DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2003-040 
 
XXXXXX, XXXXXX 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 February 22, 2003 upon the 
BCMR’s receipt of the applicant’s request for correction. 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  November  20,  2003,  is  signed  by  the  three  duly 

 

APPLICANT’S REQUEST  

 

The applicant, a retired lieutenant commander (LCDR; pay grade O-4), asked the 
Board  to  correct  his  record  by  removing  an  officer  evaluation  report  (OER)  for  the 
reporting period May 1, 19xx to April 30, 19xx (the disputed OER).  He also requested 
that  all  references  to  the  disputed  OER  be  expunged  from  his  official  military  record 
and  that  all  administrative  actions  taken  against  him  based  on  the  content  of  the 
disputed OER be invalidated, including his failures of selection by the 19xx, 19xx, 19xx, 
19xx, and 19xx Commander (CDR) Selection Boards.   

 
The applicant further requested, if he is retired at the time the Board renders its 

decision, that   

•  his retired status be corrected to show that he was retired in the rank of CDR 
with the date of rank he would have had if he had been selected by the 19xx 
CDR Selection Board;  

•  he be paid the difference in all retroactive pay and allowances from that date 

of rank; and 

•  he be paid the difference in all retired pay since his date of retirement.   

APPLICANT’S ALLEGATIONS AND SUBMISSIONS 

 

 

The  applicant  alleged  that  his  chain  of  command  and  rating  chain  failed  to 
adhere to Coast Guard regulations in effect at the time the disputed OER was prepared.  
See Article 10-A-4.g.(1) of the Personnel Manual (April 19xx).  He asserted that, on April 
30, 19xx (the end of the reporting period for the disputed OER), an investigation by the 
Coast  Guard  Investigation  Service  (CGIS)  was  pending  against  him  concerning 
allegations of discrimination.  He alleged that, when CGIS issued its report, none of the 
allegations were found to be substantiated nor were any charges preferred against him.  
He  alleged  that  despite  the  impending  CGIS  report,  his  reporting  officer  (RO)  used 
disputed information from the investigation to “materially alter” the disputed OER.   

 
The applicant alleged that Coast Guard regulations restrict the content of a rating 
chain’s narrative comments by, among other things, prohibiting remarks regarding any 
pending  investigation or  any  investigation to  which  the  rated  officer  was  not  made  a 
party.  He alleged that his rating chain ignored the mandate of these regulations and 
unjustly  altered  the  content  of  the  OER,  while  avoiding  the  use  of  the  word 
“investigation” in the disputed OER.  He alleged that such actions “skirted the spirit of 
[Coast  Guard]  regulation[s]”  and  permitted  the  RO  to  “take  action  against  [the 
applicant] before the investigation was finalized.”   

 
The applicant alleged that there is “no doubt about the source of information the 
[RO] used to alter his evaluation of [the applicant’s] performance” during the period of 
the disputed OER.  He alleged that a comparison of the disputed OER with the OER for 
the  prior  reporting  period  (May  31,  19xx  through  April  30,  19xx)  reveals  that  the 
supervisor  lowered  the  applicant’s  numerical  scores  and  that  the  RO  “dramatically 
changed”  his  comments  in  the  disputed  OER  based  on  unproven  allegations  of 
discrimination.    He  pointed  out  that  in  Sections  3.c.  (Results/Effectiveness)  and  5.c. 
(Directing Others) of the disputed OER, his numerical scores were lowered to 4s from 
the 5s he was assigned in the preceding OER and that in Section 3.d. (Adaptability) of 
the disputed OER, his numerical score was lowered to a 4 from the 5s he was assigned 
in corresponding sections (4.a., (Working with Others) and 4.b., (Human Relations)) in 
his preceding OER.   

 
The  applicant  further  alleged  that  his  numerical  score  of  4  in  Section  5.f. 
(Evaluations)  of  the  disputed  OER  is  contradicted  by  the  supervisor’s  supporting 
narrative in the Section 5 Comments section.  He asserted that the score of 4 is “merely 
‘average,’ “ and inconsistent with the supervisor’s comments regarding the applicant’s 
“Herculean effort” in evaluating nine civilian employees—eight of which had the same 
due date.  He alleged that the score he received for Section 5.f. was obviously influenced 
by  other  scores  in  Section  5  that  were  lowered  based  on  unproven  allegations  of 

discrimination.  He alleged that the supervisor had “no personal observation nor any 
valid input from other officers or civilians to substantiate his lowering of the numerical 
score.”   
 
The  applicant  pointed  out  that  the  RO  (1)  lowered  all  of  the  numerical  scores 
assigned  in  Section  8  (personal  and  professional  qualities)  to  4s  in  the  disputed  OER 
from the 5s and one 6 assigned in the preceding OER and (2) “dramatically changed” 
his (the RO’s) comments in the disputed OER from those given in the preceding OER.  
He also pointed out that the RO lowered the applicant’s comparison scale rating from 
the “distinguished performer” rating he received in the preceding OER to “only a ‘good 
performer’“ in the disputed OER.  He alleged that according to the Personnel Manual, it 
was improper for the supervisor and the RO to base their evaluations of the applicant 
upon  allegations  of  civilian  employees  who  were  subordinate  to  the  applicant.    He 
alleged that because he disputed the allegations and his co-workers and raters indicated 
to  investigators  that  none  of  the  alleged  discriminatory  behavior  had  ever  been 
observed, none of the allegations against him could be independently supported.   

 
With respect to the comments in Section 8 of the disputed OER concerning the 
applicant’s  taking  responsibility  for  “mis-[communications  and]  delayed  action  that 
allowed  the  workplace  environment  to  deteriorate,”  the  applicant  asserted  the 
following:   
 

Like  any  good  leader,  [the  applicant]  did  take  responsibility  for  the  Branch  he  was  in 
command  of,  but  disputed  that  any  of  his  actions  directly  led  to  a  deterioration  in  the 
workplace environment.  It was [the applicant’s] stated position that the actions and mis-
perceptions of the complainants which [sic] were the root of the problems in the Branch.  
However, the comments section correctly indicates that he worked with the Command to 
resolve those problems.   
 
The applicant contended that every officer is entitled to a complete and accurate 
record  before  each  promotion  board  which  considers  him.    He  alleged  that  a 
comparison  of  the  disputed  OER  and  the  preceding  OER  demonstrates  that  his 
performance,  “other  than  those  sections  affected  by  issues  related  to  the  unproven 
discrimination  allegations  [which  had  been]  under  investigation,”  was  excellent.    He 
alleged that actions taken by his rating chain regarding the pending investigation and 
subsequent references to those actions tainted his official military record and led to his 
failure of selection not only before the 19xx Commander (CDR) Selection Board but also 
before the four subsequent CDR selection boards.   
 
Excerpts from the Disputed OER (May 1, 19xx to April 30, 19xx) 

 
On the disputed OER, the applicant received eight marks of 5 (on a scale of 1 to 
7,  with  7  being  best)  and  ten  marks  of  4  in  evaluation  of  his  job  performance.    The 

applicant was assigned the following scores in the eighteen performance categories of 
the disputed OER: 
 

Block 3.a. (Planning and Preparedness)  5 
5 
Block 3.b. (Using Resources) 
4 
Block 3.c. (Results/Effectiveness) 
5 
Block 3.c (Adaptability) 
5 
Block 3.d. (Professional Competence) 
5 
Block 4.a. (Speaking and Listening) 
5 
Block 4.b. (Writing) 
5 
Block 5.a. (Looking Out for Others) 
5 
Block 5.b. (Developing Others) 

Block 5.c. (Directing Others) 
Block 5.d. (Teamwork) 
Block 5.e. (Workplace Climate) 
Block 5.f. (Evaluations) 
Block 8.a. (Initiative) 
Block 8.b. (Judgment) 
Block 8.c (Responsibility) 
Block 8.d. (Professional Presence) 
Block 8.e. (Health and Well-Being) 

4 
4 
4 
4 
4 
4 
4 
4 
4 

 
In  block  nine  (Comparison  Scale),  he  was  assigned  a  score  of  4,  defined  as  “good 
performer; give tough, challenging assignments.” 
 
In the comments section of block 4, the supervisor made the following statements 
 
regarding  the  applicant’s  communication  skills:    “[h]andled  self  well  in  difficult 
discussion  sessions  with  [executive  officer];  calm  &  confident,  candid  discussions  in 
difficult  personnel  situation;  similarly  during  intensely  stressful  session  with  staff 
members ….”  Furthermore, in the comments section of block 5, the supervisor wrote 
that  the  applicant  “[e]valuated  9  civilians  (8  w/same  due  date)  thoroughly  [and] 
properly—Herculean effort.”   
 
 
remarks and made the following statements:   
 

In  the  comments  section  of  block  7,  the  RO  concurred  with  the  supervisor’s 

[The  applicant]  faced  numerous  internal/external  challenges,  [especially]  in  the  work 
[environment]  during  the  period;  he  experienced  some  success  by  support[ing 
command] initiated acts that promoted conflict resolution & team-building.  Succeeded 
in  providing  outstanding  [work-life  services]  to  [X  District  Commands]  &  kept  staff 
‘customer focused’ while attempting to resolve internal issues.   

 
 
In the comments section of block 8, the RO made many positive statements, but 
also  the  following  comment:    “[t]ook  respons[ibili]ty  for  mis-comm[unications  and] 
delayed action that allowed the workplace enviro[nment] to deteriorate.”   
 
 
potential to assume greater leadership roles and responsibilities:   
 

In  block  10,  the  RO  provided  the  following  comments  on  the  applicant’s 

[The  applicant]  has  been  a  good  performer  during  a  period  of  great  challenge,  some 
personal  and  some  internal  [within]  his  [work-life  Branch].    He  has  had  to  expend  an 
enormous [amount] of energy, time, and focus towards resolving internal [personnel and 
management] issues; successful resolution of many of these challenges have lead [sic] to 

improvements  that  will  make  him  a  better  Officer  and 
personal/professional 
[supervisor/manager]. 
  He  has  [demonstrated]  the  [k]nowledge,  [j]udgment,  & 
[leadership] expected of a mid-manager and he should be considered for promotion to O-
5 with his peers.  He is recommended for a tougher/more challenging assignment …. 

 
Summary of Applicant’s Relevant Evidence 
 
Applicant’s Affidavit 
 

The applicant submitted his own affidavit in support of his application for relief.  
In it, he stated that in October 19xx, two female civilians filed formal complaints against 
him,  alleging  that  they  were  being  treated  differently  in  the  workplace  compared  to 
their  male  co-workers.    He  stated  that  as  a  result  of  the  complaints,  the  Coast  Guard 
began  an  investigation,  which  was  still  pending  on  the  date  the  disputed  OER  was 
submitted to CGPC and remained so, he believed, until 19xx.   

 
The applicant stated that he “denied and vigorously disputed” the allegations of 
discrimination against him in emails and memoranda to, and during conversations and 
meetings with, officers in his rating chain and in his chain of command.  He stated that 
he  also  sent  a  memorandum  to  the  informal  equal  employment  opportunity  (EEO) 
counselor  and  met  with  the  integrated  support  command’s  (ISC)  military  civil  rights 
officer  denying  the  allegations  and  expressing  his  concern  about  the  “false 
discrimination allegations.”  Additionally, he stated, the allegations were disputed by 
testimony  from  co-workers  who  witnessed  the  events  that  were  alleged  to  be 
discriminatory.  

 
The  applicant  asserted  that  the  statements  submitted  by  his  supervisor  and 
executive officer (XO) to the Department of Transportation (DOT) Inspector General’s 
(IG)  investigator  contain  “narrative  which  supports  [his]  position  in  disputing  the 
allegations  of  discrimination.”    He  stated  that  his  XO’s  statement  outlines  the 
reorganization  of  the  branch  he  headed  and  states  that  he  was  not  the  person  who 
created the reorganization.   

 
The applicant stated that on November 17, 19xx, he was issued a “performance 
counseling”  memorandum,  wherein  his  supervisor  dealt  with  the  “contested  and 
unproven” allegations against him as fact.  He stated that the same officer served as his 
supervisor for the period of the preceding OER, when his performance was evaluated 
as  excellent.    He  asserted  that  the  allegations—then  under  investigation—improperly 
and unfairly influenced the content of the disputed OER.   

 
The  applicant  stated  that  on  July  10,  19xx,  he  received  a  copy  of  the  disputed 
OER  and  submitted  an  OER  Reply  on  July  24,  19xx.    He  stated  that  his  OER  Reply, 
which “clearly addressed the performance issues mentioned in his OER, was endorsed 
by his RO and forwarded for filing in his official military record.   

 
The applicant stated that, upon his request, his XO (CDR E) and CO (CAPT M)1  
reviewed his military record and discussed it with his Operations Officer (CDR C).  He 
stated that the three senior officers, who had extensive experience with OERs, told him 
that his record appeared excellent with the exception of the disputed OER.  He stated 
that the three senior officers also told him that it was unquestionably the only entry in 
his record which could have caused his failures of selection.   

 
The applicant stated that in 19xx, he was awarded the Coast Guard Achievement 
Medal for superior performance of duty from May 19xx to June 19xx.  He asserted that 
among other achievements, he was awarded the medal based on the following: 

 

• 

•  exceptional interpersonal skills; 
• 

the  accomplishment  of  a  “multi-disciplinary  approach  to  [human  services] 
casework planning”; and  
implementation of an innovative annual conference which accomplished annual 
Ombudsmen  training  plus  Family  Advocacy  Training  for  area  COs  in  a 
pioneering effort to “reduce costs and enhance synergy between COs and their 
Ombudsmen.” 

 
He further stated that his above-noted innovation was recognized as “best practice” and 
followed by other ISCs and that his successful partnerships, organizational skills, and 
knowledge were recognized.  He asserted that his skills and performance from 19xx to 
19xx were reflected in the award citation, not the disputed OER.   
 
 
The  applicant  stated  that  he  had  not  been  provided  with  a  copy  of  the  CGIS 
investigation report despite the fact that discrimination and complaints were directed 
against him.  He stated that on November 17, 19xx, his counsel filed a request through 
the  Freedom  of  Information  Act  (FOIA)  to  obtain  a  copy  of  he  report.    However,  no 
response was received.   

 

Letter from CAPT M 
 

In  support  of  his  contentions,  the  applicant  submitted  a  memorandum,  dated 
February 15, 19xx, from CAPT M regarding his opinion on the applicant’s OER record.  
It states the following:   

 
As you requested in [your email dated February 15, 19xx], I am stating my opinion that 
the  OER  in  your  service  record  covering  the  period  [of  the  disputed  OER]  most  likely 
was the cause for the fact that you failed selection for promotion to CDR during previous 
selection board proceedings. 

                                                 
1 CDR E and CAPT M were the applicant’s XO and CO, respectively, during the evaluation period of May 
1, 19xx through April 30, 19xx.   

 
I  reviewed  your  entire  performance  record  at  your  request  and  with  your  knowledge 
when  I  was  your  Commanding  Officer  at  [xxx]  sometime  during  the  summer  of  19xx.  
The purpose of this review was to improve the value of my career counseling to you. 

SUMMARY OF THE RECORD 

 

 

The applicant received his commission as an ensign on May 18, 19xx.  He was 
promoted  to  lieutenant  junior  grade  on  November  18,  19xx,  to  lieutenant  on  May  18, 
19xx, and to lieutenant commander on June 1, 19xx.   

 
On January 16, 19xx, the applicant was designated a Coast Guard Xxxx upon his 
successful completion of the prescribed course of instruction.  From January 17, 19xx to 
June  12,  19xx,  he  was  assigned  to  Coast  Guard  Air  XXXX  in  XXXX,  XXXXXX  and 
XXXXX, XXXXX.  From June 13, 19xx to June 25, 19xx, he served as a XXXX XXXX for 
the XXXX District and an Integrated Support Command in XXXXX, XXXXX.  From June 
26, 19xx through April 30, 19xx, the applicant was assigned to a Coast Guard XXXXX in 
XXXXX,  XXXXXX.    After  repeated  failures  of  selection  for  promotion  to  CDR,  the 
applicant retired on June 1, 19xx.   
 
 
to the 19xx CDR Selection Board.  It reads as follows: 
 

By memorandum dated, July 24, 19xx, the applicant submitted a communication 

Commander, Coast Guard Personnel Command (CGPC-opm-1) 

INPUT TO THE COMMANDER SELECTION BOARD 

From:  [applicant’s name], [applicant’s SSN], USCG 
To: 
 
Subj: 
 
Ref: 

(a)  My ltr 1402 of 16 July 19xx 
(b)  Officer Evaluation Report dated 8 June 19xx 

 

 
1.    I  appreciate  the  consideration  given  to  my  previous  request,  reference  (a).    I 
respectfully  must say that the process of considering reference (b) without a thoroughly 
processed OER Reply is unfair, in my view.  An OER Reply is forthcoming.  I, however, 
wish to thank the Board for the opportunity to communicate directly.  

2.  This evaluation period has been a time of significant personnel challenges requiring 
the  assistance  of  two  outside  consultants.    Additionally,  my  tour  in  XXXX  has  been 
marked  by  repeated  personal  tragedies,  beginning  with  the  unexpected  death  of  my 
father  in  September,  19xx;  followed  by  the  death  of  a  prematurely  born  daughter  in 
November, 19xx; and ending with the premature death of my mother in September, 19xx.  
Despite  these  personal  tragedies  and  professional  challenges,  I  continued  to  show 
innovation,  dedication  and  initiative  in  my  work—characteristics  I  have  displayed 
throughout my career. 
 
3.  Significant initiatives first developed by my staff and subsequently supported by the 
command,  included  relocation  of  the  XXXXX  XXXX  to  the  XXXX  XXXX  Division  and  a 
promotion of one staff GS-11 to GS-12 through the innovative use of a vacant billet.  I also 

pioneered a combination training conference composed of the annual XXXX Conference 
plus  the  annual  XXXX  XXX  Training  (for  COs/XOs  in  our  area  of  responsibility).  
Combining  these  formerly  separate  conferences  resulted  in  improved  synergy  and 
reduced costs. 
 
4.  The strength I have shown during this marking period speaks highly of my character, 
in my view.  I respectfully thank the Board for consideration of this additional input. 

 

[signature] 

 

VIEWS OF THE COAST GUARD 

 
 
On July 31, 2003, the Chief Counsel of the  Coast Guard submitted an advisory 
opinion  to  which  he  attached  a  memorandum  on  the  case  prepared  by  CGPC.    In 
adopting the analysis of CGPC, the Chief Counsel recommended that the Board deny 
the applicant’s request for relief.   
 
 
The Chief Counsel argued that the applicant submitted an untimely application 
and  has  provided  no  basis  or  reason  why  it  is  in  the  interest  of  justice  to  excuse  the 
delay.  He alleged that the applicant’s request, dated February 5, 2003, was submitted 
more than xxxxx months beyond the time limit for filing an application for correction.  
He asserted that the applicant appears to claim in his application that his non-selection 
for  promotion  tolled  the  timeliness  requirement  of  his  applying  to  the  Board.    He 
argued  that  the  applicant’s  “post  facto  conclusion  that  the  [disputed]  OER  caused  his 
non-selection  does  not  constitute  a  substantive  reason  for  untimely  submission.”    He 
argued that the applicant should have applied to the Board upon receiving the disputed 
OER if he believed that it was prepared erroneously.  Accordingly, he argued, the Board 
should not waive the three-year filing requirement and should dismiss this application 
for lack of timeliness.   
 
 
With respect to the merits of the case, the Chief Counsel argued that the disputed 
OER  is  a  fair  and  accurate  evaluation  of  his  performance.    He  argued  that  for  the 
applicant  to  establish  that  an  OER  is  erroneous  or  unjust,  the  applicant  must  show  a 
misstatement  of  a  significant  hard  fact  or  a  clear  violation  of  a  statute  or  regulation.  
Germano v. United States, 26 Cl. Ct. 1446, 1460 (1992).  He argued that in determining 
whether  an  applicant  has  met  his  burden,  the  applicant’s  rating  chain  officials  are 
strongly presumed to have acted correctly, lawfully, and in good faith in executing their 
duties.  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 argued that the applicant presented no evidence to support 
his  allegations  that  his  supervisor  “had  little  personal  observation  and  no  input  from 
other officer or civilians to substantiate his lowering of the numerical score.”  He stated 
that contrary to the applicant’s allegations, the Reported-on Officer (ROO) answers on a 
daily  basis  to  and  receives  a  majority  of  direction  from  the  Supervisor.    He  further 

argued  that  the  applicant  failed  to  elaborate  why  he  believes  that  reports,  in  general, 
from  subordinates  are  not  reliable  information  for  the  supervisor  to  rely  upon  for 
purposes  of  evaluating  the  applicant.    He  stated  that  according  to  the  Personnel 
Manual,  there  is  no  prohibition  on  the  RO’s  accepting  information  from  numerous 
sources beyond the direct observations of the RO.   
 
 
The Chief Counsel argued that the applicant has failed to prove that the narrative 
comments  contained  in  the  disputed  OER  were  improper.    He  stated  that  Article 
10.A.4.f.1.  of  the  Personnel  Manual  does  not  prohibit  rating  chain  officials  from 
commenting on conduct that is the subject of a judicial, administrative, or investigative 
proceeding.  He asserted that the disputed OER contained no forbidden references to 
any investigation within the contested OER.  He further argued that because Section 5.e. 
(workplace  climate)  requires  the  evaluation  of  an  officer’s  “ability  to  …  promote  an 
environment  of  involvement,  innovation,  open  communication  and  respect,”  the 
narrative  comments  regarding  “internal/external  challenges,  especially  in  the  work 
environment,” without any reference to any investigation, were not inappropriate.   
 
 
The  Chief  Counsel  asserted  that  the  applicant’s  claim  that  his  marks  in  the 
disputed OER were incorrectly “lowered” from those in his preceding OER is without 
merit.  He argued that the Personnel Manual clearly provides that a ROO’s performance 
and  qualities  are  compared  against  standards  set  forth  in  the  OER,  not  against  other 
officers or the same officer in a prior reporting period.  See Article 10.A.4.c.4.b. of the 
Personnel  Manual.    He  argued  that  the  applicant’s  receipt  of  better  ratings  and  an 
award  either  before  or  after  the  disputed  OER  is  irrelevant  to  the  matter  before  the 
Board,  as  that  neither  proves  that  the  information  within  the  disputed  OER  did  not 
reflect the applicant’s actual performance during the evaluation period.   
 

The  Chief  Counsel  argued  that  the  regulations  provide  that  the  appropriate 
remedy to contrast the applicant’s views of his performance against his rating chain’s 
views was to submit an OER Reply.  See Article 10.A.4.g. of the Personnel Manual.  He 
asserted that despite the applicant’s claim that he submitted an OER Reply on July 24, 
19xx, the record fails to support that claim, as his record does not include a reply, and 
his  application  did  not  include  such  evidence.    He  argued  that  the  Board  should 
consider  the  absence  of  evidence  proving  his  prior  objection  to  the  disputed  OER  as 
probative  evidence  that  upon receipt  of  the  disputed  OER, the  applicant  accepted  his 
rating  chain’s  characterization  of  his  performance  as  described  therein. 
  He 
recommended  that  the  applicant  submit  a  copy  of  the  validated  OER  Reply  to  Coast 
Guard Personnel Command (CGPC) for review and inclusion in his official OER record.  
However, he asserted, no nexus to the applicant’s failing for selection to CDR would be 
created by the foregoing relief. 
 
 
The Chief Counsel asserted that the only information to support the applicant’s 
claim that there was an investigation laid into allegations of discrimination against him 

is  found  in  the  applicant’s  application  to  the  Board.    He  moreover  argued  that  the 
applicant presented no clear, cogent and convincing evidence to support his assertion 
that  his  RO  used  “the  information  from  the  [CGIS]  investigation”  …  “to  alter  the 
content” of the disputed OER.  On the contrary, he argued, a review of the applicant’s 
record  in  this  case  supports  the  conclusion  that  the  disputed  OER  “represents  the 
honest  professional  judgment  of  those  responsible  for  evaluating  the  applicant  under 
the Officer Evaluation System (OER).”   
 
 
Lastly,  the  Chief  Counsel  stated  that  although  the  applicant  claims  that  his 
counsel  filed  a  Freedom  of  Information  Act  (FOIA)  request  to  obtain  a  copy  of  the 
EEO/Discrimination Reports of Investigation from the Inspector General’s Office in the 
Department  of  Transportation,  EEO/Discrimination  cases  are  exempt  from  FOIA 
regulations  and  the  applicant  should  not  expect  to  receive  a  copy  of  the  Report  of 
Investigation.    He  argued  that  because  the  applicant  has  not  provided  evidence  that 
overcomes  the  presumption  of  regularity  regarding  the  construction  of  and  marks 
associated  with  the  disputed  OER,  the  applicant  has  failed  to  meet  his  burden  in 
proving an error or injustice in his case.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On August 4, 2003, the Chair sent a copy of the views of the Coast Guard to the 
applicant  and  invited  him  to  respond  within  30  days.    On  September  4,  2003,  the 
applicant responded by stating that he had several objections to the advisory opinion.   
 
 
The  applicant  argued  that  the  Chief  Counsel  incorrectly  asserts  that  the 
applicant’s  submission  is  untimely.    The  applicant  stated  that  because  the  applicable 
law  that  tolls  the  Board’s  three-year  limitation  period  has  neither  been  amended  nor 
overturned, the Board must reject this argument.   
 
 
The applicant argued that contrary to the Chief Counsel’s assertion, the context 
in  which  the  errors  made  to  the  disputed  OER  occurred  are  relevant  to  the  Board’s 
decision  and  should  be  considered  to  determine  whether  the  effect  was  significant  or 
negligible on the applicant’s entire record. 
 
 
The applicant stated that the Chief Counsel erroneously disputes the fact that he 
(the applicant) submitted an OER Reply.  He argued that the absence of the OER Reply 
from  the  record  reveals  that  Coast  Guard  action  in  this  case  was  flawed,  thereby 
rebutting the presumption of regularity.  He argued that because the Coast Guard failed 
to properly file the reply in his military record, his record was not complete, fair and 
accurate when considered by subsequent selection boards.  
 
 
The  applicant  argued  that  his  sworn  affidavit  is  “clear,  cogent,  and  absent  any 
rebutting evidence from the Coast Guard, … convincing.”  He argued that based on the 

fact  that  his  application  concerns  “sensitive”  matters regarding  his  performance,  very 
few  individuals  would  possess  knowledge  about  information  relevant  to  his  claims.  
Thus, he argued, his affidavit is “even more convincing.”   
 
 
The applicant asserted that the Coast Guard is aware of the fact that files relating 
to formal complaints are maintained by the Department of Transportation(DOT), if not 
by the Coast Guard.  He stated that the records may have been overlooked by the Coast 
Guard because the agency, rather than the applicant, is named as the respondent.   
 
 
Applicant’s Submissions in Support of his Response to the Advisory Opinion 
 
Applicant’s Submission to the 19xx Promotion Board and OER Reply 

 
In support of his response to the Coast Guard’s advisory opinion, the applicant 

submitted a copy of a memorandum, dated July 24, 19xx that reads as follows:   
 

From: 
To: 
Via: 
 
SUBJ: 
 
Ref: 
 

 

[applicant’s name], [applicant’s SSN], USCG 
Commander, Coast Guard Personnel Command (CGPC-opm-1) 
Commanding Officer, Integrated Support Command XXXXX 

INPUT TO THE COMMANDER SELECTION BOARD AND OER REPLY 

(a)  Officer Evaluation Report dated 8 June 19xx 
(b)  Phoncon between XO (ISC [xxx])/[applicant’s name] of 23 July XX 

1. 
I  recognize  and  appreciate  my  command’s  efforts  to  accurately  evaluate  my 
performance.    I  must,  however,  respectfully  submit  the  following  Officer  Evaluation 
Report Reply as a rebuttal to sections eight and nine of [the disputed OER].  The process 
of considering [the disputed OER] without a thoroughly process OER Reply is unfair, in 
my  view.    I,  however,  wish  to  thank  the  Board  for  the  opportunity  to  communicate 
directly. 
 
2. 
I object to a statement contained in the OER comments:  “Took responsibility for 
[miscommunications]  and  delayed  action  that  allowed  workplace  [environment]  to 
deteriorate.”    I  discussed  this  passage  with  my  Executive  Officer  (Reporting  Officer), 
[phoncon  between  XO  and  applicant  on  July  23,  19xx],  who  provided  two  specific 
examples relative to this comment: 
 

a.    Delay  in  processing  of  Overtime  Claims  for  one  General  Schedule 
employee:  While it is true that the process unfolded too slowly and I accepted 
my share of responsibility for an approximately six week delay in processing this 
claim, I must point out the following items, noted below.  I object to any negative 
impact on the evaluation of my character.  (emphasis in original.) 

 

1.  No process was in place and no budget was identified at the time to 
pay  Personnel  Services  Division  General  Schedule  overtime.    I 
initially  submitted  the  first  ever  request  for  pay  to  my  Personnel 

Services Division Chief two days after receipt as I did not have the 
authority  to  approve  overtime  pay.    It  was  returned  to  me  having 
not  been  approved  by  my  Division  Chief  due  to  a  lack  of  funding, 
which  was  true  at  the  time.    (Subsequent  claims  for  other  events 
were submitted by the employee). 

2. 

I  discussed  the  first  claim  with  the  employee  and  expressed  my 
support and viewpoint that she should receive pay if such was due 
to her.  I expressed my intention to resubmit the claim by providing 
additional  information  from  an  appropriate  reference.    Additional 
information, from the Code of Federal Regulations for example, was 
subsequently provided to my Division Chief.  Although my actions 
became delayed, I had proactively been very supportive of the employee, 
as  exhibited  through  my  conversation  with  her.    This  event  did  not  cause 
the “workplace environment to deteriorate.”  (emphasis in original.) 

3.  Throughout the evaluation period, I awarded a significant quantity 
of compensation time in lieu of overtime pay for those employees so 
requesting, pursuant to authority that had been delegated to me.  No 
complaints  have  been  expressed  from  any  employee  in  the  area  of 
compensation-time.   

4. 

I  promptly  responded  to  a  status  question  from  the  employee  and 
forwarded  a  recommendation 
to 
the 
employee’s overtime should be paid.   

the  Comptroller 

that 

5.  A  claim  that  this  episode  “allowed  the  workplace  environment  to 
deteriorate”  is  questionable  and  I  object  to  that  assertion,  pending 
the outcome of a current investigation.  My delay in processing the 
claims occurred in the summer of 19xx. 

 

 

 

 

 

b. 
Inadequate  communication  to  my  staff  regarding  our  system  of 
“acting”  branch  chief:    The  system,  formerly  referred  to  as  “deputy  branch 
chief”  by  my  staff,  was  implemented  in  August,  19xx.    The  Executive  Officer 
described  an  episode  involving  the  “acting”  branch  chief  to  me  in  September 
19xx.    I  recall  no  complaints  or  questions  ever  expressed  to  me  by  any  staff 
member until October, 19xx.  I responded appropriately to all guidance on this 
difficult  issue.    The  command  supported  the  “acting”  branch  chief’s  continued 
service  in  this  duty,  but  implemented  a  rotation  in  December,  19xx,  through 
which the duties would be shared by two appropriate persons. 
 
3. 
Significant  initiatives  first  developed  by  my  staff  or  myself,  and  subsequently 
supported by the command, included relocation on the XXXXX Program to the XXXXX 
Division  and  a  promotion  to  one  staff  GS-11  to  GS-12  through  the  innovative  use  of  a 
vacant billet. 

4. 
Block  seven  of  the  OER  comments  on  my  branch’s  continued  “outstanding” 
service  delivery  despite  “internal  issues.”    These  “issues,”  described  in  block  nine  as  a 
“deterioration,”  had  no  effect  on  our  service  delivery-noted  in  the  OER.    Continued 
excellent service to the field constituted a significant achievement performed at a time of 
great personal challenge for me (death of a prematurely born daughter November, 19xx 
and  the  premature,  tragic  death  of  my  mother  in  September,  19xx).    The  strength  I’ve 

 

shown  speaks  highly  of  my  character;  an  assessment  inconsistent  with  an  across-the-
board score of “4” in block eight.  (emphasis in original.) 

 

[signature] 

 
First Endorsement on Applicant’s letter of July 24, 19xx 
 
The applicant also submitted a copy of the First Endorsement to his “INPUT TO 
 
THE  COMMANDER  SELECTION  BOARD  AND  OER  REPLY.”    It  is  summarized  as 
follows: 
 

By memorandum, dated July 27, 19xx, the applicant’s RO wrote in support of the 
marks and comments he assigned the applicant in Section 8 (Personal and Professional 
Qualities).  He stated that the applicant’s performance “clearly met, but did not exceed, 
the standards as described for a mark of 4 in each of the individual qualities.”  He stated 
that  the  two  examples  he  provided  the  applicant  with  were  not  intended  to  be  all-
inclusive”  but  were  provided  to  help  the  applicant  understand  how  the  comments 
reflect performance the RO observed during the evaluation period.   

 
During the evaluation period, the RO stated, he met with the applicant to discuss 
“how  his  [the  applicant’s]  managerial  style  may  have  contributed  to  some  of  the 
challenges  he  was  experiencing  as  the  XXXXXX.”    He  asserted  that  based  on  the 
applicant’s OER Reply, “it appears that [the applicant] is still experiencing difficulty in 
accepting any responsibility for the workplace environment that continues to challenge 
both him and the command.   

 
The  RO  stated  that  he  reviewed  the  mark  he  assigned  the  applicant  on  the 
comparison scale and finds that it also accurately reflects where the applicant measures 
in relation to other officers in the applicant’s rank whom the RO has known and who 
have worked for him during his Coast Guard career.   
 
Other Supporting Correspondence 
 
 
As  attachments  to  his  response  to  the  Coast  Guard’s  advisory  opinion,  the 
applicant submitted copies of several letters from his counsel to the DOT Office of Civil 
Rights  and  FOIA  Division  requesting  copies  of  the  investigation  file  and  report  of 
investigation.   
 

The applicant also submitted a copy of an email, dated June 12, 19xx, from Coast 
Guard’s  XXXXXX,  that  his  counsel  received  in  response  to  an  inquiry  regarding  the 
release  of  the  Report  of  Investigation.    The  response  stated  that  the  office  had  no 
authority  to  release  the  Report  of  Investigation  but  could  furnish  a  copy  of  any 
statements the applicant provided to DOT investigators.  He was also advised therein to 

submit a FOIA request to DOT’s Departmental Office of Civil Rights, should he desire 
this information.   
 

 
Personnel Manual (COMDTINST M1000.6A) 
 

APPLICABLE LAW 

Article 5.B.3.c.1. of the Personnel Manual (COMDTINST M1000.6A) in effect in 
19xx  provides  that  members  who  are  “eligible  for  consideration  by  a  selection  board 
may  communicate  directly  with  the  board  by  letter  arriving  by  the  date  the  board 
convenes,” pursuant to 10 U.S.C. § 573(f). 
 
 
Article  10.A.  of  the  Personnel  Manual  governs  the  preparation  of  OERs  and 
provides that 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.1.b.1. 
provides  that  commanding  officers  “must  ensure  accurate,  fair,  and  objective 
evaluations”  are  provided  to  all  officers  under  their  command.    Article  10.A.2.b.2.f. 
states  that  commanding  officers  are  required  to  provide  oversight  and  accountability 
for the proper preparation of OERs.   
 

Article  10.A.1.b.2.  states  that  individuals  are  responsible  for  managing  their 
performance and has the responsibility to determine job expectations and performance 
feedback to meet or exceed standards 
 
 
Article 10.A.1.c.4.b. defines the Supervisor as the individual to whom the ROO 
answers on a daily or frequent basis and from whom the ROO receives the majority of 
direction and requirements.  In accordance with Article 10.A.2.d.2.a., the supervisor is 
responsible for evaluating the ROO’s performance in the execution of his or her duties.   
 
 
Article  10.A.2.e.2.a.  states  that  the  RO  shall  base  evaluations  on  direct 
observations,  the  Officer  Support  Form  (OSF)  or  other  information  provided  by  the 
supervisor, and other reliable reports and records.  Article 10.A.4.c.4.b. states that the 
supervisor “shall review the Reported-on Officer’s performance and qualities observed 
and  noted  during  the  reporting  period”  …  and  “take  care  to  compare  the  officer’s 
performance and qualities against the standards—NOT to other officers and not to the 
same officer in a previous reporting period.”   
 
 
Article 10.A.4.c.4.e. states that comments should amplify and be consistent with 
the  numerical  evaluations  and  should  identify  specific  strengths  and  weaknesses  in 
performance, 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.    Article  10.A.4.c.4.g. 
states that a mark of four represents the expected standard of performance.  

 
 
Article 10.A.4.f.1. governs the rating chains comments about the ROO.  It states 
that members of the rating chain shall not mention the officer’s conduct is the subject of 
a  judicial,  administrative,  or  investigative  proceeding,  including  criminal  and  non-
judicial punishment proceedings, or any other investigation.  It also provides that these 
restrictions  do  not  preclude  comments  on  the  conduct  that  is  the  subject  of  the 
proceeding, only reference to the proceeding itself.   
 

Article  10.A.4.f.10.  provides  that  comments  addressing  the  ROO’s  marital  or 

family status are prohibited.   
 
 
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.”   
 
 
submitted: 
 

Article 10.A.4.g.8. provides the following format in which the OER reply is to be 

Date:  (Submitted to Supervisor) 

(RANK, NAME, SSN, USCG/USCGR) 
Commander, Coast Guard Personnel Command (opm-3) 
(1)  (Original Supervisor by name) 
(2)  (Original Reporting Officer by name) 
(3)  (Original Reviewer by name) 

 
From: 
To: 
Via: 
 
 
 
Subj:  OER REPLY 
 
Ref: 
1.  As authorized by reference (a), I request the below reply be filed with my evaluation 
report for the period (YR, MONTH, DAY) to (YR, MONTH, DAY). 
 

(a)  Personnel Manual, COMDTINST M1000.6 (series) 

Signature 

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

 
 
“evaluations” (section 5.f) is as follows: 
 

 

Evaluations 

 
 

Reports consistently submitted on time.   Narratives  were fair, concise, and 
contained  specific  observations  of  action  and  impact.    Assigned  marks 
against standards.  Few reports, if any, returned for revision.  Met own OER 
Responsibilities as Reported-on Officer.   

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, and appli-
cable law: 
 
 
The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 
§ 1552.    Although  approximately  xxxxxxx  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  this  BCMR  application  was 
tolled  until  the  applicant  was  retired  from  the  Coast  Guard  on  June  1,  19xx.    The 
applicant’s  BCMR  application  was  filed  on  February  13,  2003.    Thus,  his  claim  was 
timely. 
 
 
The applicant requested an oral hearing before the Board.  The Chair, act-
ing 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. 
 

2. 

3. 

The applicant made several allegations about his rating chain improperly 
using unproven information from the CGIS investigation in drafting information from 
the disputed OER.  However, neither the evidence he submitted nor his military record 
supports  his  contentions.    The  applicant  claimed  that  his  rating  chain  included 
prohibited  remarks  regarding  the  CGIS  investigation  by  “skirting  the  spirit”  of  Coast 
Guard regulations.  The restriction in Article 10.A.4.f.1. of the Personnel Manual does 
not preclude comments on the underlying facts of an investigation that are known to 
the rating chain, so long as no reference is made to pending investigation proceedings.  
The  record  shows  that  the  disputed  OER  contains  no  reference  to  the  CGIS 
investigation.    Moreover,  the  applicant  submitted  no  explanation  as  to  how  the 
comments he was assigned in the disputed OER violated the foregoing provision.  
 

4. 

The applicant also claimed that information from the CGIS investigation 
was “the only possible source [used] to alter” the disputed OER.  However, the fact that 
the disputed OER was drafted when the CGIS investigation report was pending is not 
sufficient in and of itself to demonstrate that the content was inappropriately influenced 
by  the  ongoing  investigation.    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 the applicant has not proved by a preponderance of the evidence that 
the his rating chain improperly included information from the CGIS investigation in the 
disputed OER.  

 
5. 

The  applicant  asserted  that  his  rating  chain  improperly  relied  upon 
complaints  made  by  “civilians  who  were  subordinate  to  him”  in  evaluating  his 
performance during the period of the disputed OER.  Under Article 10.A.2.e.2.a. of the 
Personnel Manual, a reporting officer is permitted to base his or her evaluation of the 
ROO’s  performance  on  “…other  reliable  reports  or  records.”    The  applicant  has 
submitted no evidence beyond his own affidavit that the complaints made by the two 
civilians were, in fact, considered in rating his performance.  Absent corroboration, the 
applicant’s  statements  alone  are  insufficient  to  demonstrate  the  alleged  inaccuracy  of 
the  disputed  OER. 
  Vierrether  v.  United  States,  27  Fed.  Cl.  357,  367  (1992).  
Consequently,  the  Board  finds  that  the  foregoing  evidence  is  insufficient  to  establish 
that the applicant’s rating chain relied upon the complaints made by the two civilians.  
However,  even  assuming  arguendo  that  the  complaints  from  the  two  civilians  were 
relied upon in rating his performance, the applicant has not shown by a preponderance 
of the evidence that those complaints were unreliable.   

 
6. 

In  assessing  an  officer’s  performance,  members  of  a  rating  chain  are 
directed to review the ROO’s performance and qualities observed and noted during the 
reporting  period.    See  10.A.4.c.4.b.  of  the  Personnel  Manual.    Accordingly,  the 
supervisor and RO are required to limit marks and comments in the OER to events that 
occurred during the reporting period.  In alleging that his supervisor and RO “lowered” 
his  marks  and/or  “dramatically  changed”  comments  from  those  assigned  in  his 
preceding OER, the applicant urges the Board to compare his evaluation in the disputed 
OER  against  that  which  he  received  during  the  prior  OER  period  and  find  that  the 
disputed  OER  is  erroneous  and  unjust—in  direct  contradiction  to  the  regulations.  
Contrary  to  the  applicant’s  assertions,  the  regulations  provide  that  an  officer’s 
performance and qualities are to be compared “against the standards … and not to the 
same  officer  in  a  pervious  reporting  period.”    Therefore,  the  Board  finds  that  the 
applicant’s performance prior to the period of the disputed OER is not determinative of 
the accuracy of the disputed OER. 

 
7. 

The applicant alleged that the supervisor’s narrative comments in section 
5.f.  (Evaluations)  of  the  disputed  OER  support  a  higher  numerical  score  than  the  4 
assigned.  He asserted that because the score of 4 is “merely ‘average,’” it conflicts with 
the supervisor’s narrative statement that the applicant “[e]valuated 9 civilians (8 [with 
the] same due date) thoroughly [and] properly—Herculean effort.”  The Board agrees 
with this allegation.  The Personnel Manual provides that narrative comments should 
paint a picture of an officer’s performance that “compares reasonably with the picture 
defined  by  the  standards  marked  on  the  performance  dimensions  in  the  evaluation 
area.”  See Article 10.A.4.c.7.e. of the Personnel Manual.  It is clear from the supervisor’s 
comment  that  the  applicant’s  efforts  exceeded  that  “[r]eports  [were]  consistently 
submitted on time,” and that he “[a]ssigned marks against standards,” as required for a 
mark  of  4  in  the  category  of  “Evaluations.”    Accordingly,  the  Board  finds  that  the 

applicant  has  proved  by  a  preponderance  of  the  evidence  that  a  disparity  exists 
between  the  mark  of 4  and  the  “Herculean  effort”  described  by  the  supervisor  in  the 
supporting  the  narrative  comments  and,  therefore,  that  the  numerical  score  in  the 
category of “evaluations” should be raised to a mark of 5. 
 

8. 

The  applicant  alleged  that  the  comments  he  received  in  section  8 
concerning his “[taking] respons[ibility] for  mis-comm[unications  and] delayed action 
that allowed the workplace enviro[nment] to deteriorate,” did not accurately reflect his 
performance.  However, to establish that marks or comments in an OER are erroneous 
or unjust, the applicant must show a misstatement of a significant hard fact or a clear 
violation  of  a  statute  or  regulation.    Germano  v.  United  States,  26  Cl.  Ct.  1446,  1460 
(1992); BCMR Docket No. 86-96.  Therefore, the applicant’s uncorroborated statement is 
“simply  not  enough  to  overcome  the  presumption  that  military  officers  …  discharge 
their  duties  faithfully.”    Vierrether  at  367.  The  applicant’s  objection  to  the  comments 
assigned in section 8  does not suggest or prove that the OER is factually erroneous, but 
rather, indicates only that his opinion of his performance differs from that of his rating 
chain.  In fact, the applicant has submitted no corroborating evidence to contradict any 
of  the  disputed  marks  and  comments  in  the  disputed  OER,  apart  from  the  internal 
inconsistency discussed in finding 7.   

 
9. 

The  applicant  asserted  in  his  response  to  the  advisory  opinion  that  his 
record  was  not  a  fair  and  complete  depiction  of  his  performance  before  the  selection 
boards that considered him because the Coast Guard failed to include his OER reply in 
his military record.  According to the Personnel Manual, the OER reply, which requires 
a  specific  format  for  proper  submission,  provides  an  officer  with  an  opportunity  to 
officially  express  a  view  of  his  or  her  performance  that  may  differ  from  the  views  of 
members  of  his  or  her  rating  chain.    See  Articles  10.A.4.g.1.  and  10.A.4.g.8.  of  the 
Personnel  Manual.    In  this  case,  the  alleged  OER  reply,  not  filed  in  the  applicant’s 
military  record  but  submitted  with  his  response  to  the  Chief  Counsel’s  advisory 
opinion, purported to be both a communication to the CDR selection board and an OER 
reply.  As such, the Board is persuaded to find that because the reply/communication 
failed to comply with proper format, as required by Article 10.A.4.g.8., and contained 
comments  addressing  his  family  status,  as  prohibited  by  Article  10.A4.f.10.,  it  was 
appropriately  rejected.    Moreover,  according  to  the  record,  the  applicant  submitted  a 
separate  communication  to  the  19xx  CDR  Selection  Board,  entitled  “INPUT  TO  THE 
COMMANDER SELECTION BOARD.” In that communication, the applicant asserted 
that “[a]n OER Reply is forthcoming.”  However, the applicant has not presented any 
persuasive  evidence 
that  he  subsequently  submitted  a  proper  OER  reply.  
Consequently,  the  Board  finds  that,  with  the  exception  noted  in  finding  7,  the 
applicant’s  record,  as  presented  to  the  selection  boards  that  considered  him,  was  a 
complete and accurate depiction of his performance during the period of the disputed 
OER.   
 

 
10.  Having found that the Coast Guard committed an error by assigning the 
applicant  a  mark  of  4  in  the  category  of  “Evaluations,”  the  Board  must  determine 
whether  this  error  prejudiced  the  applicant  before  the  CDR  Selection  Boards.    In 
determining whether a nexus exists between such an error and an 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  mark  of  4  in  the  category  of  “Evaluations”  makes  his  record  appear 
very slightly worse that it would have in its absence.  However, the Board further finds 
that, in light of the nine remaining marks of 4 in the disputed OER, it is unlikely that the 
applicant would have been selected for promotion even if the error had not been in the 
disputed OER when it was reviewed by the CDR Selection Boards.   
 

11.  Moreover,  by  the  time  the  19xx,  19xx,  19xx,  and  19xx  CDR  Selection 
Boards  met,  the  applicant’s  record  included,  respectively,  one,  two,  three,  and  four 
more  recent  OERs  which  portrayed  the  applicant’s  performance  in  an  even  more 
positive  light  than  the  disputed  OER.    However,  even  with  the  improved  OERs,  the 
applicant  was  subsequently  passed  over  for  promotion  to  CDR.    Consequently,  the 
Board is not persuaded that the mark of 4 in the category “Evaluations” had any impact 
on his potential for selection for promotion to CDR between 19xx and 19xx.   

 
12. 

The  Board  has  carefully  considered  all  of  the  applicant’s  contentions.  
Those  not  specifically  addressed  above  were  found  to  be  without  merit  and/or  not 
dispositive of the case. 
 

13.  Accordingly,  partial  relief  should  be  granted  as  stated  in  finding  7  with 
respect to the disputed OER by raising the mark of 4 in the category “Evaluations” to a 
mark of 5. 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

ORDER 

 
 

 
 

 
 

 

 

 

 

 
 

 
 

 
 

 
 
 Patricia V. Kingcade 

The  application  of  XXXX  XXXXXX  X.  XXXXXX,  xxx-xx-xxxx,  USCG,  for  the 

 
 
correction of his military record is granted, in part, as follows: 
 
 
The  mark  of  4  for  the  category  “Evaluations”  in  block  5.f.  of  the  OER  for  the 
period May 1, 19xx to April 30, 19xx shall be raised to a mark of 5.  All other requested 
relief is denied.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

 
 James G. Parks 

 
 

 

 
 Dorothy J. Ulmer