DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-159 
 
Xxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section  1552  of 
title 10 and section 425 of title 14 of the United States Code.   It was docketed on July 30, 
2004, upon receipt of the applicant’s completed application. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated March 31, 2005, is signed by the three duly appointed 

RELIEF REQUESTED 

 
The applicant, who at the time of application was a lieutenant (LT) in the Reserve 
 
serving on extended active duty,1 asked the Board to correct his record by removing an 
officer  evaluation  report  (OER)  covering  his  service  from  August  1,  1998,  to  July  31, 
2000.    He  asked  that a  substitute  OER  be  prepared  by  the  same  reporting  officer  and 
reviewer but by a different supervisor.  He alleged that the supervisor who prepared 
the  disputed  OER  was  biased  against  him  because  the  applicant  had  “effectively  put 
him ‘on report,’” and therefore should not have been on the applicant’s rating chain. 
 
 
The applicant asked the Board to remove any failure of selection by the lieuten-
ant  commander  (LCDR)  selection  board  in  August  2004  from  his  record  if  he  fails  of 
selection while his case is pending before the BCMR.2  He also asked the Board to back 
date his date of rank to LCDR if he is selected for promotion by the first selection board 
to review his record after it is corrected and to award him backpay and allowances. 

                                                 
1  The applicant has since returned to inactive duty. 
2  The applicant did fail of selection in August 2004. 

 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that as a reservist on inactive duty from 1998 to 2000, he 
was assigned to the planning office for the xxxxxxxxxxxxxxxxxx Regatta (XXXX).  The 
planning  office  was  part of  the  Waterways Management  Section of  the  Marine  Safety 
Office  (MSO)  in  Xxxxx,  to  which  the  applicant  was  assigned.    However,  the  senior 
officer in the planning office was CDR C, a reservist assigned to Group Xxxxx, rather 
than the MSO itself.  A chief yeoman (YNC) and a quartermaster second class (QM2) 
from Group Xxxxx were the other two members of the planning office. 
 
 
The applicant stated that, originally, his rating chain at the MSO included LCDR 
B, the Chief of Port Operations, as supervisor; CDR S, the MSO Executive Officer (XO), 
as  reporting  officer;  and  CAPT  W,  the  Commanding  Officer  (CO)  and  Captain  of  the 
Port,  as  reviewer.    However,  on  December  15,  1999,  about  three-fourths  of  the  way 
through  the  two-year  evaluation  period  for  the  disputed  OER,  his  rating  chain  was 
modified  by  substituting  CDR  C,  the  ranking  member  of  the  planning  office,  as  his 
supervisor  instead  of  LCDR  B.    He  was  told  that  the  change  was  made  “to  improve 
teamwork and to create a clearer reporting chain” in the planning office.  The applicant 
alleged  that  CDR  C’s  own  rating  chain  was  also  altered  to  include  the  MSO  XO  as 
supervisor,  the  CO  as  reporting  officer,  and  CAPT  G,  the  District  Chief  of  Marine 
Safety, as reviewer. 
 
 
The  applicant  alleged  that  he  immediately  objected  to  the  modification  of  his 
rating chain because just one week before, he had reported serious violations by CDR C.  
He had reported overhearing CDR C (their desks were adjacent) inviting a civilian, Mr. 
X, to stop by with an application for a marine event on a date for which they already 
had another, competing application.  The applicant had reported that he heard CDR C, 
who had authority to approve either application, say, “We already have an application 
for that date, but if you want to stop by with your material, we can take a look at it, … 
[a]nd you might want to bring something to sweeten the pot.”  On December 8, 2000, as 
the  applicant  was  leaving  the  office  for  a  meeting,  he  saw  Mr.  X  come  in  with  his 
application and an envelope for CDR C, who instead of taking it, asked Mr. X to hand it 
to the chief yeoman.  The applicant stated that when he returned to the office, the chief 
yeoman was distributing tickets to a xxxxx xxxxxxxxx game that evening.  He alleged 
that when she handed him a ticket, “he asked where they came from.  She said, “Don’t 
ask and you don’t have to know.”  The applicant alleged that he looked at CDR C, who 
merely shrugged his shoulders and said, “I have no idea.”  However, then the QM2 said 
they  came  from  Mr. M.    The  applicant  alleged  that  he  said  they  could  not  accept  the 
tickets.  However, CDR C again just shrugged.  The YNC then entered the recreation 
room  and  began  distributing  tickets  to  other  personnel.    The  applicant  stated  that  he 
gave his ticket back to her, and told her they should not accept them because they were 
worth more than $25 (the face value was $44 each) and because they came from some-
one who had submitted an application for a permit.  However, she continued to distri-

bute  the  tickets,  and  he  saw  her  give  three  to  members  of  the  Group  Engineering 
Department.   The  applicant  alleged  that  CDR  C’s  conduct  in  this  matter  comported 
with  prior  conduct  he  had  observed.    For  example,  he  alleged  that  CDR  C  had  once 
“attempted to act as an agent for a private commercial enterprise that was seeking pref-
erential placement in a parade to be held in connection with the xxxxxxx visit,” and was 
only thwarted by the District Legal Officer.  
 
 
The applicant alleged that because the tickets were for a game that very evening, 
he immediately reported the matter to LCDR B, his Division Officer.  However, because 
LCDR B was not in the office, he went to see the XO.  The applicant stated that the XO 
“listened attentively, was appalled, and immediately telephoned … [the] Deputy Group 
Commander,” who told the XO she would take care of the matter. 
 
The applicant stated that when he returned to the planning office, CDR C was 
 
“fuming.”  The applicant told him that the tickets had to be returned, and CDR C said 
“What tickets?  I didn’t see them.  I didn’t touch them.  He didn’t give them to me.  I 
don’t see a problem with this. … “  Thereafter, CDR C received a call from the Deputy 
Group Commander, who told him to retrieve the tickets and return them to Mr. M. 
 
 
The  applicant  stated  that  a  week  later,  he  spoke  with  LCDR  B  about  the  work 
environment in the planning office and stated that he thought they could use a facilita-
tor.  The next day, December 15, 1999, at a meeting with his own rating chain and that 
of CDR C, he was told that CDR C would be his new supervisor.  When he objected, 
CDR C’s prior supervisor from the Group, said to him, “You’re the reason we’re here.  
We wouldn’t have to be here if you exhibited a little more teamwork.”  The applicant 
stated that after the others left, he again voiced his objections to the XO and CO, citing 
the  fact  that  he  had  reported  CDR  C’s  acceptance  of  the  tickets.    However,  the  CO 
assured him that he would receive a fair OER. 
 
 
The applicant alleged that during the remainder of the reporting period, CDR C 
“persisted  in  a  hostile  micromanagement  campaign  in  which  [the  applicant]  was 
doomed to failure.”  CDR C refused to communicate with him orally and instead sent 
him lengthy email messages.  The applicant alleged that CDR C also “persistently bad-
mouthed”  him  to  the  XO  and  made  sure  that  the  applicant  received  only  a  Letter  of 
Commendation  for  his  work  in  the  planning  office,  whereas  CDR  C  and  the  others 
received Meritorious Service Awards. 
 
 
The  applicant  alleged  that  after  he  reported  CDR  C’s  ethical  violation,  the  XO 
and CO should have protected him from reprisal but instead moved him into a position 
where CDR C “could destroy him professionally.”  The applicant stated that the entire 
disputed  OER  (the  reporting  officer’s  part  as  well  as  the  supervisor’s)  should  be 
removed from his record because CDR C actively campaigned to discredit him with his 

reporting officer, the XO, and “set[] the groundwork—in his own part of the OER—for 
what appears in the remainder.” 
 

SUMMARY OF THE RECORD 

 

In 1991, the applicant enlisted in the Coast Guard Reserve.  He had previously 
completed  eight  years  of  active  duty  in  the  Navy.    In  1994,  he  was  commissioned  an 
ensign in the Reserve.  Prior to the evaluation period for the disputed OER, the appli-
cant’s evaluation marks were primarily 5s and 6s (on a scale of 1 to 7, with 7 being best).  
He was promoted to lieutenant (junior grade) on January 21, 1996. 

 
On  the  OER  immediately  preceding  the  disputed  OER,  the  applicant  received 
seven marks of 5, ten marks of 6, and one mark of 7 in the various performance catego-
ries and a mark in the 6th place on the comparison scale, which denotes an “exceptional 
officer.”  LCDR B served as his reporting officer and the XO served as his reviewer for 
that  OER,  while  the  Chief  of  the  Facilities  Inspection  Division  at  the  MSO  was  his 
supervisor.  On January 21, 1999, the applicant was promoted to lieutenant. 

 
The disputed OER, which covers the applicant’s service from August 1, 1998, to 
July 31, 2000, indicates that he was assigned to drill and perform active duty for special 
work  (ADSW)  at  the  XXXX  planning  office.    In  the  section  of  the  OER  completed  by 
CDR  C,  as  the  supervisor,  the  applicant  received  marks  of  3  in  the  performance 
categories  “Results/Effectiveness,”  “Professional  Competence,”  “Teamwork,”  and 
“Workplace Climate.”  CDR C also assigned him seven marks of 4 (average) and two 
marks  of  5  for  his  public  speaking  and  writing  abilities.    CDR  C  supported  the  low 
marks with written comments, such as the following: 

 
  “Other routine tasks completed with assistance from MSO officers.” 
  “Minimal contributions to writing major documents … .” 
  “Best results when directly tasked by O-6.” 
  “Depth of understanding clouded by tendency to over-delegate.” 
  “Difficulty completing some routine tasks in a timely fashion.” 
  “[A]t times contributed to uncomfortable team environment.” 
 
CDR C also included the following comment in the disputed OER to support a 
mark of 4 for the performance category “Looking Out for Others”:  “made tickets avail-
able  to  subordinates  to  attend  sporting  events  and  theater  that  would  have  gone 
unused.”   

 
The XO, who served as the applicant’s reporting officer, did not concur with the 
supervisor’s marks and comments in block 7 of the OER, where concurrence is normally 
indicated  by  a  reporting  officer.    The  XO  assigned  the  applicant  one  mark  of  4,  two 
marks of 5, and two marks of 6 in the performance categories and a mark in 4th place on 

the comparison scale, which denotes a “good performer.”  The XO included no negative 
comments  and  wrote  that  the  applicant  was  “[h]ighly  recommended  for  promotion 
with his peers.” 

 
The CO, who served as the reviewer, exercised his discretion to add a comment 

page to the disputed OER with the following statements: 

 
[The  applicant]  experienced  professional  differences  with  supervisor  this  reporting 
period.    [He]  was  assigned  several  tasks  directly  by  supervisor,  but  failed  to  complete 
these tasks to supervisor’s satisfaction.  Many other tasks assigned by Reporting Officer 
or  myself  as  Commanding  Officer  were  completed  to  my  satisfaction.    [The  applicant] 
had  several  very  successful  innovations  and  initiatives  accomplished  during  xxxxxxxx, 
including … .  I have received and still continue to receive numerous positive comments 
on this member’s performance during the planning phases and throughout the execution 
of this challenging major marine event. 
 
Both  [the  applicant]  and  supervisor  displayed  quite  different  management  and  leader-
ship styles and had different strategies in approaching a project of this magnitude.  It is 
unfortunate that [the applicant] could not overcome professional differences with super-
visor.   This is something [he] could have  worked harder to  overcome.  It is my under-
standing  that  the  supervisor,  on  several  occasions,  pointed  out  problems  to  [the  appli-
cant], but [he] did not satisfy supervisor in all performance areas during period of evalu-
ation.  [The applicant] has professional strengths in areas such as inter=agency coordina-
tion and viewing the big picture issues of events such as xxxxxxxxxxx.  These strengths 
were paramount in ensuring a successful event.  On the other hand, supervisor preferred 
[him]  to  be  more  detail  oriented  and  timely  on  certain  tasks,  and  this  is  where  the 
professional differences surfaced. 
 
On October 5, 2000, the applicant received a Letter of Appreciation from the CO 
for his work in the planning office for XXXX.  The reviewer completed his work on the 
disputed OER on October 10, 2000.  However, the OER was not validated by the Coast 
Guard Personnel Command until March 19, 2001. 

 
Following XXXX, from August 1, 2000, to July 31, 2003, the applicant served on a 
three-year extended active duty contractor as an instructor and academic section chief 
at the Coast Guard’s Officer Candidate School.  He received primarily marks of 6 and 7 
on the three OERs covering this period and marks in the 6th place on the comparison 
scale.  On August 1, 2003, he began a second three-year contract as Chief of the Leader-
ship Programs Section at the Leadership & Quality Institute at the Academy.  However, 
a  letter  in  his  application  dated April  8,  2004,  indicates  that  because  the  Coast  Guard 
was  experiencing  “unprecedented  billet  growth  within  the  active  duty  officer  corps” 
and was contemplating involuntarily terminating numerous extended active duty con-
tracts, he had voluntarily given up his contract and agreed to work on an ADSW basis.  
In August 2004, the applicant competed for promotion to LCDR as an “in zone” officer 
on  the  active  duty  promotion  list  (ADPL)  and  was  not  selected.    Since  then,  he  has 
apparently returned to inactive duty and civilian employment. 

 

VIEWS OF THE COAST GUARD 

 

On January 26, 2005, the Judge Advocate General (JAG) of the Coast Guard sub-
mitted  an  advisory  opinion  recommending  that  the  Board  grant  partial  relief  in  this 
case.  He based his recommendation on and adopted a memorandum on the case pre-
pared by CGPC.   

 
CGPC stated that in response to the applicant’s allegations, it had conducted an 
investigation and “found no information to substantiate allegations that Supervisor had 
solicited  or  collected  a  bribe.    The  investigation  found  no  evidence  substantiating  the 
allegation that Supervisor retaliated by generating a negative OER.”   

 
CGPC attached to its memorandum declarations written by CDR C, the XO, and 
the CO (see below).  Based upon the declarations, CGPC stated that it was reasonable 
for  the  applicant  to  be  concerned  about  retaliation  after  he  reported  CDR  C’s  alleged 
conduct and that the applicant timely voiced his concerns to the XO and CO.  However, 
CGPC  stated,  the  declarations  indicate  that  a  “strained  working  relationship”  existed 
between the applicant and CDR C even before the report about the tickets was made 
and that CDR C had already “expressed concerns to [the XO] that Applicant’s inability 
to meet deadlines placed a strain on the entire XXXX staff.”  CGPC stated that the XO 
had  already  warned  the  applicant  about  how  his  failure  to  meet  deadlines  could  be 
reflected in an OER. 

 
CGPC  stated  that  designating  a  new  supervisor  three-quarters  of  the  way 
through an evaluation period is not contrary to regulation or policy.  CGPC alleged that 
the applicant’s new rating chain was properly composed since CDR C was the superior 
officer  who  most  closely  observed  his  work  on  a  daily  basis  and  having  a  “unified 
command” for an office is desirable.  However, CGPC noted, the command was suffi-
ciently concerned about the tensions between the applicant and CDR C to remain on the 
rating chain, instead of having CDR C’s superiors at Group Xxxxx serve as the reporting 
officer  and  reviewer.    Moreover,  CGPC  stated,  “[a]dmonishing  Supervisor  to  remain 
impartial … yet leaving him in the rating chain undercut the validity of any OER that 
Supervisor could have prepared.  A rating official with a grudge would have been able 
to  mask  retaliatory  comments  in  objective-sounding  terms—which  Applicant  asserts 
happened.” 

 
CGPC  concluded  that  the  “nature  of  Applicant’s  allegations  and  his  working 
relationship  with  Supervisor  fit  the  definition  of  “a  personal  interest  or  conflict”  that 
could have disqualified Supervisor from evaluating Applicant” under Article 10.A.2.g. 
of  the  Personnel  Manual.    “Implementing  the  new  rating  chain  just  one  week  after 
Applicant’s allegations surfaced intensified any ‘bad blood’ that Applicant correctly or 
incorrectly discerned.”  CGPC further stated that the “chance for a rating chain excep-

tion to exist in this case was so strong that it overcomes the presumption of regularity 
with respect to the manner in which Applicant’s OER was completed.  Doubt exists not 
only on the accuracy and fairness of Supervisor’s portion, but on the actions of Report-
ing  Officer  and  Reviewer,  who  developed  a  compromise  rating  chain  and  evaluated 
Applicant in a way calculated to counter-balance Supervisor’s evaluation.” 

 
CGPC recommended that the Board remove the disputed OER and the failure of 
selection in August 2004 from the applicant’s record.  CGPC further recommended that 
the  Board  order  that  his  date  of  rank  be  backdated  and  that  he  receive  backpay  and 
allowances  if  he  is  selected  for  promotion  by  the  first  selection  board  to  review  his 
record  as  corrected.    However,  CGPC  recommended  against  having  a  substitute  full 
OER prepared to replace the disputed OER.  CGPC stated that it is difficult to imagine 
how  an  appropriate  substitute  supervisor  with  full  knowledge  of  the  applicant’s  per-
formance could be identified or “how a substantive, accurate OER could be generated 
by an alternative Supervisor more than four years after the end of Applicant’s reporting 
period.”  Therefore, CGPC recommended that the Board order the disputed OER to be 
replaced by a “continuity OER,” which lists an officers duties but contains no comments 
or numerical marks. 

 

Declaration of the Supervisor, CDR C  
 

CDR C stated during the eight months he supervised the applicant, “it was the 
rule,  not  the  exception,  for  his  performance  to  be  lacking  and  his  behavior  insolent.”  
CDR  C  stated  that  he  even  asked  for  the  applicant  to  be  removed  from  the  planning 
office and that a special OER be prepared to document his poor performance.  He stated 
that he maintained a work log that shows “many examples of [the applicant’s] poor per-
formance, discussions with him or the command about his poor performance, or discus-
sions with others tasked to complete his work.” 

 
CDR C alleged that he himself was added to the applicant’s rating chain because 
the applicant’s performance was lacking.  He alleged that he was told in private that the 
new  rating  chain  was  intended  to  make  the  applicant  “better  respond  to  tasking  and 
end his complaints that he was getting mixed messages from [LCDR B] and me.”  How-
ever, he alleged, the applicant’s performance did not improve, and the disputed OER 
“was an accurate and fair reflection of his actual performance.” 

 
CDR C alleged that none of the marks or comments in the disputed OER were 
assigned because of any ethics complaint regarding “alleged tickets.”  He stated that he 
never solicited any tickets but that unsolicited tickets were received at the office from 
someone who had applied for a permit.  He stated that he returned the tickets and sub-
mitted a copy of the cover letter he sent to Mr. M.  The letter, dated December 9, 1999, 
states the following: 

 

Although  your  gesture  of  kindness  is  greatly  appreciated,  I  am  sorry  to  have  to  return 
your  Celtic  tickets.    However  they  were  distributed,  they  ultimately  wound  up  in  the 
hands of members who are assigned to xxxxxxx celebrations next July.  Accordingly, this 
is  a  conflict  of  interest  and  would  place  those  members  in  jeopardy  and  bring  undue 
attention to your fireworks permit application.   
 
Future contributions may be accepted via the Coast Guard Foundation in New London, 
CT or the local USO …  Doing so relieves both organizations of impropriety that may be 
construed when not really intended. 

 
Declaration of the Reporting Officer, the XO 

 
The  XO  stated  that  CDR  C  replaced  LCDR  B  as  the  applicant’s  supervisor 
because LCDR B did not observe the applicant’s performance on a daily basis while the 
applicant  was  assigned  to  the  XXXX  planning  office.    He  stated  that,  before  the 
applicant  told  him  about  the  basketball  tickets,  CDR  C  had  complained  to  him 
numerous times about the applicant’s poor performance and failure to meet deadlines.  
The  XO  stated  that  because  of  CDR  C’s  complaints,  he  had  counseled  the  applicant 
about  the  need  to  meet  deadlines  and  “that  further  infractions  would  result  in  a 
derogatory  OER.”    The  applicant  acknowledged  the  warning  but  disputed  CDR  C’s 
allegations about missed deadlines. 

 
The XO stated that at some point during the evaluation period, the applicant told 
him  that  CDR  C  had  accepted  tickets  to  a  xxxxxxxxxxxxxx  basketball  game  from 
someone with an application pending before the office.  The XO stated that he reported 
the  allegation  to  the  Deputy  Group  Commander,  who  stated  that  he  would  counsel 
CDR C.  The XO stated that because both he and the Deputy Group Commander spoke 
to CDR C about the “requirement of impartiality in evaluating [the applicant],” he was 
satisfied that the applicant would receive a fair OER. 

 
The  XO  stated  that  when  he  received  the  supervisor’s  portion  of  the  disputed 
OER and saw the low marks, he spoke with the CO, and they agreed to speak to CDR C.  
CDR C “had ample documentation which supported his evaluation of [the applicant] 
and felt his evaluation was fair and unbiased.”  The XO stated that although the appli-
cant’s “ability to create and lead an inter-agency team [for XXXX] was noteworthy, … 
[CDR C’s] evaluation in [the applicant’s] performing the more ‘mundane’ tasks associ-
ated with [Xxxx] accurately reflected [his] performance.”  The XO stated that he tried to 
balance  the  OER  by  focusing  on  the  applicant’s  duties  with  regards  to  marine  safety 
rather than XXXX planning. 

 

Declaration of the Reviewer, the CO 

 
The CO stated that the rating chain for the XXXX planning office was created “by 
design” because the staff came from various offices but, as Captain of the Port, he had 
statutory authority for the overall safety of the event.  He stated that “there was some 

concern from the outset that [CDR C’s] style of management was very assertive and so 
detail oriented such that my staff also desired to have input in OERs for MSO person-
nel. … In fact, because of the concern that my staff had concerning a possible clash due 
to  their  very  different  leadership  and  management  styles,  we  thought  that  the  rating 
chain as designed would be helpful.”   

 
The CO stated that he thought the disputed OER was “generally accurate” but 
“too harsh in the areas where 3’s were assigned.”  He stated that the applicant’s per-
formance did not warrant the low marks.  However, he did not observe the applicant’s 
performance on a daily basis.  He noted that the applicant’s service at the MSO had oth-
erwise been “excellent.” 
 

The CO stated that during the evaluation period, he “heard rumor of the allega-
tion of an ethical lapse on the part of [CDR C] referred to by [the applicant], but I do not 
believe that such an ethics violation was ever officially lodged, or if it was, it was likely 
addressed by Group Xxxxx.  I would think that if this were true, it is possible that this 
could have colored the Supervisor’s attitude toward [the applicant].” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On January 27, 2005, the Chair sent the applicant a copy of the views of the Coast 
Guard and invited him to respond within 30 days.  On February 22, 2005, the applicant 
responded.  
 
 
The applicant stated that he was gratified by the Coast Guard’s response to his 
application but argued that “there is no basis for ruling out a priori an effort to construct 
a substantive OER” to replace the disputed OER since a substantive OER “is much to be 
preferred  over  a  continuity  OER”  when  one’s  record  is  reviewed  for  promotion.    He 
argued that the declarations of the CO and XO indicate that they can “recall quite a lot 
about the reporting period.” 
 
 
The applicant asked that LCDR B, who is currently assigned to CGPC, be called 
to act as his supervisor for a substitute OER.  He submitted a draft of the supervisor’s 
section  of  the  proposed  substitute  with  written  comments  supplied  but  no  numerical 
marks assigned.  He asked the Board to forward the draft to LCDR B and ask him “if he 
feels capable of performing the role of Supervisor” for a substitute OER.  The applicant 
stated that if LCDR does feel capable, he could make whatever changes to the written 
comments he desires, or “start from scratch,” and assign appropriate numerical marks.  
The  applicant  stated  that  he  is  confident  that  the  XO  and  CO  “would  perform  their 
duties on a revised substantive OER from which [CDR C] was excluded in an equally 
fair and impartial manner.” 
 

 
Finally, the applicant pointed out that CDR C’s statement about “alleged tickets” 
in his declaration conflicts with the letter he wrote about actual tickets.  He also argued 
that if CDR C had not actually “received” the tickets, he would not have been counseled 
about the impropriety of his actions by the Deputy Group Commander and he would 
not have been required to return them.  The applicant also alleged that CDR C’s cover 
letter returning the tickets was “disingenuous to the extent it implies ignorance about 
how the tickets were distributed” and who actually received them. 
 

  

APPLICABLE LAW 

 

Article 10.A. of the Personnel Manual governs the preparation of OERs. Article 
 
10.A.1.b.1. provides that “[c]ommanding officers must ensure accurate, fair, and objec-
tive evaluations are provided to all officers under their command.”  Articles  10.A.2.d.1., 
e.1., and f.1. of the Personnel Manual provide that each OER is prepared by the report-
ed-on  officer’s  “rating  chain”  of  three  senior  officers:    the  supervisor  (the  officer  to 
whom the reported-on officer answers on a daily basis), the reporting officer (the super-
visor’s supervisor), and the reviewer (the reporting officer’s supervisor).   
 
 
Article 10.A.2.g.1. of the Personnel Manual provides that an officer may be “dis-
qualified” from serving on a subordinate’s rating chain.  Article 10.A.2.g.2.b. provides 
that the term “’Disqualified’ includes relief for cause due to misconduct or unsatisfac-
tory performance, being an interested party to an investigation or court of inquiry, or 
any other situation in which a personal interest or conflict on the part of the Supervisor, 
Reporting Officer, or Reviewer raises a substantial question as to whether the Reported-
on  Officer  will  receive  a  fair,  accurate  evaluation.”    Article  10.A.2.g.2.c.  provides  that 
“[i]f not already determined by the commanding officer, it is incumbent on the Report-
ed-on  Officer  to  identify  to  the  next  senior  officer  in  the  chain-of-command  that  an 
exception to the designated rating chain may exist.  This issue should be raised as soon 
as practicable prior to the completion of the reporting period.”  
 

Article 10.A.4.c.4. instructs supervisors to make marks and comments for the first 
thirteen  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. 
  
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.” 
 

Article 10.A.4.g. permits the reported-on officer to file a reply to any OER within 
14 days of receipt “to express a view of performance which may differ from that of a 
rating  official.”    The  reply  is  not  an  appeal  and  cannot  result  in  the  correction  or 
removal of an OER, but it and any written responses to it by the rating chain are includ-
ed in the officer’s file along with the OER. 

 
Article  10.A.3.a.  provides  that  commands  should  prepare  “continuity  OERs”— 
which include only a description of the officer’s duties and responsibilities and have no 
numerical marks or other comments—under special circumstances when it is inappro-
priate  to  prepare  a  substantive  OER  or  when  directed  to  do  so  because  a  substantive 
OER has been removed from the record by judicial or administrative action. 
 

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. 

The  Board  has  jurisdiction  concerning  this  matter  pursuant  to  10  U.S.C. 
§ 1552.  The application was timely under Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 1994).3 

 
2. 

The  applicant  alleged  that  the  disputed  OER  is  inaccurate  and  unjust 
because his supervisor, CDR C, was biased against him.  The preponderance of the evi-
dence in the record indicates that CDR C was inserted into the applicant’s rating chain 
just  one  week  after  the  applicant  reported  to  the  XO  that  CDR  C  had  solicited  and 
accepted professional basketball tickets from a civilian entity with an application pend-
ing before his office.  Although CDR C has denied soliciting or receiving such tickets, 
the XO’s declaration indicates that the applicant did lodge the complaint and that CDR 
C  was  counseled  about  the  impropriety  of  his  alleged  actions  by  the  Deputy  Group 
Commander.  The Board notes that CDR C was required to return the tickets to Mr. M, 
                                                 
3 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding 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”). 

and  his  cover  letter  appears  to  be  intentionally  vague  about  who  received  the  tickets 
and how they were distributed. 

 
3. 

 The declarations of the XO and CO indicate that even before the applicant 
reported  the  receipt  of  the  tickets,  CDR  C  was  dissatisfied  with  the  applicant’s  work 
and that there was considerable tension between them.  It is not clear to the Board that 
CDR C would have assigned the applicant better marks and comments even if the latter 
had never lodged his complaint about the tickets.  The XO stated in his declaration that 
CDR C’s “evaluation in [the applicant’s] performing the more ‘mundane’ tasks associ-
ated with [Xxxx] accurately reflected [his] performance.”  However, the CO stated that 
the marks of 3 that CDR C assigned to the applicant were “too harsh.” 

 
4. 

Under Article 10.A.2.g.2.b. of the Personnel Manual, an officer should be 
disqualified  from  serving  on  a  rating  chain  in  “any  …  situation  in  which  a  personal 
interest or conflict on the part of the Supervisor, Reporting Officer, or Reviewer raises a 
substantial question as to whether the Reported-on Officer will receive a fair, accurate 
evaluation.”  The Board agrees with the Coast Guard that the applicant’s report to the 
XO  that  his  supervisor  had  solicited  and  received  tickets  to  a  professional  basketball 
game  from  a  civilian  entity  with  an  application  pending  before  the  XXXX  planning 
office  created  a  personal  conflict  that  raised  a  substantial  question  as  to  whether  the 
applicant would receive an accurate evaluation.  This is true even if, as the Coast Guard 
alleges, the applicant’s allegations about CDR C cannot be substantiated.  Of course, an 
officer  should  not  be  able  to  disqualify  members  of  his  own  rating  chain  by  lodging 
frivolous  or  false  complaints  against  them.    However,  in  this  case,  the  Board  is  per-
suaded that the applicant did not knowingly make a false or frivolous complaint, even 
if the Coast Guard has not substantiated his allegations. 

 
5. 

The  record  indicates  that  the  applicant  promptly  lodged  his  objection  to 
having CDR C on his rating chain and that the XO and CO were aware of the potential 
for bias on the part of CDR C.  Yet they put him in the applicant’s rating chain anyway 
because they desired a unified chain of command in the planning office and hoped that 
their  own  presence  on  the  rating  chain  would  deter  potential  bias  and  encourage 
impartiality  on  the  part  of  CDR  C.    CGPC  opined  that  “[a]dmonishing  Supervisor  to 
remain  impartial  …  yet  leaving  him  in  the  rating  chain  undercut  the  validity  of  any 
OER that Supervisor could have prepared.  A rating official with a grudge would have 
been  able  to  mask  retaliatory  comments  in  objective-sounding  terms.”    The  Board 
agrees with the Coast Guard that, as head of the planning office, CDR C was in a posi-
tion where he could have created the appearance of poor performance, as the applicant 
has  alleged.    The  Board  is  not  persuaded  that  by  remaining  on  the  applicant’s  rating 
chain, the XO and CO cured the harm of assigning him a supervisor who should have 
been disqualified from serving on his rating chain under Article 10.A.2.g.2.b. of the Per-
sonnel Manual. 

 

6. 

The  applicant  asked  the  Board  to  remove  the  disputed  OER  from  his 
record.  The Board may remove or correct an OER when an applicant proves by a pre-
ponderance of the evidence that the OER was adversely affected by a “misstatement of 
significant hard fact,” factors “which had no business being in the rating process,” or a 
prejudicial  violation  of  a  statute  or  regulation.4    In  this  case,  the  Board  finds  that  the 
preponderance of the evidence in the record indicates that, by inserting CDR C into the 
applicant’s  rating  chain,  his  command  committed  a  prejudicial  violation  of  Article 
10.A.2.g.2.b. of the Personnel Manual. 

 
7. 

The  applicant  has  asked  that  the  entire  disputed  OER  be  removed  from 
his record, rather than just the part prepared by his supervisor, CDR C.  He alleged that 
the XO’s evaluation is inaccurate because CDR C waged a campaign of misinformation 
by denigrating his performance to the XO.  The Coast Guard has recommended that the 
entire OER be removed.   CGPC stated that “[d]oubt exists not only on the accuracy and 
fairness of Supervisor’s portion, but on the actions of Reporting Officer and Reviewer, 
who developed a compromise rating chain and evaluated Applicant in a way calculated 
to counter-balance Supervisor’s evaluation.”   

 
8. 

In BCMR Docket No. 151-87, it was held that “an OER will not be ordered 
expunged [in its entirety] 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.”    The  Board  finds 
that it is no less likely that bias on the part of CDR C affected his communications to the 
XO about the applicant’s performance than that it affected the marks he assigned in the 
OER.  Although the XO stated that in preparing his part of the OER, he focused on the 
applicant’s performance of duties concerning marine safety rather than XXXX planning, 
his  declaration  also  indicates  that  he  developed  an  overall  negative  opinion  of  the 
applicant’s efforts during the reporting period because of information supplied by CDR 
C.    Given  this  potential  influence  and  the  fact  that  the  XO  tried  to  “counter-balance” 
CDR  C’s  marks,  the  Board  agrees  with  CGPC  that  the  applicant  has  proved  that  it  is 
“impossible or impractical to sever the incorrect/unjust material from the appropriate 
material.”  Therefore, the entire OER—including the CO’s comment page in which he 
attempted  to  explain  the  divergent  evaluations  by  CDR  C  and  the  XO—should  be 
removed from the applicant’s record. 

 
9. 

The applicant asked that the disputed OER be replaced with one for which 
LCDR B would serve as the supervisor.  He asked the Board to ask LCDR B if he feels 
able to prepare an accurate OER for the applicant.  However, the XO has stated that the 
revision of the applicant’s rating chain was necessary because LCDR B did not work in 
the planning office and so did not observe his performance on a daily basis.  Moreover, 

                                                 
4  Hary v. United States, 618 F.2d 704, 708 (Cl. Ct. 1980); CGBCMR Docket No. 86-96. 

because of the applicant’s delay in applying to this Board, more than four years have 
passed since the end of the evaluation period.  Therefore, the Board is not persuaded 
that an accurate OER could be prepared by LCDR B no matter what his opinion may be.  
When the Board orders an OER removed from the record because of an error or injus-
tice, it usually orders that the OER be replaced by a continuity OER in accordance with 
Article  10.A.3.a.  of  the  Personnel  Manual.    Although  substantive  OERs  are  to  be  pre-
ferred to continuity OERs, the Board will not order the creation of an OER more than 
four years after the reporting period by a “supervisor” who had little if any opportunity 
to observe the applicant’s performance of his primary duties.  Therefore, the disputed 
OER should be replaced by a continuity OER. 

 
10. 

The applicant asked that his failure of selection for promotion to LCDR in 
August 2004 be removed from his record and that his date of rank be backdated—with 
corresponding  backpay  and  allowances—if  he  is  selected  for  promotion  by  the  next 
board to review his record as corrected.  The Coast Guard recommended that the Board 
grant this relief.  To determine if the applicant is entitled to such relief, the Board must 
answer the following two questions:5  First, was his record prejudiced by the error in 
the sense that it appeared worse than it would have in the absence of the error?  Second, 
even if there was some such prejudice, is it unlikely that he would have been selected 
for promotion in August 2004 in any event?  The Board finds that the applicant’s record 
was clearly prejudiced by the disputed OER in that it contains significantly lower marks 
than any other OER in his record.  Moreover, in light of the fine quality of the remain-
der  of  his  record,  the  Board  finds  that  in  the  absence  of  the  disputed  OER,  it  is  not 
unlikely that he would have been selected  for promotion.  Therefore, the Board finds 
that the applicant is entitled to have his failure of selection for promotion to LCDR in 
August 2004 removed from his record.  In addition, if he is selected for promotion (as 
an “in zone” candidate) by the next LCDR selection board to review his record, his date 
of rank should be backdated to what it would have been had he been selected for pro-
motion in August 2004, and he should receive corresponding backpay and allowances. 

 
11.  Accordingly,  the  applicant’s  request  should  be  granted  except  that  the 

disputed OER should be replaced by a continuity OER. 

 

 

 
 
 

 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

                                                 
5 Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982). 

ORDER 

 

The application of xxxxxxxxxxxxxxxxxxxx, USCGR, for correction of his military 

record is granted in part as follows: 

 
The  OER  covering  his  service  from  August  1,  1998,  through  July  31,  2000— 
including the reviewer’s comment page—shall be removed from his record.  A continu-
ity OER shall be prepared and placed in his record in its stead. 

 
His  failure  of  selection  by  the  ADPL  LCDR  selection  board  that  convened  in 
August 2004 shall be removed from his record.   He shall be considered “in zone” for 
promotion by the next LCDR selection board to review his record as corrected by this 
order.  If he is selected for promotion by the next LCDR selection board to review his 
record, his LCDR date of rank shall be backdated to what it would have been had he 
been selected for promotion in August 2004, and he shall receive corresponding back-
pay and allowances. 

 
 

 
 

 
 

 
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 

 
 Bruce D. Burkley 

 

 

 
 Jordan S. Fried 

 

 

 
 George J. Jordan