DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2003-023 
 
Xxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
ANDREWS, Deputy Chair: 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on December 23, 2002, upon 
receipt of the applicant’s application. 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  September  25,  2003,  is  signed  by  the  three  duly 

 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
The applicant asked the Board to remove an officer evaluation report (OER) for 
the period February 1, 1999, to June 4, 1999, from his record.  The disputed OER con-
tains  many  good  evaluation  marks  and  comments.    However,  the  applicant  received 
marks  of  3  (on  a  scale  of  1  to  7,  with  7  being  best)  in  the  performance  categories  of 
“Judgment” and “Responsibility.”  These low marks were supported by the following 
narrative comments in blocks 8 and 10 on the OER:   

 
… Displayed significant lapses in judgment and responsibility this period; allowed per-
ception of inappropriate relationship with junior enlisted to continue despite counseling 
and unprofessional conduct with female peer precipitated sexual harassment grievance. 
…   

 

Highly intelligent and capable officer … performance and potential well above average.  
Recent behavior, however, raises doubts with regard to maturity; on more than one occa-
sion, despite personal counseling, member continued to engage in seriously questionable 
behavior; result is my loss of confidence in his credibility and all that entails. …  Upon 
documentation of sustained successful performance during second tour, and commensu-
rate maturation, would recommend for promotion to O-3 w/his peers. 

 

The applicant alleged that the marks and comments were unjust and inconsistent 
with the Officer Evaluation System (OES).  He stated that he does not contest the fact 
that  he  displayed  a  lapse  in  judgment,  engaged  in  an  inappropriate  relationship,  and 
was counseled about the matter.  However, he stated, Article 10.A.4.f. of the Personnel 
Manual  prohibits  a  rating  chain  official  from  including  a  comment  in  an  OER  that 
emphasizes a third party’s gender.  He also alleged that his conduct was the subject of 
an  investigation  and  that  the  Personnel  Manual  prohibits  OER  comments  concerning 
conduct that is the subject of an investigation. 
 
 
The applicant alleged that his command’s investigation concluded that “inappro-
priate  behavior  was  displayed by all parties involved” but that no further action was 
taken against the parties.  He argued that his rating chain should not have referred to a 
third party’s gender in his OER and should not have mentioned conduct that was the 
subject of “an administrative investigation that was eventually dismissed as inappropri-
ate behavior precipitated by myself and the other party.” 
 
 
The  applicant  further  alleged  that  the  low marks in the OER were inconsistent 
with his overall performance, as shown by the higher marks in the other OERs he has 
received.  He alleged that the disputed OER caused his failures of selection for promo-
tion  to  lieutenant  and  consequent  separation  from  the  Coast  Guard.    He  alleged  that 
this  outcome  was  inconsistent  with  this  selection  by  the  Coast  Guard  for  a  graduate 
school program.  He stated that he fears that the OER will continue to negatively affect 
his career beyond the Coast Guard. 
 

SUMMARY OF THE RECORD 

 

The applicant graduated from the Coast Guard Academy in May 199x, was com-
missioned an ensign, and assigned to a cutter as a deck watch officer.  In his three semi-
annual  OERs  as  an  ensign  on  the  cutter,  the  applicant  received  some  marks  of  4  and 
many high marks of 5 and 6 in the various performance categories and marks of 5 on 
the Comparison Scales.1  

 
On  November  21,  199x,  the  applicant  was  promoted  to  lieutenant  junior grade 
(LTJG).  In his first OER as an LTJG on the cutter, he received eight marks of 4, eight 
marks of 5, two marks of 6 and a mark of 5 on the Comparison Scale. 

 
The second OER that the applicant received as an LTJG is the disputed OER in 
this case, covering his  service on the cutter from February 1 to June 4, 199x.  In it, he 
received the two low marks of 3 for “Judgment” and “Responsibility” with the negative 
                                                 
1    The  Comparison  Scale  is  not  actually  numbered,  but  there  are  seven  possible  marks  from  which  the 
reporting  officer  (RO)  may  select.    In  selecting  a  mark  on  the  Comparison  Scale,  the  RO  compares  the 
reported-on officer to all other officers of the same rank whom the RO has known.  A mark in the third, 
fourth, or fifth positions on the scale indicates that the RO considers the reported-on officer to be “one of 
the many competent professionals who form the majority of this grade.” 

comments quoted above; eleven marks of 4, four marks of 5, and one mark of 6 with 
corresponding positive comments; a mark of 4 on the Comparison Scale; and his report-
ing officer’s recommendation for promotion to lieutenant with his peers.   

 
In June 199x, the applicant left the cutter and became the officer in charge (OIC) 
of a law enforcement detachment.  In this position, he supervised a nine-member team 
assigned to Navy vessels and coordinated the team’s law enforcement missions, includ-
ing boardings for drug and immigrant interdiction.  In the four semi-annual OERs he 
received for this service from June 199x through June 200x, the applicant’s marks rose 
from mostly 4s and a Comparison Scale mark of 4 in his first OER as an OIC to mostly 
6s  and  a  mark  of  6  on  the  Comparison  Scale  in  his  fourth  OER  as  an  OIC.    In  these 
OERs, the applicant also received his reporting officer’s “strongest” recommendations 
for promotion.  However, he was not selected for promotion to lieutenant by the selec-
tion board that met in 200x. 

 
In June 200x, the applicant became a liaison officer to the commander of a Naval 
destroyer squadron.  On the two OERs covering his service in this position through July 
31,  200x,  he  received  primarily  marks of 6 and 7 in the performance categories and a 
mark  of  6  on  the  Comparison  Scale.   He also received his reporting officer’s “highest 
recommendation  for  accelerated  promotion,”  and  a  recommendation  to  promote  him 
“ahead  of  his  peers!”    These  two  OERs  also  show  that  he  received  a  Coast  Guard 
Achievement  Medal  on  June  21,  200x,  for  his  prior  service  as  an  OIC,  and  a  Navy 
Achievement Medal on June 14, 200x. 

 
The  applicant  failed  of  selection  for  promotion  to  lieutenant  again  in  200x.  
Therefore, having twice been passed over for promotion by lieutenant selection boards, 
he was separated from the Service on June 30, 200x. 

 

VIEWS OF THE COAST GUARD 

 
 
On June 16, 2003, the Chief Counsel of the Coast Guard submitted an advisory 
opinion in which he recommended that the Board grant only the partial relief of remov-
ing the word “female” from the disputed OER. 
 
The  Chief  Counsel  first  argued  that  the  application  should  be  dismissed  for 
 
untimeliness since it was submitted approximately three years and six months after the 
disputed OER was prepared.  He argued that the Board should not waive the three-year 
statute of limitations. 
 
 
Regarding the merits of the case, the Chief Counsel argued that, “[t]o establish 
that an OER is erroneous or unjust, an applicant must prove that the challenged OER 
was adversely affected by a clear, material error of objective fact, factors ‘which had no 
business being in the rating process,’ or a clear and prejudicial violation of a statute or 
regulation.”  Germano v. United States, 26 Cl. Ct. 1446, 1460 (1992); Hary v. United States, 

618 F.2d 11, 17 (Ct. Cl. 1980); CGBCMR Dkt. No. 86-96.  He also argued that an appli-
cant must overcome a “strong presumption that his rating officials acted correctly, law-
fully,  and  in  good  faith  in  making  their  evaluations  under  the  Coast  Guard’s  Officer 
Evaluation System.”  Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders 
v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979).  
 
 
The Chief Counsel pointed out that the applicant has admitted “to the underly-
ing conduct on which the contested OER is based.”  He also pointed out that the appli-
cant  failed  to exercise his right to prepare a formal reply to rebut the low marks and 
negative comments in the disputed OER in accordance with Article 10.A.4.g. of the Per-
sonnel Manual.  He argued that under Grieg v. United States, 640 F.2d 1261, 1269 (Ct. Cl. 
1981), the fact that the applicant’s OERs previous and subsequent to the disputed OER 
were much better is irrelevant to the question of whether the disputed OER is accurate 
and fair.    
 
 
The Chief Counsel argued that the comment in the disputed OER concerning the 
sexual harassment grievance was permissible under Article 10.A.4.f.1. because no men-
tion of the investigation was made in the OER.  He alleged that the fact that the appli-
cant’s commanding officer chose to document his lapses in judgment in an OER rather 
than by preparing a Letter of Censure or by charging him under the Uniform Code of 
Military Justice does not mean that the investigation absolved the applicant of wrong-
doing.  He alleged that the evidence of record “supports the conclusion that the chal-
lenged OER represents the honest professional judgment of those responsible for evalu-
ating Applicant under the Coast Guard Officer Evaluation System.” 
 
 
The  Chief  Counsel  further  argued  that  although  the  inclusion  of  the  word 
“female”  in  one  comment  in  the  OER  was  technically  incorrect,  it  did  not  cause  any 
injustice to the applicant.  He argued that the inclusion of the word “female” may actu-
ally  “have  prevented  harm  by  precluding  speculation  regarding  same-sex  prohibited 
conduct.  However, since it is unclear whether the word was used for this purpose, and 
since Applicant challenges the word’s inclusion in his official records, the Coast Guard 
is willing to recommend the administrative removal of the word female as requested.”  
However, the Chief Counsel argued, removal of the word “female” would “not change 
the content, context, or quality of the OER” and “[t]here is no demonstrable connection 
between the presence or absence of the word female and Applicant’s non-selection for 
promotion.”  Therefore, he argued, the applicant’s failures of selection for promotion to 
lieutenant should not be removed from this record. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On June 16, 2003, the BCMR sent the applicant a copy of the views of the Coast 

 
 
Guard and invited him to respond within 30 days.  No response was received. 
 

APPLICABLE REGULATIONS 

 

 
Article 10.A. of the Personnel Manual governs the preparation of OERs. Article 
10.A.1.b.1.  provides  that “Commanding officers must ensure accurate, fair, and objec-
tive evaluations are provided to all officers under their command.”  Each OER is pre-
pared by the reported-on officer’s “rating chain” of senior officers:  the supervisor, the 
reporting officer, and the reviewer.  
 

Article 10.A.4.c.4. instructs supervisors to assign marks and write comments for 
the first 16 performance categories on an OER as follows (virtually identical instructions 
are  provided  in  Article  10.A.4.c.7.  for  reporting  officers,  who  complete  the rest of the 
OER): 
 

(b)  For each evaluation area, the Supervisor shall review the Reported-on Officer's per-
formance and qualities observed and noted during the reporting period.  Then, for each 
of  the  performance  dimensions,  the  Supervisor  shall  carefully  read  the  standards  and 
compare the Reported-on Officer's performance to the level of performance described by 
the standards.  The Supervisor shall take care to compare the officer's performance and 
qualities against the standards--not to other officers and not to the same officer in a pre-
vious  reporting  period.    After  determining  which  block  best  describes  the  Reported-on 
Officer's performance and qualities during the marking period, the Supervisor fills in the 
appropriate circle on the form in ink. 

•   •   • 

(d)  In the "comments" block following each evaluation area, the Supervisor shall include 
comments citing specific aspects of the Reported-on Officer's performance and behavior 
for  each  mark  that  deviates  from  a four.  The Supervisor shall draw on his or her own 
observations,  from  those  of  any  secondary  supervisors,  and  from  other  information 
accumulated during the reporting period. 
 
 (e)  Comments should amplify and be consistent with the numerical evaluations.  They 
should  identify  specific  strengths  and  weaknesses  in  performance.    Comments  must  be 
sufficiently specific to paint a succinct picture of the officer's performance and qualities 
which  compares  reasonably  with  the  picture  defined  by  the  standards  marked  on  the 
performance dimensions in the evaluation area.  Mere repetition or paraphrasing of the 
standards is not sufficient narrative justification for below or above standard marks. 

 
 
Article  10.A.4.c.8.a.  instructs  the  reporting  officer  to  complete  the  Comparison 
Scale on an OER by “fill[ing] in the circle that most closely reflects the Reporting Offi-
cer's ranking of the Reported-on Officer relative to all other officers of the same grade 
the Reporting Officer has known.” 
 
 
chain may not 

Article 10.A.4.f., which covers OER restrictions, states that members of a rating 

 
1.  Mention [that] the officer's conduct is the subject of a judicial, administrative, or inves-
tigative proceeding, including criminal and non-judicial punishment proceedings under 
the Uniform Code of Military Justice, civilian criminal proceedings, PRRB, CGBCMR, or 
any other investigation (including discrimination investigations) except as provided in --
> Article 10.A.3.c.  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 under --> Article 10.A.4.g.  These restric-
tions  do  not  preclude  comments  on  the  conduct  that  is  the  subject  of  the  proceeding.  
They only prohibit reference to the proceeding itself. 

•   •   • 

8.    Place  emphasis  upon  a  third  party  by  name,  gender,  religion,  color,  race,  or  ethnic 
background  (e.g.,  Catholic  lay  minister,  wrote  award  recommendation  for  African-
American civilian, praised by RADM Smith, was a female role model). 
 
 
Article 10.A.4.g. states an officer may submit a reply to any OER within 14 days 
of receiving it and have this reply filed with the OER.  The purpose of the reply is to 
“provide an opportunity for the Reported-on Officer to express a view of performance 
which may differ from that of a rating official.” 
 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's military record and submissions, the Coast Guard's submissions, and appli-
cable law: 
 
 
1. 
§ 1552.   
 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 

3. 

The  Chief  Counsel  argued  that  the  application  should  be  dismissed  for 
untimeliness since it was filed more than three years after the disputed OER was pre-
pared.  However, in Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994), the court held 
that section 205 of the Soldiers’ and Sailors’ Civil Relief Act of 1940 “tolls the BCMR’s 
limitations period during a servicemember’s period of active duty.”  Since the applicant 
in this case was not separated from active duty until June 30, 2003, his application was 
clearly filed before the BCMR’s three-year statute of limitations began tolling.  
 
 
Absent  evidence  to  the  contrary,  rating  officials  are  presumed  to  have 
acted  correctly,  lawfully,  and  in  good  faith  in  preparing  officers’  OERs.    33  C.F.R. 
§ 52.24(b); Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United 
States, 594 F.2d 804, 813 (Ct. Cl. 1979).  The applicant did not allege or submit any evi-
dence to indicate that any comment in the disputed OER is untrue.  
 
 
The applicant alleged that it was erroneous and unfair for his command to 
mention a matter that was the subject of an investigation that did not result in any puni-
tive  action  being  taken  (other  than  the  documentation  of  his  actions  in  the  disputed 
OER).    However,  Article  10.A.4.f.1.  of  the  Personnel  Manual  expressly  allows  rating 
officials to comment on an officer’s conduct that is the subject of an investigation.  The 
only restriction is that the investigation itself may not be mentioned.  The disputed OER 
does not mention any investigation of the applicant’s actions.   
 

2. 

4. 

5. 

6. 

 
Furthermore,  the  comments  that  refer  to  his  inappropriate  behavior  are 
sufficiently specific to support the two low marks of 3 in the categories “Judgment” and 
“Responsibility,”  as  required  under  Article  10.A.4.c.7.  of  the  Personnel  Manual.    In 
addition, the Board is not persuaded that the decision of the applicant’s commanding 
officer  to  document  his  inappropriate  conduct  in  an  OER  rather  than  charging  him 
under the Uniform Code of Military Justice or preparing a Letter of Censure constitutes 
an injustice.  Therefore, the Board finds that the applicant has not proved by a prepon-
derance of the evidence that the low marks and comments concerning in the disputed 
OER are erroneous or unjust. 
 
The applicant alleged, and the Chief Counsel admitted, that the use of the 
 
word “female” in the disputed OER violated Article 10.A.4.f.8. of the Personnel Manual 
by emphasizing the gender of a third party.  The applicant argued that because of this 
error the entire OER should be removed from his record.  However, in BCMR Docket 
No.  151-87,  it was held that “an OER will not be ordered expunged unless the Board 
finds  that  the  entire  report  is  infected  with  the  errors  or  injustices  alleged;  unless  the 
Board finds that every significant comment in the report is incorrect or unjust; or unless 
the Board finds it impossible or impractical to sever the incorrect/unjust material from 
the appropriate material.”  In this case, the Board finds that the redaction of the word 
“female” from the disputed OER is a very simple correction.  The Board finds no basis 
for removing the entire OER. 
 
 
The applicant alleged that the errors in the disputed OER caused his fail-
ures  of  selection  for  promotion  to  lieutenant  and,  therefore,  his  separation  from  the 
Coast Guard.  Because the Board finds that the inclusion of the word “female” in the 
OER  was  a  technical  violation  of  Article  10.A.4.f.8.  of  the  Personnel  Manual,  it  must 
consider  whether  the  applicant’s  failures  of  selection  should  be  removed  because  the 
applicant’s record contained the error when it was reviewed by the lieutenant selection 
boards in 200x and 200x.   
 
In Engels v. United States, 678 F.2d 173, 175-76 (Ct. Cl. 1982), the Court of 
 
Claims held that the BCMR should decide whether an officer’s failures of selection for 
promotion  should  be  removed  by  answering  two  questions:    “First,  was  [the  appli-
cant’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 word “female” in the disputed OER was a harmless error.  
As the Chief Counsel argued, if the prohibited word had any effect at all on the selec-
tion board members, it is likely to have been positive rather than negative since the use 
of the word “female” might have prevented speculation about same-sex sexual harass-
ment.  Therefore, the Board finds that the applicant’s record was not prejudiced by the 
erroneous inclusion of the word “female” in the disputed OER, and the removal of the 
applicant’s failures of selection is not justified.   
 

7. 

8. 

9. 

 
Apart  from  the  negative  comments  and  two  low  marks  in  the  disputed 
OER, the applicant’s military record is excellent.  It is clear from the reporting officer’s 
comments in block 10 of the OER that he did not intend the matter to be career-ending 
and hoped that further excellent performance by the applicant would repair his career.  
Moreover, it is clear from the applicant’s subsequent OERs that he made every effort to 
meet and exceed his next commands’ high expectations.  However, in choosing officers 
for promotion, selection boards must select from among many highly qualified officers, 
and there is no evidence in the record that the applicant was more qualified than the 
officers who were selected for promotion.  Moreover, under 14 U.S.C. § 261, Congress 
has made the deliberations of selection boards entirely confidential and not subject to 
scrutiny by this Board.  
 
 
puted OER, the applicant’s request should be denied. 
 
 

10.  Accordingly, apart from the redaction of the word “female” from the dis-

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 

The application of former xxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of 

The Coast Guard shall redact the word “female” from block 8 of the OER cover-

ORDER 

No other relief is granted. 

 
 
his military record is granted in part as follows: 
 
 
ing his performance from February 1, 199x, to June 4, 199x. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

______________________________  
 Julia Andrews 

______________________________ 
 Margot Bester 

 
 

 
 

 
 

______________________________ 
 Donald A. Pedersen