to show that he retired
at the rank of XXXXX (XXXXX); (d) to order the Coast Guard to pay him retroactive
active duty pay and allowances for the period July 1, 19xx to July 1, 19xx, as well as the
difference in all retired pay and allowances from July 1, 19xx to the present date.
BACKGROUND AND SUMMARY OF THE RECORD
The applicant received his commission as an ensign on May 24, 19xx. He was
promoted to xxxxx xxxxx on February 24, 19xx, to XXXXX on August 1, 19xx, and to
XXXXXXXXXX on July 1, 19xx. From July 24, 19xx, to July 27, 19xx, he served as an
XXXXXX at the XXXXXXXX XXXXXX. From July 28, 19xx, to July 14, 19xx, he served as
the XXXX XXXX of the XXXXX Branch for XXXXX. Since then, he has served as the
xxxxx of the XXXXX XXXXX XXXXX. The applicant retired on July 1, 19xx, after having
been removed from the 19xx XXXXX promotion list by a special board of officers and
having failed of selection for promotion to XXXXX in 19xx.
Applicant’s First Case (Docket No. 193-94)
In BCMR Docket No. 193-94, the applicant challenged an OER that he received
while serving at the XXXXXX XXXXX. The OER contained comments about an alleged
inappropriate relationship between the applicant and a xxxxx xxxxx. He asked the
Board to remove certain comments attached to that OER, as well as his reply to those
comments. He also asked the Board to remove his failures of selection for promotion
and to backdate his promotion should the next selection board choose him.
The Board recommended granting the requested relief. It found that Coast
Guard regulations prohibited OER comments concerning disputed facts that were the
subject of an ongoing investigation. The Deputy General Counsel approved the Board’s
recommended decision. The following order was issued in Docket No. 193-94 on
November 8, 1995:
The application to correct the military record of [the applicant] is granted. The comment
of the Reviewer and the applicant’s reply to those comments shall be deleted from the
disputed OER. The applicant’s failures of selection for promotion to XXXXX shall be
removed. The block on the OER that indicates that comments from the Reviewer are
attached shall be changed to one that indicates that no such comments are attached.
The applicant shall be given the opportunity to be considered by the next two XXXXX
Selection Boards. If selected by the first such Board, he shall be given the date of rank he
would have received had he been selected in 19xx, and he shall be given applicable back
pay and allowances. If he wishes, he shall be given the opportunity to compete to be on
the XXXXX.
The following is a chronology of events that preceded the applicant’s name being
Chronology of Events Subsequent to the Final Decision in Docket No. 193-94
After his record was corrected in accordance with BCMR Docket No. 193-94, the
applicant was selected for promotion to XXXXX in 19xx and placed on the 19xx
promotion list. On January 31, 19xx, the Senate confirmed the 19xx promotion list. The
applicant was then frocked (permitted to wear the insignia of a XXXXX) as a XXXXX,
but he was never promoted from that list. The applicant’s name was eventually
removed from the promotion list after several investigations and after a board of
officers recommended that his name be removed from the promotion list. The Secretary
of Transportation approved that recommendation and the applicant’s name was
removed from the promotion list.
removed from the promotion list.
On February 14, 19xx, Coast Guard Investigations issued a Notice of
Investigation concerning allegations of sexual harassment by the applicant. The notice
states that a XXXXX XXXXX of the applicant alleged that he had been telephonically
harassing her since she attempted to end all contact between them. The allegations
arose when the XXXXX was questioned concerning two anonymous letters that were
received by her command. The letters described her in disparaging terms. She stated
that she believed the applicant wrote them.
On May 13, 19xx, the applicant’s CO sent a letter to CGPC requesting that the
applicant’s promotion be delayed, because of accusations of sexual harassment and
obstruction of justice, “until these matter are resolved.” On May 21, 19xx, CGPC
informed the applicant that based on the information in the CO’s letter, his promotion
was being withheld in accordance with Article 5.A.13 of the Personnel Manual. The
letter stated, “You will be advised of our intent to initiate administrative action if
deemed necessary.”
On June 23, 19xx, Coast Guard Investigations issued a report of investigation
concerning the allegations of sexual harassment.
The report stated that the
investigation had failed to prove that the applicant had sent the letters, but concluded
that he was a “likely suspect.” The investigation also stated that the applicant and the
XXXXX “may have provided false statements to [investigators] during in investigation
into their inappropriate relationship when she was XXXXX at XXXXX.” The report
stated that the investigation was closed.
On July 13, 19xx, the applicant’s CO received a report of an informal
investigation he had initiated after receiving the Report of Investigation on June 23,
19xx.
The informal investigation concerned the applicant’s alleged misuse of
government telephones and email. The report stated that between July 1, 19xx, and
January 31, 19xx, the applicant had placed XXX long-distance telephone calls to his
XXXXX’s personal phone number. The frequency varied from just one call per day to as
many as 18 calls per day. The applicant was also found to have called another female
XXXX XXXX long-distance up to 6 times per day during January 19xx. Both women
stated that the applicant’s calls did not concern official business.
The report concluded that the applicant was guilty of failing to obey orders,
larceny, wrongful appropriation, and false pretenses. It also concluded that there were
aggravating circumstances that weighed against the applicant. The investigator
recommended that all but the false pretenses charge be dropped and that the applicant
be taken to captain’s mast on the false pretenses charge. However, on August 25, 19xx,
the applicant signed an “Acknowledgement and Election,” form stating that, after
consulting with his private attorney, he chose to refuse NJP proceedings. The Coast
Guard did not bring court-martial proceedings against the applicant.
On September 12, 19xx, the applicant’s CO wrote to CGPC requesting that the
applicant’s record be reviewed to determine his fitness for promotion and to consider
whether he should be separated from the Service. The CO stated that both the formal
and informal investigations into the applicant’s conduct were complete. He concluded
that the investigation provided sufficient evidence to prove the allegations “by a
preponderance of the available evidence,” but not “beyond a reasonable doubt.”
On December 18, 19xx, the applicant’s command completed a special OER to
document his misuse of government telephones. All of the marks in the OER are “not
observed” except for a mark of 4 (out of 7) for Using Resources and marks of 3 for
Judgment and Responsibility. The comments state that, although the applicant’s
“overall performance in ‘using resources’ has been far beyond that of a typically
effective CG officer,” the mark of 4 was assigned because of “misuse of the FTS
telephone system.”
On May 1, 19xx, the applicant sent a letter to CGPC protesting his failure to be
promoted in accordance with the BCMR’s order in Docket No. 193-94. On May 12,
19xx, CGPC responded, stating that 14 U.S.C. § 271(b) and the subsequent delay had
prohibited the applicant’s promotion and that the matter was still under review. On
May 12, 19xx, CGPC also informed the applicant that a Special Board of Officers would
meet to consider his removal from the promotion list based on the special OER, the
results of the formal investigation, and his CO’s letter dated September 12, 19xx.
On June 16 and 17, 19xx, a Special Board of three Coast Guard captains met to
consider the applicant’s removal from the promotion list. After reviewing the record
and the applicant’s submissions, the board voted unanimously to recommend removing
the applicant from the promotion list based on the “appearance of two inappropriate
relationships, adultery, and improper use of government telephones. On June 29, 19xx,
the Commandant endorsed the Special Board’s recommendation that the applicant be
removed from the promotion list. On June 30, 19xx, the Secretary of Transportation
signed an order removing the applicant’s name from the promotion list.
On September 17, 19xx, the applicant filed an application (BCMR Docket No.
1998-116) seeking promotion to XXXXX.
Applicant’s Second Case (BCMR Docket No. 1998-116)
In BCMR Docket No. 1998-1162, the applicant alleged that the Coast Guard
refused to comply with the Board’s order in Docket No. 193-94 by promoting him after
he was selected for promotion in July 19xx by the first XXXXX selection board to meet
after his record was corrected. The applicant alleged that the Coast Guard should have
placed his name on the 19xx XXXXX promotion list and promoted him at the first
opportunity after his promotion was confirmed by the President and the Senate. Then,
he alleged, his promotion should have been backdated to July 1, 19xx, which is the date
of rank he would have had if he had been selected for promotion in 19xx.
The Board denied the applicant’s request for relief. The Board found, in Docket
No. 1998-116, that the applicant had not proved by a preponderance of the evidence
that the Coast Guard committed error or injustice by placing him on the 19xx
promotion list; by planning to promote him in accordance with the order mandated in
2 This case was consolidated with BCMR Docket No. 1998-094, another application submitted by the
applicant requesting the same relief based on different grounds. It was docketed two months earlier than
BCMR Docket No. 1998-116.
14 U.S.C. §271(b); by delaying his promotion while investigating the allegations of
misconduct and taking appropriate administrative action in light of the findings of the
investigations; or by removing his name from the promotion list.
Applicant’s Third Case (BCMR Docket No. 1999-108)
In BCMR Docket No. 1999-108, the applicant challenged the special OER (the
disputed special OER), which was submitted to CGPC on December 11, 19xx. He
alleged that the disputed special OER was not prepared in accordance with Article
10.A.4.g.(1) of the Personnel Manual and was based on unsupported allegations. He
alleged that the Coast Guard purposefully and wrongfully delayed submitting the
disputed special OER until Change 27 to the Personnel Manual became effective
October 3, 19xx. He argued that the special OER was created to cover a period of time,
prior to the effective date of Change 27 to the Personnel Manual, and therefore, the
previous regulation should apply to the disputed OER.
Prior to Change 27, Article 10.A.4.g.(1) read, in pertinent part, as follows:
[m]embers of the rating chain shall not comment on or make reference to any pending
criminal proceeding … disciplinary action (non-judicial punishment), PRRB, CGBCMR,
or any other ongoing investigation (including discrimination investigations). Reference
to a final proceeding is only proper if the officer concerned has been made a party to and
accorded full party rights during the course of the proceeding. The finality of a
proceeding is governed by regulations applicable to its convening …. This restriction
does not preclude comments on appropriate, undisputed, supportable, and relevant
facts, so long as no reference is made to the pending proceedings.
With Change 27, the wording of Article 10.A.4.g.(1) was modified and became
Article 10.A.4.f.(1) of the Personnel Manual. It reads as follows:
Members of the rating chain shall not … [m]ention the officer’s conduct is the subject of a
judicial, administrative, or investigative proceeding, including criminal and non-judicial
punishments proceedings under the Uniform Code of Military Justice, civilian criminal
proceedings, … or any other investigation …. Referring to the fact conduct was the
subject of a proceeding of a type described above is also permissible when necessary to
respond to issues regarding that proceeding first raised by an officer in a reply [to an
OER]. These restrictions do not preclude comments on the conduct that is the subject of
the proceeding. They only prohibit reference to the proceeding itself.
The applicant also alleged that the disputed special OER was instrumental both
in the Board of Officer’s recommendation that his name be removed from the PY
(promotion year) 19xx XXXXX promotion list and in his failure to be selected for
promotion to XXXXX in 19xx; that the reporting officer should have removed himself;
and that the rating chain was subjected to improper influence.
The Board denied the applicant’s request for relief. The Board found that
although the special OER was, in part, the basis for his permanent removal from the
19xx promotion list, the special OER did not violate either provision of the Personnel
Manual. Moreover, the Board found that the applicant failed to prove by a
preponderance of the evidence that his rating chain unfairly delayed the submission of
the disputed special OER; that the reporting officer was “disqualified” from carrying
out OER duties; or that his rating chain was subjected to improper influence in
preparing the disputed special OER.
Applicant’s Fourth Case (BCMR Docket No. 1999-171)
In BCMR Docket No. 1999-171, the applicant challenged the OER (disputed OER)
for the period covering July 15, 19xx to April 30, 19xx. The applicant alleged that an
earlier draft of the disputed OER had been prepared, but its submission had been
delayed by the reporting officer until he could review the CGIS investigation. The
reporting period ended April 30, 19xx and the reporting officer signed the OER on July
14, 19xx. The applicant claimed that once the reporting officer reviewed the CGIS
investigation he revised the earlier draft of the disputed OER to delete the promotion
and command recommendations. He alleged that the reporting officer altered the
earlier version of the disputed OER based on the information contained in the
investigative report, even though he never used the word “investigation” in the
disputed OER.
The applicant also alleged that the reporting officer’s use of information
contained in a pending CGIS investigation in the disputed OER was prohibited by the
Personnel Manual that was in effect at the time the disputed OER was prepared. He
further argued that the reporting officer violated Article 10.A.4.g.(1) of the Personnel
Manual, by using information from the CGIS investigation as a basis for changing
comments from those in the earlier draft of the disputed OER to those in the final
version of the disputed OER.
The Board denied the applicant’s request for relief. The Board noted that the
disputed OER contained no reference to either of the investigations and found that the
restriction in Article 10.A.4.g.(1) does not preclude comments on appropriate,
undisputed, supportable and relevant facts, so long as no reference is made to the
pending proceedings. The Board also found that the CGIS was not pending, but
completed and closed prior to the submission of the disputed OER. The Board was not
persuaded that the reporting officer changed the wording of the disputed OER to delete
the specific recommendations for promotion and command based on the CGIS
investigation, as the Board found the earlier, unsigned version to be a draft. The Board
concluded that the Personnel Manual gives the reporting officer the right to base his
evaluation of the applicant’s performance on “… other reliable reports and records.”
The Board found that the reporting officer was acting in his official capacity
when he convened the administrative investigation into the applicant’s alleged
telephone misuse and that the applicant had provided no corroborating evidence that
the reporting officer had developed a personal interest in the CGIS investigation that
would disqualify him from the rating chain.
APPLICANT’S CURRENT ALLEGATIONS AND SUBMISSIONS
The applicant alleged that his rating chain failed to submit a change of Reporting
Officer (RO) OER, as required by Coast Guard regulations. Specifically, he alleged that
in December 19xx, his CO changed his position in the applicant’s rating chain from
Reviewer to RO. The applicant argued that in accordance with Article 10.A.3. of the
Personnel Manual,3 his rating chain was required to submit an OER because of this
change. He alleged that in refusing to submit a change of RO OER, the CO deprived
him of having a “ ‘positive’ OER … enter[ed in his] record, while [a] ‘negative’ Special
OER was [concurrently] being prepared by his CO,” for the period covering July 15,
19xx to February 18, 19xx. He contended that the absence of the change of RO OER
prevented his fair evaluation by the 19xx promotion board, and thereby, created an
injustice.
The applicant alleged that the disputed OER contained erroneous information
and was not a fair and accurate representation of his performance because his CO
inappropriately inserted Dr. M, a civilian employee, in his rating chain. He alleged that
although he previously requested the CO’s removal from his rating chain, the CO, who
served as the RO, was not replaced until May 11, 19xx—after the end of the reporting
period on April 30, 19xx, and in violation of the Personnel Manual. He further
contended that the change violated the Personnel Manual in that the replacement RO
was outside the group from which the applicant could expect to be in his rating chain,
and “unfairly prevented [him] from knowing the identity of his raters.” He alleged that
the replacement RO was biased against him and thought that the applicant was the
source of an Inspector General complaint, which led to a unit audit. As a result of this
misinformation, he argued, the replacement RO included a derogatory comment in the
disputed OER and caused the numerical scores in the corresponding section to be
unfairly low.
The applicant alleged that, as a result of the presence of two civilians in the
applicant’s rating chain (supervisor and RO) on the disputed OER, the reviewer was
required to make written comments on the applicant’s performance. The applicant
alleged that the comments submitted by the reviewer were inaccurate in three areas: (a)
suggesting that the numerical scores assigned by the supervisor in sections 3.a. and 5.f.
3 Article 10.A.3.a.(2)(b) provides that “OERs for officers on an annual submission schedule are required if
more than six months (i.e., 182 days) have elapsed since the ending date of the last regular OER or the
date reported present unit, whichever is later,” when there is a change of Reporting Officer.
be lowered from “6” to “5”; (b) stating that the applicant failed to submit a list of
significant accomplishments until well after the end of the rating period; and (c)
repeating the RO’s comments from Block 8’s comment section
The applicant alleged that after he submitted a written reply in response to the
reviewer’s comments, the supervisor and RO each wrote endorsements in an effort to
correct their inaccuracies in the disputed OER. In support of his allegations he
submitted a copy of the supervisor’s endorsement and argued that it rebuts the
reviewer’s comments included in the disputed OER. He alleged that, upon being
provided with more detailed information, the replacement RO reconsidered his
comments and the numerical scores, that he gave the applicant and requested their
correction.
The applicant alleged that the disputed OER, containing the above inaccurate
information, was his most recent OER and “was likely to have been given significant
weight by the [19xx XXXXX Selection Board].” He alleged that the errors were
significant and led to his failure of selection before that board in July 19xx. He argued
that the inaccurate information requires correction by removing the replacement RO’s
comment, upgrading the two numerical scores and removing the reviewer’s comments.
The applicant alleged that although he had the right under the Personnel Manual
to submit a written communication to the 19xx XXXXX selection board, he was denied
the fair opportunity to do so. He alleged that after being notified of the decision to
permanently remove his name from the 19xx XXXXX promotion list, he submitted a
letter to the 19xx XXXXX selection board
in “complete explanation of the
circumstances.” He alleged that by memorandum dated July 24, 19xx, the XXXXX of
CGPC “eviscerated his letter and removed virtually all substance from its text” through
heavy redaction of his communication to the selection board. Consequently, he argued,
the 19xx XXXXX promotion board made its decision based on an incomplete and
inaccurate record. He alleged that the Coast Guard’s denial of the opportunity to have
a complete and accurate record before the board led to his failure of selection before the
19xx XXXXX promotion board.
The applicant alleged that the Special Board, which convened in June 19xx,
erroneously recommended the permanent removal of his name from the 19xx
promotion list after having considered improper information. He alleged that in
addition to documents contained in his official military record, the Special Board also
impermissibly considered a Coast Guard Investigation Service (CGIS) investigation, an
informal investigation conducted at his command, and BCMR case information. In
support of his allegation, the applicant submitted a copy of the Coast Guard’s 20xx
response to his Freedom of Information Act (FOIA) request, which listed the foregoing
and other documents. He alleged that the Special Board should only have reviewed the
contents of his official personnel file.
The applicant argued that because he was refused the right to defend himself
against the CGIS investigation information, the Special Board was free to draw its own
conclusions, despite the determination of CGIS investigators that none of the allegations
were substantiated. Moreover, he questioned the validity of the Special Board’s
recommendation based on “a candid notation [from CGPC which states] that one of the
Board’s findings was unsubstantiated and should be removed.” He alleged that
although the Precept for the Special Board directed it to consider “associated
correspondence,” there is no authority for the use of the investigations by a Special
Board, as it is clearly not part of his official record. He argued that the Coast Guard’s
failure to adhere to the stringent guidelines set forth in the Personnel Manual on the
documents that may be considered by the Special Board permits “unrestricted and
unproven allegations …
[a] desired
recommendation from the [Special] Board ….”
[be] easily manipulated
to
to obtain
The applicant also alleged that the response to his FOIA request, which did not
include the disputed OER, proves that the Special Board never got to review his most
recent OER, as it should have. The applicant stated that in 20xx, he received the record
of documents considered by the Special Board after submitting a FOIA request in 19xx.
Upon reviewing the informal investigation, which was included in the record before the
Special Board, he stated that he discovered that it falsely claimed that he was shown all
of the evidence against him. He asserted that his request to see any evidence was
refused. He stated that the informal investigation report itself states that the evidence is
all hearsay, no action was ever taken on the informal investigation and it should never
have left the command.
The applicant stated that because the Special Board was provided both the CGIS
investigation and the informal investigation, which were not part of his official military
record, in fairness to him, the Special Board should have also been provided his Civil
Rights complaint, his DOT Inspector General complaint, and the informal complaint he
filed on the conduct of the person making the allegations leading to the investigations
against him.
Excerpts from Disputed OER (May 1, 19xx to April 30, 19xx)
On the disputed OER, the applicant received thirteen marks of 6 (on a scale of 1
to 7, with 7 being the highest score) in evaluation of his job performance. In block 8.a.
(initiative), the applicant received a mark of 7, and in blocks 8.c. (responsibility) and 8.d.
(professional presence), he received marks of 3. His block 12 (comparison scale) score
was a 5, defined as “excellent performer; give toughest, most challenging leadership
assignments.”
In Block 8, the replacement RO made many very laudatory statements, but also
the following comment: “[m]ade inappropriate public statements about personal
disagreement with CO.”
Because the replacement RO was not a Coast Guard officer, on a separate sheet,
the reviewer included his comments on the applicant’s potential in the disputed OER.
In the category of “leadership and potential,” the reviewer made many very positive
comments, but also provided the following pertinent comments and a lower
“comparison scale” mark in accordance with Article 10.A.2.f.2.b. of the Personnel
Manual:
I concur with written and numerical evaluation of both the Supervisor and the Reporting
Officer with the exception of 3.a. and 5.f. These exceptions were discussed with the
rating chain after reviewing a draft version of the OER. The OER comments only justify
a mark of 5 for item 3.a. The 5f mark should be lowered to 5 since I am aware the that
ROO [(Reported-on Officer) or the applicant] failed to submit all the required
information before the end of the performance period. The list of significant
accomplishment [sic] were not provided to [sic] the OER rating chain officials use until
well after the OER period ended.
[The applicant] is an outstanding officer who continues to excel in handling XXXXXX
XXXXXX assignments. [The applicant] has generally demonstrated excellent leadership
abilities with the exception of occasions when he made inappropriate statements in a
common/public areas [sic] regarding his personal disagreements with how the CO was
handling his personal personnel issues. These kind of events and statements could
undermine command morale and teamwork.
In the comparison scale block, the reviewer scored the applicant with a 4, defined
as “good performer give tough, challenging assignments.”
Summary of the OER Reply
By memorandum dated July 7, 19xx, the applicant submitted an OER reply,
stating that he disagreed with the comments on “inappropriate public statements”
made in the disputed OER by the replacement RO and reviewer because, as he alleged,
they were inaccurate.
The applicant stated that the replacement RO knew of certain circumstances
under which he was being treated unfairly based on their prior conversations and
expressed appreciation of the applicant’s “ability to remain focused … in spite of the
distractions.” He maintained that he made no inappropriate public comments and
stated that his supervisor expressed “great surprise” upon discovering that the
replacement RO included such a comment in the OER.
The applicant asserted that although his CO assured him that there were “no
problems” with his performance and that he was doing an outstanding job, the
replacement RO completed the disputed OER without any discussion with the CO or
the applicant’s supervisor. He stated that the replacement RO’s actions were
particularly erroneous because he was inserted after the end of the reporting period
ended, and had “no supervision or direct authority over [the applicant]….” He argued
that as a result of the replacement RO’s comments, the reviewer unfairly included
similar misinformation in his comment portion. He stated that contrary to the negative
comments of the replacement RO and the reviewer, under his leadership, “morale and
sense of teamwork … has never been higher.”
The applicant disagreed with the reviewer’s comment that his (the applicant’s)
mark for “planning and preparedness” should be lowered to a mark of 5. He argued
that his performance instead justifies “a mark of 6 or higher.” In support of his
assertions, he stated that he “anticipated the xxxxx xxxxx and reorganized duties and
responsibilities to maintain productivity”…“and xxxxx OES [Officer Evaluation System]
training well in advance of the xxxxxxxxxxx ….” He also disagreed with the reviewer’s
suggestion that his “evaluation” marks be lowered due to the untimely submission of
the “required” list of significant accomplishments. He stated that the listing was neither
required nor late and that it was properly circulated through his entire rating chain.
The applicant asserted that he assumed greater roles of responsibilities when he
recognized that those duties were not being carried out. In expanding his duties, he
stated, he took the initiative to organize xxxxxxx xxxx and xxxxxxxxxxxxx for
xxxxxxxxxx. He argued that the improvements he initiated have “significantly
enhanced he service provided to the xxxxxxxxxx,” and establish that his performance
for “planning and preparedness” and “evaluations” justify a mark of 6 or higher.
Summary of the Endorsements to the OER reply
On July 15, 19xx, the applicant’s supervisor wrote in support of the marks and
comments he assigned that applicant. He stated that the applicant “has been the most
effective xxxxxx [he had] supervised in [his] 13 years … at the XXXXX XXXXX XXXXX.”
He stated that he believed that the applicant’s performance in the categories of
“preparedness” and “evaluations” warranted a marks of 6 and he “still believe[d] that
is correct.”
He stated that by the applicant’s “actively engag[ing] with his
subordinates” and “consistently and frequently discuss[ing] individual performance,”
the applicant “far exceeded any other supervisor … in routinely recognizing and
rewarding superior performance.”
On July 16, 19xx, the replacement RO wrote in concurrence with the supervisor’s
comments for the categories of “preparedness” and “evaluations.” He stated that after
reconsidering his comments regarding the public statements, he recognized that the
applicant had been “impressively productive … while “embroiled in a serious
personnel issue.” He stated that although the public comments were made, and the
applicant was counseled on that fact, “the marks of ‘3’ … in the categories of
“responsibility” and “professional presence” were an unfair reflection of his
performance. He requested that both be raised to marks of 4.
On July 23, 19xx, the reviewer wrote that after a review of additional materials
provided to him by the supervisor and the replacement RO, he found no need to change
his original reviewer comments or recommendations of lowering the marks in the
categories of “preparedness” and “evaluations” to 5s. He stated that the “written OER
comments in these areas do not support a mark of 6.” He stated that the list of
accomplishments was both required and untimely. He expressed that he concurred
with the replacement RO’s request to raise the mark in the category of “responsibility”
from a 3 to a 4.
Summary of Applicant’s Relevant Evidence
The applicant submitted his own affidavit in support of his current application
for relief. In addition to claims asserted in the applicant’s prior BCMR applications and
the current allegations above, the applicant’s affidavit, along with its supporting
material, is summarized, as follows:
The applicant stated that he objected when his CO wrongfully inserted himself in
the applicant’s rating chain as the RO. He submitted a memorandum from LTJG L,
who wrote that, as part of his duties, he had knowledge of the changes to the rating
chain. LTJG L stated that originally, in the Summer of 19xx, he and the applicant had
rating chains which consisted of Mr. G, as both the supervisor and RO, and the CO, as
the reviewer. After the applicant noted that a civilian could not be both supervisor and
RO, their rating chains were informally changed to consist of Mr. G, as the supervisor;
the xxxxx xxxxx, as the RO; and the CO, as the reviewer. He stated that the informal
chain was “never actually promulgated” and “no copy of the original instruction could
be found.” He stated that several changes in the rating chain were made but never
officially promulgated until December 19xx, when the CO directed a change in the
applicant’s rating chain. He stated that notwithstanding the fact that this was the first
official change in the rating chain since July 19xx, the CO determined that it was not a
change in the applicant’s rating chain.
LTJG L submitted undated copies of two of the unit’s rating chain lists. One list,
which LTJG L identified as being effective from July 19xx, is a typed listing with
handwritten changes that correspond to his above statement. The other list, which
LTJG L identified as being effective December 19xx, is a typed listing that shows the
applicant’s rating chain to consist of Mr. G, as the supervisor; the CO, as the RO; and
the Captain S, as the reviewer.
In continuing with his affidavit, the applicant stated that after the CO was
removed from his rating chain, the civilian xxxxx xxxxx, Dr. M, was inserted in his
rating chain as the replacement RO even though he was not in the division. Thereafter,
he stated, the replacement RO erroneously raised the issue of an alleged “public
statement about [a] personal disagreement with [the] CO” in the disputed OER, when
the matter had been resolved. He claimed that the replacement RO was biased against
him, as he told others that he was upset about a recent xxxxx and blamed the applicant
as the source. In support of his contentions, the applicant submitted copies of two brief
email communications on the subject. The applicant received one email in July from
Mr. R, the xxxxxxxxxxx xxxxxxxxxxxx, and received the other in June from Mr. G, the
applicant’s supervisor, each having the following response:
July 13, 19xx:
I confirm that the [replacement RO] shared with me that you were one of the possible
sources of the DOT IG complaint. He also shared a few other possibilities. He and I had
these discussions on 2 occasions shortly prior to the IG being here.
…
June 30, 19xx:
I don’t know who else this was discussed with. I know he and I discussed you as a
possible source of the DOT IG Hot line complaint.
Applicant’s Submission to the 19xx Promotion Board
On July 23, 19xx, the applicant wrote to the 19xx Promotion Board as follows:
1. As authorized by [the Personnel Manual], I am writing to the Promotion Board. I will
address the last two OER’s [sic] contained in my official record. There is not a reply to
the Special OER completed in December XX because my right to reply to the OER was
unexpectedly rescinded.4 There is not yet a reply to the OER for the period ending 30
April XX because I have only recently received this OER. My reply was submitted in a
timely manner but is still in routing.
2. I do not understand why the Special OER was submitted and am personally and
professionally offended by the adverse allegations contained in the Special OER. The
adverse statements are not true. This Special OER does not contain facts. It tries and
convicts me of unsubstantiated allegations without proof. The allegations are based on
disputed information gleaned from false accusations and hearsay. [CAPT G] and [Mr.
G], along with my Executive Officer, [CDR T], have acknowledged on multiple occasions
that the allegations which are the basis for the Special OER are disputed and unproven.
In addition to the fallacy of the accusations, the stated reason for filing the report is
erroneous. The regular OER for this reporting period, per directions from CGPC to
[CAPT G], was not completed by [CAPT G] until 14 July 97. At that time, [CAPT G],
acting as Reporting Officer, already possessed all the information he used in this special
4 Shaded portions of the OER reply were redacted by CGPC prior to submission to the 19xx XXXXX
Promotion Board.
report. (There is documentation that attests to this.) This same information is
acknowledged to be disputed and unproven. The special OER is not justified by the
reason given and this should have been determined in the review supposedly done by
CGPC.
3. I emphatically deny any misappropriation of FTS phone usage. I have not misused
government resources and have always upheld and enforced government policies and
procedures. I have never initiated any FTS phone call which I did not believe was official
government business. In every respect, I have complied with government policies and
acted in accordance with the specific policies of the XXXXXXXX – policies which were in
place since well before I reported to the XXX. There is written documentation that attests
to my compliance. The XXXXXX Director is aware of the situation and believes I have
not misused the FTS system or any other government resource.
4. I take great exception to the adverse comments made by {Dr. M] and [CAPT S] in my
most recent OER. These comments are not accurate and have no basis in fact. They
should be removed from the OER. [Dr. M] incorrectly states that I have made
inappropriate “public statements”. I have made no public statements. The “personal
disagreement” that [Dr. M] refers to is a situation where I have been treated unfairly in a
personnel matter. [Dr. M] has discussed this personnel matter with me on several
occasions and consistently expressed empathy with the apparent inequity I am facing.
[Dr. M] has also consistently commented that he appreciates my ability to remain focused
on my duties in spite of the distractions and he has stated that he believes I am
performing my duties in an outstanding manner. My supervisor, Mr. G has repeatedly
expressed a similar opinion. [Mr. G] expressed great surprise and disagreement when
informed that [Dr. M] had made such a comment in the OER.
5. [Dr. M] has told me that he did not discuss his comments with my supervisor and he
was not aware of my conversation with [CAPT G]. ([CAPT G] stated directly to me,
months ago, that there were no problems and he “… couldn’t ask for a finer xxxxx”.)
[Dr. M] completed the OER without knowledge of my actual performance. I am
frustrated that his uninformed comments would be made without ascertaining the facts
through discussions with either myself or my supervisor. This is particularly critical for
this OER as [Dr. M] was designated my Reporting Officer after the Reporting Period had
ended. He had no supervision or direct authority over me or anyone else in the xxxxx
Division, of which I am a part. As xxxxxx xxxxxx, [Dr. M] is not in the chain of command
for the xxxxx Division. Both [Dr. M], himself, and my Supervisor, have also expressed
reservations over the unilateral change to my rating chain after the reporting period had
ended. [Dr. M] is not in the evaluation chain for anyone else in the xxxxx Division.
7.5 [CAPT S’s] comments regarding the alleged public statements are the direct result of
the inaccurate comments contained in [Dr. M’s] section. They have been biased and
tainted by this misinformation. As I said, I have not made any public comments. I have
not taken any action that “could” be even remotely construed as adversely impacting
morale or teamwork. Quite the contrary is true, as under my leadership and
management, the morale and sense of teamwork within my sections has never been
higher. This has led to increased productivity and unprecedented high performance.
This esprit de corps is also evident in interactions across the other divisions here at the
XXXXX XXXXX XXXXX and other Coast Guard units. The variety of responsibilities I
have brings me in contact with everyone at the XXXXX XXXXX XXXXX on an almost
5 Apparently, the applicant’s letter to the promotion board was misnumbered, as there is no paragraph 6.
daily basis and I have received only appreciation for the consistently outstanding work
that I do.
8. [CAPT S] states that my “Planning and Preparedness” mark should be a 5. This is an
inaccurate statement. My skills in “planning and preparedness” certainly justify a mark
of 6 or higher. Consistently outstanding branch performance while experiencing a 100%
turnover in enlisted personnel attests to this. I anticipated the xxxxx xxxxx and
reorganized duties and responsibilities to maintain productivity. The results of the
recent xxxxxxxxxxxxxxxxxxxxx conducted by XX is additional testimony to my abilities.
My xxxxx of OES training well in advance of the xxxxxxxxx, including xxxxx civilian
personnel (first xxxxxxxxx xxxxxxx in recent memory here at the XXXXX XXXXX XXXXX)
is further evidence. In all instances, I correctly anticipate what needs to be done and
follow through to completion.
9. [CAPT S] further states that my mark in “Evaluations” should be a 5 because I
submitted my “required” list of significant accomplishments after the end of the marking
period. This is totally inaccurate. All required information was submitted to my rating
chain in a very timely manner, well before the end of the marking period. The list of
accomplishments referred to by [CAPT S] is not a “required” submission as he states. Yet
I also provided this list in a timely manner. In addition to the hard copy I submitted to
my supervisor, to be routed along with the OER, I also forwarded an electronic copy
directly to the rest of my revised rating chain after I received [CAPT S’s] letter
notification of the unusual change to my rating chain. [CAPT S] signed and forwarded
his letter changing my rating chain nearly two weeks after the marking period had
ended. (My supervisor had also expressed concern over the apparent unilateral change
to my rating chain after the evaluation period had ended.)
10. I am the Xxxxx and the Chief of Military Personnel at the XXXXX XXXXX XXXXX. As
clearly documented in my military record, I have consistently demonstrated outstanding
anticipation, initiative and judgment in improving the xxxxx xxxxx xxxxx’s performance
in financial, acquisition, and personnel matters. With limited resources, I have expanded
my area of responsibility to include, among others, xxxxx and xxxxx xxxxxxxx. I have
initiated improvements that have significantly enhanced the service provided to the
xxxxx xxxxx xxxxxxxx. This includes the recent transfer of financial management
responsibilities for the entire xxxxx xxxxx to the XXXXX XXXXX XXXXX. It is clear the
XXXXX XXXXX XXXXX’s level of conformity with financial (supply, logistics, acquisition,
property, etc.) and administrative (travel, personnel, OES, etc.) regulations have never
been higher. This is all testimony to my high level of skill and expertise and my
outstanding leadership and management abilities.
VIEWS OF THE COAST GUARD
On February 24, 2003, the Chief Counsel of the Coast Guard submitted an
advisory opinion in which he recommended that the Board deny the applicant’s request
for relief. A copy of the advisory opinion and a memorandum on the case prepared by
CGPC are attached to this Final Decision.
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On March 3, 2003, the Chair sent a copy of the views of the Coast Guard to the
applicant and invited him to respond within 15 days. He was granted an extension and
responded on April 8, 2003.
The applicant argued
that, although
The applicant noted that in the advisory opinion, the Chief Counsel admits that
the two investigations used by the Special Board were not part of the applicant’s official
record; that the applicant’s written communication to the 19xx XXXXX selection board
was heavily redacted; and that the disputed OER contained errors which should have
been corrected. He argued that the Personnel Manual provides that an investigative
report may only be used during a Board of Inquiry, where the officer is entitled to a
hearing and legal representation. He also argued that the Personnel Manual contains
no specific provisions for the redacting of comments in a written communication to a
selection board.
The applicant argued that, contrary to the Chief Counsel’s allegation, he never
accepted Captain G as his RO for the reporting period ending April 30, 19xx. He
contended that his attempts to have Captain G disqualified from his rating chain and
his petition in BCMR Docket No. 1999-171 requesting his removal demonstrate the fact
that he did not acknowledge Captain G as his RO for the disputed OER.
the
‘presumption of regularity’ for the actions [taken by] the applicant’s rating chain” he
fails to produce any evidence to xxxxxx the Coast Guard’s entitlement to such
presumption. He argued that the Coast Guard violated its own regulations by failing to
timely disqualify Captain G as RO and by appointing the replacement RO after the end
of the reporting period. He contended that these violations show that the OER process
was flawed, thereby rebutting the presumption of regularity and, he alleged, shifting
the burden of proof to the Coast Guard.
The applicant argued that the documents produced by his FOIA request reveal
that the Special Board did not consider the disputed OER, even though the Coast Guard
admitted that it was part of his official military record. He argued that the Coast Guard
relies on unsupported speculation in (a) alleging that an administrative error kept the
disputed OER out of the package in response to his FOIA request, and (b) inferring that
the record would have been worse had it contained the OER. In fact, he alleged, had
the OER, with the conceded corrections, been presented to the Special Board, “there can
be no clear inference that the decision would have been the same.” He maintained that
the Coast Guard is not entitled to the presumption of regularity concerning the
documents released in response to his FOIA because the Coast Guard has failed to
produce evidence to support its entitlement.
The applicant argued that because he was denied access to complete information
in the CGIS and informal investigations, the Chief Counsel incorrectly claimed that he
the Chief Counsel “invokes
reviewed the contents of both investigations and made no objection to its presentation
to the Special Board. He argued that, contrary to the Coast Guard’s contentions,
evidence to which he was given access was heavily redacted and formally objected to
on his part, in an action he filed in Federal district court.
In separately disputing the accuracy of the CGPC memorandum prepared on his
case, the applicant argued that despite the statutory provision and case law cited by the
Coast Guard, his application for correction of his military record is nonetheless timely.
He argued that, in paragraph 6, in an effort to support the Coast Guard’s action of
submitting the CGIS investigation to the Special Board, CGPC instead “succeeds in
showing that the speculation engaged in by the investigator is a good reason to deny
access [to the investigation reports] to a Special Board[,] which is required by regulation
to determine and evaluate the facts contained in Petitioner’s record.”
The applicant argued that CGPC incorrectly stated the conclusion of the informal
investigation in paragraph 7 by leaving out information which showed an equally
plausible conclusion that the calls were made by another person. He reasoned that
many of the calls were placed during a time when the applicant “was out of the state on
official orders and definitely impossible for him to have made.” He restated his
position of BCMR Docket No. 1999-108 and indicated that in response to the allegations,
he vigorously denied making any inappropriate telephone calls. He argued that, in
paragraph 8, CGPC unfairly adopts the CO’s assessment that the allegations against
him were proven “by a preponderance of the evidence.” He argued that relying on the
standard of proof assigned by the CO “flies in the face of due process” because
“unproven allegations can never be proof by a preponderance of the evidence.”
The applicant argued that in general, CGPC‘s conclusions in paragraphs 10 and
11 show that the Coast Guard (a) disregarded its own regulations on the use of Coast
Guard BCMR documents by the Special Board and (b) misstated facts based on
unproven allegations and “highly suspect” speculations. He restated his position that
none of the conclusions of the Special Board could be supported by fact. He further
argued that in paragraph 12, CGPC “admits that the Commandant of the Coast Guard
recognized the faulty reasoning of the Special Board” upon removing the statement
about the appearance of an inappropriate relationship with his executive officer, as not
supported by the record.
The applicant argued that CGPC improperly compared the Special Board to a
determination board, which recommends whether the officer should be required to
“show cause” for retention in the service. Because the show cause process involves
much greater due process, such as representation and a hearing, he argued, the Special
Board is more comparable to a promotion board, where the officer cannot appear before
the Board and there is no right of confrontation. Therefore, he contended that the
Special Board should have followed the guidance for a promotion board, where
consideration is limited to the officer’s official military record and his letter submission.
The applicant stated that contrary to CGPC’s assertions under the “opinions”
section of its memorandum, there are no cites to any Coast Guard regulations that
support what the Coast Guard considers to be “official records.” He argued that it is
not reasonable for CGPC to apply the determination board standard, as it is
unprecedented in the regulations. He argued that because he was not afforded certain
due process protections, his case is not the type of proceeding where the entire record
should be reviewed.
According to the applicant, CGPC was fully capable of verifying the unofficial
changes to his rating chain, as a memorandum from the unit’s custodian was attached
to the unit instruction and the CO and the reviewer for the disputed OER, though both
retired, have addresses and other contact information on file with the Coast Guard.
The applicant stated that despite CGPC’s attempts in paragraph 11 to justify the
reviewer’s comments concerning the applicant’s submission of all required information
before the end of the reporting period, they were “admitted to be erroneous by the
Chief Counsel,” … “plainly wrong and deserve [to be] remov[ed].” In support of his
assertion, he noted that error is admitted by CGPC in paragraph 12. He argued that the
Coast Guard caused the “confusion,” which led to the replacement RO’s admittedly
erroneous comments. However, he argued that “based on the disagreement of the
Reviewer whose comments have already been shown to be incorrect,” CGPC refuses to
let the replacement RO fully correct his error by deleting the comments from the OER.
The applicant argued that, in paragraph 14, CGPC relies on speculation in
arguing that the Special Board reviewed the disputed OER. He argued that because the
Special Board met more than 45 days after the end of the reporting period, the Coast
Guard had sufficient time to ensure that the disputed OER was properly placed in his
military record. He argued that the Coast Guard has failed to show that the FOIA
officer, who responded to his request in producing the documents reviewed by the
Special Board, is not entitled to the presumption of regularity. He argued that CGPC
contradicts itself by attempting to justify the topics discussed by the rating chain within
the narrative sections of the disputed OER while simultaneously attempting to justify
the Coast Guard’s redactions on those same topics from his OER reply.
The applicant restated the above arguments in disputing CGPC’s conclusions.
He argued that “[t]he entire [nexus analysis] advanced by … CGPC is an attempt to
testify without any proof or statistics to support the bald contentions made.” In closing,
he renewed his claim of entitlement to the relief stated in this application.
APPLICABLE LAW
Personnel Manual (COMDTINST M1000.6A)
Article 5.A.4.e. of the Personnel Manual provides that officers who are “eligible
for consideration by a selection board may communicate with the board through the
officer’s chain of command by letter arriving by the date the board convenes, inviting
attention to any matter in his or her Coast Guard record that will be before the selection
board. A letter sent under this paragraph may not criticize any officer or reflect on any
officer’s character, conduct, or motive (14 U.S.C. § 253(b)).”
Article 10.A. of the Personnel Manual governs the preparation of OERs. Each
OER is prepared by the reported-on officer’s “rating chain” of senior officers: the
supervisor, the reporting officer (RO), and the reviewer. Article 10.A.3.a.2.(b) provides
that an OER must be prepared when an RO has changed in a rating chain “if more than
six months have elapsed since the ending date of the last regular OER….”
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.2.f.2.c. provides that part of a reviewers responsibilities include
separately adding comments, if necessary, that further address the performance and/or
potential of the Reported-on Officer. The article further provides that “[f]or any officer
whose Reporting Officer is not a Coast Guard commissioned officer, the Reviewer shall
describe on a separate sheet of paper the officer’s ‘Leadership and Potential’ and
include an additional ‘Comparison Scale’ mark.”
Article 10-A-2.j.(2). provides that while the Reporting Officer is normally the
supervisor of the Supervisor, “… [a] civilian members of the Senior Executive Service
(SES), can be both Supervisor and Reporting Officer for their immediate
subordinates….”
“responsibility” and “professional presence” are as follows:
The standards on the OER form for a mark of 4 for the performance categories
Responsibility
Held self and subordinates personally and professional accountable. Spoke
Professional
Presence
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.
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.”
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.”
Article 10.A.1.c.(1) defines an “Officer Support Form (OSF)” as “[t]he optional
worksheet which may be used by members to assist in delineating duties, and to
enhance organizational communications, performance counseling, and performance
reporting.”
APPLICABLE DECISIONS
In Law v. United States, 11 F.3d 1061 (Fed. Cir. 1993), the plaintiff was a Coast
Guard officer whose name appeared in the 107th position on a promotion list. The list
was nominated by the President and confirmed by the Senate in January 19xx. In May
19xx, before a vacancy had occurred for the plaintiff, the Commandant directed that his
promotion be withheld and that a board of officers should meet to consider removing
his name from the promotion list because of crude behavior and sexual harassment that
had been documented in an OER. A vacancy that the plaintiff would otherwise have
filled occurred on June 1, 19xx. On June 11, 19xx, a Special Board met and
recommended that his name be removed from the promotion list. The Secretary of
Transportation removed the plaintiff’s name from the list in March 19xx. The plaintiff
applied to the BCMR for relief, but his application was denied.
In considering the plaintiff’s claim of entitlement to a proceeding in which the
same rights and procedures are provided as set forth in 14 U.S.C. § 325, that is the
“board of officers” should have acted as a “show cause” board, the court adopted the
lower court’s analysis of the arguments concerning Section 325 procedures. That court
concluded the following:
There is no statutory guarantee that Section 325 rights and procedures apply to such a
board of officers proceeding looking into the possible removal of an officer from a
selection list. Section 325 specifies that the rights and procedures therein apply to a
board of inquiry proceeding pursuant to Section 322, which involves officers being
considered for removal from the Coast Guard. There is no suggestion in Section 325 that
these rights and procedures apply for any other type of board of officers proceeding.
Here, the board of officers was looking into the removal of the plaintiff’s name from the
promotion selection list, a far less severe sanction than the removal of plaintiff from the
Coast Guard. Since the two sanctions are distinct, the court cannot reasonably imply that
Congress intended the same rights that apply to a Section 322 inquiry to apply to the
instant board proceeding. There certainly is no statement to this effect in the statute.
11 F.3d at 1065 (quoting Law v. United States, 26 Cl. Ct. 382, 388 (1992)).
FINDINGS AND CONCLUSIONS
1.
The Board makes the following findings and conclusions on the basis of the
applicant's military record and submissions, the Coast Guard's submission, BCMR
Docket Nos. 193-94, 1998-116, 1999-108, and 1999-171; and applicable law:
The Board has jurisdiction concerning this matter pursuant to 10 U.S.C.
§ 1552. Although approximately four years have passed between the applicant’s
notification of the disputed OER and his application to the Board, the Soldiers’ and
Sailors’ Civil Relief Act of 1940 (Act), 50 U.S.C. § 501 et seq., as amended, bars any
period of active duty military service from being included in computing a statute of
limitations against a person in the military service. See Detweiler v. Pena, 38 F.3d 591
(D.C. Cir. 1994). The running of the time granted to file the instant BCMR application
was tolled until the applicant was retired from the Coast Guard on July 1, 19xx. The
applicant’s BCMR application was filed on June 27, 2002, thus rendering his claim
timely.
The applicant requested an oral hearing before the Board. The Chair,
acting 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.
The applicant alleged that, after his CO officially changed his rating chain
by inserting himself as RO in December 19xx, the CO was required to submit an OER in
evaluation of his performance for the period May 1, 19xx to December 31, 19xx. The
applicant argued that the CO’s failure to submit the change of Reporting Officer OER
was a violation of Article 10.A.3.a.2.(b) of the Personnel Manual, which states that when
there is a change of RO in a rating chain, “OERs for officers on an annual submission
schedule are required if more than six months have elapsed since the ending date of the
last regular OER ….” The applicant argued that the CO’s failure to submit the OER also
prevented his fair evaluation before the 19xx promotion board.
2.
3.
4.
A colleague of the applicant’s, LTJG L, submitted copies of two rating
chains for their unit, one that was supposedly published in 19xx and a second that was
published in December 19xx. Though unsigned and undated, the validity of these
rating chains were not disputed by the Coast Guard. The first chain shows that the
applicant’s supervisor, a GS-14 civilian, was supposed to serve as both his supervisor
and his RO for preparing OERs and the CO was to be the reviewer. However,
apparently at some point, his command realized that Article 10.A.2.j.2. of the Personnel
Manual prohibits a civilian other than a member of the Senior Executive Service from
serving as both the supervisor and RO for a XXXXXXXXXX. Therefore, handwritten
changes appear on the first published rating chain that purport to make the civilian
xxxxx xxxxx, Dr. M, the applicant’s RO.
LTJG L stated that other unofficial changes were made as well. The change was
never made official by publication in accordance with Article 10.A.2.b.2.b. of the
Personnel Manual, however, and when the applicant received his first OER from the
command, the CO served as his RO, and the XXXXX served as the reviewer. In BCMR
Docket No. 1999-171, the applicant challenged his CO’s presence on his rating chain on
the basis of his alleged disqualification due to bias, but the applicant never mentioned
the unofficial changes to and violation of his published rating chain. The Board
concludes that, although the CO appeared as the reviewer on the published rating chain
from 19xx to December 19xx, he was known by the applicant to be his RO throughout
19xx even though the change was not published until December 19xx. The publication
in December 19xx was essentially a correction of the invalid rating chain published in
19xx to reflect the de facto rating chain that had existed for some time.
5.
The applicant alleged that with the publication of the rating chain in
December 19xx, in order to comply with Article 10.A.3.a.2. of the Personnel Manual, the
“unofficial” rating chain, composed of Mr. G, as the supervisor; Dr. M, as the RO; and
the CO, as the reviewer, should have prepared a change of RO OER. However, the CO
refused to prepare one. The applicant’s military record contains an OER for the
reporting period July 15, 19xx to April 30, 19xx, which identifies the applicant’s rating
chain to be Mr. G, as the supervisor; the CO, as the RO; and Captain S, as the reviewer.
It is clear from the record that the rating chain initially published in July 19xx was
invalid ab initio and that the CO had been serving as the applicant’s RO for some time.
The Board finds that, although the rating chain that had been in existence for some time
was not published until December 19xx, that publication did not constitute a true
change of RO, and the applicant was not entitled to an OER because of it. Moreover,
the purpose of requiring an OER upon the departure of an RO would not have been
fulfilled under these circumstances since no member of the 19xx rating chain was
actually leaving the office.
6.
Even assuming arguendo, that in December 19xx, the applicant was
7.
entitled to an OER from the “unofficial” rating chain, as identified in finding 5, because
of the publication of the de facto rating chain, the applicant has not shown that any
significant information about his performance between May and December 19xx is
missing from his record. He has not complained that the disputed OER lacks any
significant information about his performance during that period. Nor has he shown
that a December 19xx OER would not have mentioned the “inappropriate public
statements” he made about his disagreement with the CO, discussed infra.
The applicant argued that his CO violated the Personnel Manual by
inserting Dr. M, as the RO, on May 11, 19xx, after the end of the reporting period for the
disputed OER. He also argued that Dr. M’s selection as replacement RO was outside
the applicant’s expectations of potential members of his rating chain. After the
applicant filed a harassment complaint that could not be informally resolved, pursuant
to Article 10.A.2.g. of the Personnel Manual, on April 24, 19xx, the CO disqualified
himself and assigned Dr. M, the xxxxx xxxxx of the applicant’s unit, to be the
replacement RO in the applicant’s rating chain.6 Contrary to the applicant’s argument,
the Personnel Manual only required the CO “to designate an appropriate substitute ….”
The fact that the reviewer did not approve the change in RO until May 11, 19xx fails to
prove that the CO violated the Personnel Manual.
8.
In addition, the applicant has not proven that the substitution of Dr. M,
shortly before the end of the reporting period, constituted either an error or an injustice.
Article 10.A.2.g.2.b. of the Personnel Manual states that “[t]he timing of the substitution
may preclude full use of he OSF [Officer Support Form]; however, that fact alone does
not invalidate the OER.” Although the applicant contended that his CO once
mentioned his decision not to place Dr. M in any xxxxx Division rating chain, the
applicant has offered no evidence as to why the xxxxx xxxxx was not a reasonable
substitute and no evidence of or explanation for the CO’s alleged statement. Absent
strong evidence to the contrary, government officials are presumed to have carried out
their duties correctly, lawfully, and in good faith. Arens v. United States, 969 F.2d 1034,
1037 (Fed. Cir. 1992). Consequently, the Board finds that because the applicant
presented no evidence which demonstrates that Dr. M was disqualified in any way, he
has not proven that Dr. M’s selection as replacement RO was either an error or an
injustice.
6 In BCMR Docket No. 1999-108, the CO stated that in April 19xx, a civil rights counselor informed him
that the applicant would be filing a formal civil rights complaint alleging gender discrimination. The CO
stated that “[b]ased on the fact I believed that I might be considered ‘a interested party’ to this complaint
and as the definition of ‘interested party’ within the [Personnel Manual] was unclear and I didn’t know
the specifics of the complaint, I took the pro-active step of requesting that I be removed from the
applicant’s OER reporting chain. This request was granted. That decision or the underlying complaint
had, to the best of my knowledge, no bearing or relevance to the execution of my duties as the Reporting
Officer for the special OER.” The Board found that there was no evidence that the CO harbored any
prejudice against the applicant.
9.
The applicant alleged that Dr. M, the replacement RO, was biased against
him. He claimed that Dr. M included a derogatory comment and unfairly low scores in
the disputed OER, after blaming the applicant for lodging a complaint with the
Inspector General (IG), which subsequently led to a xxxxx xxxxx. Contrary to the
applicant’s allegations, the evidence he submitted fails to indicate that he was identified
by Dr. M as the source of the IG complaint. In fact, according to both emails, the
applicant was considered as “one of the possible sources” and “a possible source” of the
IG complaint, along with other candidates. Moreover, he did not show that he was
retaliated against because of Dr. M’s speculation about the cause of the audit.
11.
10. Moreover, the applicant has not persuaded the Board that Dr. M’s
comment on the applicant’s “inappropriate public statements” or the marks of 3 in the
categories of “responsibility” and “professional presence” were a product of bias. In
Dr. M’s endorsement of the applicant’s OER reply, he requested “that [both] marks [of
3] be changed to [4] and the comment about inappropriate public statements be
removed from the OER.” However, Dr. M also stated in his endorsement that “…
public comments were made [by the applicant], and counseling was subsequently
provided to [the applicant] ….” Consequently, the Board finds that Dr. M’s conduct, in
assigning the marks and including the comment and then subsequently reconsidering
both, is not sufficient in and of itself to prove bias or prejudice by a preponderance of
the evidence.
The applicant contended that three parts of the reviewer’s comments for
the disputed OER were inaccurate and should be removed. First, he alleged that the
reviewer erred in suggesting the lowering of numerical scores assigned by the
supervisor in sections 3.a. “planning and preparedness” and 5.f. “evaluations” from
marks of 6 to 5s. While Article 10.A.2.f.2. states that “the reviewer may not direct in
what manner an evaluation mark or comment be changed …,” reviewers are permitted
to “add comments as necessary … that further address the performance and/or
potential of the Reported-on Officer.” The reviewer’s comments were not prohibited by
the above-noted provisions of the Personnel Manual. Furthermore, the record fails to
indicate that the supervisor was unduly influenced by the reviewer, as the marks for
section 3.a. and 5.f. were not changed.
Second, the applicant alleged that the reviewer inaccurately stated that he
submitted a “required” list of his accomplishments well after the end of the rating
period. Contrary to the reviewer’s comment, the record shows that the applicant’s
supervisor indicated in an email that the applicant had submitted all required material
in a timely fashion. The Board finds that although Article 10.A.2.c.2.e. of the Personnel
Manual provides that the submission of such a list is at the discretion of the Reported-
on Officer (ROO), unless directed by the supervisor, in the applicant’s case the list of
accomplishments appears to have been required. Because the reviewer’s comment on
the timeliness of the applicant’s submission was inaccurate, it should not have been
12.
13.
14.
included in the disputed OER regarding the applicant’s performance. Therefore, as
requested by the applicant and as agreed to by the Coast Guard, the fourth and fifth
sentences7 in Block 11 of the reviewer’s comments should be removed from the
disputed OER.
Third, the applicant alleged that it was error for the reviewer to duplicate
in his comments, the replacement RO’s comments regarding the “inappropriate public
statements” from block 8 (reporting officer comments) of the disputed OER. As stated
in finding 12, in accordance with applicable regulations, reviewers are permitted to
“add comments as necessary … that further address the performance … of the
Reported-on Officer.” The applicant has failed to cite any statute or provision which
requires that the reviewer restrict his comments to matters not elsewhere mentioned or
discussed in the OER.
The applicant argued that in their endorsements, the supervisor and
replacement RO sought to correct their inaccuracies in the disputed OER. The record
indicates that the supervisor defended his numerical scores and comments, and the
replacement RO requested the deletion of his comment on the “inappropriate public
statements” and the raising of two marks of 3 to 4s. However, the replacement RO
never asserted that the applicant did not make the comments at issue. In fact, in
offering his reconsideration of the comments and marks, the replacement RO reiterated
that the applicant indeed made the comments, for which he had received counseling.
Moreover, the Personnel Manual directs ROs to include “specific aspects of the
Reported-on Officer’s performance and behavior…” by “draw[ing] on his or her own
observations,
information
accumulated during the reporting period.” See Articles 10.A.4.c.7.d. and 10.A.4.c.7.e. of
the Personnel Manual. The preponderance of the evidence in the record indicates that
sometime during the evaluation period, the applicant made inappropriate public
comments about a personal disagreement with the CO. Although the applicant
maintained that he made no such comments, he has offered no evidence other than his
own statement to support his contentions. Consequently, the Board finds that the
applicant has failed to establish by a preponderance of the evidence that the
replacement RO’s comment in the disputed OER regarding the “inappropriate public
statements” was erroneous.
The applicant contended that the marks of 3 he received in the
performance categories “responsibility” and “professional presence” did not accurately
reflect his performance, which warranted a higher mark of 5. The replacement RO who
7 To be clear, those sentences read: “The 5f mark should be lowered to 5 since I am aware that the ROO
failed to submit all the required information before the end of the performance period. The list of
significant accomplishment[s] were not provided to the OER rating chain officials use [sic] until well after
the OER period ended.”
information provided by the Supervisor, and other
15.
assigned the marks of 3 apparently supported them with the comment that the
applicant made “inappropriate public comments about a personal disagreement with
the CO.” While the exact content of the applicant’s inappropriate public statements is
not in the record, it is certainly possible that by making such public statements, the
applicant did not display “compos[ure] in difficult situations” or convey a “positive
image of [him]self and the [Coast Guard],” as required for a mark of 4 in the category
“professional presence.”
It is also possible that his statements reflected an
unwillingness to hold himself “personally and professional accountable” or that they
did not support his command’s policies and decisions, both of which are requirements
for a mark of 4 in the category “responsibility.”
16.
Both the RO and the reviewer opined a couple of months after the
evaluation period and after the Special Board had met that the applicant’s mark for
“responsibility” should be raised to a 4. The RO also stated that the mark for
“professional presence” should be raised to a 4. The delegate of the Secretary has held
that such statements by rating chain officials constitute “retrospective reconsideration,”
which is normally accorded little evidentiary weight.8 However, since both the
replacement RO, who assigned the low marks, and the reviewer stated that the
applicant’s mark for “responsibility” should be raised to a 4 and the Coast Guard stated
that the applicant should have received only one low mark because of his inappropriate
public statements, the Board finds that the applicant has proved by a preponderance of
the evidence that his mark of 3 in the category “responsibility” is unjust, though not
necessarily erroneous, and that it should be raised to a mark of 4, as recommended by
the rating chain.
17.
The applicant argued that as a result of CGPC’s redacting “virtually all
substance” from the text of his letter, he was denied a fair and meaningful opportunity
to submit a written communication the 19xx XXXXX promotion board. Article 5.A.4.e.
provides that the written communication to a selection board is the member’s
opportunity to invite attention to “any matter in his or her Coast Guard record...,” in a
manner that does “not criticize any officer or reflect on any officer’s character, conduct,
8 In a concurring opinion for BCMR Docket. No. 2000-016, the delegate of the Secretary stated that
“[r]etrospective reconsideration” cases are those in which an evaluating official, particularly upon finding
that a previously reported-on member has been adversely affected by an evaluation, seeks to
retroactively change the opinions expressed in that evaluation. See, e.g., Tanaka v. United States, 210 Cl.
Ct. 712 (1976), cert. den. 430 U.S. 955 (1977); Savio v. United States, 213 Ct. Cl. 737 (1977); Harris v. United
States, 14 Cl. Ct. 84 (1987), aff’d 861 F. 2d 729 (Fed. Cir. 1988); Remy v. Air Force Board for Correction of
Military Records, 701 F. Supp. 1261 (E.D. Va., 1988); Paskert v. United States, 20 Cl. Ct. 65 (1990);
CGBCMR Docket No. 84-96 (Decision of the Deputy General Counsel). Most such after-the-fact
statements by raters are given little weight, because a contemporaneous expression of opinion
representing a fair and accurate assessment in the context of the specific rating period at issue is to be
preferred over a non-contemporaneous one (especially where an ulterior motive — to help the reported-
on officer get promoted — may be apparent). Cf. Paskert v. United States, 20 Cl. Ct at 74, citing Tanaka.”
or motive….” In the applicant’s case, CGPC redacted approximately half of the
applicant’s communication and informed the applicant that those statements removed
were outside the prescribed bounds of Article 5.A.4.e. of the Personnel Manual. In
reviewing the applicant’s letter, the Board finds that CGPC was correct in removing
such phrases as “false accusations and hearsay” and “fallacy of accusations,” and such
sentences as “[t]hese comments are not accurate and have no basis in fact,” as they
clearly do not conform with the applicable regulations. However, it is questionable
whether the Coast Guard should have removed two sentences in paragraph 9, which
state that “[a]ll required information was submitted to my rating chain in a very timely
manner, well before the end of the marking period,” and “[i]n addition to the hardcopy
I submitted to my supervisor, to be routed along with the OER, I also forwarded on
electronic copy directly to the rest of my … rating chain ….” The Board finds that both
sentences relate to the applicant’s performance and are essentially similar to the non-
redacted sentence in paragraph 4, which states “I have made no statements.”
The record also indicates that the applicant was given the opportunity to write a
conforming statement prior to the meeting of the 19xx XXXXX promotion board but
declined to so do. The fact that the applicant decided not to re-draft his written
communication supports a finding that he was not denied a meaningful opportunity to
communicate with the 19xx XXXXX promotion board in accordance with the limits set
in Article 5.A.4.e. The Board concludes that the applicant has failed to present any
persuasive evidence that actions on the part of the Coast Guard illegally prevented him
from communicating with the promotion board.
18.
19.
informal
The applicant raised several allegations in his response concerning the
failure of his command’s
investigations to substantiate his alleged
misappropriation of the FTS. The Board notes that it has already ruled against the
applicant on the misuse of the telephone system issue in BCMR Docket No. 1999-108.
The Board received no request for reconsideration in that application. Consequently,
the Board will not revisit those issues in this application.
In June of 19xx, the Personnel Manual addressed actions to be taken by
the chain of command when officers have disqualified themselves after being placed on
the promotion list. At that time, Article 5.A.13.f.4. stated that “[t]he Commandant shall
refer the case to a board of officers [a Special Board] to recommend whether or not
removal of the selectee’s name from the promotion list shall be recommended to the
President. The report of this board shall include an explanation, in detail, of the reasons
for its recommendation.” The applicant alleged that the recommendation of the Special
Board, which convened in June 19xx, was erroneous because it failed to follow the
guidelines of a promotion board by limiting its consideration of documents to those
contained in his official military record. He further argued that the Special Board is
unlike a determination board--which reviews all available relevant evidence--because a
determination board involves much greater due process rights to a hearing and
representation. Based on its consideration of information “clearly outside of his official
military record,” he argued, the invalidity of the Special Board’s recommendation is
evident by CGPC’s removal of one of the Special Board’s findings as “unsubstantiated.”
20. As set forth in the findings of BCMR Docket No. 1999-108: (a) on June 17,
19xx, a Board of Officers unanimously recommended removing the applicant’s name
from the promotion list; (b) on June 29, 19xx, the Commandant recommended that the
Secretary of Transportation approve removing the applicant’s name from the
promotion list; and (c) on June 30, 19xx, the Secretary signed an order removing the
applicant’s name from the promotion list. In examining the removal of his name from
the 19xx promotion list, the BCMR found no errors or injustices in the underlying
evidence considered by or the actions of the 19xx Special Board. Additionally, pursuant
to Article 1-F-2.g. of the Investigations Manual, the Board found no merit in the
applicant’s argument that his rights were violated because he was not made a party to
the informal investigation against him. Moreover, in BCMR Docket No. 1999-171, the
Board concluded that “[t]he special OER, which spoke to the command investigation,
was sufficient in and of itself to cause the applicant’s name to be removed from the 19xx
promotion list and his 19xx failure of selection for promotion to XXXXX.” The applicant
filed no request for reconsideration regarding the foregoing. As these issues have been
ruled on in prior applications, the Board will not revisit them in this application.
21. With respect to the materials considered by the 19xx Special Board, the
Board is not persuaded that that board was required to limit its consideration to the
applicant’s official military record and written communication, like that prescribed by
promotion board guidelines. In 19xx, Article 5.A.13.f.4. of the Personnel Manual
outlined the basic procedure that a Special Board must follow; however, the Personnel
Manual in effect at that time failed to describe the enclosures or attachments that could
be submitted for review. Notwithstanding the absence of a defined standard of
submissions, the record indicates that the applicant was afforded the essential
requirements of due process.
The applicant received advanced notice of the materials that the Special Board
was due to consider, and according to his FOIA response, he submitted a letter to the
Special Board on his own behalf. The record bears no indication that the Special Board
should have limited its consideration, as argued by the applicant, to only his official
military record. Nor does the record indicate that the applicant was entitled to greater
due process rights of a hearing and representation, as the proceedings of a Special
Board are not the equivalent of a determination or “show cause” board. See Law v.
United States, 11 F.3d 1061, 1065 (Fed. Cir. 1993).
Moreover, contrary to the applicant’s assertion, the Board finds that the removal
of one of the findings of the Special Board fails to render its entire proceedings invalid.
As stated above, the recommendation of the Special Board was approved by the
Commandant and subsequently approved by the Secretary of Transportation. The
applicant has previously failed to establish an error or injustice in challenging the
removal of his name from the 19xx XXXXX promotion list.
22.
The applicant argued that the Special Board’s recommendation was
erroneous because the documents he received in response to his 19xx FOIA request for
the materials considered by that board did not include the disputed OER even though it
was part of his official military record. The record indicates that, before the Special
Board met, CGPC prepared packets for the board members containing copies of the
applicant’s military record and other pertinent records. Apparently, the packets, a copy
of which the applicant received in a FOIA request, did not contain the disputed OER.
However, the record indicates that the disputed OER was expedited because of the
pending Special Board and was validated just the day before the board met. The Board
finds that, as the Chief Counsel argued, the expedition and timing of the validation of
the disputed OER strongly suggest that it was made available to the members of the
Special Board even though it was not included in the packets previously prepared for
them. Therefore, the applicant has not proved by a preponderance of the evidence that
his record was incomplete when it was reviewed by the Special Board. Moreover, even
assuming arguendo that the disputed OER was not seen by the Special Board, it is very
unlikely that the disputed OER, with a mark of 3 for “professional presence” and
negative comments in it, could have altered the outcome of the Special Board.
Moreover, this Board has already found that the special OER in the applicant’s record,
in and of itself, was sufficient to cause his name to be removed from the promotion list.
23. Having found that the Coast Guard committed an error by including the
comment “[t]he 5f mark should be lowered to 5 since I am aware that the ROO failed to
submit all the required information before the end of the performance period. The list
of significant accomplishment [sic] were not provided to the OER rating chain officials
use [sic] until well after the OER period ended,” and an injustice by assigning the
applicant a mark of 3 in the category of “responsibility,” the Board must determine
whether these errors prejudiced the applicant before the 19xx XXXXX promotion board.
In determining whether a nexus exists between the errors or injustices and the
applicant’s failure to be selected, the Board applies the standards set forth in Engels v.
United States, 230 Ct. Cl. 465 (1982) by answering two questions: “First, was [the
applicant’s] record prejudiced by the errors in the sense that the record appears worse
than it would in the absence of the errors? Second, even if there was some such
prejudice, is it unlikely that [the applicant] would have been promoted in any event?”
The Board finds that the inclusion of the two sentences and the mark of 3 make his
record appear slightly worse that it would have in their absence. However, the Board
further finds that, in light of the negative comments and low marks of the special OER,
it is very unlikely that the applicant would have been selected for promotion even if
those errors had not been in the disputed OER when it was reviewed by the 19xx
XXXXX selection board.
24.
The applicant made numerous allegations with respect to the actions and
attitudes of his command, his rating chain, and the boards. Those allegations not
specifically addressed above are considered to be without merit and/or not dispositive
of the case.
25. Accordingly, partial relief should be granted with respect to the disputed
OER by removing the two sentences “[t]he 5f mark should be lowered to 5 since I am
aware that the ROO failed to submit all the required information before the end of the
performance period. The list of significant accomplishment [sic] were not provided to
the OER rating chain officials use [sic] until well after the OER period ended,” and
raising the mark of 3 in the category of “responsibility” to a mark of 4.
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
ORDER
The application of XXXX Xxxxxxx X. XXXXXX, xxx xx xxxx, USCG, for the
correction of his military record shall be corrected by removing the following comments
from block 11 (reviewer’s comments) of the OER for the period May 1, 19xx to April 30,
19xx:
The 5f mark should be lowered to 5 since I am aware that the ROO failed
to submit all the required information before the end of the performance
period. The list of significant accomplishment [sic] were not provided to
the OER rating chain officials use [sic] until well after the OER period
ended.
Margot Bester
The mark of 3 for the category of “responsibility” in block 8.d. of this OER shall be
raised to a mark of 4. All other requested relief is denied.
Patricia R. Collins
Dorothy J. Ulmer
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CG | BCMR | OER and or Failure of Selection | 2000-163
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