DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-050 
 
XXXXXXXXXXXXX 
xxxxxxxxxx, LT  
   

 

 
 

FINAL DECISION 

 
Author: Ulmer D. 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section  1552  of 
title  10  and  section  425  of  title  14  of  the  United  States  Code.    The  application  was 
docketed on January 19, 2005, upon receipt of the applicant’s completed application and 
military records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  November  17,  2005,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  by  removing  an 
officer evaluation report (OER) for the period August 4, 2002 to May 31, 2003 (disputed 
OER).1  
 

BACKGROUND 

 
 
The applicant was commissioned a LTJG in the Coast Guard Reserve on July 15, 
2002 under the Direct Commission Lawyer program.  He began a four-year period of 
active  duty  pursuant  to  an  Active  Duty  Agreement  on  August  2,  2002  and  was 
promoted to lieutenant on September 18, 2002.   The OER was the applicant's first since 
entering  the  Coast  Guard.    He  was  assigned  as  a  "Staff  Attorney  [for  the]  Legal 
                                                 
1   The applicant's brief lists the OER in dispute as covering the period October 1, 2002 to May 30, 2003.  
There is no such report for this period.  The facts match the OER for the period August 4, 2002 to May 31, 
2003.   

Assistance Branch" as "District 11's tax assistance program coordinator", and his duties 
included  "consultations  with  clients;  individual,  income  tax  preparation;  electronic 
filing; & coordinating Volunteer Income Tax Assistance (VITA) Program with Internal 
Revenue Service, California Tax Board, and VITA Volunteers."  The applicant was also 
assigned  to  assist  with  the  preparation  of  legal  documents  and  to  conduct  pre-
deployment legal-readiness training for active duty and reserve personnel. 
 
Disputed OER 
 
 
As  stated  above,  the  disputed  OER  was  the  applicant's  first  upon  entering  the 
Coast  Guard.2  The  supervisor  assigned  the  applicant  marks  of  3  in  the  planning  and 
preparedness, using resources, results/effectiveness, and responsibility categories.  She 
assigned  the  applicant  marks  of  4  in  the  adaptability,  professional  competence, 
evaluations,  speaking  and  listening,  writing,  judgment,  professional  presence,  and 
health and well-being categories.  The applicant received marks of 5 in the teamwork, 
and initiative categories and marks of 6 in looking out for others and workplace climate.  
 

The  supervisor  wrote  the  following  pertinent  comments  about  the  applicant's 

performance in block 3: 

 
Duties during this initial, abbreviated marking period were split between 
studying to re-take the bar exam . . . & assisting the sole, D11 area Legal 
Assistance  Attorney  .  .  .  While  licensing  is  not  [a]  perquisite  for  Direct 
Commission Attorney Program, it is required during first 2 years to assure 
continued active duty.  Successfully passed the February  . . . Bar Exam . . . 
To  assist  the  [legal  assistance  attorney],  oversaw  the  regional  VITA 
program  &  interviewed  clients.    Although  studying  for  a  bar  exam  is 
typically a very intense, draining & time-consuming process which could 
easily  distract  anyone 
this  officer's 
performance was also compromised by a general lack of attention to detail 
& inadequate planning. Despite repeated counseling, repeatedly failed to 
submit reports or to complete tasks in a timely manner.  After taking the 
bar  exam,  this  officer's  rejection  rate  for  electronic  tax  return  filing  was 
among the CG highest at 38% . . . Some improvement noted when member 
followed  advice  to  use  a  day-planner.    Successfully  organized  VITA 
training;  participated  in  deployment  briefs  for  operational  units  in 
support of Operation Iraqi Freedom and routine deployments.  
 
The supervisor further wrote in the communication skills comment section of the 
OER  that  "overall  lack  of  attention  to  details  when  communicating  to  a  group  or 
w/individual clients required numerous man-hours to correct misunderstanding and to 

responsibilities, 

from  other 

                                                 
2     OER marks in the performance categories range from 1 to 7, with 7 being the highest. 

In  the 

produce correct documents, e.g., powers of attorney lacked basic requirements.  Written 
documents submitted without adequate proofreading and attention to details, e.g., used 
the month from a sample form rather than the correct date in a client's important legal 
document." 
 
 
leadership  skills  comment  section  of  the  OER,  the  supervisor 
complimented the applicant on his contribution to a positive work environment.  She 
also wrote that the applicant "[d]evoted entire week to preparation of OER input, which 
lacked supporting details."  
 
 
The reporting officer, in his portion of the OER, assigned the applicant a 3 in the 
responsibility category and marks of marks of 4 in the judgment, professional presence, 
and  health  and  well-being  categories.    The  applicant  received  a  mark  of  5  in  the 
initiative category.  The reporting officer concurred with the supervisor's portion of the 
OER.    He  wrote,  "it  appears  that  increased  CG-wide  [operational]  tempo  during  this 
period due to Iraq War & post 9/11 security buildup, lack of availability of past Reserve 
support for legal assistance, & the concomitant strain created by having to assign a law 
graduate  not yet  admitted  to  practice  law  to  this  branch,  all  contributed  to  a  difficult 
start."    In  another  the  section  of  the  OER  the  reporting  officer  wrote  the  following 
pertinent comments: 
 

  Failed 

to 

Needs to establish a better system of checks and balances to ensure quality 
of  work. 
telephonically 
misrepresenting  self  as  potential  buyer  to  opposing  party  on  behalf  of 
legal assistance client seeking assistance [with] dispute.  As planning skills 
improve, expect to see reduced error rate & less "double-booking" of own 
time.  Reported for shipboard briefings on time and well prepared . . .   

recognize  ethical  error 

in 

 
The reporting officer described the applicant's potential in block 10 as follows: 
 

Overarching  concern  is  lack  of  attention  to  detail  which  ultimately 
affected performance in many areas.  Will re-evaluate after opportunity to 
observe full year of work as licensed attorney undistracted by bar exam, 
and after completion of Naval Justice School Basic Lawyer Training.  This 
officer  will  need  to  make  substantial  strides  to  improve  on  weaknesses 
noted above in order to meet the expected level of performance for a law 
specialist. 
  The  challenge  is  not  insurmountable  but  will  require 
meticulous concentration and attention to detail, coupled with enhanced 
communication skills. 

 

On  the  comparison  scale  (block  9)3  where  the  reporting  officer  compares  the 
reported-on  officer  with  all  others  of  that  grade  the  reporting  officer  has  know 
throughout his career, he placed the applicant in the third place from the left "as one of 
the many competent professional who form the majority of this grade." 
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that the disputed OER is flawed and should be removed 
from his record.  In this regard, he contended that the disputed OER does not recognize 
his  exceptional  performance,  particularly  that  as  the  tax  officer,  which  resulted  in  a 
savings of over twenty-two thousand dollars (22k) in tax preparation fees for military 
members and his overhaul of an antiquated tax legal assistance service.  
 
following 
 The  applicant  also  alleged 
accomplishments:  1.  The preparation of at least two 1040 schedules involving capitol 
gains  and  losses  and  real  property  depreciation.      2.    The  completion  of  tax  returns 
covering all 50 states without training.  3.  The preparation of an amended tax return in 
which a client received a refund of approximately $3,000.  4.  The verification of training 
for all VITA volunteers in California, Nevada, and Utah.   

the  OER  did  not 

that 

include 

the 

 
The  applicant  further  contended  that  the  marks  of  3  and  4  on  the  OER  are  in 
error because they are inconsistent with the performance described in his input to the 
OER.  He stated that the supervisor committed further error in the OER by  

 
.  .  .  (2)  stating  that  the  electronic  tax  return  error  rate  was  thirty-eight 
percent  (38%)  when  [the  supervisor]  used  incorrect  criteria  to  document 
errors;  (3)  stating  the  requirements  of  the  Direct  Commission  Lawyer 
program when this information can be found in the Personnel Manual; (4) 
explaining  the  arduousness  of  preparing  for  bar  exams;  and  (5)  stating 
that [the applicant] participated in deployment briefings when [he] solely 
conducted various deployment briefings on behalf of the legal division.   

 

that  numerous  man-hours  were  required 

The  applicant  denied  that  he  lacked  attention  to  detail  when  communicating 
 
the 
with  clients  and 
misunderstandings  and  incorrect  documents  he  allegedly  produced.    The  applicant 
stated that his supervisor was responsible for all legal advice and, therefore, ultimately 
responsible for passing information to clients.    He further suggested that the mistakes 
mentioned in the OER with respect to his drafting of powers of attorney were those of 
an officer in training and were corrected by the supervisor with no harm to the clients.  
With respect to the comment that he submitted a document with a sample date versus 

to  correct 

                                                 
3      The  marks  on  the  comparison  scale  range  from  a  low  of  1  (unsatisfactory)  to  a  high  of  7  (a 
distinguished officer).   

the correct date, the applicant stated that he was not responsible for disseminating any 
information  to  clients. 
  According  to  the  applicant,  that  was  the  supervisor's 
responsibility.    About  the  comment  that  he  "double-booked"  his  time,  the  applicant 
stated the supervisor misconstrued what happened.  He stated that a taxpayer appeared 
for  service  at  his  office  without  calling  beforehand  and  he  could  not  see  the  client 
because he had another meeting to attend at that time.    

 
The  applicant  contended  that  his  supervisor  placed  an  inordinate  amount  of 
stress on him and created a hostile work environment for him, to which the supervisor 
did  not  subject  the  other  officers  in  the  Legal  Division.    With  respect  to  placing  him 
under  an  inordinate  amount  of  stress,  the  applicant  stated  that  he  was  provided  no 
training in managing a tax center and inadequate training in preparing tax returns and 
electronic  filings.    In  this  regard,  he  stated,  he  received  four  days  of  training  on  tax 
preparation  and  one  day  of  training  on  filing  taxes  electronically.    He  stated  that  his 
supervisor  was  unable  to  offer  him  assistance  because  she  was  not  familiar  with  the 
rules on managing a tax center and because of her insistence on following antiquated 
policies, which created friction between them.  The applicant stated, "[a]though I was 
extremely  frustrated  by  [the  supervisor's]  illogical  policies,  the  chain  of  command 
supported  them,    which  effectively  limited  the  amount  of  clients  who  could  be 
benefited by the VITA service."  The applicant stated that his supervisor sabotaged the 
overall success of the VITA program by not allowing the tax program to begin until the 
end  of  February  to  allow  the  applicant  to  study  for  the  bar  exam,  by  directing  the 
applicant to use a computer different from that which was previously used to prepare 
and electronically file tax returns, by not adequately informing the applicant of the type 
of  statistics  that  he  would  be  required  to  report,  and  by  not  providing  the  applicant 
with  adequate  administrative  support.    He  stated  that  the  supervisor  made  many 
personal attacks against him, and at one point asked him if he were dyslexic.  He stated 
that  he  felt  threatened  and  retreated  to  his  office  every  day  in  an  effort  to  avoid  his 
supervisor's  daily  wrath.    He  stated  that  he  was  subjected  to  multiple  closed-door 
sessions  with  the  supervisor,  with  his  door  being  closed  without  his  permission.    He 
stated that he experienced discomfort during these situations.   
 
 
The applicant alleged that his supervisor unfairly evaluated the VITA program 
as  being  unsuccessful  because  the  applicant  had  not  saved  clients  enough  in 
preparation fees to equal his salary for January through April.  He stated that no other 
tax preparer's success was measured in this way.   
 

 

The  applicant  asserted  that  the  supervisor  unfairly  blamed  him  for  not 
submitting VITA statistics to Headquarters, when there was no instruction or training 
provided that stated that he was required to report the statistics to Headquarters. 
 

With respect to his alleged hostile work environment, the applicant stated that 
other attorneys were allowed to have more than an hour for lunch, but he was not.  He 

alleged that he was the only person in the legal division not permitted to have a regular 
day off (RDO).  He also stated that his requests for leave days were closely scrutinized 
while the leave requests of other attorneys were not.  He alleged that he was told that he 
needed to report to sick call if he were sick, while other attorneys were allowed to call 
in and say that they would be out due to illness.   He stated that the supervisor failed to 
arrange  a  birthday  party  for  him  when  she  had  done  so  for  others.    He  alleged  that, 
although  he  did  not  request  it,  he  was  not  given  time  off  to  study  for  the  bar 
examination, but another officer had been given 2 months off and allowed to study in 
another  state.      Last,  he  alleged  that  he  was  the  only  person  in  the  legal  division  not 
allowed to participate in a Dining Out or to attend Naval Justice School.    

 
 
In addition, the applicant alleged that the supervisor and reporting officer failed 
to provide documentation supporting the grades and comments in the OER and that he 
was  not  counseled  on  the  OER.    The  applicant  claimed  that  the  only  counseling  he 
received  was  praise.    He  further  contended  that  the  rating  chain  failed  to  include  his 
accomplishments from June to July 2003.   
 

The  applicant  submitted  two  letters  from  tax  clients  who  indicated  that  they 
were satisfied with the applicant's preparation of their tax returns.  He also submitted 
several  favorable  references  from  individuals  for  whom  he  had  worked  prior  to 
entering the Coast Guard.  
 

VIEWS OF THE COAST GUARD 

 
 
On  June  15,  2005,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  the  applicant’s 
request.  The JAG stated that the applicant failed to carry his burden of proof.  He stated 
that there is no evidence in the record to support a finding that the applicant's OER was 
anything but a fair and accurate portrayal of his sub-standard performance during the 
period  in  question.    In  support  of  his  conclusion,  the  JAG  offered  the  following 
comments: 
 

[The]  Applicant  offers  his  own  narrative  but  no  evidence.    Applicant 
argues that his OER should be removed for various reasons, to include his 
own  self-serving  evaluation  of  his  performance;  alleged  bias  by  his 
reporting  officer  .  .  .  in  evaluating  his  performance  of  duty  as  the  "tax 
officer";  stress  and  an  unduly  harsh  work  environment  caused  by  [the 
supervisor];  and  that  the  [supervisor]  and  [reporting  officer]  failed  to 
provide  documented  proof  for  evaluation  grades  and  failed  to  enter 
"crucial accomplishments" into the subject OER. 
 
The evidence in this case supports the conclusion that the challenged OER 
represents  the  honest  professional  judgment  of  those  responsible  for 

evaluating  the  Applicant  under  the  [OES].    Applicant's  Supervisor, 
Reporting  Officer  and  Reviewer  each  provided  affidavits    .  .  .  which 
further clarified the incidents documented in Applicant's OER.  While the 
applicant has his own opinion of his job performance, Applicant does not 
provide any evidence which rebuts the strong presumption that the rating 
chain official executed their duties correctly, lawfully, and in good faith.     
Applicant  also  alleges  that  he  was  subject  to  bias  by  his  supervisor    .  .  . 
There  is  no  evidence  in  the  record  of  any  bias  or  that  Applicant  was 
treated any differently than his peers.  In fact, there is substantial evidence 
[that the applicant's rating chain] repeatedly counseled Applicant in hope 
that he would improve his performance . . .    

 
 
The  JAG  attached  comments  from  the  Commander,  Coast  Guard  Personnel 
Command as Enclosure (1) to the advisory opinion and asked the Board to accept it as 
part  to  the  Coast  Guard  views.    CGPC  recommended  that  the  Board  deny  the 
applicant's  request.    He  stated  that  an evaluation  of  the  applicant's  performance  after 
the end of the reporting period (May 30, 2003) was properly omitted from the OER since 
the  Personnel  Manual  states  that  the  rating  chain  will  comment  on  and  evaluate 
performance that occurred during the reporting period.  
 

CGPC  obtained  and  attached  statements  from  the  members  of  the  rating  chain 

who affirmed their evaluation of the applicant's performance.  
 
1.  The supervisor stated that the applicant conducted pre-deployment briefings, 
 
but  since  he  was  not  licensed  to  practice  law  in  any  state,  it  was  necessary  for  the 
yeoman  to  attend  every  briefing  with  him  so  that  the  powers  of  attorney  could  be 
notarized on-site.  The supervisor stated that the applicant had no authority to perform 
legal assistance notaries.   
 
 
The  supervisor  stated  that  under  the  division  policy  set  by  the  reviewer  (who 
was  chief  of  the  legal  division),  there  was  no  regular  day  off  (RDO)  for  new  officer 
personnel.  She stated that the applicant was not unique in  working a 40-hour, 5-day 
week.  She further stated that the applicant was never required by anyone to work five, 
9.5-hour  days,  nor  did  he  work  more  than  40  hours  per  week.    The  supervisor  also 
stated  that  the  applicant  took  60-minute  lunches  and  that  he  was  never  denied  any 
leave requests.  She stated that to the contrary, the applicant left the Division for 9 days 
without  taking  leave  of  any  type.    She  stated  that  everyone  was  subject  to  the  same 
regulations  for  sick-in-quarters.    The  supervisor  stated that  she  had  no  funds  allotted 
for  birthday  parties  and  had  no  indication  that  April  20,  2003  was  the  applicant's 
birthday or that he expected her to sponsor a birthday party.  With respect to studying 
for  the  bar exam,  the supervisor  stated  that  she  offered  the  applicant  the  entire  work 
day  off  to  study,  if  he  would  submit  his  practice  exams  to  her.    She  stated  that  the 

applicant told her that he wanted to do some branch work rather than have the entire 
day off to study.   
 
The  supervisor  stated  that  the  applicant  electronically  filed  46  returns  with  an 
 
error rate of 47.8%  (the OER states the error rate as 38%).  She stated that the applicant 
reported  the  resubmitted  rejected  returns  in  his  total  for  electronic  filings  making  it 
appear  that  he  had  filed  more  returns  than  he  actually  had.    According  to  the 
supervisor, this was "double counting".  She stated that the tax program save $11,391 for 
clients in tax preparer's fees, which was misrepresented by the applicant as being $20, 
000.    She  stated  that  $6,360  of  the  $11,391  savings  was  credited  to  a  civilian  VITA 
volunteer  and  $4,130  was  credited  to  another  unit,  which  received  virtually  no 
assistance  from  the  applicant.    The  supervisor  stated  that  the  applicant  had  no 
management or supervisory authority over the VITA tax preparers and merely collected 
their statistics after each passed the IRS and California FTB tax tests.  She stated that the 
IRS  trained  the  volunteers  and  answered  their  questions,  as  well  as  trained  and 
provided  support  to  the  applicant  during  the  tax  season.    She  stated  that  she  has 
prepared tax returns for more than 20 years and that she was always available to assist 
the applicant, if not in person then via her personal cell phone.   She stated that when 
she was not available, the reporting officer was available to assist the applicant.   
 
 
time.  She stated that the applicant had the complete assistance of the clerical staff. 
 
2.  The reporting officer wrote a statement and reaffirmed his assessment of the 
 
applicant's performance in the disputed OER.  On the issue of end of period counseling, 
the reporting officer stated the following: 
 

The  supervisor  stood  by  her  comment  that  the  applicant  "double  booked"  his 

[The  applicant]  became  the  subject  of  a  disciplinary  investigation 
involving  a  number  of  Legal  Division  personnel  as  potential  witnesses.  
He retained an attorney to represent him in the matter.  The fact that he 
retained an attorney in the matter presented some unusual circumstances 
for the Legal Division.  I met with the new Legal Division Chief . . . and 
with  the  former  Chief  .  .  .  on  27  August  to  discuss  how  to  get  the 
applicant's  OER  to  him  without  violating  the  attorney  rules  of  ethics 
concerning contact with an individual represented by counsel.  It was our 
joint decision that the best means for handling the situation was for me to 
notify  [the  applicant]  in  writing  that  I  was  going  to  have  the  Division 
secretary deliver his OER in a sealed envelope.  The reason [the applicant] 
was not counseled in his OER was specifically related to the matter under 
investigation,  which  concerned  an  event  that  occurred  during  the  OER 
period but that was not known by [the rating chain] at the time the OER 
was  prepared.    [The  applicant]  was  given  an  inordinate  amount  of 
feedback on his performance throughout the marking period.  He was not 

counseled  after  the  marking  period  due  to  the  investigation  and  his 
reassignment outside of the Legal Division.   

 
3.  The reviewer also submitted a statement to CGPC, standing by his evaluation 
 
of  the  applicant's  performance.    He  stated  that  prior  to  the  OER  leaving  his  office  he 
became  aware  of  allegations  that  the  applicant  had  forged  several  of  his  client's 
signatures.    He  stated  that  at  that  time  he  determined  that  there  was  not  enough 
information to hold the OER and therefore he let it go forward.  He stated that the Coast 
Guard Investigative Service initiated an investigation.  
 

The  reviewer  indicated  that  based  on  a  review  of  his  documentation,  the  OER 
comment  that  the  applicant  had  a  38%  rejection  rate  of  his  electronic  submissions 
should  likely  have  been  28%.    He  stated  that  the  38%  was  likely  a  math  error.    The 
reviewer stated that regardless of the math, the applicant's error rate was unacceptably 
high  for  a  program  run  by  a  law  school  graduate.    He  stated  that  the  applicant's 
rejection rate was the third highest in the Coast Guard.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On  June  15,  2005,  a  copy  of  the  views  of  the  Coast  Guard  was  mailed  to  the 

 
 
applicant for his response.  The BCMR did not receive a reply. 
 

APLICABLE REGULATION ON COUNSELING 

 

Personnel Manual 
 

Article 10.A.1.c.5. of the Personnel Manual states that no specific form or forum 
is prescribed for performance feedback except for ensigns and lieutenants (junior grade 
(LTJG)).  It further states that feedback occurs wherever a subordinate receives advice 
or observation related to their performance in any area. 
 
 
Article  10.A.2.c.2.f.  of  the  Personnel  Manual  states  that  the  reported-on  officer 
"[n]otifies the Supervisor not later than 21 days before the end of the reporting period if 
the Reported-on officer desires an end of period conference." 
 
 
Article  10.A.2.d.2.e.  of  the  Personnel  Manual  states  that  the  supervisor 
"[p]rovides performance feedback to the Reported-on Officer upon that officer's request 
during the period or at such other times as the Supervisor deems appropriate." 
 

Article 10.A.2.d.2.f. of the Personnel Manual states that the supervisor "[c]ounsels 
the Reported-on Officer at the end of the reporting period if requested, or when deemed 
appropriate, regarding observed performance.  Discusses duties and responsibilities for 

the  subsequent  reporting  period  and  makes  suggestions  for  improvement  and 
development."   
 

FINDINGS AND CONCLUSIONS 

 
 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's  military  record  and  submissions,  the  Coast  Guard's  submissions,  and 
applicable law: 
 

1. The Board has jurisdiction concerning this matter pursuant to section 1552 of 

title 10 of the United States Code.  The application was timely. 
 

2. The applicant requested an oral hearing before the Board.  The Chair, acting 
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. 

 
 
3. The applicant alleged that the disputed OER is in error and unjust because it 
inaccurately  describes  his  performance  for  the  period  under  review.    However,  he 
submitted  no  evidence,  except  for  his  own  allegations,  to  prove  that  his  performance 
was other than as described in the OER.  He further alleged that his supervisor's bias 
against  him  permeated  the  OER  and  that  she  created  a  hostile  work  environment.  
Again,  except  for  his  own  allegations,  he  offered  no  evidence  to  prove  that  the 
supervisor  was  biased  against  him  or  that  she  treated  him  differently  from  the  other 
officers  in  the  Division.    In  contrast,  the  Coast  Guard  obtained  statements  from 
members of the rating chain and each attested to the accuracy of the OER.  This Board 
has consistently held that mere allegations alone are insufficient to prove that an OER is 
erroneous or unjust.  The applicant, who has the burden of proof, has failed to prove the 
OER is inaccurate or unjust.   
 
 
4. However, there are two issues that merit further discussion.   The first is the 
comment in the OER  that the applicant had a 38% rejection rate for his electronic tax 
filings.    The  reviewer  stated  that  based  on  the  review  of  documentation  in  his 
possession, the applicant's rejection rate was likely 28%. He stated that the discrepancy 
between the numbers was likely due to a math error.  Whether the applicant's rejection 
rate was 38% or 28%, the rating chain is in agreement that it was one of the highest for 
the Coast Guard tax preparers.  Therefore, the Board finds that this mathematical error 
is not prejudicial to the applicant, and in light of the below average grades4 and other 
lackluster  comments  in  the  OER,  the  alleged  math  error  is,  in  fact,  insignificant.  
Accordingly, no correction is necessary in this regard.  
 

                                                 
4        Article  10.A.4.c.4.g.  of  the  Personnel  Manual  states  that  a  "mark  of  four  represents  the  expected 
standard of performance." 

 
5.  The other issue that merits discussion is the lack of end-of-period counseling. 
The  evidence  supports  a  finding  that  such  counseling  did  not  occur.    The  Personnel 
Manual  places  responsibility  on  the  applicant  to  initiate  end-of-period  counseling 
twenty-one days before the end of the period if he desires counseling and responsibility 
on the supervisor to conduct end-of-period counseling if requested by the applicant or 
at any other time deemed necessary.  The applicant did not submit evidence showing 
that he fulfilled his responsibility by requesting end-of-period counseling.  
 

6.  Since the applicant did not request end-of-period counseling, the supervisor 
did not violate the Personnel Manual by not providing it.  Therefore, the supervisor was 
only under an obligation to conduct end-of-period counseling if "deemed appropriate."  
The reporting officer explained that the rating chain determined that it was not ethically 
appropriate  for  any  member  of  the  rating  chain  to  personally  deliver  the  OER  to  the 
applicant  because  he  was  under  investigation  for  violations  of  the  Uniform  Code  of 
Military  Justice  that  occurred  during  the  reporting  period,  because  Legal  Division 
personnel were potential witnesses in the investigation, and because the applicant had 
hired  an  attorney  to  represent  him  against  the  charges.    Therefore,  the  rating  chain 
made  arrangements  for  a  third  party  to  deliver  the  OER  to  the  applicant  in  a  sealed 
envelope.  However, the applicant still could have put any questions that he had about 
the evaluation in writing and submitted them to the rating chain for an explanation of 
the grades and comments and he could have also submitted a reply to the OER, which 
he did not do.  Also, end-of-period counseling would not have been very beneficial to 
the  applicant  because  he  had  already  been  transferred  from  the  Legal  Assistance 
Division  to  the  Military  Justice  Division,  where  he  had  a  new  supervisor  and 
responsibilities. 

 
 7.  Moreover, as the rating chain indicated, the applicant had received guidance 
and  counseling  on  his  performance  during  the  reporting  period.      Although  the 
applicant denied that he received such counseling, he wrote that he had many closed-
door  sessions  with  the  supervisor,  which  must  have  included  some  comment  on  his 
performance.    As  the  Personnel  Manual  clearly  states,  counseling  occurs  whenever  a 
subordinate  receives  any  advice  or  observation  from  a  rating  chain  official.    See 
10.A.1.c.5.  of  the  Personnel  Manual.    The  applicant  failed  to  establish  that  the  rating 
chain  committed  an  error  or  injustice  by  not  providing  him  with  end-of-period 
counseling.  
 
 
8.  As indicated above, the Board has considered all of the applicant's allegations 
and contentions.  Those not specifically discussed within the findings and conclusions 
are considered not to be dispositive of this case.   

 
9. 

 
 

Accordingly, the applicant’s request should be denied.  

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 

 
 
 
 

The  application  of  LT  xxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Elizabeth F. Buchanan 

 

 

 
(see below*)   
 Donald A. Pedersen 

 

 
  Darren S. Wall 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
*This Board member recused himself because of a potential conflict of interest.  Under 
33 CFR § 52.11, two members constitute a quorum of the Board.