DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-075 
 
XXXXXXXXXXXXXXX 
xxxxxx, 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 March 4, 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  December  8,  2005,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
 The applicant asked the Board to correct her military record by removing two 
officer  evaluation  reports  (OER)  for  the  period  June  20,  2001  to  May  31,  2002  (first 
disputed  OER)  and  June  1,  2002  to  January  10,  2003  (second  disputed  OER),  and 
replacing them with reports for continuity purposes only.  She further requested that if 
the BCMR acts after the 2005 lieutenant commander (LCDR) board meets and if selected 
by  that  board,  that  her  LCDR  date  of  rank  be  adjusted  retroactively  to  the  date  she 
would  have  had,  if  she  had  been  selected  for  promotion  by  the  2004  LCDR  selection 
board.    The  Board  interprets  this  portion  of  the  applicant's  request  as  one  for  the 
removal of her 2004 failure of selection for promotion to LCDR.  
 

BACKGROUND 

 

 
At the time the applicant received the two disputed OERs, she was assigned to 
duty in the Inspection Department of a Marine Safety Office (MSO).  About four months 

into  the  first  reporting  period,  the  applicant  began  to  experience  health  problems 
resulting  in  her  being  hospitalized  twice  for  depression.    The  first  hospitalization 
totaled  eleven  days  and  the  second  totaled  six  days.    The  applicant  alleged  that  her 
health problems resulted from harassment by her supervisor and formed the basis for 
the allegedly inaccurate OERs. 
 
First Disputed OER 
 
 
In the supervisor's portion of the OER, the applicant received marks of 5 in the 
performance  categories,  except  for  a  mark  of  4  in  the  speaking  and  listening  and 
evaluations categories.1   The OER does not mention the applicant's medical condition.  
The  supervisor's  comments  describe  the  applicant's  performance  as  consistent  and 
skillful.    For  example,  the  supervisor  stated  that  the  applicant  had  "respectable 
commun[ication]  skills:    mtgs  w/customers  left  impression  of  confidence,  integrity  & 
commitment,  able  to  communicate  complex  tech  regs  to  industry  .  .  .    Demonstrated 
quality writing skills:"  
 

In  the  leadership  comments  section  of  the  OER,  the  supervisor  wrote  that  the 
applicant had an "[e]xcellent concern for others" and that as the Tricare coordinator she 
expedited the care of an injured member and ensured that the member received quality 
care.  The Supervisor further wrote that the applicant obtained free/valuable training 
for  inspectors  and  increased  the  size  of  the  technical  library  by  obtaining  guides, 
manuals,  and  quick  reference  diagrams.  He  also  wrote  that  the  applicant  supervised 
four  CWOs  in  a  highly  active  and  diverse  inspection  department  covering  a  12-state 
area and that she completed three high quality CWO OERs and instructed them on the 
OER process.   
 
 
In the reporting officer's portion of the OER, the applicant received marks of 5, 
except for a mark of 4 in the health and well-being category.  Among other details, the 
reporting  officer  wrote  that  the  applicant  aggressively  pursued  improvement  in  her 
personal/professional  growth  and  attributes.    He  stated  that  the  improvement  of  her 
knowledge  through  the  completion  of  a  college  course  contributed  to  the expeditious 
review of several of the unit's electrical plans.  He further wrote that as "acting [Chief of 
the  Investigations  Division]  during  post  9/11  ops,  [the  applicant]  quickly  took  over 
inspection  department,  completing  several  critical  large  passenger  vessel  renovations, 
Homeland  Security  evaluations  of  vessels  and  continuing  key  department 
improvements."  
 
 
In block 9, the reporting officer compared the applicant with all other LTs he has 
known throughout his career.  He described the applicant as a "good performer; give 
tough,  challenging  assignments"  by  placing  her  in  the  fourth  of  seven  places  on  the 

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

comparison scale.  The reporting officer recommended the applicant for promotion with 
her peers and stated that with the continuation of her present rate of performance and 
professional  development,  she  would  earn  a  recommendation  for  independent 
duty/Marine Safety Division supervisory position.  
 
Second Disputed OER 
 
 
On  this  OER,  the  applicant  was  given  seven  4s  and  eleven  5s.    The  supervisor 
and  reporting  officer  used  words  like  "quality,"  "respectable,"  and  "commendable"  to 
describe the applicant's performance during the reporting period. 
 

In  block  9,  the  reporting  officer  rated  the  applicant  as  "good  performer;  give 
tough, challenging assignments" when he compared her with all other LTs the reporting 
officer  has  known  throughout  his  career.    The  reporting  officer  did  not  state  that  the 
applicant  was  recommended  for  promotion  in  block  ten,  but  wrote  the  following 
comments: 

courses. 

directed 

  As  O3  Dept.  Head, 

 
ROO  [Reported-on  officer]  demonstrated  responsible  commitment  to 
professional  development  through  attendance  at  numerous  resident 
training 
cmd's 
enforcement/investigation efforts (including those for 3 remotely located 
MSD's).  Coordinated efforts of various state/local agencies during high-
vis[ability] fatal accident involving a child & earned praise from seasoned 
state boating accident investigators.  Extensive community outreach work 
w/First  Book  brought  credit  to  CG.    ROO's  quals  in  inspections  & 
investigations  proved  to  be  a  valuable  cmd  asset. 
  With  further 
qualifications/field  experience  ROO  should  develop  into  respectable 
leader.    

 

 

APPLICANT’S ALLEGATIONS 

The applicant alleged that the disputed OERs  are flawed and should be removed 

from her record.   Specifically she asserted that the following errors and injustices. 

 
1.  The rating chain failed to provide numerical marks that reasonably compare 
to  the  comments  in  the  disputed  OERs  and  failed  to  remark  on  her  potential  for 
promotion  in  the  second  disputed  OER  in  violation  of  the  Coast  Guard  Personnel 
Manual and the purpose of the Officer Evaluation System. 

 
2.  The low numerical marks on the applicant's two disputed OERs were based 

on her medical condition in violation of the Coast Guard Personnel Manual.  

 

3.  The alleged errors were prejudicial to the applicant and caused her failure of 
selection for promotion to LCDR.  She further alleged that even if such errors were not 
prejudicial, the Coast Guard has the burden of proving that they were not.   

 
The applicant submitted a brief containing several pages of arguments in support 
of her allegations, but she provided no corroborating proof that the supervisor harassed 
her or that her performance was different from that described in the disputed OERs.2  
(A  more  detailed  summary  of  the  applicant's  arguments  is  not  considered  necessary 
because  the  Coast  Guard,  as  discussed  below,  has  recommended  relief  based  upon  a 
violation  of  the  Personnel  Manual  by  the  rating  chain  in  preparing  the  two  disputed 
OERs.)  
 
Summary of Applicant's Other OERs   
 
 
As  an  ensign  from  September  22,  1995,  to  September  30,  1996,  the  applicant 
performance marks consisted mostly of 4s with occasional 5s.  In each ensign OER, she 
was rated as "one of the many competent professionals who form the majority of this 
grade," which is the equivalent of a mark of 4 on the comparison scale.  
 
 
As a lieutenant junior grade (LTJG), the applicant's performance marks consisted 
mostly of 5s and 6s, with an occasional 7, except for her first LTJG OER in which she 
received mostly 4s.  On the comparison scale, the applicant was placed in blocks 6 and 
5, except for the first LTJG OER, where she received a mark of 4.    
 
 
As a LT, the applicant's performance marks consisted mostly of 5s and 6s, with 
an occasional 7.  On the two disputed OERs, 5s were the highest marks assigned to the 
applicant, along with several 4s.  Her comparison scale marks as a LT were all 5s except 
for  the  4s  on  the  two  disputed  OERs.  The  applicant's  performance  is  described  as 
"superior," "excellent," and "outstanding," except for the two disputed OERs where it is 

                                                 

2 The applicant submitted an unsigned copy of the medical report admitting her 
to the hospital.  In that report, the clinician recorded the history of the applicant's illness 
as reported by the applicant, in pertinent part as follows: 
   

[The  applicant]  has  been  career  Coast  Guard  and  from  time  to  time  she  has  had  some 
difficult  periods  with  stresses  that  she  has  easily  been  able  to  brush  off  and  they  have 
lasted  only  a  very  short  period  of  time.    After  September  11,  2001,  there  was  [a] 
reorganization and she had a difficult officer to deal with that created some real stress for 
her that was more prolonged and for the first time she had a much harder time shaking 
off the depression . . . In the last five weeks, she has been reassigned to a fellow senior 
lieutenant who took away most of her responsibilities.  He began to treat her in a fashion 
which  even  though  she  did  nothing  to  offend  him  whatsoever,  seemed  to  her  to  show 
that there was absolutely nothing she could do to please this officer . . . She felt under a 
great deal of criticism . . . She felt very much overwhelmed. 

described as "consistent" and "respectable."  Except for her first LT OER and the second 
disputed  OER,  each  of  the  remaining  five  LT  OERs  contained  an  express 
recommendation for promotion to LCDR.  The applicant was not selected for LCDR in 
2004 but was selected by the 2005 selection board.    

  

VIEWS OF THE COAST GUARD 

 
 
On  July  22,  2005,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  grant  relief  to  the 
applicant.  The JAG stated that he disagreed with the applicant's claimed basis for relief, 
but discovered evidence of irregularity with Coast Guard policy in the preparation of 
the  two  disputed  OERs.    Therefore,  he  asked  the  Board  to  grant  relief  in  accordance 
with  the  comments  and  recommendation  contained  in  a  memorandum  from  the 
Commander, Coast Guard Personnel Command (CGPC) that was attached as Enclosure 
(1) to the advisory opinion.   
 
 
CGPC stated that the applicant failed to submit any evidence other than her own 
statement  that  the  OERs  were  inaccurate.    CGPC  further  noted  that  the  applicant's 
contention  that  the  reporting  officer  was  in  violation  of  policy  by  not  making  a 
recommendation for promotion is unfounded.  In this regard, CGPC stated that policy 
only required the reporting officer to comment on the reported-on officer's potential for 
greater leadership roles and responsibilities in the Coast Guard in block 10 (potential) of 
the  OER.      CGPC  also  noted  that  neither  OER  mentions  the  applicant's  medical 
condition. 
 
 
CGPC  obtained  a  statement  from  each  member  of  the  rating  chain.  The 
supervisor denied that he harassed the applicant and the reviewer and reporting officer 
stated that they were not aware of any such alleged harassment.   Both the reviewer and 
reporting  officer  wrote  that  the  supervisor  was  an  outstanding  performer  and  loyal 
member of the Coast Guard who looked out for his subordinates.  Each confirmed that 
the  disputed  OERs  contained  an  accurate  description  of  the  applicant's  performance.  
However,  CGPC  stated  that  the  supervisor's  statement  revealed  a  violation  of  the 
Personnel  Manual  in  the  preparation  of  both  OERs. 
  In  this  regard  and  in 
recommending relief, CGPC wrote the following: 
 

There is evidence of irregularity with CG policy in the construction of the 
two  disputed  OERS,  not  brought  forward  by  the  Applicant,  but 
discovered  in  signed  declarations  by  the  Applicant's  Supervisor  and 
Reporting  Officer.    [The  Personnel  Manual]  defines  policy  regarding  the 
responsibilities  of  the  Reporting  Officer.    [It]  states  that  the  Reporting 
Officer  is  responsible  for  ensuring  that  the  Supervisor  meets  his/her 
officer  evaluation  system  responsibilities  and  provides  the  Reporting 
Officer  with  the  latitude  of  returning  OERS  to  the  Supervisor  for 

correction or reconsideration if the report is found inconsistent.  However, 
the  policy  specifically  states  that  "The  Reporting  Officer  may  not  direct 
that  an  evaluation  or  comment  be  changed  (unless  the  comment  is 
prohibited under [Article 10.A.4.f. of the Personnel Manual])."   
 
In [the Supervisor's] declaration . . . he provided as enclosures draft copies 
of  OERs  for  both  periods  in  dispute  that  indicated  changes  that  [the 
Reporting  Officer]  made  to  his  drafts.    The  enclosed  drafts  indicated 
changes  to  both  the  Supervisor  sections  .  .  .  that  the  Supervisor  was 
responsible  for  assigning,  as  well  as  the  recommended  marks  and 
comments  that  [the  Supervisor]  provided  for  the  Reporting  Officer 
sections . . . that the Reporting Officer was responsible for assigning.  In 
his  declaration,  [the  Supervisor]  states  that  [the  Reporting  Officer] 
instructed him to lower the Applicant's marks and made several changes 
to the documents on both OERs in dispute.  [The Supervisor] further states 
that he felt at the time that the marks assigned by the [Reporting Officer] 
were  low  based  on  his  own  observations,  and  although  he  felt  [the 
Reporting Officer] actions were overly harsh, as his direct Supervisor and 
[the  Applicant's]  Reporting  Officer  he  had  every  right  to  change  the 
marks.    In  a  supplemental  declaration  by  [the  Supervisor],  .  .  .  he 
specifically  states  that  [the  Reporting  Officer]  did  not  seek  his 
"concurrence or approval" in making changes to his Supervisor sections of 
the two disputed OERs.   
 
This  evidence  of  a  violation  of  policy  is  further  supported  by  [the 
Reporting  Officer's]  in  his  declaration  .  .  .  Referring  to  the  Applicant's 
detachment  of  officer  OER  for  the  period  2003/01/10,  the  [Reporting 
Officer] states "As a side note, [the Supervisor's] sole responsibility was to 
complete the OER form since I was essentially supervising all of her work 
even though [the Supervisor] remained (on paper only) as her Supervisor.  
I  ensured  all  OER  language  and  marks  met  my  standards  and  not  [the 
Supervisor's]."    [The  Reporting  Officer]  is  well  within  policy  to  make 
changes to [the Supervisor's] recommended marks and comments for the 
Reporting Officer sections . . . that he is responsible for assigning, but not 
to the Supervisor sections that were the responsibility of [the Supervisor].  
Coast Guard policy does not authorize officers to serve as rating officials 
"on  paper  only".    If  indeed  the  command  completely  shifted  the 
supervisory  responsibilities  of  the  Applicant  from  [the  rating  chain 
Supervisor]  to  the  [Reporting  Officer]  due  to  the  Applicant's  reported 
accusations of mistreatment . . . then a rating chain exception should have 
been  made  as  outlined  in  [the  Personnel  Manual].  Coast  Guard  policy 
states  that  the  rating  chain  provides  the  assessment  of  an  officer's 
performance and value to the Coast Guard through a system of multiple 

evaluators  and  reviewers  who  present  independent  views  and  ensure 
accuracy  and  timeliness  of  reporting  .  .  .  By  mandating  changes  to  the 
evaluation  sections  for  which  [the  Supervisor]  was  responsible  for 
assigning,  [the  Reporting  Officer]  violated  policy  in  a  manner  that  was 
prejudicial to the Applicant.   

 
 
The  enclosures  attached  to  the  supervisor's  statement  show  that  the  reporting 
officer changed three of the supervisor's marks from 6 to 5 and 2 from 5 to 4 on the first 
disputed OER.  In addition he changed the supervisor's description of the applicant's 
performance  from  "superior"  to  "consistent".    The  enclosures  also  show  that  on  the 
second disputed OER, the reporting officer changed four of the supervisor's marks of 5 
to  4  and  he  changed  the  supervisor's  description  of  the  applicant's  performance  from 
"superior" to "quality performance" and he changed the supervisor's characterization of 
the applicant's communication skills from "superior" to "respectable".   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On August 4, 2005, the BCMR received the applicant's reply to the views of the 
Coast Guard.  She noted the Coast Guard's admission of error and recommendation for 
relief on a basis other than that alleged in her application.  She stated that she stood by 
the allegations in her original application.   
 

APLICABLE REGULATION  

is 

found 

 
 
Article  10.A.2.e2c  of  the  Personnel  Manual  states  in  pertinent  part  that  the 
reporting  officer  shall  return  a  report  for  correction  or  reconsideration,  if  the 
supervisor's  submission 
inconsistent  with  actual  performance  or 
unsubstantiated by narrative comments.  The reporting officer may not direct that an 
evaluation  mark  or  comment  be  changed  (unless  the  comment  is  prohibited  under 
Article 10.A.4.f. of the Personnel Manual).  
 
 
  
 

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 OERs are in error and unjust because 
the  comments  support  marks  higher  than  those  assigned,  because  the  supervisor's 
harassment of her impeded her ability, and because the rating chain unjustly used her 
illness  as  a  basis  to  lower  the  evaluation  of  her  performance.    The  Board  notes  that 
neither  OER  mentions  or  alludes  to  the  applicant's  health  problem.    Moreover,  she 
submitted no evidence, except for her own allegations, to prove that her performance 
was  other  than  as  described  in  the  OERs  or  that  the  supervisor  harassed  her.    The 
medical  reports  offered  by  the  applicant  are  not  helpful  in  proving  her  harassment 
claim because they only report what the applicant told her clinicians.  In contrast, the 
Coast Guard obtained statements from members of the rating chain and each attested to 
the accuracy of the OERs.  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, failed to prove her allegations of error.   
 
 
4.    Notwithstanding  the  above  finding,  the  Coast  Guard  recommended  relief 
based on an admission of error by the supervisor and reporting officer.  In this regard, 
the supervisor admitted in a statement obtained by the Coast Guard that the reporting 
officer  changed  some  of  the  marks  and  comments  in  the  supervisor's  portion  of  the 
OER,  without  consulting  with  the  supervisor  or  obtaining  the  supervisor's  approval.  
The reporting officer's statement corroborates the supervisor on this point.  The Coast 
Guard  stated  that  the  supervisor's  admission  in  this  regard  constituted  evidence  of  a 
violation  of  the  Personnel  Manual,  which  states  in  pertinent  part  that  "the  reporting 
officer  shall  return  a  report  for  correction  or  reconsideration,  if  the  supervisor's 
submission  is  found  inconsistent  with  actual  performance  or  unsubstantiated  by 
narrative comments.  The reporting officer may not direct that an evaluation mark or comment 
be  changed  (unless  the  comment  is  prohibited  under  Article  10.A.4.f.  of  the  Personnel 
Manual)."  (Emphasis  added.)  See  Article  10.A.2.e2c  of  the  Personnel  Manual.    The 
Board  agrees  with  the  Coast  Guard  that  the  reporting  officer  committed  error  by 
changing some of the marks and comments in the supervisor's portion of the disputed 
OERs without consulting or discussing the matter with the supervisor or obtaining the 
supervisor's approval.  
 
 
5.  Having found error in the two disputed OERs, the Board also finds that the 
applicant's 2004 failure of selection for promotion should be removed.   In reaching this 
conclusion,  the  Board  applied  the  test  in  Engels  v.  United  States,  678  F.2d  173,  175-76 
(Ct. Cl. 1982).  In Engels, the Court of Claims held that, if the Board finds that an officer’s 
record contained an error when it was reviewed by a selection board, the Board should 
decide  whether  the  officer’s  failure  of  selection  for  promotion  should  be  removed  by 
answering two questions:  “First, was [the applicant’s] record prejudiced by the errors 

to  quality  performance  and 

in the sense that the record appears worse than it would in the absence of the errors?  
Second, even if there was some such prejudice, is it unlikely that [the applicant] would 
have been promoted in any event?”  
 
 
6.  With respect to the first prong, the Board agrees with the Coast Guard in its 
advisory opinion that the errors committed by the Coast Guard were prejudicial to the 
applicant because they made the applicant's record appear worse.  In this regard, on the 
first disputed OER, the reporting officer lowered three of the supervisor's marks from 6 
to  5  and  two  marks  from  5  to  4.    In  addition,  the  reporting  officer  changed  the 
supervisor's description for the applicant's performance from "superior" to "consistent." 
On  the  second  disputed  OER,  the  reporting  officer  changed  four  of  the  supervisor's 
marks  from  5  to  4  and  changed  the  description  of  the  applicant's  performance  from 
superior  performance 
the  description  of  her 
communications skills from superior to respectable. 
 
7.  With respect to the second prong of the Engels test, the Board finds that it is 
 
likely  that  the  applicant  would  have  been  selected  for  promotion  with  a  corrected 
record.  Except for the two disputed OERs that contained only marks of 4s and 5s and 
lackluster  comments,  the  Board  sees  nothing  in  her  performance  record  that  would 
have likely prevented her promotion in 2004.   In this regard the Board notes that the 
applicant's  LTJG  and  LT  performance  record,  except  for  the  two  disputed  OERs, 
consisted mostly of 5s and 6s, with an occasional 7.  In addition, the applicant had not 
received a mark of 4 on the comparison scale since her first LTJG OER in 1997.  Nor has 
she received a mark of 4 on the comparison scale since the second disputed OER for the 
reporting period that ended on January 10, 2003. The lower marks in the performance 
categories,  the  average  comments  describing  her  performance,  and  the  4s  on  the 
comparison scale on the disputed OERs resulted in painting a picture of the applicant as 
an average and inconsistent performer.  In fact, with the two disputed OERs removed, 
her  record  presents  a  picture  of  an  above  average  performer.    Therefore,  with  a 
corrected record, the Board finds that it is not unlikely that the applicant would have 
been selected for promotion in 2004.   
 

8.  Accordingly, the applicant’s request should be granted.  

 
 
 

 
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

ORDER 

 

The  application  of  LT  XXXXXXXXXXXXXXX,  USCG,  for  correction  of  her 

military record is granted.  Her record shall be corrected as follows: 

 
(1) Remove the disputed OER for the period June 20, 2001 to May 31, 2002 and 

replace it with a report for continuity purposes only. 

 
(2) Remove the disputed OER for the period June 1, 2002 to January 10, 2003, and 

replace it with a report for continuity purposes only.   

 
 

 

 

 
 

 
 

        

 
 
 Charles P. Kielkopf 

 

 
 

 
(3)  Remove  the  applicant's  2004  failure  of  selection  for  promotion  to  LCDR.  
Since the applicant was selected for promotion by the 2005 LCDR selection, her date of 
rank once promoted shall be adjusted retroactively to the date she would have had if 
she had been selected in 2004, with back pay and allowances.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 Thomas H. Van Horn 

 
 William R. Kraus