DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2004-184 
 
 
   

 

 
 

FINAL DECISION 

 
AUTHOR: Ulmer, D. 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 
425 of title 14 of the United States Code.  The application was docketed on September 9, 
2004, upon receipt of the applicant’s completed application and military records. 
 
 
members who were designated to serve as the Board in this case. 

This  final  decision,  dated  June  9,  2005,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST 

 
The applicant asked the Board to remove an officer evaluation report (OER) for 
the period July 1, 2001, to May 31, 2002, from his record.  He further requested that if 
the OER is removed that he be promoted to lieutenant commander (LCDR) retroactive 
to July 1, 2004.  The Board interpreted this portion of the applicant's request as one for 
the removal his failure of selection for promotion to LCDR, and if selected by the first 
board to consider him based on a corrected record for promotion to that grade, that his 
date of rank be backdated, with back pay and allowances.  

 

 

APPLICANT’S ALLEGATIONS 

 
The applicant alleged that the OER does not accurately portray his performance 
during the period in question.  He claimed that his illnesses requiring him to be absent 
from  duty  on  occasion  during  the  reporting  period  negatively  influenced  the 
supervisor's evaluation of his performance.   He further stated that his supervisor never 
provided any justification or feedback that his performance was of the quality described 
in the OER. 

 

The applicant stated that he had no reason to believe that he was performing at 
the  level  indicated  on  the  OER.    He  stated  that  when  he  received  the  OER,  he  was 
shocked and surprised with the marks, especially the 3 in writing.  He stated that when 
he  questioned  the  supervisor  about  the  OER  and  the  3  in  particular,  the  supervisor 
replied  "I  had  to  give  you  a  3  in  something  and  this  was  your  weakest  area."    The 
applicant stated that he further questioned the 3, to which the supervisor replied: "you 
were sick a lot and not here all the time."  The applicant claimed that he was amazed 
that the supervisor gave him a low mark because he was ill, especially in an area that 
had  nothing  to  do  with  his  physical  ability.    The  applicant  further  stated  that  his 
performance was never an issue during the marking period, since as a new executive 
officer (XO) he frequently asked his supervisor how he was doing and the supervisor 
replied that that he was doing fine.     
 

The  applicant  alleged  that  the  disputed  OER  caused  his  failure  of  selection  for 
promotion to LCDR.  He stated that he did not challenge the OER while working for the 
supervisor  because  he  feared  the  supervisor  would  retaliate  against  him.    The  record 
indicates that applicant worked for the supervisor from July 2001 to August 2004.   
 
The Disputed OER 
 
 
This was the applicant's first OER while serving in the position of Deputy Group 
Commander.  The  applicant  received  one  below-average  grade,  which  was  a  3  in 
writing.1  He also received eight marks of 4, six marks of 5, and two marks of 6.  He was 
rated  as  a  "good  performer"  which  corresponds  to  a  mark  of  4  in  block  9,  where  the 
reporting  officer  compared  the  applicant  with  others  of  the  same  grade  that  the 
reporting  officer  has  known  in  his  career.    The  reporting  officer  recommended  the 
applicant  for  promotion.  The  Group  Commander  was  both  the  supervisor  and 
reporting officer for the OER, as permitted under the Personnel Manual.  (The Group 
Commander  is  referred  to  as  the  supervisor  in  this  opinion.)    The  applicant  did  not 
submit a reply to the OER. 

 

APPLICANT'S SUBMISSIONS 

 
1.  The applicant submitted a statement from a lieutenant (LT) who reported to 
the command in July 2003 and served as the operations officer (OPS). This individual 
stated  that  within  a  few  weeks  of  reporting  aboard,  the  supervisor  engaged  her  in 
conversation  about  the  applicant's  constant  illnesses.    The  OPS  stated  that  over  the 
course of the year, the supervisor made comments about the applicant's illness ranging 
from    "Oh,  he's  sick  .  .  .  again'  to  'who  knows  if  [the  applicant]  will  even be here, he 
might  be  'sick  again.'"    In  the  OPS  opinion,  the  supervisor  did  not  believe  that  the 
applicant was ill and he gave the applicant no credit for his good work product.  The 
OPS stated that the supervisor was fond of using the evaluation systems, both enlisted 

                                                 
1   OER marks range from a low of 1 to a high of 7.  A 4 is considered an average mark. 

and  officer,  as  punishment  tools  rather  than  as  documentation  of  performance  and 
counseling tools.  The OPS concluded the statement with the following: 

 
I  firmly  believe  that  [the  applicant]  received  lower  than deserved marks 
and  unfair  documentation  of  his  performance  from  [the  supervisor]  .  .  . 
because of [his] disbelief in [the applicant's] health conditions, his distrust 
for 
the  Deputy  Group 
Commander,  and  finally  because  of  [the  supervisor's]  stated  use  of  the 
evaluation  systems  for  punishment  and/or  payback,  rather  than  for 
documentation of performance.   

[the  applicant's]  professional  abilities  as 

 
2.  The applicant also submitted a statement from a chief yeoman and another from a 
warrant officer.  In their opinions, the applicant would have suffered retribution from 
the supervisor, if he had appealed his OER while at the command.   
 

VIEWS OF THE COAST GUARD 

On January 26, 2005, the Judge Advocate General of the Coast Guard submitted 

 
 
an advisory opinion recommending that the Board deny the applicant’s request. 
 

The JAG stated that 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).  He stated that the applicant 
has the burden of proving error.  In this regard, he stated that the applicant offered only 
his own self-serving statement that the OER was unfair.  Moreover, he stated that the 
three  statements  offered by the applicant were from individuals (the OPS, CWO, and 
chief  yeoman)  who  were  not  present  during  the  OER  period.    He  further  stated, 
"Although it is apparent that Applicant had a higher opinion of his performance than 
the officer charged with the duty of evaluating applicant's performance, it is the latter 
officer's opinion that matters." 

 
The JAG attached a memorandum from the Commander, Coast Guard Personnel 
Command  (CGPC)  as  Enclosure  (1)  to  the  advisory  opinion  and  requested  that  it  be 
considered  a  part  of  the  advisory  opinion.    CGPC  stated  that  the  applicant  had 
provided  no  evidence  to  support  his  claim  that  his  supervisor  did  not  accurately 
portray  his  performance  on  the  OER.    CGPC  further  stated  that  the  applicant  has 
provided insufficient evidence to support his claim that his OER was adversely affected 
by  his  supervisor's  unusual  and  unwarranted  focus  on  medical  issues  during  the 
performance period.    CGPC further stated the following: 
 

The  only  below  average  mark  assigned  in  the  writing  performance 
dimension was sufficiently justified in Section 4, Communications Skills of 
the  disputed  OER. 
  In  his  declaration,  [the  supervisor]  provided 
amplifying information that further supports the below average mark in 

  This 

Writing, and specifically states that he counseled the Applicant numerous 
times on his poor writing skills.  All other marks were well justified, with 
no  mention  at  all  of  the  Applicant's  medical  conditions  or  resulting 
absences from work . . .    
 
Applicant failed to take responsibility for managing his performance.  The 
Reported-on  officer  assumes  ultimate  responsibility  for  managing  their 
own  performance. 
job 
expectations,  obtaining  sufficient  performance  feedback,  and  using  that 
information to meet or exceed standards . . . Applicant states that he was 
"shocked  and  surprised"  when  he  first received the disputed OER.  This 
should not have been the case if the applicant had fulfilled his rating chain 
responsibilities  by  obtaining  sufficient  performance  feedback  from  his 
Supervisor throughout the period.  Applicant provides no evidence  . . .  to 
support his statement  that he frequently asked his supervisor how he was 
doing.  In his sworn written declaration [the supervisor] provided specific 
details  on  the  counsel  that  he  provided  the  applicant  to  improve  his 
writing skills.   

responsibility  entails  determining 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On February 14, 2005, the BCMR received the applicant's reply to the views of 
the Coast Guard.  He stated, "It is obvious to me now that this entire matter boils down 
to my supervisor's word against mine, and it is obvious which person's word carries the 
most  weight  with  the  Coast  Guard."    He  stated  that  despite  his  frustration  at  the 

 
 
CGPC  obtained  a  statement  from  the  supervisor,  who  wrote  that  the applicant 
did not perform his duties at the level expected by the Coast Guard during the period in 
question,  despite  his  claim  that  the  supervisor  unfairly  focused  on  his  medical 
conditions.    The  supervisor  spoke  of  the  applicant's  poor  writing  skills  and  the 
counseling  that  he  provided  in  that  regard.    The  supervisor  stated  that  the  applicant 
also failed to perform at expected levels in the areas of preparedness, task direction, and 
responsibility.  The supervisor further stated: 
 

If one were to think that I had an unfavorable bias toward [the applicant] 
or his physical health, one only need to look at the subsequent OER's to 
disprove  that  notion.    His  health  problems  and  missed  workdays 
continued  throughout  the  duration  of  his  full  tour  .  .  .  The  factor  that 
changed, however, was his performance -- he began to do the work that 
was expected of him.  It took a "below average" mark on his OER to make 
him realize that he wasn't going to get to skate through his tour.  While he 
never  rose  to  the  level  of  performance  or  work  habits  expected  of  a 
Deputy Group Commander, he did start completing the tasks that he was 
given at a higher level of quality, and in a more timely manner.   

exaggerations  and  false  statements  made  by  the  supervisor,  he  understood  the  Coast 
Guard's position and would not continue to argue the issue.   
 

APPLICABLE REGULATIONS   

 

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

 
Article 10.A.4.f. states that members of the rating chain shall not "[m]ention any 
medical or psychological conditions, whether factual or speculative.  Restriction applies 
to Reported-on Officer and family members."   
 
 
Article 10.A.4.g. states an officer may submit a reply to any OER within 14 days 
of receiving it and have this reply filed with the OER.  The purpose of the reply is to 
“provide an opportunity for the Reported-on Officer to express a view of performance 
which may differ from that of a rating official.” 
 
 

FINDINGS AND CONCLUSIONS 

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

1.  The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.   

2.  The applicant has failed to prove by a preponderance of the evidence that his 
supervisor,  who  was  also  the  reporting  officer  for  the  OER,  unfairly  focused  on  the 
applicant's  medical  issues  in  the  evaluation  of  the  applicant's  performance  for  the 
period in question. The OER supervisor wrote a statement affirming his evaluation of 
the applicant's performance for the period in question and denying that the marks and 
comments  were  based  on  the  applicant's  absence  from  work  due  to  his  medical 
conditions.  The  applicant  did  not  submit  any  evidence  showing  that  his  performance 
was other than as described by his supervisor.  For example, he was given a 3 in writing 
with  the  comment  that  his  written  work  "lacked  adequate  proofreading  or  format  on 
occasion."    The  applicant  offered  nothing,  other  than  his own statement, to rebut this 
statement or to show that his written work during the period deserved a mark higher 
than 3.  The statement from the LT is of little value because she was not at the command 
during the period covered by the OER.   

 

4.    Moreover,  the  supervisor  did  not  violate  Article  10.A.4.f.  of  the  Personnel 
Manual  because  the  applicant's  illnesses  are  not  mentioned  anywhere  in  the  OER.  
Absent specific evidence to the contrary, the Board presumes that an applicant’s rating 
officials acted correctly, lawfully, and in good faith in preparing officers’ OERs.2   

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 

 
5. The applicant has failed to prove that the OER is in error or unjust.  Therefore 
no basis exists on which to consider removing his failure of selection for promotion to 
LCDR. 
 
 
 
 

Accordingly, the applicant’s request should be denied. 

 6. 

                                                 
2  33 C.F.R. § 52.24(b); Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 
594 F.2d 804, 813 (Ct. Cl. 1979). 

The  application  of  ___________________________,  for  correction  of  his  military 

ORDER 

 
 

 
 
record is denied.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

______________________________  
 James E. McLeod 

______________________________ 
 J. Carter Robertson 

______________________________ 
 Darren S. Wall