DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2004-179 
 
Xxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  It was docketed on August 25, 2004, upon the 
BCMR’s receipt of the applicant’s completed application. 
 
 
members who were designated to serve as the Board in this case. 

This final decision, dated April 21, 2005, is signed by the three duly appointed 

 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  correct  her  record  by  raising  two  numerical 
marks  on  her  officer  evaluation  report  (OER)  for  the  period  July  16,  2002,  to  July  17, 
2003, when she was serving as the program manager for the Reserve Officer Evaluation 
System.  She also asked that the end date of the OER be corrected to May 31, 2003.  
 
 
The applicant alleged that in March 2003, she received an email from the Coast 
Guard Personnel Command stating that an OER was due for her for the period ending 
May 31, 2003.  Accordingly, on March 24, 2003, she submitted information for the OER 
to LCDR K, who was her supervisor for the evaluation period.  However, LCDR K went 
on terminal leave on March 29, 2003, and retired on June 1, 2003, without completing 
her OER.  She alleged that LCDR K instead prepared recommended numerical marks 
and  comments  and  that  he  assigned  her  marks  of  5  in  the  performance  categories 
“Results/Effectiveness” and “Teamwork.”1 
 

                                                 
1  Coast Guard officers are evaluated on a scale of 1 to 7 in a variety of performance categories, with 7 
being the highest mark. 
 

The  applicant  alleged  that  after  LCDR  K  went  on  leave,  she  received  an  email 
from CDR S stating that her temporary rating chain would include himself as supervi-
sor, CAPT F as reporting officer, and CAPT P as reviewer.  She alleged that this change 
violated  the  Personnel  Manual  since  LCDR  K  was  her  supervisor  throughout  the 
evaluation period and did not retire until June 1, 2003.  She argued that being on termi-
nal leave did not render LCDR K “unavailable” under the Personnel Manual.  On the 
disputed  OER,  which  was  prepared  by  her  new  supervisor,  CDR  S,  following  the 
detachment of her reporting officer, CAPT F, she received marks of 4 in the categories 
“Results/Effectiveness” and “Teamwork.”  
 
The applicant noted that she would be “in zone” for selection for promotion to 
 
LCDR in September 2004.  She asked that, if she fails of selection by that selection board 
but is subsequently selected for promotion after the BCMR corrects her record, her date 
of rank be backdated to what it would have been had she been selected for promotion 
by the selection board in September 2004 and that she receive corresponding backpay 
and allowances. 
 

In support of her allegations, the applicant submitted a copy of the input LCDR 
K provided for her OER before he left the office.  It contains copious observations of her 
performance and indicates that he would have assigned her marks of 5 in the categories 
“Results/Effectiveness” and “Teamwork.”  The applicant also submitted copies of sev-
eral email messages, including the following: 
 

 

 

 

 

 

  An  email  dated  March  24,  2003,  indicates  that  the  applicant  sent  LCDR  K 
input for her OER upon his request. 

  An email dated April 15, 2003, notes that the applicant and twelve other lieu-
tenants  at  her  unit  “are  currently  scheduled  to  receive  a  regular  OER  for  the 
period  ending  May  31,  2003.”    The  email  also  advises  reporting  officers  to 
respond to the email if a regular OER would not be submitted.   

 
In  an  email  dated  April  29,  2003,  CDR  S  informed  CAPT  F  that  because  of 
LCDR  K’s  departure,  a  temporary  rating  chain  should  be  established  for  the 
applicant and one other lieutenant in the office; that LCDR K had provided input 
for their OERs; and that LCDR K’s drafts were “in line with my observations.” 

 
In another email message dated April 29, 2003, CDR S informed the applicant 
that  for  the  remainder  of  the  reporting  period,  her  rating  chain  would  include 
CDR S as supervisor, CAPT F as reporting officer, and CAPT P as reviewer. 

  On May 12, 2003, CDR S reminded the applicant by email that her OER input 
was due as soon as she returned to the office.  The subject line of this email mes-
sage is “Your OER ending May 31.” 

  On May 23, 2003, CDR S informed the applicant by email that she would be 
writing the OER that weekend and needed the applicant’s input.  CDR S told her 
that the input should include “bullets of accomplishments you would like me to 
consider for your OER, examples of work completed.” 

  On  May  23,  2003,  the  applicant  forwarded  CDR  S  the  same  email  message 
with OER input that she had sent to LCDR K on March 24, 2003.   

SUMMARY OF THE APPLICANT’S RECORD 

 

 

 

On  April  9,  1991,  the  applicant  received  a  direct  commission  as  a  lieutenant 
because of her law degree.  On June 30, 1998, she was discharged as a result of having 
twice failed of selection for promotion to lieutenant commander. 

 
On January 4, 1999, the applicant accepted an appointment as a lieutenant (junior 
grade) in the Reserve and began drilling on inactive duty.  On November 1, 1999, she 
signed an extended active duty contract and began serving as an xxxxxxxxxx consultant 
to  the  xxxxxxxxxx.    On  November  18,  1999,  she was promoted to lieutenant.  On her 
first  OER  in  this  position,  which  covered  her performance through May 31, 2000, she 
received  seven  marks  of  4,  ten  marks  of  5,  and  one  mark  of  6  in  the  performance 
categories  and  a  mark  of  4  on  the  Comparison  Scale.2    In  the  second  OER,  which 
covered  her  performance  through  May  31,  2001,  she  received  two  marks  of  4,  eight 
marks of 5, and eight marks of 6 in the performance categories and a mark of 5 on the 
Comparison  Scale.    In  the  third  OER  she  received  at  the  xxxxxxxxxxxxxxxxxx,  after 
having been promoted to serve as the xxxxxxxxxxxxxxxx program manager from June 
1,  2001,  to  July  15,  2002,  she  was  assigned  five  marks  of  4,  ten  marks  of  5,  and  three 
marks of 6 in the performance categories and a mark of 5 on the Comparison Scale.  The 
applicant also received her first two Achievement Medals while at the xxxxxxxxxxxxxxx 
xxxxxxxxxxx. 

 
On  July  16,  2002,  the  applicant  began  serving  as  the  xxxxxxxxxxxxxxxxxxxx 
Program  Manager.    She  was  responsible for xxxxxxxxxxxxxx and providing guidance 
regarding xxxx timing and policies.  According to the Coast Guard, a unit instruction 
dated March 3, 2003, shows that her promulgated rating chain included LCDR K as her 
supervisor,  CDR  S  as  the  reporting  officer,  and  CAPT  F  as  the  reviewer.    However, 
because  LCDR  K  began  administrative  and  terminal  leave  on  March  29,  2003,  and 
retired on June 1, 2003, the rating chain was revised on April 29, 2003, to include CDR S 
as supervisor, CAPT F as reporting officer, and CAPT P as reviewer.   

                                                 
2  The Comparison Scale is not actually numbered.  However, as with the performance categories, there 
are seven possible marks.  Officers are supposed to be marked in comparison with all other officers of the 
same rank known to the reporting officer.  A Comparison Scale mark in fourth place describes the officer 
as an ”exceptional performer; very competent, highly respected professional.”  A mark in the fifth place 
means the officer was rated to be a “distinguished performer; give tough challenging, visible leadership 
assignments.” 

 
The OER disputed in this case covers the applicant’s performance as the Reserve 
Officer Evaluation System Program Manager through July 17, 2003.  It indicates that it 
was  prepared  upon  the  detachment  of  her  reporting  officer.    The  numerical  marks 
include three marks of 4 in the performance categories “Results/Effectiveness,” “Team-
work,”  and  “Health  and  Well-Being,”  as  well  as  thirteen  marks  of  5,  two marks of 6, 
and a mark of 5 on the Comparison Scale.  Her reporting officer, CAPT F, strongly rec-
ommended her for promotion with her peers.  

 
On  the  applicant’s  second  OER  as  the  Reserve  Officer  Evaluation  System  Pro-
gram Manager—which covers her service from July 18, 2003, through May 31, 2004 —
she  received  one  mark  of  4  (for  “Writing”),  eleven  marks  of  5,  six  marks  of  6,  and  a 
mark  of  5  on  the  Comparison  Scale.    Due  to  transfers,  her  rating  chain  for  this  OER 
included none of the members of her rating chain for the disputed OER. 

VIEWS OF THE COAST GUARD 

 

 
On January 12, 2005, the Judge Advocate General (JAG) of the Coast Guard sub-
 
mitted an advisory opinion in which he recommended that the Board deny relief in this 
case because the applicant has “failed to carry her burden of production and persuasion 
and did not show that her OER was improperly prepared or was not a fair and accurate 
evaluation of her performance.”   
 

The JAG argued that the Board should apply the following standards in deciding 

whether to grant relief: 
 

To establish that an OER is erroneous or unjust, an applicant must prove that the chal-
lenged  OER  was  adversely  affected  by  a  “clear  and  prejudicial violation of a statute or 
regulation or, alternatively, a misstatement of a significant hard fact.”  Germano v. United 
States, 26 Cl. Ct. 1446, 1460 (1992); see also Hary v. United States, 618 f.2d 704 (Cl. Ct. 1980).  
In  proving  his  case,  an  applicant  must  overcome  a  strong  presumption  that  his  rating 
officials acted correctly, lawfully, and in good faith in making their evaluations under the 
Coast  Guard’s  Officer  Evaluation  System.”    Arens  v.  United  States,  969  F.2d  1034,  1037 
(1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979).   

 
 
The  JAG  adopted  as  part  of  his  advisory  opinion  a  memorandum  on  the  case 
from  the  Coast  Guard  Personnel  Command  (CGPC).    CGPC  stated  that  on  April  29, 
2003,  it  authorized  CDR  S  to  adjust the applicant’s rating chain because of LCDR K’s 
departure  from  the  office.    CGPC  stated  that  the  adjustment  to  the  applicant’s  rating 
chain was proper under Article 10.A.2.g. of the Personnel Manual because LCDR K was 
“unavailable” due to his prolonged absence.  CGPC noted that LCDR K properly left 
input  for  the  OER  with  CDR  S  and  that  the  applicant  was  notified  in  writing  of  the 
adjustment to her rating chain.  CGPC stated that although LCDR K left input for the 
OER, CDR S was not required to use or include his input in the OER, as the departing 

supervisor’s  marks  and  comments  are  strictly  recommendations.    CGPC  argued  that 
CDR S was under no obligation to assign the exact marks recommended by LCDR K. 
 

Regarding the date of the end of the reporting period, CGPC stated that although 
under  Article  10.A.3.  of  the  Personnel  Manual,  May  31st  usually  ends  the  annual 
evaluation period for lieutenants, under Article 10.A.3.a.1.b.2., submission of the annual 
OER  is  optional  if  a  regular  OER  will be submitted within 182 days of the scheduled 
date for the annual report.  CGPC stated that a “Detachment/Change of Reporting Offi-
cer” OER is a regular OER and that one was prepared for the applicant upon the depar-
ture of her reporting officer within 182 days of May 31st. 

 
Regarding  the  applicant’s  complaint  that  the  alteration  of  the  end  date  caused 
the  OER  not  to  reflect  her  performance  in  June  and  July  2003,  CGPC  argued  that  the 
emails she submitted indicate that CDR S requested her input for the OER more than 
once and that the applicant “had the opportunity and … the responsibility to provide 
her supervisor [CDR S] with a complete listing of significant achievements or aspects of 
performance  that  occurred  during  the  entire  period.”    CGPC  concluded  that  the 
applicant has failed to prove that her rating chain was erroneous or that they failed to 
fulfill their responsibilities in accordance with the Personnel Manual.  

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

 

On January 12, 2005, the BCMR sent the applicant a copy of the Coast Guard’s 
views  and  invited  her  to  respond  within  30  days.    On  February  11,  2005,  the  BCMR 
received the applicant’s response. 

 
The applicant argued that LCDR K was available to complete her OER during his 
terminal leave.  She noted that during his terminal leave, he responded to various que-
ries from the office.  She alleged that it is standard practice at CGPC to contact officers 
who are on terminal leave, who have just retired, or who have transferred to another 
billet to get their signatures on OERs.  The applicant also argued that LCDR K should 
have completed the OER because he was her immediate supervisor for nine months of 
the evaluation period, whereas CDR S was her supervisor for only the last four months.  
Moreover,  she  alleged,  during  those  four  months,  LCDR  X,  who  assumed  LCDR  K’s 
billet on July 1, 2003, acted as her supervisor on several occasions instead of CDR S. 

 
The applicant further argued that if the alteration of her rating chain was legiti-
mate due to LCDR K’s alleged unavailability, then the end date of her evaluation period 
should  have  been  April  29,  2003,  when  her  reporting  officer  changed  from  CDR  S  to 
CAPT F. 

 
The applicant alleged that she had no idea that her rating chain had changed the 
end  date  of  her  evaluation  period  until  she  received  the  completed  OER  after  it  was 
validated by CGPC on November 25, 2003.  She alleged that if she had known they had 

extended the evaluation period, she would have provided additional documentation of 
her  performance  during  the  final  months.    She  alleged  that  on  May  23,  2003,  CDR  S 
asked her for the OER input she had provided to LCDR K on March 24, 2003.  She noted 
that  the  subject  line  for  this  email  was  “Your  OER  ending  May  31.”    The  applicant 
stated that she gave CDR S a paper copy of the input she had given LCDR K on June 6, 
2003, and that that was the last time CDR S asked her for OER input. 

 
Accordingly,  the  applicant  asked  the  Board  to  remove  the  disputed  OER  from 
her  record.    She  asked  that  a  new  Detachment/Change  of  Reporting  Officer  OER  be 
prepared for the period July 16, 2002, to April 28, 2003, with the proper rating chain that 
was  promulgated  during  that  period,  including  LCDR  K  as  supervisor,  CDR  S  as 
reporting officer, and CAPT F as reviewer.  In the alternative, she asked that the marks 
of 4 she received for  “Results/Effectiveness” and “Teamwork” be raised to 5s. 

 
Finally,  the  applicant  alleged  that  the  disputed  OER  was  a significant factor in 
her  failure  to  be  selected  for  promotion  to  LCDR  in  September  2004.    Therefore,  she 
argued,  after  her  record  is  corrected,  her  date  of  rank  should  be  backdated  and  she 
should  receive  backpay  and  allowances  if  she  is  selected  for  promotion  by  the  next 
LCDR selection board. 

 

RELEVANT REGULATIONS 

 

Article 10.A.1.c.4. of the Personnel Manual provides that a rating chain includes 
the reported-on officer; his supervisor, who is “[n]ormally, the individual to whom the 
Reported-on Officer answers on a daily or frequent basis and from whom the Reported-
on  Officer  receives  the  majority  of  direction  and  requirements”;  the  reporting  officer, 
who is “[n]ormally the Supervisor’s supervisor”; and the reviewer, who is “[n]ormally 
the Reporting Officer’s supervisor.” 
 

Article  10.A.2.g.1.  provides  that  “[i]n  instances  where  a  Supervisor,  Reporting 
Officer, or Reviewer is unavailable or disqualified to carry out their rating chain respon-
sibilities,  the  commanding  officer  or  the  next  senior  officer  in  the  chain  of  command 
shall designate an appropriate substitute who is capable of evaluating the Reported-on 
Officer. Other members in the rating chain may be adjusted and designated, as appro-
priate.”  Article 10.A.2.g.2. states that “[a]s used within this subparagraph: a. ‘Unavail-
able’  includes  illness,  injury,  death,  prolonged  absence,  transfer,  separation  from  the 
Service, retirement, or any other situation which prevents or substantially hinders the 
Supervisor,  Reporting  Officer,  or  Reviewer  from  properly  carrying  out  their  rating 
chain responsibilities.” 
 

Article  10.A.3.a.  provides  the  submission  schedule  for  regular  OERs.    The  end 
date  of a lieutenant’s annual OER is May 31.  However, Article 10.A.3.a.2.b. provides 
that  with  a  detachment  or  change  of  the  reporting  officer,  “OERs  for  officers  on  an 
annual submission schedule are required if more than six months (i.e., 182 days) have 
elapsed since the ending date of the last regular OER or the date reported present unit, 
whichever is later.”  Article 10.A.3.a.1.b. provides that an “[a]nnual or semiannual OER 
submission is optional (waivers not required) if:  
 

“(1) A regular OER (or a special OER that counts for continuity) was submitted 
within 182 days prior to the scheduled submission date for annual reports or 92 days 
for semiannual reports. 

“(2) A regular OER will be submitted within the 182 days following the sched-

uled due date for annual reports or 92 days for semiannual reports.” 
 
Article 10.A.2.c.2. provides that it is the responsibility of the reported-on officer 
 
to prepare the first section of an OER an submit it “to the Supervisor not later than 21 
days  before  the  end  of  the  reporting  period.”    In  addition,  the  reported-on  officer 
“[m]ay submit to the Supervisor not later than 21 days before the end of the reporting 
period a listing of significant achievements or aspects of performance which occurred 
during the period.”   
 
Article 10.A.2.d.a.i. provides that the supervisor completes his or her parts of the 
 
OER with numerical marks and supporting comments and “[f]orwards the OER … and 
any other relevant performance information to the Reporting Officer not later than 10 

days after the end of the reporting period.”  In addition, a supervisor who is leaving the 
unit “[p]rovides the new Supervisor with a draft of OER sections (3-6) when the Super-
visor changes during a reporting period.” 
 

Article 10.A.2.e.2.e. provides that the reporting officer completes his or her parts 
of the OER with numerical marks and supporting comments and “[e]nsures the OER is 
forwarded to the Reviewer not later than 30 days after the end of the reporting period.  
Article 10.A.2.f.2.e. provides that the reviewer reviews the OER for accuracy and consis-
tency  and  “[e]xpedites  the  reviewed  report  in  a  reasonable  time  to  permit  the  OER 
Administrator to ensure the OER is received by Commander, (CGPC-opm-3) or Com-
mander, (CGPC-rpm) 45 days after the end of the reporting period.” 
 

FINDINGS AND CONCLUSIONS 

2. 

3. 

1. 

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

 
 
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: 
 
 
§ 1552.  The application was timely. 
 
 
The  Coast  Guard  admits  that  on  April  29,  2003,  the  applicant’s  rating 
chain was altered and that her reporting officer changed from CDR S to CAPT F.  The 
applicant alleged that the alteration of her rating chain was improper because LCDR K 
was  available  to  serve  as  supervisor.    The  record  indicates  that  LCDR  K  went  on 
terminal and administrative leave on March 29, 2003, in anticipation of his retirement 
on  June  1,  2003.    Email  correspondence  in  the  record  indicates  that  at  the  time,  the 
command  intended  to  prepare  an  annual  OER  for  the  applicant  with  an  end  date  of 
May 31, 2003.  The Board finds that it was reasonable for the applicant’s command to 
conclude  that  two  months  of  administrative  and  terminal  leave  constituted  a  “pro-
longed absence” and rendered LCDR K “unavailable” under the provisions of Article 
10.A.2.g. of the Personnel Manual.   
 
 
The Coast Guard was entitled to alter the applicant’s rating chain under 
the  provisions  of  Article  10.A.2.g.  of  the  Personnel  Manual  when  LCDR  K  went  on 
extended leave.  However, nothing in Article 10.A.2.g. negates the requirement in Arti-
cle 10.A.3.a.2.b. to prepare a Detachment/Change of Reporting Officer OER whenever a 
member’s  reporting  officer  changes.    There  may  be  circumstances,  such  as  when  a 
detaching reporting officer is disqualified by bias, that would make the preparation of a 
Detachment/Change  of  Reporting  Officer  OER  under  Article  10.A.3.a.2.b.  improper 
and unjust.  However, such was not the case for the applicant in March 2003, when her 
command knew that LCDR K would be going on extended leave and knew or should 
have known that it would alter her rating chain and reporting officer as a result of his 
unavailability. 

4. 

6. 

5. 

 
 
In accordance with Article 10.A.3.a.2.b. of the Personnel Manual, a Detach-
ment/Change  of  Reporting  Officer  OER  should  have  been  prepared  when  the  appli-
cant’s  reporting  officer  was  changed  from  CDR  S  to  CAPT  F  because  more  than  182 
days had passed since the end date of the applicant’s last evaluation period, which was 
July 15, 2002.  The Coast Guard’s failure to prepare an OER for the applicant when her 
rating chain was altered is a clear violation of the plain language of Article 10.A.3.a.2.b.  
However,  as  the  JAG  argued,  “[t]o  establish  that  an  OER  is  erroneous  or  unjust,  an 
applicant  must  prove  that  the  challenged  OER  was  adversely  affected  by  a  ‘clear  and 
prejudicial violation of a statute or regulation or, alternatively, a misstatement of a sig-
nificant  hard  fact.’”  Germano  v.  United  States,  26  Cl.  Ct.  1446,  1460  (1992)  (emphasis 
added).  Therefore, the Board must determine whether the command’s failure to pre-
pare  an OER for the applicant upon changing her reporting officer was prejudicial to 
her performance record.   
 
 
Whether the failure to prepare an OER for the applicant when her report-
ing officer changed from CDR S to CAPT F was prejudicial to her performance record 
depends on which rating chain should have prepared that OER.  The applicant has sub-
mitted purported OER input from LCDR K indicating that as supervisor he would have 
assigned her marks of 5, instead of 4, in the performance categories “Results/Effective-
ness” and “Teamwork.”  Although LCDR K’s document is not signed, the Coast Guard 
has  not  disputed  its  authenticity  and  has  acknowledged  that  it  constituted  LCDR  K’s 
recommendation to CDR S regarding the applicant’s OER.  Therefore, if the applicant’s 
original  rating  chain,  as  published  on  March  3,  2003,  should  have  prepared  the  OER 
upon the change of reporting officer, the command’s failure to prepare the OER must be 
deemed prejudicial in that it resulted in the applicant’s receiving two marks of 4 from 
CDR S in those performance categories, instead of the marks of 5 LCDR K would have 
assigned.   
 
 
As  stated  in  Finding  2,  it  was  not  unreasonable  for  the  applicant’s  com-
mand to determine that LCDR K was unavailable after March 29, 2003.  However, the 
Board  also  notes  that  the  command  waited  a  full  month  after  LCDR  K  left  and  pre-
sumably even longer after the command knew that LCDR K would be leaving on ter-
minal  and  administrative  leave  to  decide  that  he  was  “unavailable”  under  Article 
10.A.2.g.  of  the  Personnel  Manual  and  to  change  the  applicant’s  rating  chain.    If  the 
command had timely determined prior to LCDR K’s departure on extended leave that 
he  would  thereafter  be  “unavailable”  to  complete  the  applicant’s  OER  and  that  her 
reporting  officer  would  change  upon  his  departure,  the  original rating chain promul-
gated on March 3, 2003, which included LCDR K as supervisor, would properly have 
been  called  upon to prepare the OER required pursuant to Article 10.A.3.a.2.b. of the 
Personnel  Manual  because  of  the  change  of  reporting  officer.    LCDR  K  only  became 
“unavailable” to prepare an OER for the applicant because her command waited until a 
month after he left the office (and presumably much longer after the command knew he 

7. 

would  be  taking  extended  leave)  to  determine  that  the  applicant’s  reporting  officer 
would change because of LCDR K’s departure. 
 
The  Board  concludes  that,  but  for  the  command’s  delay  in  determining 
 
that LCDR K would be “unavailable” during his leave and in deciding to alter the appli-
cant’s  rating  chain  and  reporting  officer,  she  would  have  received  a  Detachment/ 
Change  of  Reporting  Officer  OER  prepared  by  her  original  rating  chain,  including 
LCDR  K,  prior  to  his  departure.    Although  the  applicant  apparently  has  significant 
expertise in xxxxx policy, she could not have known prior to LCDR K’s departure on 
leave  in  March  that  her  command  would  decide  that  he  was  “unavailable”  in  April 
since, as she alleged, officers on terminal leave sometimes prepare OERs.  Of course, the 
Personnel Manual does not specify when exactly a command must decide that a mem-
ber of the rating chain is “unavailable” and that a new rating chain is necessary.  How-
ever, in this case, the command’s tardy determinations have deprived the applicant of 
the marks that her long-time supervisor would have assigned her.  Therefore, the Board 
finds that the command’s violation of Article 10.A.3.a.2.b. of the Personnel Manual and 
delay  in  altering  her  rating  chain  were  prejudicial  to  her  performance  record  in  that 
they resulted in her receiving marks of 4 in the performance categories “Results/Effec-
tiveness”  and  “Teamwork,”  instead  of  the  marks  of  5  LCDR  K  would  have  assigned.  
The applicant has therefore proved by a preponderance of the evidence that the marks 
are erroneous and should be raised. 
 
 
In light of the above, the Board need not address other issues raised by the 
applicant, such as the lack of notice of the change in the expected end date of the OER 
from May 31, 2003, to July 17, 2003. 
 
 
If the applicant had received the required OER when her reporting officer 
was changed from CDR S to CAPT F, under Article 10.A.3.a.(1) of the Personnel Man-
ual,  no  annual  OER  would  have  been  required  for  the  period  ending  May  31,  2003, 
because  that  date  fell  within  182  days  of  LCDR  K’s  departure  (when  the  change  of 
reporting officer should have occurred).  For the same reason and pursuant to Article 
10.A.3.a.2.b.,  no  second  Detachment/Change  of  Reporting  Officer  OER  would  have 
been required when her reporting officer changed again on July 17, 2003.  
 
In her response to the JAG’s advisory opinion, the applicant asked that the 
 
entire disputed OER be removed from her record.  However, the only part of the OER 
that she has alleged or proved to be erroneous is the two marks of 4 in the performance 
categories  “Results/Effectiveness”  and  “Teamwork.”    Although  she  complained  that 
the OER did not cover her performance during the last months of the evaluation period, 
she  presented  no  evidence  whatsoever  of  significant  performance-related  information 
that is missing from the comments in the OER.  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 

10. 

8. 

9. 

11. 

finds it impossible or impractical to sever the incorrect/unjust material from the appro-
priate material.”  In the instant case, the Board finds that correcting the two marks of 4 
to 5s is a simple and easy alteration.  There is no basis in the record for expunging the 
entire OER. 
 
 
The  applicant  alleged  that  the  errors  in  her  record  caused  her  to  fail  of 
selection for promotion in September 2004 and asked the Board to expunge that failure.  
Under Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982), to determine if the appli-
cant  is  entitled  to  such  relief,  the  Board  must  answer  the  following  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 [she] would have been [selected for promotion in 
September 2004] in any event?”  With respect to the first question, the Board finds that 
having marks of 4 in two performance categories, rather than marks of 5, did at least 
slightly prejudice her record.  With respect to the second question, however, the Board 
finds that it is unlikely that the applicant would have been selected for promotion even 
if the two marks in the disputed OER had been 5s instead of 4s.  The Board notes that 
the applicant has earned other marks of 4 in her recent career and that the two disputed 
marks of 4 do not stand out in her record.  Moreover, during the previous evaluation 
period,  when  the  applicant  was  made  the  equal  opportunity  program  manager  after 
serving as an equal opportunity consultant for a year and one-half, her marks declined 
from mostly 5s and 6s to mostly 4s and 5s.  In addition, the applicant received a mark of 
5 on the Comparison Scale and a strong recommendation for promotion in the disputed 
OER, which greatly overshadow any slight prejudice that could have resulted from the 
two marks of 4.  The Board finds that it is very unlikely that the outcome of the selection 
board would have been different had two out of eighteen performance category marks 
on one of the many OERs in her record been one place higher.  Therefore, the Board will 
not order the applicant’s failure of selection to be expunged. 
 
 
12.  Accordingly,  the  applicant’s  record  should  be  corrected  by  raising  her 
marks in the disputed OER from 4s to 5s in the performance categories “Results/Effec-
tiveness” and “Teamwork.”  Although the end date of the disputed OER should have 
been March 28, 2003, and the supervisor’s signature should have been that of LCDR K, 
the Board sees no reason to correct these errors as the applicant has not proved that the 
date and signature are per se prejudicial to her record. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 

ORDER 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  her 

 
 
military record is granted in part as follows: 
 
 
The numerical marks in the performance categories “Results/Effectiveness” and 
“Teamwork” on her officer evaluation report (OER) for the period July 16, 2002, to July 
17, 2003, shall be raised from 4s to 5s. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
No other relief is granted.    

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Nancy L. Friedman  

 

 

 
 
 Adrian Sevier 

 

 

 
 Thomas H. Van Horn