DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
 
Application for Correction of  
Coast Guard Record of: 
 
 
XXXXXXXXXXXXXX 
XXXXXXXXXXXXXX 
 
    

 
 
 
BCMR Docket  
No.  2002-150 
 

  FINAL DECISION 

 
ULMER, 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 August 2, 2002, upon the 
Board's  receipt  of  the  applicant's  complete  application  for  correction  of  his  military 
record. 
 

This  final  decision,  dated  May  22,  2003  is  signed  by  the  three  duly  appointed 

members who were designated to serve as the Board in this case. 
 
 
The applicant asked the Board to correct his officer evaluation report (OER) for 
May 1, 1998 to September 30, 1999 (disputed OER), by deleting the supervisor's portion 
of the OER, or in the alternative deleting the entire OER.   He also asked the Board to 
remove all of his failures of selection for promotion to commander (CDR)  
 
 
Subsequent  to  filing  his  application  with  the  Board,  the  applicant  notified  the 
Board that he had been selected for promotion to CDR. He amended his application to 
request backdating of his CDR date of rank to the date he would have received if he had 
been  selected  by  the  first  CDR  selection  board  that  considered  his  record  with  the 
allegedly incorrect OER, with back pay and allowances.  
 

EXCERPTS FROM RECORD AND SUBMISSIONS 

The applicant stated that his selection for promotion to CDR in no way moots his 

 
 
request for correction of his record.  In this regard he stated as follows: 
 

I  have  been  selected  for  promotion.    Obviously,  the  subject  Supervisor's 
evaluation did not prevent my promotion.  However, I assert it was still 
prejudicial.    It  appeared  at  a  critical  time,  just  as  I  was  coming  into  the 
promotion  zone.    As  a  result  I  was  passed  over  once,  then  again.  
Subsequent  performance  reports  eventually  offset  the  subject  marks, 
resulting in my selection.  However, for two years I was still compensated 

at a lower level.  Additionally, the delay in that one promotion will delay 
all others that may follow.   

 
 
The  applicant  had  a  change  in  supervisors  during  the  reporting  period.    He 
contended  that  the  new  supervisor  (also  referred  to  as  the  rating  chain  supervisor), 
whom he never met, had no basis for evaluating him because she served as his rating 
chain supervisor for only the last two months of the reporting period at which time he 
was away on temporary additional duty (TAD).  He stated that he never received any 
assignments from the rating chain supervisor and she did not review any of his work.  
He stated that he completed all assignments given to him by his previous supervisor.   
 
The  applicant  did  not  allege  any  specific  inaccuracies  in  the  OER  but  asserted 
 
that  the  OER  itself  is  grossly  inaccurate  as  it  consistently  minimizes  his  activities 
resulting in low marks.  He attributed the low marks by the supervisor to her lack of an 
opportunity to observe his performance. 
 
 
As  proof  of  his  contention,  he  stated  that  the  marks  on  the  disputed  OER  are 
lower than marks he received on his previous and subsequent OERs.  He also submitted 
a  statement  from  his  previous  supervisor,  a  CDR.  This  individual  served  as  the 
applicant's  supervisor  for  most  of  the  marking  period  covered  by  the  disputed  OER.  
This CDR stated that he was the applicant's supervisor for approximately five years that 
included four evaluations cycles.  He acknowledged that although he had served as the 
applicant's supervisor for much of the reporting period, responsibility for documenting 
the  applicant's  performance  fell  to  the  rating  chain supervisor.  He stated that he has 
reviewed the disputed OER and found the rating chain supervisor's marks and remarks 
to  understate  the  impact  of  the  applicant's  accomplishments.  He  recommended 
expunging the supervisor's portion of the OER. 
 
The Disputed OER 
 
 
The supervisor's portion of the OER contains seven 4s and six 5s (on a scale of 1 
to 7 with 7 being the highest.  A 4 is considered an average mark). A majority of the 
supervisor's comments include phrases like the following: demonstrated solid planning 
and  preparedness  skills;  quickly  established  priorities;  volunteered  to  prepare 
nomination  package;  strong  writing  skills;  championed  personnel  issues;  etc.    With 
respect  to  the  evaluations  category,  the  supervisor  wrote  "proposed  logical  extension 
for own OER reporting period to aid supervisors; submitted package included excellent 
documentation." 
 

The reporting officer's portion of the OER contains four 5s and two 4s including a 
4 on the comparison scale where the reporting officer compares the applicant with all of 
the other LCDRs that he had known in his career.  The 4 in this category represented the 
reporting  officer's  judgment  that  the  applicant  was  a  good  performer  who  should  be 
given tough, challenging assignments.  In his comments, the reporting officer concurred 
with the marks and comments of the supervisor.   
 

The Applicant's other LCDR OERs 
 
The  applicant's  other  LCDR  OERs  contain  mostly  marks  of  5s  and  6s,  with 
 
occasional 4s and 7s.  His comparison scale marks for the six LCDR OERs in his record 
(with the mark on the disputed OER in bold face) are 5,  4, 5, 5, 5, and 5.  A 5 in this 
category  represented  the  reporting  officer's  judgment  that  the  applicant  was  an 
excellent  officer  who  should  be  given  the  toughest  and  most  challenging  leadership 
assignments.   
 
Views of the Coast Guard  
 
On  December  31,  2002,  the  Board  received an advisory opinion from the Chief 
 
Counsel of the Coast Guard recommending that the applicant's request be denied.  The 
Chief Counsel included a declaration from the supervisor that contained the following: 
 

I  reported  to  [the  command]  08Aug99  .  .  .  I  served  as  [the  applicant's] 
supervisor, according to the unit's OER instruction, through the end of the 
period, 30Sep99.  Since [the applicant] had already completed his annual 
drill for the year, I did not have an opportunity to personally meet him or 
actively supervise his work.  We did communicate several times via email 
regarding  the  progress  of  his  OER  and  occasionally  by  telephone.    This 
was the major substance of our contact during this period.  [The applicant] 
continued  to  provide  reasons  why  he  was  unable  to  meet  the  required 
deadlines for submission [of the OER].  [The applicant] submitted his OER 
package approximately one month late.    
 
Shortly after reporting, I was informed that an OER was required for the 
applicant  due  to  a  PCS  transfer.    I  contacted  [the  applicant's]  former 
supervisor  regarding  the  OER  assuming  he  had  a  long  working 
relationship with the member.  Once I received the OER package from [the 
applicant],  I  completed  a  draft  of  the  OER,  taking  for  granted  the 
statements  and  accomplishments  sighted  by  the  member  were  accurate.  
[The previous supervisor] provided significant comments for preparation 
of  the  OER  via  telephone  and  I  incorporated  these  comments  into  the 
OER.    I  then  requested  [the  previous  supervisor]  review  my  prepared 
OER  draft.    I  also  worked  closely  with  [the  reporting  officer]  for  this 
period.    [He]  had  a  good  working  relationship  with  the  applicant,  good 
knowledge of his work, and provided good counsel and feedback on my 
evaluation  of  this  officer.    The  three  of  us  had  a  review of my prepared 
section of the OER, including the marks, and were satisfied with the final 
evaluation.    Based  on  my  professional  experience  and  knowledge  of  the 
Officer Evaluation System, the information submitted by the member, and 
my  discussions  with  both  his  former  supervisor  and  reporting  officer,  I 
feel  I  had  more  than  sufficient  information  and  support  documents  to 
provide a fair and accurate evaluation of this officer.     

 

 
The  Chief  Counsel  attached  a  memorandum  from  Commander,  Coast  Guard 
Personnel  Command  (CGPC)  as  Enclosure  (1)  to  the  advisory  opinion.    CGPC  stated 
that the outgoing supervisor did not provide the new supervisor with a draft OER as 
instructed by Article 10.A.2.d.2.j. of the Personnel Manual, which states:  "the supervisor 
provides  the  new  supervisor  with  a  draft  of  OER  sections  (3-6)  when  the  Supervisor 
changes during the reporting period.  The draft may be handwritten and shall include 
marks and comments for the period of observation.  It shall be prepared and signed by 
the  departing  supervisor  prior  to  departing."    He  stated  that  although  the  departing 
supervisor did not follow the letter of the law, the new supervisor gained input for the 
OER from the departing supervisor through telephone conversations and by providing 
the  departing  supervisor  with  an  opportunity  to  review  the  completed  supervisor's 
portion of the OER.   
 
 
CGPC  stated  that  the  statement  from  the  applicant's  previous  supervisor  does 
not  provide  sufficient  evidence  to  prove  the  inaccuracy  of  the  disputed  OER.    In  this 
regard,  the  previous  supervisor  stated,  "I  have  reviewed  the  OER  .  .  .  and  found  the 
Supervisor's  marks  and  remarks  understate 
[the  applicant's] 
accomplishments."    CGPC  noted,  however,  the  previous  reporting  officer  offered  no 
examples of any inaccuracies in the OER.   
 
 
The  Chief  Counsel  stated  that  the  applicant  has  failed  to  prove  that  his  OERs 
were  erroneous  or  unjust.    He  stated  that  the  applicant  has  not  rebutted  the 
presumption of regularity with respect to the OER.  Nor has he offered evidence that 
the  disputed  OER  was  not  the  honest  professional  judgment  of  his  rating  chain 
supervisor.  In addition, the Chief Counsel noted that the applicant failed to file a reply 
to the OER, which was his opportunity to raise any issues of concern in an immediate 
and proactive manner.   
 
Applicant's Response to the Views of the Coast Guard 
 
 
applicant for a reply.  The applicant did not submit a response. 
 

On  January  6, 2003, a copy of the views of the Coast Guard was mailed to the 

impact  of 

the 

FINDINGS AND CONCLUSIONS 

1.  The Board has jurisdiction of this case pursuant to section 1552 of title 10 of 

The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 

 
 
applicant's record and submissions, the Coast Guard's submission, and applicable law: 
 
 
the United States Code.  It was timely.   
 
 
2.    The  applicant  has  not  shown  by  a  preponderance  of  the  evidence  that  the 
disputed OER, particularly the supervisor's portion, is an inaccurate assessment of his 
performance.  Although the previous supervisor wrote that he found the rating chain 
supervisor's  marks  and  remarks  to  understate  the 
impact  of  the  applicant's 
accomplishments, he did not point to any particular inaccuracy in the OER.  Nor did he 

provide  any  additional  details  about  the  applicant's  performance.    In  addition,  the 
reporting  officer,  who  was  familiar  with  the  applicant's  performance,  wrote  in  his 
section of the OER that he agreed with the supervisor's marks and comments.   
 
3.  The applicant claimed that the supervisor had no basis on which to evaluate 
 
his performance because they never met, she was his supervisor for only the last two 
months  of  the  reporting  period,  and  she  did  not  supervise  any  of  his  work.      The 
contention is without merit.  The Personnel Manual does not require that a rating chain 
supervisor serve in that capacity for the entire reporting period.  It has compensated for 
this fact by requiring the detaching (previous) supervisor to leave a draft OER for the 
new  rating  chain  supervisor.    Although  this  was  not  done  in  the  applicant's  case, 
significant input was obtained from the previous supervisor.  The supervisor stated that 
she  consulted  with  the  previous  supervisor  over  the  telephone  and  afforded  him  an 
opportunity  to  review  the  OER  after  it  was  completed.    Therefore,  the  previous 
supervisor had input into the applicant's OER and the applicant was not prejudiced by 
the fact that the previous supervisor did not leave a draft OER for the new supervisor.   
 
 
4.  Moreover, the supervisor, in preparing an OER, is not restricted to personal 
observation  of  an  applicant's  performance,  but  may  rely  on  input  from  secondary 
supervisors  and  other  information  accumulated  during  the  reporting  period.    See 
Article 10.A.4.c.4.d. of the Personnel Manual.  In this case, the supervisor stated that she 
consulted  with  both  the  previous  supervisor  as  well  as  the  reporting  officer  in 
preparing her portion of the disputed OER. 
 
 
5.  The applicant contended that the disputed OER is inaccurate because when 
compared  with  previous  or  subsequent  OERs,  the  grades  and  comments  on  the 
disputed  OER  are  lower.  Performance  evaluations  can  differ  from  one  performance 
period  to  the  next.  The  Board  notes  that  the  disputed  OER  is  complimentary  and 
contains no below average marks or negative comments.  A performance evaluation is 
not invalidated because grades and comments may differ from previous or subsequent 
OERs.  The applicant must demonstrate a prejudicial error or injustice on the disputed 
OER to cause it to be removed from his record.   
 
 
6.    The applicant has failed to demonstrate any error or injustice in his record.  
Therefore, no basis exists on which to consider removing the failure(s) of selection for 
promotion  to  CDR.  The  inclusion  of  the  disputed  OER  in  the  applicant's  record  was 
proper.   
 
 
 
 
 
 
 
 
 

7.  Accordingly, the applicant's request should be denied. 

 
 
 
 
 
 
 
 
 
 
 
 

 

ORDER 

The  application  of  XXXXXXXXXXXXXXXXXXXX  for  correction  of  his  military 

 
 

 
 
record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Julia Andrews 

 

 

 
 
 Margot Bester 

 

 

 

 
 
 Francis H. Esposito