Search Decisions

Decision Text

CG | BCMR | OER and or Failure of Selection | 2005-030
Original file (2005-030.pdf) Auto-classification: Denied
DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2005-030 
 
Xxxxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxxxxx 

 

 
 

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.  The Chair docketed it on December 1, 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 March 16, 2006, is signed by the three duly appointed 

 

APPLICANT’S REQUEST 

 
 
The  applicant  asked  the  Board  to  correct  his  record  by  amending  an  officer 
evaluation report (OER) he received for the period June 1, 2002, to May 31, 2003, when 
he was serving as an aircraft commander.  From June 8, 2000, to September 11, 2002, he 
was  the  air  station’s  Communications  Officer  and  Command  Security  Officer  (CSO), 
and as such was responsible for the security of the unit’s classified materials and head 
of the Communications Division, which consisted of himself and one petty officer.  He 
alleged  that  because  he  had  insufficient  staff  to  assist  him  in  this  collateral  duty,  the 
security clearances of air station personnel were not properly tracked.  Therefore, some 
personnel  were  allowed  to  continue  viewing  classified  materials  after  their  security 
clearances had expired.  The applicant alleged that he brought the problem of the lack 
of staff to the attention of his commanding officer (CO), but nothing was done. 
 
 
The applicant alleged that when he discovered the staff’s errors in failing to keep 
the security clearances up to date, he immediately ordered that the problem be correct-
ed.  However, he was made the scapegoat in his OER even though understaffing had 
clearly caused the problem.  The applicant alleged that the Report of the Investigation 
(ROI) was not completed by the time the disputed OER was prepared and ultimately 
contained  several  inaccuracies.    He  alleged  that  he  was  not  given  party  rights  in  the 

investigation even though it was used against him in his OER.  He alleged that his rat-
ing  chain  improperly  used  information  from  the  incomplete  ROI  when  preparing  his 
OER, contrary to the Personnel Manual. 
 
 
The  applicant  alleged  that  the  Report  of  the  Investigation  is  inaccurate  in  that 
(a) it states that he had received the Coast Guard’s CSO training when he had not; (b) it 
erroneously states that he admitted that no effort was made to correct the discrepancies 
identified  during  the  April  inspections,  when  he  in  fact  had  personally  drafted  an 
Information Security Plan in response to the inspections and had made security clear-
ance tracking TC2 B’s top priority, as shown in his email to the Reporting Officer dated 
June 24, 2002; and (c) it indicates that inspections had identified problems with security 
clearance  tracking  numerous  times  when  the  April  2002  inspections  were  the  first  to 
mention any problem.  Moreover, the April 15, 2002, “biennial” inspection by the Dis-
trict Security Manager was the first to occur since August 1996. 
 
 
The applicant asked the Board to amend the OER by raising his marks in sections 
3, 5, and 9 to what he had received on his prior OER, by including a recommendation 
for promotion, and by removing the following written comments: 
 
(a) “As  CSO,  ident  manning  shortfalls  compounded  by  rapidly  exploding  comsec 
demands, fell behind in mgmt & allowed Comms to be overrun – resulted in sev’l 
practices dangerous to security & incidents of improper issuance of class mat’l.” 

 
(b) “Struggled w/ direction of Comms staff in admin of secure mat’l, pers clearances, & 

req’d trng – caused sev’l reportable incidents.” 

 

The  applicant  also  asked  that  all  references  to  the  OER  be  removed  from  his 
record, that all references to administrative actions taken against him be removed from 
his  record,  that  his  failures  to  be  selected  for  promotion  to  lieutenant  commander 
(LCDR) in 2003 and 2004 be removed from his record, that his LCDR date of rank be 
backdated if he is selected for promotion by the first LCDR selection board to review his 
record once corrected, that he be offered an opportunity to return to active duty if sepa-
rated from the Coast Guard prior to the Board’s decision, and that he receive all back 
pay and allowances that would be due as a result of these corrections. 

 
The applicant alleged that the Coast Guard recently amended Article 10.A.4.f.1. 
of the Personnel Manual so as to remove a member’s constitutional right to due process.  
He alleged that the regulation now allows any member of a rating chain “to comment 
on  their  perception  of  the  rated  officer’s  alleged  conduct  (even  alleged  criminal  con-
duct), regardless of whether it is actually proven to be true; as long as the name of the 
proceeding  which  is  investigating  or  adjudicating  the  conduct  is  ‘tactfully’  omitted.  
This alteration is a license to ruin an officer’s career on unproven conduct.”  The appli-
cant  argued  that  the  BCMR  should  reject  the  new  regulation  and  uphold  the  prior 

regulation, which, he alleged, prohibited the use of disputed information from a pend-
ing investigation in an OER. 
 
In  support  of  his  allegations,  the  applicant  submitted  several  statements  from 
 
colleagues.    CDR  R,  who  had  previously  served  as  the  Administrative  Officer  at  the 
unit, stated the following: 
 

When I reported to the unit in 1998, I found it inappropriate that this division was staffed 
with one officer and one enlisted.  Having worked in Communications as a junior officer, 
I knew this was inadequate for the workload involved at a large unit … .  I pointed this 
out  to  both  the  Operations  Officer  and  the  Executive  Officer  to  no  avail.    In  1999,  I 
became the Assistant Operations Officer and again tried to garner support for expanding 
the division with no luck.  It appears the command knew the division was understaffed 
yet  took  no  action.    This,  in  my  opinion  is  a  failure  of  leadership  and  [the  applicant] 
unfortunately suffered the brunt of this failure. 

 
 
LCDR P stated that the unit had previously had two “comms” officers instead of 
one.  He stated that before the applicant’s arrival, the CSO was a lieutenant who was 
leaving  the  Coast  Guard  for  a  civilian  flying  career  and  who  did  not  “display  much 
interest in his collaterals at that time.”  He also stated that the petty officer who worked 
with the prior CSO was not a strong performer.  He stated that “[d]espite his outstand-
ing  efforts  to  correct  the  problems  created  by  his  predecessors,  [the  applicant]  was 
unjustly selected by the command as the individual that would shoulder the blame.” 
 
 
LT S, who replaced the applicant as CSO in September 2002, stated that he has 
known  the  applicant  since  they  graduated  from  the  Academy  together  and  that  the 
applicant  “has  extremely  impressive  organizational  and  project  management  skills.”  
He also stated the following: 
 

Upon  [taking  over  the  duties  of  CSO],  there  was  improvement  required  due  to  several 
complex  reasons.    It  is  my  strong  opinion  that  the  command  lost  focus  on  the  fact  that 
[the  applicant]  was  assigned  as  the  [CSO].    The  Military  Personnel  Security  Manual, 
Physical Security Manual, CMS-21, and other directives clearly stated the [CSO] shall not 
be  assigned  any  other  non-security  related  duties.  I remember [the applicant] working 
feverishly for the command on several global command initiatives that were detailed in a 
lengthy  …  [unit]  Business  Plan.    Many  of  these  initiatives  were  tedious  and  extremely 
time consuming.  One huge project I remember taking up a large portion of his time was 
the CASPER Implementation Project.  The command of the [air station] took the lead for 
the Coast Guard regarding the implementation and [the applicant] was the single project 
officer for the project. …  It is my strong opinion that given [the applicant’s] flight duties 
and  duties  as  the  [CSO],  there  is  no  possible  way  he  could  have  succeeded  given  the 
extreme command interest and demands that were placed on him.  He had only one petty 
officer  assisting  him  in  the  Communications  Division  during  his  entire  assignment  as 
CSO.    The  responsibility  is  huge  in  order  to  maintain  security  clearances  for  235+  per-
sonnel assigned to the unit. … [After he replaced the applicant as CSO], it was very clear 
to  the  command  that  a  larger  staff  was  required  to  maintain  and  properly  execute  the 
security  related  assignments  associated  with  the  [CSO]  and  the  handling  of  classified 
material  at  the  unit.    During  my  assignment  as  CSO,  there  were  three  officers and two 
enlisted personnel assigned to the Communications Division.  I freely state that even with 

a  5-person  staff  and  daily  12-14  hour  workdays,  it  was  extremely  demanding  to  suc-
cessfully  carry  out  the  security  duties  associated  with  CSO.    There  is  no  way  I  would 
have been able to successfully complete my assigned duties given a 2-person staff.  With 
additional tasking like [the applicant] received, there is no way I could have successfully 
performed my duties even with a 5-person staff. 

LTJG G, who became CSO at the air station after LT S, stated that the Communi-

 
 
cations Division was understaffed during the applicant’s tenure as CSO and  
 

held together by extreme hard work and overtime by all who work here.  We have more 
than  doubled  our  allotted  crypto  holdings  with  no  additional  billets  being  made  avail-
able.  …  Following  all  of  the  Coast  Guard  regs  for  security,  destruction,  handling,  and 
clearances required by users of our equipment is not possible with two people.  Over 250 
people require security clearances at this air station.  … The average cutter has five times 
the  number  of  people  staffed  in  a  Comms  department  and  has  no  portable  equipment 
and  only  150  people  total  with  less  than  half  of  those  requiring  a  security  clearance.  
Again  we  are  doing  it  with  two  people.  …  We  continue  to  barely  hold  together  our 
department  now  staffed  with  two  officers,  both  pilots,  one  full  time  OS1  and  an  active 
reserve OS2.  By bolstering the department we are only seeing progress after one full year 
of  repairs  from  the  previous  understaffing  problems.    I  know  [the  applicant]  to  be  an 
honest person and a very hard worker.  It is my opinion that his position could only be 
described as one ready for failure.  He was the unfortunate recipient of a department on 
the verge of collapse.  He did the best he could with what little support he had available.  
That support within the department and within the command was not enough to stop the 
inevitable loss that was going to occur through continued understaffing. 

 
 
LTJG F, who was assigned to the Communications Division for a year beginning 
in October 2002, stated that the division grew from two people when the applicant was 
CSO to five people.  He himself was the fourth person in the division when he arrived.  
He stated that this growth was a direct result of the problems the applicant experienced 
trying to keep up with the tremendous increase in the workload while assisted by only 
one petty officer.  He described the many responsibilities of the division.  He stated that 
“[e]ven with the increase in manpower, we found it extremely challenging to keep up 
with everything. …  I could not imagine being in [the applicant’s] place.”  
 
 
The  chief  warrant  officer  (CWO)  who  served  as  the  District’s  Electronic  Key 
Management  System  (EKMS)  Manager  stated  that  she  worked  closely with the appli-
cant  and  the  petty  officer  who  assisted  him.    She  stated  that  although  they  were 
extremely  busy,  they “were inundated with other projects, the biggest one [of which] 
was to upgrade over 150 personnel with Top Secret security clearances in addition to 
keeping the unit operational with communications.”  She stated that in 1999 the district 
Security Manager asked her to help the applicant’s unit process the security clearances 
as he “recognized the overwhelming task that was about to be placed on the Air Sta-
tion’s  shoulders.    It  was  to  be  near  impossible  for  one or two people to complete the 
task.”  However, the project was delayed and she was not asked to help them when the 
applicant and his staff member later began processing the clearances.  Later, they were 
ordered to remove all “KYKs” and use “DTDs” instead, which tripled her own work-

load as well as that of the applicant and his staff member.  She stated that their work-
load  increased  significantly  again  after  September  11,  2001.    She  stated  that  she  was 
very surprised that the applicant had maintained the division as well as he had given 
his flying duties and lack of staff.  She stated that the air station’s “command personnel 
would  regularly  implore  me  to  provide  assistance  with  a  billet  increase  to  their 
communications  center  and  I  believe  I  did  send  out  some  e-mails  documenting  and 
backing  up  [the  applicant’s]  request.  …  [However]  the  billet  increase  documentation 
was never submitted from the command level.”  She further stated that the applicant 
and  petty  officer  were  extremely  busy  with  a  tremendous  workload  and  worked  as 
hard  as  they  could.    She  stated  that  they  “could  not  humanly  accomplish  everything 
they were assigned without something slipping, and it’s shameful that someone’s career 
is in jeopardy because they were not superhuman.” 
 
 
TC1 H, who served as the applicant’s only staff member in the Communications 
Division until he transferred out in May 2002, stated that upon arriving at the air sta-
tion,  he  was  stunned  to  discover  that  he  was  the  only  telecommunications  specialist 
because there were supposed to be two.  Within a couple of months, he and the appli-
cant requested another billet through the chain of command but were told that no help 
was available.  Soon thereafter, CASPER was initiated, requiring top secret clearances 
and vastly increased message traffic.  He began doing his unclassified work at home in 
his  off  hours.    The  applicant,  who  was  one  of  five  or  six  aircraft  commanders,  often 
helped him although he had to spend most of his time on his other duties.  Many times 
TC1 H could not route security packages because the applicant was deployed on a mis-
sion.    TC1  H  stated  that  the  applicant  asked  the  command  for  more  staff  numerous 
times  and  that  the  command’s  refusal  to  support  more  staffing  caused  the  problems 
that occurred.  TC1 H stated that every other air station, even smaller ones, had more 
than one TC in their Communications Divisions.  
 

SUMMARY OF THE RECORD 

 
 
 
The applicant graduated from the Coast Guard Academy and was appointed an 
ensign on May 19, 1993.  He was first assigned to a cutter as a deck watch officer for two 
years. His collateral duties included being the Security Training Officer and the alter-
nate  custodian  of  classified  materials.    He  received  high  marks  in  his  evaluations,1 
including marks of 5 on the Comparison Scale,2 and advanced to lieutenant junior grade 
on November 19, 1994.  In July 1995, the applicant became an Operations Center Duty 
                                                 
1  Coast  Guard  officers  are  evaluated  in  a  variety  of  performance  categories  on  a  scale  of  1  to  7,  with  7 
being best. 
2 The Comparison Scale is not actually numbered.  However, as with the performance categories, there 
are seven possible marks.  The instructions say that the reporting officer should assign a mark on the scale 
by comparing the reported-on officer with all other officers of the same rank whom the reporting officer 
has known throughout his career.  On the scale, a mark in the fourth spot means the officer was rated to 
be an ”good performer; give tough, challenging assignments.”  A mark in the fifth spot means the officer 
was rated to be an “excellent performer; give toughest, most challenging leadership assignments.”   
 

Officer, standing 12-hour watches at a joint service operations center.  He received very 
high  marks  on  his  evaluations  in  this  position,  including  marks  of  5  and  6  on  the 
Comparison Scale. 
 
 
From  January  1997  through  April  1998,  the  applicant  attended  flight  training.  
On  November  19,  1997,  he  was  promoted  to  lieutenant.    In  July  1998,  the  applicant 
reported to the air station to serve as a copilot and operations duty officer.  His initial 
collateral duties were being the Educational Services Officer and the Housing Officer.  
On  his  first  OER  at  the  air  station,  covering  his  service  through  May  31,  1999,  he 
received  one  mark  of  4,  twelve  marks  of  5,  and  five  marks  of  6  in  the  various 
performance  categories,  a  mark  of  5  on  the  Comparison  Scale,  and  a  strong 
recommendation for promotion “with his peers.” 

 
From June 1, 1999, through May 31, 2000, the applicant continued to serve as a 
copilot and operations duty officer.  His collateral duties were being the Morale Officer, 
the Civil Rights Officer, and the Assistant Education Services Officer.  On his OER for 
this period, the applicant received one mark of 4, thirteen marks of 5, and four marks of 
4  in  the  various  performance  categories,  a  mark  of  5  on  the  Comparison  Scale  and  a 
strong recommendation for promotion with his peers. 
 
Assignment as CSO 
 
 
From  June  8,  2000,  through  September  11,  2002,  the  applicant  was  designated 
and  performed  the  collateral  duties  of  the  Communications  and  Readiness  Officer, 
Command  Security  Officer,  and  Alternate  Classified  Material  Control  Officer.    Upon 
assuming these collateral duties, he sent the CO a memorandum noting the following: 
 

•  Defects of deficiencies noted:  None. 
•  Adequacy  of  personnel  assigned:    Inadequate  at  this  time,  until 
assignment of billeted Telecommunications Specialist (TC) 
•  Adequacy of equipment:  Adequate 
•  Condition of files, records, and instruction books:  Adequate 
•  Status of transfer of material and equipment:  Complete 
•  There are no facts in dispute. 

 

TC1 H worked at the air station from July 2000 through May 2002.  On Septem-

ber 25, 2000, he was designated as the Classified Material Control Officer. 
 

The applicant’s OER for the period, June 1, 2000, to May 31, 2001, shows that in 
addition to these collateral duties and his primary service as a first pilot and operations 
duty  officer,  the  applicant  was  also  the  CASPER  Implementation  Officer,  the  Coast 
Guard Day 2000 Project Officer, and the Assistant Morale/Club Officer.  On his OER for 
this period, the applicant received one mark of 4, ten marks of 5, and seven marks of 6 
in the various performance categories, a mark of 5 on the Comparison Scale, and a very 

strong recommendation for promotion.  The OER notes that he had been selected to be 
an aircraft commander. 
 
On October 25, 2001, the District EKMS Manager reported to the applicant, his 
 
Reporting Officer, and the CO that her quarterly spot check revealed no practices dan-
gerous to security (PDS) and no COMSEC incidents.  She noted that access lists needed 
updating and that the watch-to-watch inventory and visitors’ log were incomplete. 
 
 
On  January  18,  2002,  the  District  EKMS  Manager  performed  another  quarterly 
spot check.  She reported no PDS or COMSEC incidents.  She noted a few minor dis-
crepancies  but  concluded  that  the  “account  is  in  good  shape  and  CMS  21A  is  being 
adhered to.” 
 

On  January  18,  2002,  the  applicant  emailed  the  Reporting  Officer  and  others 
about needing another TC in light of CASPER implementation; Mode 4, the workload 
for which would soon double; and dramatically increased classified traffic.  He noted 
that other air stations had between 2 and 5 billeted TCs. 
 

 
Security clearances are not up to date.  District is aware that there are approximately 250 
Airsta  personnel  needing  clearances  and  only  one  person  [TC1  H]  available  to  submit 
them.    This  same  [petty  officer]  is  also  responsible  for  the  EKMS,  CMCO,  and  Comtac 
duties.    This  is  an  ongoing  problem  with  no  immediate  solution  in  sight.    With  the 
upcoming transfer season the security clearance workload will drastically increase caus-

On April 12, 2002, the applicant emailed the Reporting Officer about the upcom-
ing inspections by the District EKMS Manager and the District Security Manager.  He 
noted  that  the  inspections  would  likely  reveal  concerns  with  physical  security  in  the 
Operations Center and Communications Center due to the large amount of traffic in the 
secure spaces and with security clearances.  The applicant also noted they needed more 
personnel  and  that  it  “seems  like  things  are  getting  worse  too.    Keeping  the  security 
packages up to date, managing classified message traffic, and COMMSEC could all be 
full time jobs for individual TC’s.  This says nothing of the ‘regular comms stuff’ like 
radios, access lists, phone systems, secure computer systems, Crypto and Office equip-
ment, etc.  The CO’s e-mail about the future requirements for COMMS is right on track.  
It’s growing exponentially.” 
 
 
On  April  15,  2002,  the  District  Security  Manager  conducted  a  biennial  security 
evaluation.  He later reported that he had found many minor discrepancies but that the 
“overall security posture at this unit … was acceptable.”  He noted the lack of a roster of 
personnel  who  had  been  granted  access  to  classified  information,  a  large  backlog  of 
investigation packages pending, and a lack of annual self-evaluations using checklists.   
 

On April 22, 2002, the District EKMS Manager conducted another quarterly spot 
check  of  the  EKMS  security  at  the  air  station.    She  reported  finding  a  few  “minor 
administrative discrepancies” to the Reporting Officer and CO and stated the following: 

ing an extreme burden for the oncoming TC. … [TC1 H’s] EKMS account is in very good 
condition  considering  his  workload  in  EKMS,  CMCO,  Comtac,  and  security  clearance 
processing.  It is virtually impossible for one individual to perform all of these functions 
and maintain a perfect account.   
 
The  District  EKMS  Manager  later  reported  to  the  investigator  that  the  minor 
administrative  discrepancies  included  out  of  date  and  improper  lists;  PDS,  such  as 
loading improper keymat and missing signatures on destruction reports; and incidents, 
such as use of improper call signs and old keymat and keymat left unattended. 
 

On  April  19,  2002,  the  applicant  emailed  the  Reporting  Officer  to  ask  if  LT  S 
could  take  over  the  Communications  Division  sooner  than  planned.    He  stated  that 
immediate relief would help given the change and gap in the TC billet and the increas-
ing number of OPS duties he was being assigned. 
 

On April 30, 2002, the applicant emailed his Reporting Officer and other officers 
a list of the Communication Division’s CASPER-related duties, which he estimated took 
63 to 75 hours per week apart from the division’s regular security-related duties.  He 
wrote, “As you may infer from the numbers, the TC1 and myself are not able to ‘cover 
all the bases’ properly in addition to our COMMS/security duties; not to mention cov-
ering the flight schedule.” 
 

On May 10, 2002, the applicant emailed his Reporting Officer and other officers, 
in response to the question “what rate do we want for our one billet,” that “we cannot 
do everything that we want to do with only one billet.  Even if the CASPER program is 
considered  a  totally  separate  entity,  we  cannot  manage  all  our  security,  communica-
tions, computer systems (DMS/SIPRNET/ADNET), OPSEC, COMSEC, etc., needs with 
only one body. …” 
 
 
On May 14, 2002, the applicant and TC1 H asked the District EKMS Manager if a 
TC1 from her office could fill in for TC1 H, whose last day at the air station was to be 
May 23, 2002.  TC1 H noted that until that day he would “be in and out for household 
packing, inspection and car shipment.”  The District EKMS Manager replied that they 
could not spare the TC1 and that “you should have arranged for an on site relief.” 
 
 
a long list of members whose security clearances had expired or would soon expire. 
 

On May 16, 2002, one week before he transferred, TC1 H emailed to the applicant 

On  his  OER  for  the  period  June  1,  2001,  through  May  31,  2002,  the  applicant 
received one mark of 4, seven marks of 5, and ten marks of 6 in the performance catego-
ries, a mark of 5 on the Comparison Scale, and a strong recommendation for promotion 
“with  the  best  of  peers.”    The  OER  indicates  that  he  was  serving  as  an  aircraft  com-
mander and senior duty officer and that his collateral duties were being the Communi-
cations Officer, the CSO, and the CASPER Implementation Officer.  
 

On June 24, 2002, the applicant emailed the Reporting Officer and District per-
sonnel, stating that TC2 B had arrived earlier than expected but was “overwhelmed by 
the workload.”  He noted that even before he took over the Communications Division, 
the command had been trying to increase the TC billet strength, and that they had more 
than enough work for three TC2s. 
 

Also on June 24, 2002, the applicant sent to his Reporting Officer and Supervisor 
an email in which he reported steps that he had taken to resolve several problems.  He 
reported that TC2 B  “has done a great job getting security clearance tracking started”  
and that they were “still working on some discrep[ancie]s” identified during the April 
inspections.  He also wrote that, “We need a second TC in COMMS.  The OS augment 
will not occur in time to keep the shop healthy.  We are the only unit of our size that has 
only one TC (billeted for a TC2 no less).  This struggle began long before I moved into 
comms.”  

 

On June 27, 2002, the Reporting Officer concurred in the applicant’s statement to 
the  District  personnel,  stating  that  “CASPER  demands  alone,  using  the  CG  staffing 
standards algorithm suggests a 4 person deficiency (which we hoped would be resolved 
by OS augmentation).  The series of unit PDS incidents (8) over the last year are indica-
tive  of  comms  related  security  and  training  challenges  we  have  and  will  continue  to 
experience with 1 TC2 assigned.  The assumption of new Homeland Security responsi-
bilities  and  proliferation  of  OPSEC/COMSEC  demands  has  exacerbated  the  conse-
quences  of  staffing  shortfalls  in  our  COMMS  Division.    Adding  Siprnet,  Mode  IV, 
CASPER  hard  drives,  and  other  factors  to  the  workload  equation  makes  our  current 
status  even  more  ridiculous.    If  you  compare  the  numbers  of  Airsta  personnel  with 
security clearances, daily CMS transactions, total number of radios, and volume of clas-
sified messages for this unit with any [high endurance cutter], I think you’ll appreciate 
the logic and necessity for rebalancing TC staffing.  CGC JARVIS has 9 TCs (including 
an E-7) and I have one E-5. CGAS SACTO has 4 aircraft/3 TCs and I have 8 aircraft/1 E-
5. … I would appreciate any support or ideas you can offer in leveling the TC workload 
and  reducing  the  frequency  of  our  comms  related  mistakes  (beadwindows,  improper 
callsigns, missed destructions, deferred training, etc.).” 
 
 
On July 30, 2002, the District Commander reported to the applicant’s CO that the 
biennial security evaluation on April 15, 2002 had identified “no major discrepancies” 
but that several minor discrepancies should be corrected by September 5, 2002, includ-
ing creation of an Information Security Plan and a roster of everyone who had gained 
access  to  classified  information,  as  well  as  annual  self-evaluations  and  semi-annual 
emergency drills. 
 
 
check had revealed no PDS or COMSEC incidents. 
 

On August 15, 2002, the District EKMS Manager reported that her quarterly spot 

 
On October 16, 2002, the applicant’s CO sent the Commandant a memorandum 
stating  that  the  air  station  needed  another  sixteen  billets  to  implement  CASPER, 
including ten aviation billets and four operational specialty3 billets.  The CO noted that 
“[w]ith only 10 total billets proposed for [the air station] in the FY04 CASPER Resource 
Proposal, I have been forced to sacrifice two aviation billets in order to get 2 of the 4 OS 
billets  absolutely  necessary  to  properly  manage  the  additional  communications  secu-
rity,  personnel  security,  intelligence,  training  and  data  management  requirements 
brought about by CASPER, MODE IV, and our more extensive use of secure comms.  I 
do not believe 10 additional billets will be adequate, as evidenced by the CMS/EKMS 
incidents we’ve experienced over the past 18 months. …” 
 
Informal Investigation 
 
 
Also on October 16, 2002, the applicant’s CO appointed CWO K to conduct an 
informal investigation into the cause of “numerous discrepancies” involving classified 
information and security clearances.  On October 29, 2002, CWO K submitted an initial 
report, in which he stated that the security clearances were in a “state of disrepair” and 
that several members with regular access to classified material did not have valid clear-
ances.  He stated that the members’ security files “ran the gamut: missing or improperly 
administered  SF-312,  no  source  documents,  no  record  of  local  record  checks,  no  CG-
5588,  no  record  of  initial  access/indoctrination  briefings  and  no  record  of  annual 
refresher briefings.”  He reported that the security files and instructions were “spotty 
and  almost  non-existent”  and  that  there  “was  no  system  for  maintaining  document 
receipt cards or a suspense file for security packages, nor was there a record of mem-
bers’ SF-86s on file.”  CWO K stated that he had interviewed personnel who had access 
to classified material and discovered that some members had never received a security 
briefing and that there was no record to show who had received a security briefing.   
 

TC1  H  told  CWO  K  that  he  was  the  personnel  security  clerk  “by  default”  and 
briefed  new  personnel  using  a  read  hand-out.    When  supervisors  informed  him  that 
personnel  needed  access  to  classified  material,  he  would  check  their  records  and  the 
People Soft database to determine whether they could and kept his own roster.  TC1 H 
stated that annual self-evaluations were not done. 

 
TC2 B told CWO K that when he arrived in June 2002, the radio shack was in dis-
array  and  that  “he  was  left  to  pretty  much  figure  things  out  on  his  own.    Sorting 
through files, he found some persons did not have valid security clearances. … [In July] 
he notified [the applicant] who asked him to pursue rectifying the problem.”  Therefore, 
TC2 B began notifying personnel to fill out the appropriate paperwork.  LT S discovered 
more problems when he relieved the applicant.  After the “stand down” on September 
26, 2002, additional personnel were assigned to help TC2 B process and track the secu-
rity clearance paperwork. 

                                                 
3 In 2002, the TC rating was merged into the OS (operational specialist) rating.  

 
LT S, who relieved the applicant as CSO on September 11, 2002, told CWO K that 
“[w]hile  looking  at  the  check-in  and  security  clearance  processes  it  became  apparent 
that there was a problem.  The further [LT S] got into it the worse it became. … [The 
division] immediately went into a security ‘stand down’ and limited/restricted access 
to classified material.  The initial report listed 14 persons but by having individuals sign 
SF-312s and access briefings, the number shrunk to 5 who had no record of clearances 
or whose clearances had expired and were out of scope.”   

 
CWO K wrote that in discussing the problems with the applicant, the applicant 
had admitted that “he was unaware of the discrepancies that the Security Manager and 
EKMS custodian discovered in the course of their evaluations [on April 15, 2002].  He 
stated that he made the determination they would have to await remedying until the 
new TC2 reported aboard.  They were first discovered on April 15th, [TC1 H] departed 
on May 2nd and [TC2 B] reported aboard on the 5th of June.  Even then no action was 
taken to correct these flaws.”   
 
Applicant’s Statement for the Investigation 
 
 
The applicant submitted a written statement to the investigator dated October 28, 
2002.  He stated that as COMMO and CSO, he “was acutely responsible for safeguard-
ing classified material and ensuring access to such material was properly controlled,” 
but  there  were  several  mitigating  circumstances.    For  example,  while  he  was  CSO, 
CASPER was implemented and many of the members’ clearances had to be upgraded 
from secret to top secret.  Also, because there were only two people in the division, effi-
ciency required a division of labor.  Therefore, the applicant handled almost all of the 
security and COMSEC/OPSEC training, devised a plan for rehabilitating the Operation 
Center,  updated  Communications  Bills,  wrote  new  equipment  user  instructions,  and 
“pieced  together  several  existing  elements  into  a  single  ‘Information  Security  Plan,’” 
while the TC handled the access briefings and annual refresher briefings and processed 
security clearances.  The applicant further stated that because the division only had one 
standard  workstation,  which  was  used  by  the  TC,  he  usually  had  to  work  elsewhere 
rather than with the TC.  He had asked for another workstation but was told that the air 
station was already over its material allowance limit. 

 
Moreover, the applicant noted, by the spring of 2002, there were plans for him to 
move to the Operations Staff and so the Assistant Operations Officer assigned him an 
increasing number of non-Communications-related duties, such as being the OPS repre-
sentative  at  JRAC  meetings,  representing  the  air  station  during  work-ups  for  a  major 
marine  disaster  exercise,  and  being  the  point  of  contact  for  various  initiatives.    The 
applicant stated that because of these new demands on his time, he asked to be relieved 
early from his Communications duties, “which proved to be impossible.” 

 

 
[T]he leading cause was a loss of situational awareness regarding administrative records 
in the COMMS office.  I believe this primary causal factor was influenced by a number of 
elements.  First, our shop has been overloaded since I took over.  I took over the COMMS 
office from a period of near collapse, where we lost our permanent TC months before we 
had  a  full  time  replacement,  while  at  the  same  time  the  outgoing  COMMS  officer  was 
leaving  the  service  due  to  voluntary  separation.    Due  mostly  to  the  efforts  of  [TC1  H] 
(then TC2), the ship was quickly brought up to an operating condition. 

 

Regarding the invalid security clearances of personnel using classified material, 

the applicant stated the following: 

Not  long  after  this,  numerous  changes  of  additions  came  about  in  the  COMMS  world.  
These … were most notably the addition of Coast Guard Message System (CGMS), basic 
SIPRNET & Defense Messaging System (DMS), CASPER systems (including the require-
ment for Top Secret Clearances), major COMSEC policy changes and increased focus on 
OPSEC  considerations  following  the  9/11/01  terrorist  attacks,  the  addition  of  Mode-4 
crypto,  and  the  conversion  to  CYZ-10  Data  Transfer  Devices.    None  of  these  changes 
came with training or additional personnel.  It was all “taken out of hide,” both for the 
Avionics Technicians and the COMMS office. 
 
The 9/11/01 terrorist attacks also brought about a change in the approval authority for 
Security  Clearance  Packages.    All  packages  that  had  been  submitted  to  COMDT  (CFI) 
were returned, and because of specific time requirements had to be completely redone.  
For significant periods of time we were unable to obtain any information from the Per-
sonnel Security and Suitability Section regarding status of any clearance packages.  The 
timing  of  the  change  in  approval  authority  with  the  addition  of  over  40  SSBI  clearance 
packages required for CASPER operations was especially problematic.  This dramatically 
increased the workload in COMMS and the backlog of Security Packages. 
 
Even  though  I  was  never  notified  of  any  situations  involving  unauthorized  access  to 
Classified  Material,  I  was  keenly  aware  that  we  were  getting  in  over  our  heads  in 
COMMS.  I reported our lack of adequate staffing and requested additional support on 
numerous occasions. (Enclosures 1, 3, 4, 6, 8 & 9) … 
 
The next causal factor to the loss of situational awareness was a result of there not being 
an  “on  site”  relief  between  [TC1  H  and  TC2  B].    I  attempted to have the relief done in 
person, but [TC2 B’s] cutter schedule delayed his reporting from when it was originally 
scheduled.  By the time I knew this, [TC1 H] had already scheduled his pack-out, vehicle 
shipment, and arrival plans at his new duty station, so I did not ask to have his orders 
changed. 
 
I feel that a great deal of “the bubble” was lost in the short time where we had a TC gap.  
In anticipation of this being a problem, I requested TAD help from the District, but was 
told that no additional personnel were available. … The only support augment that I was 
able to obtain was part time reserve support from [TC2 D].  She was very eager to help 
out, but with limited drilling dates it was difficult for her to make very much progress on 
the backlog that was developing. 
 
A  sidebar  to  the  issue  of  no  onsite  relief  is  the  destruction  of  numerous  paper  records.  
When [TC2 B] first arrived, he asked me if he could organize and get rid of out of date 
records.  I enthusiastically told him yes.  I am not certain, nor do I suspect any malicious 
intent, though I believe some of the documents that we have been unable to locate may 

have been destroyed in the “house cleaning.”  Literally hundreds of pages were shredded 
in the weeks that I was still in the office with [TC2 B]. 
 
… [LT S] showed me a document that listed personnel that had received “in-briefings.”  
The sheet listed personnel up to a certain date, stopped for a long period of time and then 
resumed listing names.  I remember finding that document many months ago.  [TC1 H] 
had been listing personnel that had received in-briefings on a separate sheet, which either 
had no heading or a hand-written heading.  I asked him if he would start using the pre-
formatted  in-briefing  document,  which  he  did.    When  asked  about  it  by  [LT  S],  I  was 
unable to locate the other listing of personnel. 
 
… I cannot provide a whole lot of detail as to how the specific individuals were allowed 
access with expired (or in at least one case, without) a Security Clearance, because I was 
not  aware  of  these  situations  until  after  the  fact.    I  know  that  [TC1  H]  was  conducting 
access briefings because I watched him give and record them.  I also know that TC1 was 
completing and tracking Security Packages.  I have an e-mail from him from 16 May 02 
that  gave  me  an  update  of  personnel  that  included  the  status  of  several  pending  pack-
ages,  and  listed  personnel  that  had  either  expired  or  soon-to-be  expired  clearances. 
(Enclosure 5) 
 
Unfortunately, the CGHRMS system that was designed in part as a tool to track Security 
Clearances is completely unreliable.  Among its drawbacks is that it is not anywhere close 
to  being  up  to  date,  and  the  system  cannot  show  the  status  of  a  pending  Security 
Clearance. … 
 
My thoughts as to how one of the individuals was given access to classified material on 
several occasions without any security clearance is simply that Operations Duty Officers 
(ODO’s)  and  duty  pilots  were  not  checking  individuals  against  the  access  list  in  the 
Operations  Center  before  signing  them  out  material.    Because  of  the  demands  on  the 
COMMS Office, all transactions and daily CMS destructions are the responsibility of the 
ODO or duty pilots who also manage all active operations at the AIRSTA.  I feel that the 
omission  of  checking  the  access  list  is  the  result  of  the  extremely  high  number  of 
COMSEC transactions we have at the AIRSTA.  It is not uncommon to have more than 
twelve CMS-17 (Local Accountability Form) transactions a day. … 
 
… When I took over the position it was only the TC2 and myself.  After that some of my 
duties were passed on to the Intel Officer billet.  I worked with [LCDR S] on the sugges-
tion  to  create  the  “Intel  Officer”  position  to  reduce  the  load  that  was  being  carried 
between  COMMS  and  the  H-65/C-130  schedulers  (SKEDS).    In  the last couple months, 
two  assistant  COMMS  billets  have  been  added  to  reduce  the  workload  in  COMMS.  
Finally, with my departure from COMMS, I have taken most of the CASPER Implementa-
tion Officer duties with me.  In summary, the COMMO and four other officers are now 
doing what was once my responsibility in COMMS.  These additions have been a definite 
change for the better, but they also show how desperate we were prior to their creation. 
 
The applicant attached many email attachments, which are summarized above, 

to his statement to support his claims. 

 

Report of the Investigation 
 

 
On December 18, 2002, CWO K submitted his final report on his informal investi-
gation of the possible compromise of classified material to the CO.  CWO K noted that 
before  gaining  access  to  classified  material,  a  member  must  have  (1)  a  “certificate  of 
clearance  from  SECCEN”  showing  a  valid  security  clearance,  (2)  a  properly  executed 
Classified Information Non-Disclosure Agreement (SF-312), and (3) a Personnel Secur-
ity Action Request (CG-5588) certifying that a review of the member’s local administra-
tive and medical records revealed no derogatory information.  CWO K found that none 
of these three steps had been taken for five members at the air station who were given 
access to classified information.  He opined, however, that the impact on national secu-
rity had been negligible as four of the five had had security clearances at one time and 
their  records  contained  no  derogatory  information  that would call into question their 
continued eligibility.  (The fifth needed a top secret clearance but had none.) 
 
 
CWO  K  also  reported  that,  contrary  to  regulations,  he  found  no  evidence  that 
(a) security clearance packages had been sent by first class mail to the SECCEN; (b) doc-
ument receipt cards had been filed; (c) copies of members’ security questionnaires (SF-
86s)  were  being  retained  while  their  clearances  were  pending;  (d)  records  of  access/ 
arrival, upgrade, or annual refresher briefings were being kept in unit training records, 
personal  data  records,  or  security  training  files;  (e)  a  roster  of  all  personnel  who  had 
been given access to classified material was maintained; or (f) any self-evaluations had 
been performed or documented by the CSO.  CWO K noted that a log of arrival brief-
ings had been maintained through March 8, 2000, and recommenced on June 10, 2002. 
 
 
CWO K concluded that the Communications Office had an “ineffective, at best, 
or  altogether  lack  of  security  clearance  tracking/indoctrination  system  that  allowed 
members improper access and to fall out of scope” and that there “was a lack of suffi-
cient oversight by the CSO [applicant].”  CWO K stated that the applicant had received 
CSO training (but the applicant denied this in his application).  CWO K also concluded 
that the applicant had made no effort to remedy the discrepancies identified by the Dis-
trict EKMS Manager during her April 2002 spot check and that the billet gap between 
TC1 H’s departure and TC2 B’s arrival had “exacerbated the problem and was a con-
tributing factor in the compromise of classified material.” 
 
 
CWO  K  recommended  administrative  action  against  the  applicant  because  his 
duties as the CSO had been clearly spelled out to him and “[f]irst and foremost of these, 
it was incumbent upon him to ensure the unit met published guidelines regarding the 
safeguarding of, and access to, classified material.  His failure to institute and adequate-
ly oversee a security clearance access and tracking system allowed for the compromise 
of  classified  material.”    CWO  K  also  recommended  that  the  command  “reapportion 
extra duties assigned to the CSO that detracted from [the applicant’s] ability to correct 
extensive backlog of discrepancies.  They were made aware of the state of the security 
clearances  on  numerous  occasions  via  verbal  briefings,  CMS  spot  checks,  e-mails  and 
official  letters.    While  the  CSO  and  CMCO  were  busy  with  a  myriad  of  tasks,  only 
recently has that office been given extra part-time assistance.”  In addition, he recom-

mended  that  personnel  be  added  to  the  Communications  Division  “to  assist  with  the 
backlog of security clearances and discrepancies.” 
 
Disputed OER 
 

The  disputed  OER,  which  covers  the  applicant’s  service  from  June  1,  2002, 
through May 31, 2003, indicates that as an aircraft commander he flew more than 340 
hours, including 23 search and rescue missions.  In addition to being a senior duty offi-
cer, his collateral duties were being the Communications Officer, the CSO, the CASPER 
Implementation Officer, and later the Contingency Planning Officer and the OPS Meas-
ures Program Manager.  His Supervisor, the Assistant Operations Officer of the air sta-
tion,  assigned  the  applicant  two  marks of 3 in the categories “Results/ Effectiveness” 
and “Directing Others” and five marks of four in the categories “Planning and Prepar-
edness,”  “Using  Resources,”  “Evaluations,”  “Initiative,”  and  “Responsibility.”    The 
applicant received seven marks of 5 and four marks of 6 in the other performance cate-
gories.  His Reporting Officer assigned him a mark in the fourth spot on the Compari-
son  Scale  and  did  not  include  a  recommendation  for  promotion.    The  mark  of  3  for 
“Results/Effectiveness” is supported by written comment (a) (see page 2 above).  The 
mark  of  3  for  “Directing  Others”  is  supported  by  written  comment  (b)  (see  page  2 
above).  In addition, the Reporting Officer included the following comments in block 7: 
 
(c) “Concur w/ supervisor.  A series of incidents involving inappropriately authorizing 
access  to  classified  material  and  workspaces  have  made  this  a  difficult  reporting 
period  for  the  entire  command.    Nonetheless,  I  give  [the  applicant]  credit  for 
attempting to recover and continuing to be productive.  [He] is an experienced C130 
Aircraft Commander and prosecuted a number of noteworthy missions.  In addition, 
[he] spearheaded 2 major projects in OPS this period. …” 

The applicant did not file a reply to the disputed OER.  He was not selected for 

 

promotion to LCDR in 2003. 

 

CO’s Endorsement of the Report of the Investigation 

 
On June 10, 2003, the applicant’s CO forwarded the Report of the Investigation to 

the District Commander and stated the following: 

 
I  concur  with  the  Investigating  Officer’s  overall  findings  that  the  five  security  viola-
tions/COMSEC incidents discovered [by the air station] … were the result of poor secu-
rity  clearance  program  management  by  [the  applicant],  the  unit  CSO,  and  ineffective 
oversight by this command. …   
 
Unfortunately, the full range and depth of problems with the management of the unit’s 
security clearances were not detected despite the command’s completion of six CMS Spot 
Check Local Elements over the eighteen months prior to September 2002, Quarterly CMS 
Spot  Checks  by  the  CMS  Account  Manager,  and  a  Biennial  Security  Evaluation  con-
ducted  by  the  District  Security  Manager  in  April  2002.    These  checks  only  identified 

minor discrepancies.  The true range and depth of problems with the management of the 
unit’s security clearance processes and five resulting security violations were discovered 
when the new CSO conducted an in-depth review of the unit’s entire security program at 
the specific direction of this command. … 
 
[This  air  station]  is  still  not  adequately  billeted  to  manage  and  operate  its  communica-
tions and security programs, given the rapid expansion of unfunded workload that new 
systems and initiatives like CASPER, Mode IV, and SIPRNET are generating.  This com-
mand  has  strongly  articulated  this  fact  on  numerous  occasions  over  the  last  eighteen 
months.  We even completed and informally submitted an unsolicited CASPER Staffing 
Study to Headquarters in May 2002, and then formally re-submitted it in September 2002 
… in an attempt to help resolve the issue Service-wide.  …  In the interim, two additional 
officers were assigned to the Communications Branch in October 2002 to assist with the 
complete overhaul of all security processes and to manage the additional workload gen-
erated by several new unfunded programs and initiatives that have been deployed Coast 
Guard-wide.  This increase in staffing could only be accomplished because the unit was 
temporarily over billeted with officers during FY03.  Only one of the additional officers 
will remain in the Communications Branch after July 03, but a Reserve TC was activated 
in  June  03  for  extended  active  duty  to  offset  the  unit’s  return  to  normal  officer  billet 
strength. 
 
[The  applicant]  was  verbally  reprimanded  and  counseled  by  the  Commanding  Officer, 
and then his Supervisor and Reporting Officer were provided the details of this investi-
gation. … 
 
Regrettably, significant management errors were made that compromised the integrity of 
the unit’s security program and resulted in very painful lessons learned. … 
 
From  June  1,  2003,  to  May  31,  2004,  the  applicant  served  as  an  aircraft  com-
mander  and  instructor  pilot  at  a  joint  services  flight  school.    On  his  final  OER,  he 
received ten marks of 5, seven marks of 6, and 1 mark of 7 for “Professional Compe-
tence”  in  the  performance  categories,  a  mark  of  5  on  the  Comparison  Scale,  and  his 
Reporting Officer’s “highest recommendation for immediate promotion.”   

 
On April 12, 2004, the District Commander concurred in the findings and opin-
ions of the investigator and forwarded the Report of the Investigation to the Comman-
dant.  He noted that the “need for additional OS billets to support the unit’s physical, 
material  and  personnel  security  programs  …  is  well  documented  in  the  unit  staffing 
study enclosed under the CO’s endorsement to this investigation. …  When the Reserve 
OS who is currently on an active duty contract is released, the unit will be left with one 
OS  to  support  Communication  Security  Material  (CMS),  Classified  Material  Control 
(CMC) systems, and personnel security as well as their primary duty as the Communi-
cations Petty Officer at a large unit.” 

 
On June 15, 2004, the Commandant took final action on the investigation by con-
curring  with  the  findings  and  supporting  the  recommendations.    He  wrote  that  “the 
findings of fact indicate that a poor personnel security clearance program, failure to cor-
rect  discrepancies  from  a  District  Security  Manger’s  inspection,  a  lack  of  self  evalua-

tions, and an overall lack of oversight on the entire security administration system led 
to a series of security violations and COMSEC incidents onboard the Air Station.” 

 
The  applicant  failed  of  selection  a  second  time  in  2004  and  was  scheduled  to 
separate on June 30, 2005.  However, because the Service needs aviators, he received a 
Reserve commission and is currently serving on a two-year extended active duty con-
tract during which he is eligible for selection for promotion, though “above the zone.” 

 

 
 
On April 22, 2005, the Judge Advocate General (JAG) of the Coast Guard submit-
ted an advisory opinion recommending that the Board deny the applicant’s request for 
lack of merit. 
 
 
The JAG argued that “[a]bsent strong evidence to the contrary, government offi-
cials  are  presumed  to  have  carried  out  their  duties  correctly,  lawfully,  and  in  good 
faith.”    Arens  v.  United  States,  969  F.2d  1034,  1037  (1992);  Sanders  v.  United  States,  594 
F.2d 804, 813 (Ct. Cl. 1979).  The JAG argued that the amendment of the Personnel Man-
ual  was  intended  to  clarify  “that  although  mentioning  an  investigation  in  an  OER  is 
inappropriate,  addressing  the  underlying  conduct  is  permissible.”    The  JAG  further 
argued that the applicant’s due process rights are not determined by the Constitution 
but by the Personnel Manual, under which the applicant could have filed a reply to the 
disputed  OER  and  applied  to  the  PRRB  for  correction  before  applying  to  the  BCMR.  
The JAG argued that the applicant has failed to prove that his performance was better 
than as depicted in the disputed OER.  The attached to and adopted as part of his advi-
sory  opinion  a  memorandum  on  the  case  prepared  by  the  Coast  Guard  Personnel 
Command. 
 
 
CGPC  stated  that  when  the  applicant  assumed  the  duties  of  Communications 
Officer,  CSO,  and  Alternate  Classified  Materials  Control  Officer  on  June  8,  2000,  he 
reviewed  the  records  and  reported  no  problems.    However,  on  October  16,  2002,  the 
applicant’s CO appointed a chief warrant officer to conduct an informal investigation 
into the circumstances leading to reported departures from the classified material man-
agement  protocol.    On  October  19,  2002,  the  CO  reported  the  discovery  of  security 
violations in a classified message.  On December 18, 2002, the investigator submitted his 
report to the CO. 

 
CGPC stated that the Officer Evaluation System is not linked in any way to the 
administrative  investigation  process.    Therefore,  CGPC  argued,  the  applicant’s  claim 
“that the investigation was conducted in a manner which did not afford him the rights 
of  a  party  and  prohibited  him  from  reviewing  its  results  and  formally  pointing  out 
errors,  discrepancies,  or  disagreements  to  the  investigator,  the  Command,  his  rating 
chain,  and  other  reviewers  of  the  document  is  not  germane  to  the  construction  and 
submission  of  the  disputed  OER.”    Furthermore,  CGPC  stated,  while  the  Personnel 
Manual prohibits a rating chain from mentioning that an officer’s conduct is the subject 
of an investigation, it does not prohibit mentioning the conduct that is the subject of the 
investigation.  CGPC argued that the applicant’s rating chain “was authorized to evalu-
ate performance that occurred during the period of the report, regardless of the fact that 
certain aspects of the Applicant’s performance were the subject of a pending adminis-
trative investigation.” 

VIEWS OF THE COAST GUARD 

 

CGPC stated that there is “no dispute that a series of incidents involving unau-
thorized  access  to  classified  material  and  workspaces  occurred  during  the  reporting 
period.  There is no dispute that the Applicant was the unit Command Security Officer 
…  responsible  for  managing  security  of  classified  materials.”    CGPC  stated  that  the 
rating chain did not base the disputed marks and comments in the OER on the pending 
investigation  but  upon  “known  reportable  security  violations  that,  in  their  judgment 
and experience, were due it part to the Applicant’s management of the command secu-
rity program.”  CGPC argued that the rating chain properly supported the marks of 3 in 
the disputed OER with written comments showing how his performance did not meet 
the written standard for a mark of 4. 

 
Regarding the applicant’s allegation that the security violations were caused by 

 
[The  applicant]  was  accountable  and  evaluated  for  his  misgivings  and  neglect  of  Com-
munications  Officer  responsibilities  to  provide  control  of  classified  material  and  crypto 
devices  (IAW  Air  Ops  Manual).    An  Administrative  Investigation  confirmed  classified 
material was purposely issued to at least 7 people that did not have valid security clear-
ances (compromised). … 
 
[The  applicant]  was  specifically  responsible  for  the  classified  material,  as  well  as  the 
clearance, access, and need to know processes, on the Commanding Officer’s behalf.  In 

understaffing, CGPC stated the following: 

 
There  is  sufficient  evidence  that  indicates  that  the  Communications  Division  was  not 
staffed at the appropriate level, yet the Applicant’s claim that the command did nothing 
to address the shortage is not accurate.  The command requested three additional Opera-
tional Specialists based upon a … CASPER Staffing Study that was completed and sub-
mitted to [the Commandant] in May 2002 and then again in Sep[tember] 2002.  There is 
evidence that the Operations Officer, …, engaged [a District Branch Chief] to seek assis-
tance with communication security and training duties, resulting in limited support aug-
mentation  with  a  reserve  telecommunication  specialist  (TC).    Unfortunately  the  request 
and  approval  process  for  increasing  a  unit  personnel  allowance  list  (PAL)  is  a  lengthy 
one,  and  therefore  no  additional  billets  were  approved  during    the  period.    While  the 
Applicant  appropriately  conveyed  the  communication  division’s  staffing  shortages,  he 
exacerbated the situation by allowing his sole experienced TC1 to depart without an on-
site  relief.  In  the  Applicant’s  own  statement  to  the  investigating  officer  regarding  the 
reported  comsec  incident,  he  states  “The  next  causal  factor  to  the  loss  of  situational 
awareness was a result of there not being an ‘on-site’ relief between TC1 … and TC2 … .”  
and “I feel that a great deal of ‘the bubble’ was lost in the short time where we had a TC 
gap.”  As the Communications Officer, the Applicant had the authority and responsibility 
to ensure an effective relief was executed and that all responsible duties were performed 
and  maintained.    The  Applicant  made  an  extremely  poor  leadership  and  management 
decision by allowing the 33-day personnel gap to occur. 
 
CGPC also noted that the applicant did not avail himself of the opportunity of 
submitting  a  letter  to  the  selection  boards  that  reviewed  his  record  in  2003  and  2004.  
CGPC submitted an email dated April 12, 2005, from the Reporting Officer for the dis-
puted OER, who stated the following: 

addition,  [he]  had  a  responsibility  to  notify  the  Command  if  proper  safeguards  were 
inadequate. 
 
[The applicant] had numerous opportunities to correct unsafe practices, including a secu-
rity  stand-down  that  I  initiated  on  July  9th  to  reduce  the  backlog  of  incomplete  user 
acknowledgments and mandated training.  Regrettably, 2 of the compromises mentioned 
above  occurred  a  few  weeks  later,  as  interim  clearances  expired  without  notice  or 
response actions (that were well within his control). 
 
[The applicant’s] concerns with inadequate staffing are valid, and were the cornerstone of 
recommendations to overhaul the Communications Division and prevent recurrent inci-
dents. … But in reality, [LT S] and an inexperienced E-5 that were subsequently assigned 
to  the  Division  successfully  organized  the  Division  within  2  months.    During  a  short 
notice  inspection  2  months  later,  the  Chief  of  TISCOM  personally  commended  [LT  S], 
characterizing his security documentation, tracking tools, records and files as the best in 
the Coast Guard. 
 
As Operations Officer, I was responsible for supervising the Communications Division.  I 
recognized a number of security problems including overdue spotchecks (required), out-
dated  access  lists,  inadequate  emergency  destruction  plans,  and  the  like.  …  I  assigned 
[the applicant and TC1] to implement appropriate corrections, but few tasks were com-
pleted.  Until we began the intrusive investigation, I was unaware of the apparent atro-
phy in our personnel check-in and clearance application process.  In my opinion, neither 
was [the applicant].  [He] was formally required to conduct in-briefs for new arrivals, and 
sign  their  check-in  sheets.    We  found  little  documentation  to  validate  that  this  process 
was  completed,  and  more  often  than  not,  any  clearance  forms  that  we  found  were 
processed by TC1 … .  I believe [the applicant] was also unaware of compliance problems 
within  his  office,  as  he  nominated  TC1  …  for  enlisted  person  of  the  quarter,  an  end  of 
tour award. 
 
As Operations Officer, I fully concurred with assigning [the applicant] a pair of “3”s and 
the remarks reflecting his failure to manage Communications Officer responsibilities.  In 
doing so, I gave [him] due regard for increasing comsec demands, frequent absences as a 
deployable Aircraft Commander, as well as perceived staffing shortfalls.  The Reviewer 
[the CO], surely expected lower marks (having mentioned a handful of “1”s), and I may 
have suffered lower marks for not placing [the applicant] on report for misconduct, and 
launching a criminal investigation. 
 
I have given [the applicant] the benefit of every possible doubt and believe his OER … is 
entirely fair. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On April 22, 2005, the Chair sent the applicant a copy of the Coast Guard’s views 
and invited him to respond within 30 days.  He requested and was granted an extension 
of  the  time  to  respond,  and  his  response  was  received  on May 31, 2005.  Because the 
applicant’s response included significant new evidence, his application was deemed to 
be newly complete pursuant to 33 C.F.R. § 52.26. 

 
The  applicant  repeated  his  argument  that  the  staffing  of  the  Communications 
Division was insufficient and that he “made numerous attempts to notify the Command 

of this deficiency and even warned them of the damage that would result from main-
taining this condition.”  He also stated that he “made every effort to keep the division 
operational” despite the staffing problem but was made a scapegoat when his warnings 
about problems proved valid. 

 
The  applicant  stated  that  he  was  disappointed  to  read  the  Reporting  Officer’s 
email because the Reporting Officer had made him believe that he understood that the 
security violations were due to a “failure of the system” rather than to the applicant’s 
performance.    The  applicant  stated  that the Reporting Officer had reviewed his state-
ment before he submitted it to the investigator and noted that he should emphasize the 
“failure  of  the  system.”    The  applicant  submitted  a  photocopy  of  his  statement  with 
several notes from the Reporting Officer, one of which reads, “Need more emphasis on 
failure of the system.  District: tracking? backup? CGHRMS?  SEC Ctr: same [as above].”  
He  alleged  that  the  Reporting  Officer  told  him  several  times  that  the  “system  had 
failed”  due  to  the  staffing  shortage  and  “problems  with  the  administrative  check-in 
process.”  He stated that the Reporting Officer has attempted to “exonerate himself” as 
if the applicant had not repeatedly complained about the need for help and notified him 
of  the  potential  consequences  of  remaining  understaffed.    The  applicant  also  pointed 
out that he was given several “high profile” projects that were very successful and were 
documented in the disputed OER, which shows that his command had great confidence 
in his abilities.   

 
The applicant alleged that the Reporting Officer’s claim that the office was well 
organized within two months of his departure by LT S and TC2 B is clearly mistaken in 
light of the statements he submitted showing that the office was staffed with five per-
sonnel  after  his  departure.    Moreover,  he  pointed  out,  the  increased  staffing  was  not 
merely a temporary fix for the existing problems but a long-term change that continued 
at least through 2004.  He submitted a personnel roster for the air station dated Febru-
ary 2004, which shows that both an LT and an LTJG were assigned to the Communica-
tions Division. 

 
The applicant alleged that it is unjust for the Reporting Officer to blame him for 
allowing  a  gap between TC1 H’s departure and TC2 B’s arrival since he “made great 
efforts to work with the TC detailer to arrange for an overlap.”  When he found that it 
was impossible, he asked repeatedly for temporary assistance, which was denied. 

 
The  applicant  pointed  out  that  in  April  2002,  the  District  EKMS  Manager  and 
Security Manager listed only “minor” discrepancies.  He alleged that his division “made 
great  strides  to  comply”  even  though  the  Reporting  Officer  never  gave  him  any 
direction or critique.  He stated that the July 9 “stand down” had nothing to do with 
user acknowledgments or mandated training but was training the applicant initiated to 
“get users up to speed on the conversion from KYK-13 to a more complex Data Transfer 
Device.”  The applicant pointed out that the training was listed as a success in the dis-
puted OER.  The applicant included with his response several new statements in sup-

port of his allegations, including several with highly laudatory comments about his per-
formance in prior evaluation periods.   

 
CDR G, who was the applicant’s Supervisor for a period in 2001 and 2002 but did 
not  prepare  any  of  his  OERs,  stated  that  the  applicant  was  one  of  only  five  aircraft 
commanders and had to “stand eight to ten duties a month.”  He stated that each of the 
aircraft  commanders  “accumulated  nearly  600  flight  hours  during  this  period,”  and 
many more “total dedicated mission hours.”  CDR G stated that in 2001 and 2002, many 
new  duties  were  imposed  on  the  air  station’s  Communications  Division  but  no  addi-
tional personnel were assigned and the division was “already burdened.” 

 
CDR P, who was the Operations Officer at the air station in 2000, stated that he 
chose the applicant to lead the Communications Division because he was one of the best 
performing junior officers and that, when he left the air station in July 2001, he recom-
mended  that  the  applicant  remain  in  that  position  because  his  performance  had  been 
outstanding.  CDR P stated that the applicant has all the qualities necessary to perform 
well at a higher rank. 

 
LT R strongly complimented the applicant on his leadership as an aircraft com-
mander.    He  stated  that  when  the  requirements  for  handling  classified  material 
“increased exponentially” after September 11, 2001, the applicant “led the development 
of a detailed training program, ensuring all required personnel were well versed in the 
proper  procedures  for  dealing  with  classified  material….    His  efforts  greatly  reduced 
the ‘growing pains’ as the air station met new operational requirements.”  LT R stated 
that by October 2003, the Communications Division was staffed by one LT, two LTJGs, 
an OS1, and an OS3. 

 
LTJG  C  stated  that when he arrived at the air station, he was assigned for one 
month  to  the  Communications  Division  for  a  “security  paperwork/clearance  record 
scrub of all assigned personnel.”  After the “scrub,” the division was manned with one 
LT, two LTJGs, and an OS, as well as part-time support from a Reserve OS.  By October 
2003, the division had one LT, one LTJG, and two full-time members in the OS rating. 

 
CWO K, the investigating officer, responded to an email from the applicant on 
July 10, 2003, by stating that the “gap with [TC1 H’s] transfer was only very small and 
honestly, insignificant part of the security posture at [the air station].  The relief [TC2B] 
simply served as the mechanism to highlight the past gaps. … By all rights you knew 
that and attempted to get the command to take some action.  Sadly they did not.  I cer-
tainly don’t hold that against you.” 

 

SUPPLEMENTAL ADVISORY OPINION 

 
In  light  of  the  new  evidence submitted by the applicant, the Chair notified the 
applicant  that  his  application  would  be  considered  newly  complete,  pursuant  to  33 

C.F.R.  § 52.26,  and  forwarded  a  copy  of  his  response  to  the  Coast  Guard.    The  Coast 
Guard  responded  with  a  supplemental  advisory  opinion  on  September  2,  2005.    The 
JAG  stated  that  he  continued  to  recommend  that  the  Board  deny  relief  based  on  a 
memorandum prepared by CGPC. 

 
CGPC stated that it does not dispute the applicant’s claim that the Communica-
tions Division was not properly staffed during the applicant’s tenure as CSO.  “How-
ever, the mere fact that the unit was not staffed properly does not excuse the Applicant 
from performing the duties for which assigned.  There are many units throughout the 
Coast Guard that are not staffed at the appropriate level, but continue to execute their 
duties in a safe and effective manner.”  CGPC submitted an affidavit by the applicant’s 
CO (summarized below) and noted the many steps the CO took to try to alleviate the 
staffing shortage.  CGPC concluded that “the fact that the Applicant communicated to 
the  command  his  concerns  relating  to  the  personnel  shortage  does  not  mitigate  his 
responsibility as the Command Security Officer to properly manage and safeguard clas-
sified material.” 

 
The CO of the air station, who served as the Reviewer for the disputed OER and 
is now retired, stated that from “June 2001 through August 2002, the Air Station was 
never at full officer or enlisted billet strength due to significant Service-wide personnel 
shortages.  Service-wide under billeting raised the per capita workload across the unit.”  
The CO detailed the ways in which he attempted to increase staffing but stated that the 
air station was not “returned to full officer billet strength [until] the fall of 2002, [when] 
additional personnel were assigned to the Communications/Security Branch.” 

 
The  CO  stated  that  the  applicant’s  tasking  increased  following  September  11, 
2001, and the implementation of CASPER.  In addition, the “Service-wide process that 
reviewed personnel security clearances was very slow and unresponsive until the new 
Coast Guard Security Center was fully implemented in mid to late 2002.  Historically, 
this  resulted  in  chronic  backlogs  and  [clearance]  packages  that  were  sometimes 
returned for updating.  Both of these factors helped reduce situational awareness on the 
status  of  individual  security  clearances,  since  a  roster  of  personnel  who  had  been 
granted access to classified information was not maintained to include a detailed sum-
mary of all key data and critical data.  As indicated in [the applicant’s] e-mail of 24 June 
2002,  …  [he]  initiated  the  development  of  a  security  tracking  system  to  better  under-
stand the status of security clearance packages submitted for approval and to meet the 
mandate  of  the  Military  Personnel  Security  Program,  COMDTINST  M5520.12B,  in 
response to a discrepancy identified during a Biennial Security Evaluation conducted in 
April 2002.” 

 
The CO stated that in the spring of 2002, he told the Reporting Officer to rotate 
the applicant out of the Communications Division because he had performed the “high 
tempo” duties for two years and the inspection had showed that “there was still much 
to do.”  The CO asked LT S “to conduct a top-to-bottom review” after he relieved the 

applicant of his communications and security duties on September 11, 2002.  The review 
revealed “significant administrative problems … in the unit’s Military Personnel Secu-
rity Program that resulted in the formal reporting of five security violations/COMSEC 
incidents  on  19  October  2002.”    Therefore,  additional  personnel  were  assigned  to  the 
division as they became available that fall. 

 
The CO stated that the five security violations “were the result of poor security 
clearance  program  management  by  [the  applicant]  and  ineffective  oversight  by  the 
Command.”  The CO stated that before drawing conclusions, he asked the applicant to 
read the Report of the Investigation and provide him with comments.  In response, the 
applicant  “acknowledged  its  basic  findings  regarding  his  flawed  program  manage-
ment.”  The CO also discussed with the applicant the command’s ineffective oversight 
and the extenuating circumstances of the understaffing and increasing work.  The CO 
stated that during the course of their discussion, he realized that the applicant “lacked 
the detailed subject matter knowledge required to effectively establish and manage the 
requirements  of  the  Coast  Guard  Military  Personnel  Security  System  for  the  unit.    In 
particular,  I  was  disturbed  to  find  he  didn’t  really  know  which  documents  had  to  be 
maintained  for  each  individual  with  a  security  clearance.    Instead  of  being  the  unit’s 
subject matter expert, [the applicant] indicated that he had tasked his subordinates to 
manage  the  program  and  trusted  their  knowledge  and  expertise  without  question.  
Unfortunately, this precluded [him] from recognizing the deteriorating condition of the 
unit’s personnel security records, which eventually resulted in security violations.” 

 
The CO wrote that “[o]f all the OERs I wrote or reviewed in my thirty years of 
military service, none involved more thought and soul searching as I tried to fairly bal-
ance  the  member’s  leadership  and management skills, significant extenuating circum-
stances,  and  portion  of  responsibility  for  results.    A  fair  and  accurate  evaluation  was 
always my sincere objective.  Never was there any thought of finding a scapegoat. … I 
clearly  recognized  there were significant extenuating circumstances that were beyond 
[the  applicant’s]  control  and  that  made  his  job  far  more  challenging.  …  While  these 
extenuating circumstances certainly increased the chance for mistakes and oversights to 
occur  that  could  result  in  security  violations,  I  sincerely  believe  that  [the  applicant’s] 
lack of subject matter expertise was a much more critical element in the chain of events 
that resulted in the five security violations.” 

 
The CO stated that the low marks of 3 and supporting comments in the disputed 
OER  accurately  reflected  the  applicant’s  performance.    He  stated  that  they  reflect  the 
applicant’s  “lack  of  subject  matter  expertise  to  identify  growing  problems  with  the 
unit’s deteriorating personnel security records and form a proactive action plan to fix 
them.”  The CO stated that a recommendation for promotion to LCDR “requires a self-
starter who will quickly master the requirements of his job and then effectively martial 
all  available  resources  to  get  the  job  done  correctly.”    He  stated  that  he  lacked  confi-
dence that the applicant was ready for promotion. 

 

APPLICANT’S RESPONSE TO THE SUPPLEMENTAL ADVISORY OPINION 

 
On September 6, 2005, the Chair forwarded a copy of the Coast Guard’s supple-
 
mental advisory opinion to the applicant.  The applicant responded on October 4, 2005. 
 
The applicant stated that the “supplemental opinion did not address any of the 
 
fallacies  contained  in  [the  Reporting  Officer’s]  statement,”  but  instead  presented  “a 
more consistent statement from my Reviewing Officer.”  The applicant alleged that the 
staffing at the air station’s Communications Division “was well below any similar unit 
ashore or afloat.”  He stated that as the Communications Officer on a high-endurance 
cutter, his department had “two officers, a chief petty officer, a first class petty officer, a 
second class petty officer, and approximately five third class petty officers.”  He stated 
that the air station had more holdings, more clearances to process, and more classified 
transactions  than  the  cutter,  and  that  other  air  stations  of  similar  size  also  had  more 
staff.  
 
The applicant stated that it was unjust for the Coast Guard to hold him account-
 
able for “not being a subject matter expert” in light of the understaffing.  He stated that 
he “was forced to divide my duties with [TC1 H] who was also barely able to keep up 
with a portion of the ever-increasing demands of the division.  It was, in fact, the staff-
ing  shortage  in  our  division  that  not  only  prevented  me  from  developing  such 
expertise,  but  also  precluded  proper  oversight  of  this  administrative  process.”    He 
stated that although was not a “subject matter expert” in the clearance processing duties 
TC1  H  performed,  he  was  such  an  expert  “in  the  vast  majority  of  my  duties  in  the 
Communications Division,” as shown in his two prior OERs covering his work as CSO. 
 
 
The applicant stated that none of his command’s attempts to alleviate this divi-
sion’s understaffing helped.  When his command failed to provide additional staffing, 
he  “perceived  the  Command  issued  a  ‘green-light’  to  continue  operating  without  the 
benefit of redundancy of oversight of critical areas.”  The applicant stated that the even-
tual discovery of five violations “was no surprise to me, and it should not have been a 
surprise to the Command in light of the clear warnings I issued.”  He pointed out that 
the command “had no problem taking effective action after problems occurred.  Imme-
diately following the discovery of the discrepancies in the division, the billet structure 
at the Air Station was restructured to properly manage the Communication Division.”  
He repeated his allegation that the disputed OER was intended to shift all blame for the 
security violations from the command to him. 
 
 
In support of his allegations, the applicant submitted a letter from the CO dated 
October 29, 2001, in which the CO recommended the applicant for a special aviator bil-
let exchange with Canada.  The CO wrote that the applicant was an “excellent candi-
date”  as  he  “has  successfully  managed  this  unit’s  communications  and  security  pro-
grams in support of the complete range of Coast Guard missions. … As the [CASPER] 
system  expert,  he  has  demonstrated  both  the  management  skills  needed  to  quickly 

implement the system in the District … and [he] in an outstanding new Aircraft Com-
mander.”    The  CO  also  wrote  that  the  applicant  “embodies  our  Service’s  core  values 
and has the superior mental and physical qualities that will make him a success in any 
assignment  he  is  given.  …  An  outgoing  self-starter,  [the  applicant]  is  well  liked  and 
respected in the Wardroom and on the hangar deck … .” 
 
 
The  applicant  also  submitted  a  statement  from  his  current  CO  and  Reviewer, 
who  described  his  work  as  a  flight  instructor  as  “exceptional”  and  his  “work  ethic, 
enthusiasm, and professionalism … among the finest I’ve seen.”  He stated that he has 
“found [the applicant’s] integrity and judgment to be beyond reproach.” 
 

APPLICABLE REGULATIONS 

 
 
Article  10.A.  of  the  Personnel  Manual  in  effect  in  2001  and  2002  governed  the 
preparation  of  OERs.    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.4.c.4.  of  the  Personnel  Manual  provides  that  a  Supervisor  should 
assign  the  Reported-on  Officer  marks  in  the  first  thirteen  performance  categories  as 
follows  (the  same  instructions  are  provided  for  the  Reporting  officer  in  Article 
10.A.4.c.7. for completing the remainder 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 [on the 
OER form] and compare the Reported-on Officer’s performance to the level of perform-
ance 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  previous  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 observa-
tions, those of any secondary supervisors, and other information accumulated during the 
reporting period. 
e.  Comments  should  amplify  and  be  consistent  with  the  numerical  evaluations.    They 
should  identify  specific  strengths  and  weaknesses  in  performance.    Comments  must  be 
sufficiently specific to paint a succinct picture of the officer’s performance and qualities 
which  compares  reasonably  with  the  picture  defined  by  the  standards  marked  on  the 
performance dimensions in the evaluation area. … 

g. A mark of four represents the expected standard of performance. Additional specific 
performance observations must be included when an officer has been assigned a mark of 
five or six to show how they exceeded this high level of performance. … 
 

Article 10.A.4.f.1. states that rating chain members may not  
 
[m]ention the officer’s conduct is the subject of a judicial, administrative, or investigative 
proceeding, including criminal and non-judicial punishment proceedings under the Uni-
form  Code  of  Military  Justice,  civilian  criminal  proceedings,  PRRB,  CGBCMR,  or  any 
other investigation (including discrimination investigations) except as provided in Article 
10.A.3.c.  …  These  restrictions  do  not  preclude  comments  on  the  conduct  that  is  the 
subject of the proceeding. They only prohibit reference to the proceeding itself. 

A prior version of the Personnel Manual included the following restriction in 

 

Article 10.A.4.g.(1): 

 
Members of the rating chain shall not comment on or make reference to any … ongoing 
investigation … .  Reference to a final proceeding is only proper if the officer concerned 
has been made a party to and accorded full party rights during the course of the proceed-
ing.  The finality of a proceeding is governed by regulations applicable to its convening.  
See  …  Administrative  Investigations  Manual,  COMDTINST  M5830.1  (series).    This 
restriction  does  not  preclude  comments  on  appropriate,  undisputed,  supportable  and 
relevant facts, so long as no reference is made to the pending proceedings. 
 
Article  10.A.2.e.2.a  provides  that  in  preparing  an  OER,  the  Reporting  Officer 
“[b]ases [his] evaluation on direct observation, the OSF or other information provided 
by  the  Supervisor,  and  other  reliable reports and records.”  Article 10.A.4.c.8.a. states 
that the Reporting Officer completes the Comparison Scale by “fill[ing] in the circle that 
most closely reflects the Reporting Officer’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.c.9. provides that in block 10 of an OER, the Reporting Officer “shall comment on 
the  Reported-on  Officer’s  potential  for  greater  leadership  roles  and  responsibilities  in 
the Coast Guard.” 

 
Article 10.A.2.f.2. provides that it is the responsibility of the Reviewer to ensure 
that an OER “reflects a reasonably consistent picture of the Reported-on Officer’s per-
formance and potential.”    
 
 
Article  10.A.4.g.  allows  an  officer  to  file  a  reply  to  his  OER,  within  15  days  of 
receiving a copy of it, to “express a view of performance which may differ from that of a 
rating official.”  The reply is forwarded up the rating chain, whose members may attach 
written responses, before being entered in the officer’s record with the OER by CGPC. 
 

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 submission, and appli-
cable law: 
 

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

The application was timely.   

1. 

 
2. 

3. 

4. 

The applicant requested an oral hearing before the Board.  The Chair, act-
ing pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition of 
the case without a hearing.  The Board concurs in that recommendation. 
 
 
The applicant alleged that the disputed OER is erroneous and unjust and 
asked the Board to amend it by raising the marks and deleting negative comments.  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.”4  The Board must 
begin  its  analysis  by  presuming  that  the  disputed  OER  is  correct  as  it  appears  in  the 
record, and the applicant bears the burden of proving by a preponderance of the evi-
dence that it is erroneous or unjust.5 
 
 
 The applicant alleged, and members of his rating chain admitted, that his 
marks  were  lowered  because  of  his  alleged  mismanagement  of  the  Communications 
Division as revealed in CWO K’s report of his informal investigation into the discovery 
in September 2002 of five members who had access to classified material even though 
they had no valid security clearances at the time.  The applicant alleged that his marks 
should not have been significantly lower than those he received for the prior evaluation 
period because the security incidents were due to severe understaffing, a “failure of the 
system.”  The record shows that he warned his command about the understaffing many 
times prior to his relief as CSO on September 11, 2002, and that he warned them that 
continued understaffing could result in errors. 
 
The  Coast  Guard  has  admitted  that  the  Communications  Division  was 
 
understaffed while the applicant served as CSO.  The division consisted of the applicant 
and one TC while their workload was increasing greatly in the aftermath of September 
11, 2001, and due to the implementation of new programs.  Other air stations of similar 
size  had  two  or  three  TCs.    Following  the  applicant’s  relief  as  CSO on September 11, 
2002, the CO ordered his replacement, LT S, to perform a complete review of the divi-
sion,  which  revealed  significant  problems  with  the  unit’s  processing  and  tracking  of 
security  clearances.    The  applicant  has  proved  that  to  fix  the  identified  problems,  the 
staff of the division was quickly increased to five personnel and thereafter staffed with 
four, including one LT, one LTJG, and two OS petty officers. 
 
 
The  record  shows,  however,  that  the  applicant’s  rating  chain  was  well 
aware of the increasing workload and the critical need for more staff in the Communi-
cations Division and took these extenuating circumstances into account when preparing 
                                                 
4 Germano v. United States, 26 Cl. Ct. 1446, 1460 (1992); see also Hary v. United States, 618 f.2d 704 (Cl. Ct. 
1980). 
5 33 C.F.R. § 52.24(b). 

5. 

6. 

the disputed OER.  In fact, the first negative comment in the OER begins as follows: “As 
CSO, ident manning shortfalls compounded by rapidly exploding comsec demands … 
.” The Reporting Officer wrote that the applicant’s “concerns with inadequate staffing 
are valid” and that “I have given [him] the benefit of every possible doubt and believe 
his OER … is entirely fair.”  The CO also acknowledged the understaffing and increased 
tasking but concluded that “[w]hile these extenuating circumstances certainly increased 
the chance for mistakes and oversights to occur that could result in security violations, I 
sincerely believe that [the applicant’s] lack of subject matter expertise was a much more 
critical  element  in  the  chain  of  events  that  resulted  in  the  five  security  violations.”  
Therefore,  although  the  applicant  has  proved  the  existence  of  extenuating  circum-
stances, he has not proved that those circumstances were unknown or discounted by his 
rating chain when the OER was prepared. 
 
 
The  applicant  alleged  that  his  Reporting  Officer  acknowledged  that  a 
“failure of the system” caused the security incidents when he advised the applicant to 
emphasize this point in the applicant’s statement to the investigator.  However, the fact 
that the Reporting Officer acknowledged that a “system failure” contributed to the inci-
dents  and  recommended  that  the  applicant  emphasize  that  point  does  not  prove  that 
the Reporting Officer did not deal honestly with the applicant in handling the incidents 
or in preparing the disputed OER.  The fact that the Reporting Officer acknowledged 
contributing factors (i.e., extenuating circumstances) does not prove that the disputed 
OER  should  not  reflect  the  applicant’s  own  failure  to  oversee  the  TC’s  work  and  to 
ensure that security clearances were properly processed and tracked. 
 
 
The applicant pointed out that the Reporting Officer claimed in his email 
dated April 12, 2005, that LT S and TC2 B “successfully organized the Division within 2 
months”  of  the  applicant’s  departure  on  September  11,  2002,  whereas  LTJG  C  stated 
that he was involved in the “scrub” of the Communications Division in the fall of 2002 
and that he was the fourth person assigned to the job, and LT S stated that three officers 
and two petty officers were assigned to the division that fall.  Although the Reporting 
Officer’s statement about the number of members involved in the “scrub” of the air sta-
tion  personnel’s  security  clearances  is  clearly  erroneous,  the  email  is  dated  approxi-
mately two years after the OER was prepared.  Therefore, the Board is not persuaded 
that it proves that the Reporting Officer misunderstood the staffing problem during the 
evaluation period or when he was preparing the disputed OER.  The Board notes that 
on  June  27, 2002, the Reporting Officer strongly supported the applicant’s complaints 
about the increasing workload and insufficient staff. 
 
 
The  applicant  alleged  that  the  understaffing  forced  him  to  delegate  and 
divide  the  workload  in  a  way  that  prevented  him  from  becoming  a  “subject  matter 
expert” in processing and tracking personnel security clearances.  Therefore, he argued, 
his marks should not have been lowered due to the failures in the unit’s processing and 
tracking  of  security  clearances.    However,  as  Communications  Officer  and  CSO,  the 
applicant  was  responsible  for  overseeing  his  staff  member’s  work.    His  CO  clearly 

8. 

7. 

9. 

expected him to understand, at a minimum, “which documents had to be maintained 
for each individual with a security clearance” so that he could determine whether the 
TC was properly performing his duties.  Instead, the applicant apparently admits that 
he  was  unaware  of  the  requirements  and  therefore  could  not  track  or  recognize  the 
inadequacy  of  the  TC’s  work  and  so  lost  (or  apparently  never  acquired)  “situational 
awareness.”    Although  the  applicant  clearly  had  more  than  enough  work,  he  has  not 
proved  that  his  CO’s  expectation  that  he  acquire  a  basic  understanding  of  security 
clearance procedures during his two years at the division and monitor the TC’s work 
was unreasonable. 
 
The  applicant  alleged  that  the  Report  of  the  Investigation  contained fac-
 
tual errors, including claims that he had received formal CSO training, that he had not 
attempted  to correct discrepancies, and that discrepancies had been discovered in the 
unit’s clearance tracking before April 2002.  However, the applicant’s CO indicated that 
before  the  disputed  OER  was  prepared,  he  had  the  applicant  read  the  investigator’s 
report and discuss it with him.  The applicant did not deny the CO’s statement.  There-
fore,  the  Board  is  not  persuaded  that  the  command  was  unaware  of  the  applicant’s 
point of view on the findings and opinions of the investigator when the OER was pre-
pared. 
 
 
The  applicant  alleged  that  his  rating  chain  erroneously  relied  on  the 
Report of the Investigation in preparing the disputed OER contrary to his constitutional 
rights.  He alleged that a recent change in the Personnel Manual deprived him of due 
process and allowed his rating chain to make unfair comments about conduct that was 
still under investigation.  As the Coast Guard noted, the applicant’s rights with respect 
to the OER are defined in the Personnel Manual, not in the Constitution.  Under Article 
10.A.4.f.1. of the Personnel Manual, the restriction against mentioning that an officer’s 
conduct is the subject of an investigation “do[es] not preclude comments on the conduct 
that  is  the  subject  of  the  proceeding.    [It]  only  prohibit[s]  reference to the proceeding 
itself.”    The  disputed  OER  contains  no  reference  to  the  investigation,  which  had  not 
been finalized when the OER was prepared.   
 

11. 

10. 

12.  Moreover,  the  applicant  errs  in  asserting  that  the  comments  in  the  dis-
puted  OER  would  have  been  prohibited  under  the  prior  provision  of  the  Personnel 
Manual,  Article  10.A.4.g.(1),  which  stated  that  the  restriction  against  mentioning  an 
ongoing investigation “does not preclude comments on appropriate, undisputed, sup-
portable  and  relevant  facts,  so  long  as  no  reference  is  made  to  the  pending  proceed-
ings.”  Although the applicant may dispute the allegations in OER comments (a) and (b)  
(see page 2 above) he has not proved that the underlying facts about his performance 
that his command considered and relied on were truly “disputed.”  As the Board found 
in BCMR Docket No. 1999-101, the “applicant’s argument, if valid, would prohibit any 
OER from ever mentioning facts uncovered by an investigation that was still ongoing or 
facts uncovered by an investigation to which the officer was not named a party, unless 
the officer not only agreed about the facts but also agreed that they should be reflected 

13. 

in an OER.  Such an interpretation of the word ‘undisputed’ would render the last sen-
tence of Article 10-A-4.g.(1) a virtual nullity because no one would voluntarily permit 
negative facts to be reflected in an OER if he could prevent it just by quibbling or pre-
tending  to  quibble  with  the  facts.”    Moreover,  the  Board  notes  that  the  applicant 
expressly admitted to the investigator that as the Communications Officer and CSO, he 
“was  acutely  responsible  for  safeguarding  classified  material  and  ensuring  access  to 
such  material  was  properly  controlled”  and  that  the  “leading  cause”  of  the  security 
clearance processing errors was a “loss of situational awareness.” 
 
 
The  applicant  alleged  that  the  disputed  OER  was  unjust  because  he  did 
not have party rights during the informal investigation of his behavior.  No part of the 
Personnel Manual requires the Coast Guard to give an officer party rights before pre-
paring an OER.  Even a CO who is being relieved “for cause” is entitled only to submit 
a  written  statement  on  his  own  behalf.6    Under  Chapter  1.E.1.  of  the  Administrative 
Investigations  Manual  (AIM),  the  applicant’s  command  had  “broad  discretion”  to 
determine  whether  to  convene  an  informal  investigation  or  a  formal  investigation,  in 
which case the applicant would have received party rights.  Service policy is to convene 
“the  least  extensive  type  of  investigation  which  will  meet  all  service  needs.”7    AIM 
Chapter 1.E.1. states that an informal investigation “will ordinarily be adequate in most 
cases, including most death cases,” whereas examples of situations that could require a 
formal investigation include incidents with “significant loss of life,” “significant interna-
tional  or  legal  consequences,”  and  “major  afloat  casualties.”    AIM  Chapter  1.E.2.b. 
provides that an informal investigation with no designated parties is usually adequate 
because  prior  to  taking  disciplinary  action  based  the  report,  the  command  “would  be 
required to comply with the procedures provided for that action in the [Military Justice 
Manual or the Manual for Courts-Martial].”  As only administrative and no disciplinary 
action was taken against the applicant, he was not entitled to the due process provided 
under those manuals.  Therefore, the Board is not persuaded that the Coast Guard erred 
in convening an informal investigation or in not according the applicant the rights of a 
party to the investigation.   
 
 
The applicant has proved that the Communications Division was under-
staffed during his tenure there.  He has not proved by a preponderance of the evidence, 
however,  that  his  management  of  the  Communications  Division  and  oversight  of  the 
security  clearance  processing  were  not  significant  contributing  factors  in  the  security 
incidents discovered at the air station in September 2002, as his CO concluded.  Nor has 
he proved that his rating chain was wrong, unreasonable, or unfair in deciding that the 
division’s  lack  of  sufficient  staff  and  increasing  workload  did  not  entirely  excuse  his 
inadequate  oversight  of  the  processing  of  security  clearances.    Based  on  their  honest, 
professional  judgments  of  his  performance  as  CSO,  the  applicant’s  rating  chain  was 
entitled  to  lower  his  marks  in  the  disputed  OER  (as  compared  to  those  he  received 

14. 

                                                 
6 Personnel Manual, Art. 4.F. 
7 AIM, Chap. 1.C.1. 

15. 

during the prior reporting period).  In particular, the applicant has not proved that his 
rating  chain  erred  in  comparing  his  performance  with  the  written  performance  stan-
dards on the OER form for the categories “Results/Effectiveness,” “Directing Others,” 
“Planning  and  Preparedness,”  “Using  Resources,”  “Evaluations,”  “Initiative,”  and 
“Responsibility” and assigning the marks of 3 and 4. 
 
 
The  applicant  asked  the  Board  to  remove  the  negative  comments  that 
support the lower marks in the disputed OER, but he has not proved that they are erro-
neous or unjust.  He has not proved that the “reportable incidents” mentioned in the 
OER  did  not  result  in  large  part  because  of  his  failure  to  learn  the  requirements  of 
security clearance processing and to ensure that it was being properly performed by the 
TC or himself, as his CO concluded. 
 
 
The applicant made numerous allegations with respect to the actions and 
attitudes  of  various  officers  who  became  involved  in  his  case.    Those  allegations  not 
specifically addressed above are considered to be not dispositive of the case. 
 
In light of the above, the Board finds that the applicant has not proved by 
 
a  preponderance  of  the  evidence  that  the  disputed  OER  was  adversely  affected  by  a 
“clear  and  prejudicial  violation  of  a  statute  or  regulation  or,  alternatively,  a  misstate-
ment of a significant hard fact.”8  Therefore, he is not entitled to amendment or removal 
of the OER or to any of the other relief he requested since he has not proved that his 
record was erroneous or unjust when it was reviewed by the LCDR selection boards. 
 
 

18.  Accordingly, the applicant’s request should be denied. 

16. 

17. 

 
 
 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
8 Germano v. United States, 26 Cl. Ct. 1446, 1460 (1992); see also Hary v. United States, 618 F.2d 704 (Cl. Ct. 
1980). 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxx,  USCGR,  for  correction  of  his 

ORDER 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Charles P. Kielkopf 

 

 

 
 
 Donald A. Pedersen 

 

 

 
 Darren S. Wall 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 
military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 



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