DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for Correction of
the Coast Guard Record of:
BCMR Docket No. 2005-076
Xxxxxxxxxxxxxxx,
xxxxxxxxxxxxxx
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 the case on March 11,
2005, upon receipt of the completed application.
members who were designated to serve as the Board in this case.
This final decision, dated January 18, 2006, is signed by the three duly appointed
APPLICANT’S REQUEST AND ALLEGATIONS
The applicant asked the Board to remove from his record an officer evaluation
report (OER) covering his performance as the supervisor of Xxxxxxx xxxxx (XXXX)
Xxxxxxxx Xxxxxx from June 1, 2001, to June 1, 2002. He also asked the Board to remove
his failure of selection for promotion to commander in 2005 so that he would be
considered for selection in 2006 as if he had not previously failed of selection. In addi-
tion, he asked that, if he is selected for promotion by the first commander selection
board to review his record without the erroneous OER, the Board backdate his date of
rank to what it would have been had he been selected for promotion in 2005 instead of
2006 and award him back pay and allowances.
The applicant stated that after assuming the position as the supervisor of
Xxxxxxxx Xxxxxx (hereinafter “Xxxxxx”), his duties included managing the district’s
third largest budget; managing and supervising a 95-acre facility with 66 family
housing units, 3 buildings for unaccompanied personnel, a galley, and a medical clinic;
and handling all the logistical requirements of the commands based at Xxxxxx. In
addition, he served as the xxxxxxxxxxxxxxxxxxxxxx at a base xx miles from Xxxxxx. As
SOCO, he supervised 59 members at a Vessel Traffic Center and coordinated responses
to all marine safety incidents in the region.
The applicant alleged that he was repeatedly praised for his performance during
the evaluation period of the disputed OER—most notably for his response and assis-
tance in the aftermath of the attack on the World Trade Center (WTC) on September 11,
2001 (hereinafter “9/11”). He alleged that his performance is reflected in the “glowing
comments” in the disputed OER but not in the numerical marks he received. He
alleged that the marks are “wildly inconsistent” with the comments, in violation of
Article 10.A.4.c. of the Personnel Manual, and with other marks he has received in
OERs throughout his career. In addition, the applicant alleged that during the evalua-
tion period, he was never counseled about his performance by his Supervisor and was
enthusiastically endorsed by the Commander, XXXX, for a high-profile position at the
Office of Homeland Security.
The applicant alleged that after he received a copy of the disputed OER in Sep-
tember 2002, he met with his Supervisor to discuss the marks. He alleged that the
Supervisor identified the following five reasons for the marks:
(1) CWO X, the commanding officer (CO) of Station Xxxxxx, had told the Supervisor
that the applicant had, without authority, searched a barracks room after a break-in
and theft of liquor at the PX.
(2) The Supervisor was dissatisfied with how the applicant had managed a situation in
which a petty officer had threatened to kill a corpsman.
(3) The applicant had “picked on” BMC X, the executive petty officer (XPO) of Station
Xxxxxx, by ordering him to obtain valid Coast Guard decals for his vehicle.
(4) The Supervisor had received an e-mail from the spouse of a resident member who
claimed that the applicant had made her family’s life “unlivable.”
(5) CWO X had told the Supervisor that the applicant was “never” at work.
The applicant alleged that each of these statements is false and unfair. With
respect to (1), the applicant stated that it was CWO X who searched the barracks room
and that CWO X admitted to the Supervisor that he had searched the barracks. The
applicant alleged that he was not in the barracks during the search and “did not know
anything about it until [the Supervisor’s] inquiry.” He alleged that CWO X thought
that he had authority to conduct the search because he was the CO of Station Xxxxxx.
The applicant stated that there was no written guidance on the subject because Xxxxxx
had only recently been joined with four other Xxxxxx commands into a single
command. Given CWO X’s admission that he searched the barracks, the applicant
argued, the Supervisor’s understanding was erroneous, and the applicant was evalu-
ated in the disputed OER based on misinformation.
With respect to (2), the applicant alleged that he was on leave at the time of the
incident and was only informed after the fact that a petty officer had threatened a
corpsman “with a bullet with his name on it” and been sent, by order of the Deputy
Commander of XXXX, to Walter Reed Army Hospital for a psychiatric evaluation. He
alleged that he was not present at Xxxxxx to manage the situation and only learned
afterward by telephone how it had been resolved.
With respect to (3), the applicant alleged that he was not “picking on” or singling
out BMC X by requiring him to obtain a valid car decal to enter Xxxxxx. He alleged that
all other personnel had obtained the decals, which were available on base, and that
BMC X “was being disrespectful and ‘difficult’ by refusing to obtain the proper decals
in accordance with regulation despite repeated requests from Security and, ultimately,
orders from [the applicant].” He alleged that several of the guards had complained that
BMC X was “giving them a hard time when they asked for him to identify himself
because his vehicle did not have a valid CG sticker.” Other chief petty officers told
BMC X to get a sticker but finally asked the applicant to intervene. BMC X argued with
him about whether a decal was required but acquiesced when he was shown the rule
book and “apologized to [the applicant] for his insubordinate behavior.”
With respect to (4), the applicant stated that the e-mail concerned a family whose
child allegedly sexually abused a child of the family next door. The applicant alleged
that he moved the family to a different house within Xxxxxx, which was difficult
because no one wanted to live near this family. He also called upon Work-Life counsel-
ors to help the family on several occasions, but the family refused to accept counseling
for six months. He alleged that “[w]hen it became clear that the family could not reside
peaceably with the other residents at Xxxxxx, [the counselor] recommended moving
them off base.” The applicant stated that he did not have that authority and so the
decision to move the family was made by the Commander of XXXX. The applicant
stated that he cannot submit documentation of these facts because they are protected
under the Privacy Act but noted that the Board could get them.
With respect to (5), the applicant stated that he lived on base at Xxxxxx, about
100 feet from his office, and so was constantly present. He alleged that he worked in his
office regularly and often worked late. Because of his duties as SOCO, which the
Supervisor approved, he did have to stand watch duty xx miles away in Xxxxxx
sometimes. The applicant alleged that he was always present whenever the Supervisor
visited Xxxxxx. Moreover, he stated, CWO X has denied ever making such a statement
to the Supervisor.
The applicant alleged that the marks of 41 he received in the performance catego-
ries “Results/Effectiveness,” “Adaptability,” “Looking Out for Others,” “Workplace
Climate,” “Directing Others,” “Evaluations,” and “Judgment,” are particularly incon-
sistent with the supporting comments since a mark of 4 constitutes “the expected stan-
dard of performance,” while the comments show superior performance that is clearly
far above the expected standard in those categories. He alleged that the written com-
ments “portray an officer who was extremely effective and showed his superior adapt-
1 Officers are evaluated in a variety of performance categories on a scale of 1 to 7, with 7 being best.
ability in the aftermath of the 9/11 attacks” and reflect his “superlative effort … in
‘looking out’ for his subordinates and fostering an excellent command climate.”
The applicant alleged that the mark of 4 he received on the Comparison Scale in
the disputed OER caused the most egregious harm to his career as the “death knell of
an officer’s career comes with lackluster marks.” He pointed out that on other OERs he
has consistently received marks of 5 on the Comparison Scale.
The applicant alleged that the Reviewer of the disputed OER has admitted that,
some time after signing the OER, he realized that the applicant had done a “great job”
because Xxxxxx “went straight down hill after [the applicant] left.” However, because
he was new to the position of Commander of XXXX when he signed the OER, he relied
on the assessments of the Supervisor and Reporting Officer.
The applicant argued that the entire OER should be removed from his record
because it is “pervasively tainted by [the Supervisor’s] bizarre explanations as well as
the use of marks that do not reasonably relate to the favorable narrative comments.”
He argued that because the damage to the OER is pervasive, “it is impossible or imprac-
ticable to isolate and redact specific incorrect or unjust material.”
Statements Submitted by the Applicant
(A) The Superintendent of the national park at Xxxxxx stated that he worked
closely with the applicant following 9/11 to integrate the park’s rangers and rescue
workers into the Coast Guard’s response. He stated that the applicant facilitated the
training and equipment of park personnel and arranged for the Coast Guard to use the
park’s 41-foot utility boat and 50-bed dormitory in the weeks after 9/11.
(B) The President of the xxxxxxxxxxxxx of the Navy League stated that of all the
supervisors at Xxxxxx over the past two decades, the applicant had done the most to
improve conditions at the base and in the community. He stated that the applicant had
improved security and recreational facilities and ensured that the local private day care
facility got painted and maintained so that it would pass inspection. He stated that
“there could have been no better person to lead the Coast Guard base at Xxxxxx than
[the applicant] during those tense times.”
(C) The applicant submitted an e-mail from the prior Commander of XXXX,
dated December 20, 2001, which shows that RADM X strongly recommended the appli-
cant for the position of Military Aide to Director, Office of Homeland Security.
(D) The applicant submitted a series of e-mails in which CWO X stated that in
July 2001, the PX at Xxxxxx was burgled and that liquor, cigarettes, and candy were
stolen. He suspected a particular non-rate who “had an extensive history of misconduct
involving alcohol.” As the commanding officer of Station Xxxxxx, CWO X got
permission from his supervisor, LCDR O, to search the non-rate’s barracks room. CWO
X and the station’s operations petty officer conducted the search but the contraband
was not found and Coast Guard investigators later determined that other parties
committed the burglary. CWO X also stated that he never told the applicant’s Supervi-
sor that the applicant searched the barracks and that he had never denied searching the
barracks himself. CWO X further stated that he cannot remember ever discussing the
applicant’s attendance at Xxxxxx with the Supervisor.
(E) The applicant submitted an e-mail in which YNC X, the Supervisor of Hous-
ing and Administration at Xxxxxx, stated that the applicant was out of town on leave
when a petty officer threatened someone. The situation was resolved within 20 minutes
when the Deputy Commander ordered that the petty officer be escorted to a hospital
for a psychiatric evaluation. He stated that during the situation, he left some voicemail
messages for the applicant, who returned the calls when he got the messages.
(F) A senior chief petty officer who was temporarily assigned to Xxxxxx in late
2001 stated that BMC X “repeatedly failed to comply with a directive by [the applicant]
to obtain the appropriate CG vehicle registration for his pickup truck. I personally
spoke with [BMC X] and asked that he obtain the proper CG decals. I believe at least
one of the other security personnel had spoken with [BMC X] and made the same
request. [BMC X] chose to make an issue of this … [The applicant] was simply attempt-
ing to enforce standard Coast Guard policy in making this directive to [BMC X]. … Dur-
ing my four months at Xxxxxx, I always found [the applicant] to be a reasonable and
rational individual who attempted to enforce regulations for the well being of all
personnel and with minimum of inconvenience.”
(G) The applicant submitted a copy of a letter dated November 19, 2001, from
the Commander of XXXX to a petty officer, Mr. Q, at Xxxxxx. The letter states that Mr.
Q’s 7-year-old son had “exhibited inappropriate sexual behavior toward another child
in Coast Guard family housing at Xxxxxx” in March 2001. The letter states that Mr. Q
had failed in his duty to comply with a State order to have the child undergo
professional counseling and that similar conduct by the son would result in the revo-
cation of Mr. Q’s privilege to occupy government housing.
(H) ET1 M stated that from July 2001 to July 2002, he lived in a building at
Xxxxxx that also held the applicant’s office. He stated that the applicant worked until
6:00 or 7:00 four or five evenings each week and sometimes on weekends. He stated
that this memory is vivid because he would stick his head in the applicant’s office and
“make comments about why he was still there.”
The applicant also submitted three statements by senior officers who had super-
vised his work in previous positions at XXXX. These officers highly praised the appli-
cant’s performance. In addition, the applicant submitted his own input for the OER,
which he had provided to the Supervisor and which consisted of eleven pages of his
assessment of his own accomplishments with respect to each performance category on
an OER form.
SUMMARY OF THE RECORD
A former officer in the U.S. Marine Corps, the applicant received his commission
in the Coast Guard on September 28, 1990. As an ensign and lieutenant junior grade, he
served for three months as an instructor at Officer Candidate School, for three years and
five months as the Officer-in-Charge of the Coast Guard’s 75-member Honor Guard,
and for twenty months as a deck watch officer on a high endurance cutter.
In 1995, the applicant was promoted to lieutenant and assigned to Group Xxxxxx
as the Assistant Port Prevention Branch Chief. On his OER for this service, he received
primarily marks of 5 in the various performance categories and a mark of 4 on the
Comparison Scale.2 Following the organization of XXXX, the applicant became the
XXXX Precom Section Leader, coordinating the computer and phone networks, and an
Activities Duty Officer (ADO), supervising a 17-member watch section and directing
responses to marine safety incidents. On his first OER for this service, the applicant
received primarily marks of 5 in the performance categories and a 4 on the Comparison
Scale. The applicant’s next OER covered his final service as the Precom Section Leader
and two months as a Marine Inspector, as well as service as an ADO. On this OER, he
received primarily marks of 5 and 6 in the performance categories and a 5 on the
Comparison Scale.
From December 1996 through May 1997, the applicant served as the coordinator
for XXXX Fleet Week. On his OER for this service, the applicant received primarily
marks of 5 and 6 in the performance categories and a 5 on the Comparison Scale. From
June 1997 through May 1999, the applicant supervised several marine inspectors as
supervisor of Port State Control barge section. He continued his collateral duty as
ADO. On his first OER for this service, the applicant received primarily marks of 5 and
6 in the performance categories and a 5 on the Comparison Scale. On his second OER
for this service, the applicant received primarily marks of 6 in the performance catego-
ries and a 5 on the Comparison Scale. From June 1999 through May 2001, the applicant
served as the Port State Control Supervisor and as a senior and then lead ADO at XXXX.
On his OER for this service, he received primarily marks of 6 in the performance
categories and a 5 on the Comparison Scale.
2 The Comparison Scale is not actually numbered. However, as with the performance categories, there
are seven possible marks. A mark in the middle, or fourth, position means that the officer, in comparison
with all other officers of the same rank whom the Reporting Officer has known throughout his career, is
an “exceptional performer; very competent, highly respected professional.” A mark in the fifth position
means that the officer is a “distinguished performer; give tough, challenging, visible leadership assign-
ments.” A mark in the sixth position means that the officer is “strongly recommended for accelerated
promotion.” A mark in the seventh and highest position means that the officer is the “best officer of this
grade” known to the Reporting Officer throughout the Reporting Officer’s career.
From June 2001 through May 2002, the applicant served as the supervisor of
Xxxxxxxx Xxxxxx. He supervised fourteen petty officers and handled the logistical
requirements of the various commands that occupied the base. The OER indicates that
he also served as a senior ADO. (A statement by the officer who oversaw the ADO
rotation indicates that the applicant served on the rotation as ADO until July 2001.) On
July 1, 2001, the applicant was promoted to lieutenant commander. The marks and
comments on the (disputed) OER for this period appear in the chart below.
Signature of the Chief of XXXX Administrative Division, as Supervisor, dated June 11, 2002
Reporting
Officer’s
Comments
NA
Concur with Supervisor. The position at Xxxxxxxx Xxxxxx has been a most challenging
assignment for [the applicant] and [he] has worked hard at creating a positive community spirit.
ROO organized several “town hall” meetings for residents to share ideas, air grievances and
formulate action plans. ROO worked hard at forging positive relationships with local federal &
state authorities; National Park Service, Department of Corrections. Made strides to increase
the unit’s representation in the local community.
Took on many new initiatives despite heavy workload. Started Clean Community prgm w/ local
Mayors. Utilized NJ DOC for beach cleanups saving CG personnel for trng opportunities.
8a
Initiative
5
CATEGORY
#
3a Planning and
Preparedness
3b Using
Resources
3c Results/
Effectiveness
3d Adaptability
3e Professional
Competence
4a Speaking and
Listening
4b Writing
5a
Looking Out for
Others
5b Developing
Others
5c Directing
Others
5d
Teamwork
5e Workplace
Climate
5f
Evaluations
6
7
MARKS AND COMMENTS IN DISPUTED OER
MARK WRITTEN COMMENTS
5
5
4
4
5
6
5
4
5
4
5
4
4
Displayed keen planning ability by meticulously managing the 3rd largest budget in D1. Ensured
every logistical detail was calculated & executed. Prioritized a heavy workload with scarce
personnel resources and had many successes. Worked tirelessly w/ XXXX, MLCLANT &
numerous civilian contractors to carry out the myriad of activities associated w/ managing a
detailed 500K budget process for 5 units. Flexible Officer, adjusted to changes and new
directions with minor supervision. Assisted the Xxxxxxxx as it transitioned to OPS tempo during
WTC tragedy. ROO quickly identified emergency funding requirements, utilized an idea to use
single cost code accounting which enabled excellent record keeping and resulted in proper
reimbursement of money since unit funds were exhausted. Worked long hours alongside the
rest of the staff in the aftermath of WTC attack – handled berthing, subsistence & logistical
requirements for an additional 85 boat crew/security personnel. Through ROO’s guidance the
galley went to 24/7 operations overnight and tripled its output of daily meals served. ROO has
a thorough grasp of operational & marine safety principles. As ADO, ROO immediately
responded to all emergencies: Coor’d multiple state/federal assets under intense pressure.
Skillfully handled a myriad of groundings, collisions, fires, oil spills w/ high media interest –
decisive actions prevented loss of life & property.
Sensitive listener; discerns relevant info when counseling PO’s. ROO is a composed and
engaging speaker. Gave inspiring memorial speech to surviving members of WWII. Featured
on local news during the first WTC memorial service in NJ. Dignified manner presented
positive CG image. As ADO displayed clear ability to convey command views to maritime
industry via written/verbal comms. & gave succinct briefs to senior CG staff. Superb writing
ability: created SH mission statement, drafted detailed housing manual for xxxxxxxx and local
SOP.
Strong Work-Life supporter: established flexible work hours for PO’s to attend to sick family
mbrs & go to school. Ensured mbr received emergency medical care during life threatening
pregnancy condition. Followed up to ensure insurance info was correct. Organized trng w/
Health Benefits Advisor, career counselor & Critical Incident Stress Mgmt for CG mbrs &
dependents – efforts created positive climate. Coached watchstanders in OPCEN while
executing SAR/LE & pollution cases. Encouraged CG Aux mbr’s participation in cmd projects;
efforts reduced qualification time. Leadership skills were brought to bear during WTC OPS.
ROO was instrumental in executing log coord effort: worked around the clock, anticipated &
ordered $1000’s worth safety/security equip & vsl parts needed to support the 24/7 response
efforts stemming from WTC. Distr buted $43K of emergency and medical supplies to boat
crews & security pers while conducting a flawless end of year fiscal close-out. Promoted team
concept: split up watchstanding duties between units during heightened Threatcon. Established
partnerships w/ local cmds, NPS DOD & state police to meet logistical & security needs. ROO
values the opinions of others and articulates the importance of everyone’s contribution. Evals
are on time and complete with wealth of detailed info.
8b
Judgment
8c Responsibility
8d Professional
Presence
8e Health & Well-
Being
9
Comparison
Scale
4
5
6
5
4
Established Admin services w/ reserve PO to assist 5 cmds w/ PCS, TAD orders & pay related
problems – positive impact on 100+ personnel. Purchased new furniture & equipment for
residents: significantly improved the habitability of the UPH, galley, offices, fitness Ctr, &
community grounds & helped increase community spirit. During Operation Guardian Liberty
made many decisions as Supvr: provided continuous services in Admin, Supply and Logistics,
housing/berthing, transportation, Security, Vessel engineering and weapons training support to
numerous CG units/personnel located at SH in response to WTC OPS. Excel judgment as
ADO; e.g. quickly launched 41’ to rescue 4 POB in P/C taking on water. Magnificent role model
for others: organized partnerships in community. Volunteered for school projects & clean-ups.
Painted local daycare Ctr to pass state inspection. Efforts highly praised by parents. Strongly
committed to fitness: started weekly PT/sports prgm. Mentored female PO in fitness & nutrition
(mbr lost 20 lbs & 6% body fat).
NA
10 Potential
NA
[The applicant] is a dedicated officer who was thrust into the role of Xxxxxxxx Supervisor, had
some difficulties in the transition to administrative work, but still had many accomplishments.
However, his true skills lie in the marine inspection and operational duty officer arena and I
recently had him re-assigned within my command to capitalize on these positive attributes.
ROO is a superior leader when working in area of expertise. He is a strong candidate for
positions of further responsibility in the “M” or “O” community and would make an ideal
candidate for post graduate school. Recommended for promotion with his peers.
11 Signature of the Deputy Commander of XXXX, as Reporting Officer, dated June 9, 2002
12 Signature of the Commander of XXXX, as Reviewer, dated June 12, 2002
From June 2002 through August 2003, the applicant served as the Senior Com-
mand Duty Officer Coordinator and Maritime Homeland Security Section Leader. On
his OER for this service, the applicant received all marks of 6 (except one of 7) in the
performance categories and a 5 on the Comparison Scale. From September 2003
through April 2005, he served as a Port Security Assessment Branch Chief and Terrorist
Operations Team Leader. On both OERs for this service, the applicant was assigned
primarily marks of 6 in the performance categories and a 5 on the Comparison Scale.
Over the course of his career, the applicant has received dozens of medals, rib-
bons, and letters of appreciation, including a Transportation 9/11 Medal and two
Achievement Medals.
VIEWS OF THE COAST GUARD
On July 22, 2005, the Judge Advocate General (JAG) of the Coast Guard submit-
ted an advisory opinion in which he recommended that the Board deny relief in this
case. He based his decision in part on signed statements by the Supervisor, Reporting
Officer, and Reviewer who signed the OER and on a memorandum on the case submit-
ted by the Commander of the Coast Guard Personnel Command (CGPC). These docu-
ments are summarized below.
Summarized Statement of the Supervisor
The Supervisor for the disputed OER, who was Chief of the Administration Divi-
sion at XXXX from June 1999 through June 2003, alleged that the disputed OER “is an
accurate, fair and unbiased evaluation of [the applicant’s] performance of duties during
that time period.” The Supervisor stated that although the applicant was the highest
ranking officer at Xxxxxx, he was the “landlord” and supposed to work cooperatively
with the COs of the cutters that were homeported there, the CO of Station Xxxxxx
(CWO X), and the Engineering Supervisor (CWO Z), who reported directly to other
division chiefs at XXXX rather than to the applicant.
The Supervisor alleged that the applicant’s application is “filled with half-truths
and false allegations.” He stated that the applicant “was determined to be unfit to serve
as Supervisor of [Xxxxxx] by his superiors in the chain of command and they moved
him out of this position.” He alleged that “[t]hrough a multitude of mishaps and
blunders, [the applicant] demonstrated to [the Deputy Commander and Commander of
XXXX] that he was unfit to lead the xxxxxxxx. After [RADM X, Commander, XXXX]
retired, [the Deputy Commander] discussed the Xxxxxx issues with [the new
Commander, RADM Y, who reviewed the disputed OER,] and convinced him that the
only course of action was to remove [the applicant] from Xxxxxx.”
The Supervisor listed the following as examples of the applicant’s alleged blun-
ders: (a) After a chief petty officer committed suicide, the applicant “was unable to han-
dle the situation, to a point where one senior member of [the Xxxxxxxx] accused him of
‘shirking.’” (b) Without authority, the applicant set a playground curfew. (c) The
applicant failed to respond with an appropriate level of urgency to 9/11. (d) The appli-
cant had a poor working relationship with the engineering staff. (e) A family asked to
be moved off the base because they felt harassed by the applicant and his family.” (f)
The trouble with this family became “the talk of the base community and resulted in
several senior members of Xxxxxx, and their spouses, arguing with one another.” (g)
Members got the impression that the applicant took care of his own personal needs
above those of others. (h) The applicant “cursed at and was verbally abusive to mem-
bers in the community.” (i) Senior members reported that the applicant was rarely in
the office and showed up in civilian attire. (j) The applicant had an “ongoing feud with
the Executive Petty Officer (XPO) of Station Xxxxxx that resulted in [the applicant]
attempting to place the XPO on report. (k) The applicant “developed a poor working
relationship with his Yeoman Chief and requested that the individual be removed from
the staff.” (l) The applicant created a problem by attempting to intervene in the K9 unit
though he had no responsibility for it. (m) A member of the Work-Life staff reported
that the applicant was “violating command confidentialities” because despite many
reminders of the need for confidentiality, he shared personnel problems with his wife,
who “then spread this information throughout the Xxxxxx community.” The
Supervisor stated that these were the sorts of problems that resulted in the applicant’s
removal from the Xxxxxx and in the disputed OER.
Regarding the applicant’s allegation about lack of counseling, the Supervisor
stated that the applicant received both oral and written guidance (see below). He
alleged that he met regularly with the applicant, who “was constantly receiving verbal
feedback from me” and was called into the Deputy Commander’s office for counseling
sessions several times.
Moreover, the Supervisor stated that he does not remember focusing on only the
five issues the applicant raised in his application when the applicant asked him about
the OER. However, the Supervisor stated, he would address the five issues since the
applicant focused on them in the application. Regarding the applicant’s allegation (1),
the Supervisor stated that the applicant “is telling only half the story.” He alleged that
the search issue arose three times and that, after the first, he counseled the applicant
about the need for permission from a military judge or Commander, XXXX, to conduct
a search. However, a few weeks later, the applicant told him that CWO X had entered
a member’s room to look for stolen goods. When the Supervisor asked about CWO X’s
authority for the search, the applicant “replied that [CWO X] was a CO and the
authority was inherent in his position,” even though the Supervisor had recently “made
it abundantly clear that no one other than [the Commander, XXXX] could authorize
[such] a search.” The Supervisor stated that he felt that the applicant was “playing
dumb” and “allowed the search of the room even though he had specific instructions
from me to the contrary.” The Supervisor also stated that CWO X reported that when
cocaine was discovered in a barracks, the applicant failed to respond to various
summonses. The Supervisor concluded that the “central issue at hand was [the
applicant’s] leadership ability” and that such issues affected the applicant’s numerical
marks in the disputed OER. “At times when he should have been front and center and
taking care of the unit’s business he would act slowly, inappropriately or, if one
believes [CWO X], [the applicant] would hide in his house and refuse to face the issue.”
Regarding the applicant’s allegation (2), the Supervisor stated that he also was
out of town when the threat occurred and so the matter was handled by the Deputy
Commander. However, the Supervisor was disappointed with the applicant’s response
to a related problem during the following days. He stated that “[t]wo members of [the
applicant’s] staff began to undermine [the Deputy Commander’s] decision by sending
emails throughout Xxxxxx offices and even to Walter Reed hospital!” When the Super-
visor demanded that the applicant take immediate action against them, the applicant
“dragged his feet” until the chief petty officers decided to hold a Chiefs Mast, “rather
than entrust the leadership training and counseling to [the applicant].”
Regarding the applicant’s allegation (3), the Supervisor stated that he never said
that the applicant was “picking on” BMC X, but another division chief told him that the
applicant was doing so. The Supervisor stated that the applicant placed BMC X on
report even though both he and the other division chief told the applicant that he was
being petty over a known person in a known vehicle with an outdated sticker. The
Supervisor stated that the applicant’s way of getting BMC X to comply with the rules
was a leadership test that he failed and that his response created morale problems
instead of defusing the issue.
Regarding the applicant’s allegation (4), the Supervisor stated that the spouse in
question was Mrs. Q, the mother of an 8-year-old boy who had sexually assaulted
another child in March 2001. In March 2002, Mrs. Q e-mailed him “complaining that
[the applicant’s] family was tormenting her.” The Supervisor had received an e-mail
from the applicant the day before stating that Mrs. Q had been harassing a “10-year-old
girl” in the neighborhood. However, Mrs. Q explained that it was the applicant’s own
daughter who had been “teasing and tormenting” her 8-year-old son for some time and
that the applicant had done nothing to stop it. She stated that after she complained to
the applicant, his daughter’s behavior got worse. She alleged that the applicant himself
had called the police and that they told her that if she did not keep her blinds down and
her door shut, the applicant could get a protective order against her. The Supervisor
stated that he quickly e-mailed the applicant with instructions, rather than telephoning
him, “because he had a habit of not always hearing exactly what I was trying to say.”
He stated that there is no doubt in his mind that Mrs. Q and her family “felt threatened
and harassed by the [applicant’s] family. … Other Coast Guard members felt the same
way.” The Supervisor further stated that on April 4, 2002, Mrs. Q reported that the
applicant’s daughter was staring into her home, which resulted in a confrontation
between certain members and spouses. The applicant placed one member, CPO Z, on
report. At the Supervisor’s request, a Coast Guard attorney interviewed Mrs. Q and
found that her emotional state and her lack of willingness to leave her house pointed to
“a negative and hostile environment” at the base. In April 2002, the Deputy Comman-
der “had enough of the whole matter and began investigating the possibilities of mov-
ing [the applicant]. … The problems did not stop until the [applicant and his family] left
the area. … However, the [woman and her family] never had any further problems after
[the applicant] moved back to Staten Island.” The Supervisor stated that the applicant’s
responses to these problems affected his numerical marks for leadership skills.
Regarding the applicant’s allegation (5), the Supervisor pointed to the following
(see summaries below): a supporting a statement by the Deputy Commander; an e-mail
from CWO X concerning the applicant’s “work ethic”; an e-mail from CPO Y to CWO Z
about the applicant’s “very different work schedule”; and an e-mail from a lieutenant
dated October 26, 2001, indicating that the applicant had skipped an important meeting
with her and that CWO X and another member had told her that the applicant was
“rarely there.” The Supervisor stated that these reports made him “question” the appli-
cant’s performance of duty and contributed to the mark of 4 he assigned the applicant
for the performance category “Results/Effectiveness.”
The Supervisor provided explanations as to why he assigned the applicant marks
of 4 in six performance categories. Regarding the lack of an award for his efforts fol-
lowing 9/11, the Supervisor stated that they were reserved for “personnel who worked
12 hours a day, for 21 days straight, and performed tasks above and beyond the call of
duty.” The Supervisor stated that he felt the applicant’s performance had not met the
criteria for a personal decoration. In support of his many allegations, the Supervisor
submitted many e-mails and statements, including the following:
(A) An e-mail in which the Reporting Officer, who was the Deputy Commander
of XXXX, advised the applicant in April 2005 that since he had been counseled about the
authority necessary for a barracks search, after the theft at the PX, he should have told
CWO X to wait until permission was obtained before searching the room. The
Reporting Officer also stated that CWO X told him that “you never seemed to be there
… a tough point for me to understand when, as you said, you ‘lived & worked there.’”
He noted that it meant that the applicant “did not project enough command presence to
make the Station CO feel any need to look harder for you.” With regard to BMC X’s
outdated decal, the Reporting Officer stated that the applicant’s “desire to drive home
your point to [BMC X] looked petty and was way out of proportion to the seriousness
of the matter.” Regarding the threat incident, he stated that “I am the one who didn’t
like the way you handled the incidents that resulted from my having to send [the petty
officer for a psychiatric evaluation]. [The applicant’s staff members] were running an
email battle that reached throughout the service. They even sent unsolicited advice
directly to the tending physician. You had a very hard time supporting the Command,
which sent the message to your troops that you agreed with them. Your hands-off
approach forced [the Supervisor] and me to intervene … .”
Regarding the conflict with the other family on base, the Reporting Officer stated
that the applicant “totally failed to contain the situation. Even though the family
moved to another part of the housing area, the remaining tension eventually became a
prime motivator for us to move you and your family back to Staten Island.” The
Reporting Officer stated that he had removed the applicant from Xxxxxx so as not to
foist the problems onto the new Commander. He also stated that the applicant was
“sent to the Xxxx with the hope that you would straighten out your family situation.
You had been spending more and more time on duty and your wife was nearing
another crisis during your absences. We thought that with your military bearing, your
demonstrated excellent leadership in critical response situations, and your proclaimed
desire to improve your family situation that the opening at the Xxxx would work well.
But, your tendency to focus on the wrong things and your inability to keep your family
situation from affecting the workplace led to your ultimate return to Staten Island. … In
a nutshell, you were sent to a reasonably harmonious working and living environment
to keep the command from having to spend a lot of time on personnel problems.
There’s no way I can call your tour successful.”
(B) In a Statement of Facts e-mailed by CWO X to CDR Y on April 11, 2002,
CWO X stated that the applicant “openly admitted that he was not prepared to deal
with” the suicide of a chief petty officer on July 31, 2001, and that the applicant’s hesita-
tion in taking a leadership role “got to the point where I brought it to [CDR Y’s] atten-
tion and he spoke with [the applicant] about the matter. The death of a shipmate is not
easy for anyone … [b]ut it should never be used as an excuse to shirk the responsibili-
ties of one’s position.”
CWO X further stated that after one petty officer seriously threatened another on
August 6, 2001, the applicant, who was on leave, never contacted him for an update. At
the end of the week, the Reporting Officer asked him for input about the applicant’s
leadership and “the mood of the community.” CWO X told him that the applicant was
“slow to take action when it was his duty to do so” and a “Chiefs’ Mast was convened
to deal with the two Petty Officers’ inappropriate e-mails.”
CWO X stated that on the afternoon of 9/11, the station was armed, secured, and
inundated with personnel and resources. Just one reservist was checking in the new
personnel. However, the applicant “goes home at 1600 as if it was any other day and
shows up to work the next morning around 0800. His biggest concern during the
remainder of the week was the Navy League annual lobster cookout. On Friday of the
first week, it was to the point where the station could not effectively man the communi-
cation watch, organize boat crews, run search and rescue and conduct physical security.
When [the applicant] reported to work Friday afternoon after taking his wife to the den-
tist, I confronted him with his duty to provide the physical security that the station
could no longer provide the personnel.”
CWO X further stated that on September 26, 2001, the applicant was concerned
about a pool heater and neon sign. CWO X concluded that the applicant “did not have
the big picture and involved himself with insignificant issues.” On the same date, a
guard found cocaine in a barracks passageway and contacted him. CWO X noted that
both of the applicant’s vehicles were in his driveway. However, when two petty
officers went to the applicant’s house and knocked on the door “for no less than fifteen
minutes,” no one answered the door. The members also tried the applicant’s “recall
[telephone] numbers with no success.” CWO X stated that the applicant “appeared to
be hiding in his home to avoid having to respond to the incident. Later that day he
admitted to being home and [stated that he] didn’t realize that there were attempts
being made to contact him.”
CWO X stated that in November 2001, he spoke to a visiting lieutenant (LT F)
about the applicant’s “work ethic. At the time he was rarely at work and when he did
show up he would be in civilian attire. It was noticeable to the entire staff at the
Xxxxxxxx. He led me to believe that he was spending a lot of time at XXXX. [LT F]
informed me that was not the case. During this period, I had spoken to someone from
the XXXX staff concerning [the applicant’s] lack of effort, but I do not recall specifically
who it was and do not want to speculate. … It is my opinion that [the applicant] has
difficulty identifying potential problems and stepping in to resolve them before they
become escalated. The support role at Xxxxxx has often been reversed and at times is
an undue burden for the station.”
(C) CWO Z, the Chief Engineer at Xxxxxx, stated in an e-mail to the Supervisor
dated April 11, 2002, that the applicant had ordered picnic tables with maintenance
funds without consulting the Shore Maintenance Chief and then had expected the latter
to sign a procurement request after the fact. He stated that at the end of fiscal year 2001,
the applicant ordered playground equipment and did not tell him until one week before
its arrival. As a result, a shipment of crumbled rubber for the playground had to be
delayed while the equipment was assembled, and the engineers work list was thrown
off schedule. After this incident, he and his supervisor met with the applicant to discuss
planning and CWO Z thought that the applicant had a clear understanding that such
projects needed to be routed through his office. However, the applicant subsequently
ordered a new propane pool heater even though CWO Z had already advised him that
there was a “perfectly good solar heater pool cover” that needed only a $200.00 manual
hand roller. CWO Z complained that the purchase of the new propane heater had
created a lot of work for his staff and would engender continuing maintenance and fuel
costs. CWO Z stated that although the applicant had good intentions in these matters,
he overlooked issues and did not plan properly. CWO Z stated that after 9/11, the
applicant “seemed more focused on installing a lighted information sign for the base
and organizing a lobster fest with the Navy League while each unit continued to pro-
vide round the clock support for the operation. He did manage to obtain barricades for
the entrances to the base and organize a security force.”
CWO Z stated that although he got along with the applicant personally, he had
“heard so many third party stories ranging from threatening children to making
remarks about someone’s spouse. I have seen the police at his residency on numerous
occasions.” CWO Z stated that as the Xxxxxxxx supervisor, the applicant “should be
the one restoring order” instead of being involved in housing squabbles himself.
(D) CPO Y stated in an e-mail dated April 10, 2002, that the applicant’s manner
of implementing his ideas “seems to be in question. Most believe he is doing them for
himself with no thought of who or how things are going to be maintained.” CPO Y
stated that the applicant’s projects, such as the new playground equipment, appeared to
be for his own family’s benefit “because nothing has been done anywhere else on board
yet.” CPO Y also stated that he had seen the applicant’s family in his office on many
occasions during the work day, which made it difficult to communicate with the appli-
cant about certain issues, and that he had seen the applicant “in his office more often
than not in civilian clothes.” CPO Y stated that the applicant “has what appears to me
to be a very different work schedule than most of us which isn’t really any of my busi-
ness but does make it difficult to conduct business on a daily basis if he is not there. It
just seems to most of the senior personnel here at Xxxxxx that when something needs
his attention he has been very difficult to track down, even by phone.”
CPO Y stated that the applicant had had “verbal confrontations with other mem-
bers’ dependents, mainly children, concerning his children and the playground behind
his home. Ranging from one incident where a child had squirted his child with a squirt
gun and he supposedly threatened to cut that child’s manhood off while he was holding
an axe. He has also told one 11 year old that he was too old to play in the playground
and ordered him to leave. … There have been other complaints that he has accused
children of using foul language and of being too loud or just looking wrong at his
family. I have to admit that these allegations are all second hand, but there have been
too many to ignore.” CPO Y stated that the applicant had told one member that her
husband was “too ‘weak of a man’ to handle the children. … [I]t appears that when [the
applicant] finds a target he stays with it until it is destroyed.”
(E) In an e-mail to the Supervisor dated October 26, 2001, LT F stated that she
had gone to Xxxxxx the day before and that her “first priority” was to meet with the
applicant, but he had taken his daughter to the dentist and was not there even though
he had acknowledged her visit in advance by e-mail. LT F indicated that she felt that
little work was being done in the applicant’s office during his absence. CWO X told her
that the applicant’s office was not providing any administrative support “on the
personnel side,” although YN1 P had helped with his purchases and that YNC X had
found berthing accommodations. CWO X also told her that the applicant’s staff was
working normal hours and “leaving at 1545, like usual.” LT F concluded that “the
Admin personnel at Xxxxxxxx meets the criteria of their unit title … ‘detached’. They
are not providing the same services provided under [LCDR C’s] era. From more than
one source I was told that it doesn’t really seem like anyone is in charge, except [YNC
X] ‘kind of’ when [the applicant] is gone which seems to be a lot.”
(F) A series of e-mails about a poor performance evaluation for a member of the
applicant’s staff due to her own e-mails following a petty officer’s threat on another’s
life. The e-mails include comments about how long the evaluation was delayed after
the incident and the Chiefs’ Mast; why the applicant’s office took a month to get it
signed; why the Command Senior Chief at XXXX had been erroneously told it was
“taken care of”; and how, once received by XXXX, it had to be returned due to incom-
pleteness. The series includes one from the Supervisor, dated November 16, 2001, in
which he stated that the delay was “unconscionable” and that “Xxxxxx needs to get it
together immediately or bad things are going to happen.” The series concludes with an
e-mail dated November 17, 2001, from YNC X, who stated that he had not seen the
evaluation since he first submitted it to the applicant on September 11, 2001.
(G) An e-mail dated November 27, 2001, to the Supervisor from the XXXX
Health Clinic Administrator, who reported that a member of the applicant’s staff had
signed for a FedEx package of 50 doses of flu vaccine, which was clearly marked for the
Medical Department and to “refrigerate upon arrival.” However, the package was not
refrigerated and it was misplaced for a week even though his staff had asked after it.
(H) In an e-mail dated December 26, 2001, the applicant reported to the Supervi-
sor and Reporting Officer that the K9 program was unstable and in danger of falling
apart. In an e-mail dated December 27, 2001, the Reporting Officer told the Supervisor
that he “expect[ed] [the applicant] to leave this alone now.”
(I) In an e-mail dated January 9, 2002, the applicant told the Supervisor that CDR
Y had accused him of “picking on” BMC X because CDR Y had found other cars in the
parking lot with invalid decals. The applicant stated that he was trying to administer
the rules fairly. He stated that he had “gone over the violations of the UCMJ articles &
truly believe [BMC X] has violated every element of those articles. It is impossible to
maintain discipline for our junior troops if the senior personnel get away with insubor-
dination & disobeying lawful orders. I have been lied to by [BMC X] 4 times now & his
unprofessional behavior is effecting the good order, morale & discipline at Xxxxxx.”
(J) On March 10, 2002, the applicant sent an e-mail to the Supervisor reporting
“inappropriate/aggressive behavior” on the part of the 8-year-old boy’s mother, Mrs.
Q, and asking for assistance from a Work-Life counselor. He stated that he had
received numerous complaints about Mrs. Q from various residents and that she
continued to harass a 10-year-old girl and “threatened to scratch the eyes out of the
girl’s father.” He stated that Mrs. Q had pointed and stared at the girl even though her
son was not on the playground. “The girl states that [Mrs. Q’s] son stares at her & this
scares the girl.” The applicant wrote that he had asked YNC X to “address this hostile
situation to avoid conflict between the families” but that Mrs. Q was unstable and an
explosive conflict was imminent. The applicant wrote that one resident had reported
that Mrs. Q tried to run her over and others reported that she was heard yelling at her
son and throwing dishes and had locked her son out of the house on certain occasions.
(K) On March 23, 2002, Mrs. Q e-mailed the Supervisor that she could not under-
stand the applicant’s accusations because she had never pointed or stared at his daugh-
ter. She stated that she did watch the girl “because she would tease and torment my
eight year old son” and that when she complained to the applicant, the torment had
gotten worse. “I have found my child crying more times than I would like to count
because of [the applicant’s] daughter. … She tells children that my child goes to school
with that my child is ‘evil and wrong and nobody is allowed to talk or play with him.’ I
heard his daughter say this, and I went to Work-Life. So after that I would watch my
child while he was playing outside. But I find it strange that every time I would look
over to his daughter she would already be looking my way.” Mrs. Q stated that the
applicant’s yard was the only view she had out of the front of her house, but the appli-
cant considered her to be staring, whereas it was his daughter that was staring at her.
She stated that she wanted “to know why [the applicant] keeps singling out my family,
why does he hate my family so much that he keeps trying to destroy our lives. … [He]
has now made me feel unsafe, I am afraid to leave my own home. The police told me I
should leave all of my blinds and door shut because if [the applicant or his wife] see me
they could place a restraining order against me.“
(L) On March 25, 2002, the Supervisor e-mailed the applicant about Mrs. Q’s e-
mail. He stated that he thought Mrs. Q felt “in a spotlight” since the applicant’s wife
had called the police about Mrs. Q staring at the applicant’s daughter. The Supervisor
stated that a Work-Life counselor would be reviewing “all families involved” and
instructed the applicant to leave Mrs. Q’s family alone. He told the applicant to have
Mr. Q counseled by his immediate supervisor if it were necessary. The Supervisor
stated that except in an emergency situation, no one should call the police again without
his knowledge. He stated that “we do not need to be involving local police depart-
ments because people ‘are staring at each other.’”
(M) On March 25, 2002, the applicant replied that he could not understand how
the Supervisor could have sent such a message. He claimed that he had “minimal to
zero” contact with Mrs. Q and her family and that the State Department of Youth and
Family Services had said that Mrs. Q’s behavior was harassing to his daughter and that
it should be documented with a police report. The applicant stated that the problem
with Mrs. Q and her family involved many families, not just his own; that it preceded
his arrival at the base; and that residents gossiped about them and were antagonistic
toward her because of past incidents. The applicant stated that his family became
involved when his daughter asked Mrs. Q’s son why he was staring at her. The boy ran
into his house crying. Since then, Mrs. Q had been harassing and intimidating his
daughter by staring at her.
The applicant stated that he was not persecuting anyone or making Mrs. Q’s life
unlivable and that her accusations were ludicrous. He stated that he needed the Super-
visor’s help because if Mrs. Q believed that he was the cause of her problems, she might
hurt his child. He asked the Supervisor to order Mrs. Q and her family to leave his fam-
ily alone. He stated that “[r]egardless of who stared at who first (child to child) … [Mrs.
Q’s] behavior is anti-social & disruptive to the community.”
(N) On April 4, 2002, Mrs. Q wrote that at 3:30 that afternoon, she saw the appli-
cant’s daughter watching her from the fence in Mrs. M’s backyard. Mrs. Q wrote that
she panicked and backed away from her door and that the girl also went away but then
came back. She called a neighbor on the telephone to ask him to witness what was
happening, and he did. Then she saw that a community ombudsman was at the play-
ground and walked there to talk to her and others about what had happened, and they
saw that the girl was still watching her. Two members, CPO Z and PO1 C, went to the
neighbor’s house to talk to the applicant’s wife, who was visiting there, but Mrs. M was
“very verbal to them and was not cooperative.”
(O) In an e-mail dated April 8, 2002, the Supervisor, in response to an e-mail
from the applicant stating that YNC X had requested reassignment, stated that he
needed to talk to YNC X about why he “no longer cares to answer to you.” The Super-
visor also stated that he was disturbed by the fact that the applicant’s own wife had
become involved in a housing/family issue. He stated that “[t]his nonsense has to stop
immediately and I will speak to you at length when you are here tomorrow. Lift any
‘no contact’ orders that you imposed (without the CO’s approval by the way) immedi-
ately. Further, leave [Mrs. Q’s] family alone; that includes any member of your family
(P) Later on April 8, 2002, the applicant sent an e-mail to the Supervisor stating
that the Work-Life counselor had agreed with his wife that she had no choice but to call
the police due to the level of harassment from Mrs. Q. The applicant stated that his own
family had a right to be free of harassment and that it was negatively affecting his chil-
dren. He stated that Mrs. Q had run out of her house “crying apparently because a
child was looking at her” and “seems extremely paranoid.” The applicant also stated
that the two members who went to the neighbor’s house to talk to the mothers had been
“abusive by using reproachful language.” The applicant stated that the women were
shocked and frightened by CPO Z’s language.
(Q) An attorney who visited Mrs. Q with the Supervisor in April 2002 stated that
Mrs. Q reported that the applicant’s wife would glare at her and that she and another
spouse had laughed at Mrs. Q. He stated that Mrs. Q was very emotional and broke
into tears several times. When the Supervisor asked her to show him where these
incidents occurred, Mrs. Q refused to leave the house for fear of being seen with him
and being labeled a “tattletale” or complainer. The attorney concluded that, whatever
the validity of Mrs. Q’s allegations, “her tears, emotional state, desire to leave Xxxxxx as
soon as possible, and lack of willingness to leave her house point to a negative and
hostile environment that existed on the Station Xxxxxx base at that time.”
and do not call any other agency or federal reservation on their behalf. I will deal
directly with this situation from now on. Let that family alone and live in peace.”
(R) An e-mail from the Engineering Officer dated April 25, 2002, indicates that
the approximate cost of the propane pool heater up to that point was $4,600 plus
“another $700 to $1,000 for the electrical connection.” He complained to CWO Z about
the lack of planning, the lack of cost considerations, and the possibility that the safety
and engineering code requirements had not been met.
(S) On April 16, 2001, Mr. Q e-mailed to the Supervisor that his immediate super-
visor had told him that the applicant’s wife was accusing him of “trying to steer [sic] at
her. I’m not trying to get people in trouble, but it appears to me that she’s just con-
stantly trying to find some sort of problem with me and my family. I don’t know what
to do about this; I avoid them as much as humanly possible.”
applicant’s move back to Staten Island had been arranged.
Statement of the Deputy Commander of XXXX, Reporting Officer for the OER
The Reporting Officer stated that while the applicant may believe that the dis-
puted OER was based on false information, it was justified, accurate, and fair “in the
eyes of people who had to deal with the results of his actions and inactions.” He stated
that the applicant was relieved of duty “for a multitude of reasons.” With respect to the
(T) On April 26, 2002, the Reporting Officer informed the Supervisor that the
applicant’s allegation (1), he stated that the applicant had recently been advised not to
search a barracks without permission from the Commander, XXXX, or a military judge.
He stated that “[t]hough [the applicant] claims that he knew nothing of the search
before it happened, I remember at the time that the scenario seemed contrived
considering that [the applicant] was the officer responsible for the [PX] that was broken
into.” He stated that the applicant should have told CWO X to wait for permission
before conducting any search.
Regarding the applicant’s allegation (2), the Reporting Officer stated that “I am
the one who didn’t like the way [the applicant] handled the incidents that resulted from
my having to send a petty officer … for a psychiatric evaluation. Two of [the appli-
cant’s] supply personnel, who disagreed with the decision, were running an email bat-
tle, attacking the victim, which reached throughout the service. They even sent unso-
licited input directly to the tending physician at Walter Reed. [The applicant] had a
very hard time supporting the Command, which sent the message to his staff that he
agreed with them and their tactics. His hands-off approach forced [the Supervisor] and
me to intervene.”
Regarding the applicant’s allegation (3), the Reporting Officer stated that the
applicant and BMC X had previously “clashed on several issues about the roles of the
support xxxxxxxx and the tenant operational units. This particular incident was about
an outdated vehicle sticker, when at the time, everyone else was concentrating on real
security matters and supporting a six-fold increase in personnel and a ten-fold increase
in vessel support for the 9/11 response. [The applicant’s] zeal in driving home his point
to the chief looked petty and was way out of proportion to the seriousness of the
matter. Once again, [the Supervisor] had to step in to defuse the situation.”
Regarding the applicant’s allegation (4), the Reporting Officer stated that Mrs.
Q’s complaint resulted from “a relentless assault by [the applicant’s wife], who had no
personal connection with the case, on that woman and her family. [The applicant’s
wife] wanted that family to leave Xxxxxx. … We even went so far as moving the family
to another part of the housing area out of the direct line-of-sight of [the applicant’s
wife], but that didn’t stop the abuse either. [The applicant] totally failed to contain the
situation.”
Regarding the applicant’s allegation (5), the Reporting Officer stated that CWO X
“told me that [the applicant] never seemed to be at work, and I apparently relayed that
statement to [the Supervisor]. This came up when I was at Xxxxxx trying to quell yet
another ‘misunderstanding’ between the Xxxxxxxx and an operational unit. What it
meant to me was that [the applicant] and his Chief did not project enough presence to
make the Station Commanding Officer feel any need to look very hard for him, or that
the usual degree of assistance given did not normally meet the unit’s expectations.”
The Reporting Officer stated that he agreed that the marks on the disputed OER
were not “reasonably comparable” to the written comments. However, under the rules,
the marks are supposed to compare reasonably not to the comments, but to the written
performance standards for each category on the OER form. In this respect, he alleged,
the disputed OER is “right on.” He stated that the Supervisor marked the applicant in
accordance with the written standards on the form. He explained the paucity of nega-
tive comments in the OER by saying that “no one ever writes explicitly on the negative
items, fearing the instant destruction of an officer’s career.” Instead, they expect savvy
readers of an OER to “read between the lines.” The Reporting Officer stated that
although the applicant did an excellent job as an ADO, he could not apply “a consistent,
reasoned approach to a long-term endeavor and handl[e] the intricacies of the person-
nel problems that accompany such endeavors. [The applicant’s] tendency to focus on
the wrong things and his inability to keep his family situation from affecting the work-
place led to his ultimate return to Staten Island.” He stated that his own comments in
the disputed OER pointed out that the applicant was “a talented officer in the wrong
job,” which resulted in the mark of 4 on the Comparison Scale.
Statement of the Commander of XXXX, the Reviewer of the OER
RADM Y, who began serving as Commander, XXXX, on March 15, 2002, stated
that he learned that the Reporting Officer and others had had to “run interference to
quell disputes” on a few occasions when the applicant “was believed to be party to or
unable to resolve and might actually be causing to worsen [the situation].” When he
asked about the mediocre marks on the disputed OER, both the Reporting Officer and
the Supervisor stated that the applicant “lacked the leadership, management, adminis-
tration, conflict management, team building, and interpersonal skills needed for the
position.” They told him they had “highlighted the positive performance areas in the
OER but did not provide the negative performance. Instead they provided the overall
performance marking that accurately reflected the balance of the entire period of the
report.” He stated that he “could not support removal or reconsideration of the marks
based upon the input I received from [the applicant’s] direct supervisors.” He stated
that he moved the applicant to another billet because he did not want him to fail.
RADM Y stated that while discussing events at an exit interview with the appli-
cant, he did say that he “did not know the full range of challenges that he had before
him as supervisor of the facilities and tenants of Xxxxxx. I also indicated that his super-
visor had not made me fully aware of the problems being addressed. However, I did
not indicate that things were worse now than before when he was supervisor as that
was not the case.” The Commander stated that after the Supervisor’s departure, he dis-
covered that “the unit records and logistics support functions were … woefully below
standards. This does not excuse [the applicant’s] performance but explains why he may
not have received the level of oversight expected of his immediate supervisor.” He also
opined that the Supervisor “did not like to give bad news nor hear bad news.”
Memorandum of the Coast Guard Personnel Command
CGPC stated that the applicant’s allegation that the numerical marks in the OER
are inconsistent with the comments is unfounded because a “mark of four is the stan-
dard performance mark that describes the high level of performance expected of all
Coast Guard officers.” CGPC argued that the written comments “compare reasonably
with the picture defined by the standards marked in the performance dimensions of the
disputed OER, as required by policy.”
With respect to the applicant’s allegation (1), CGPC stated that the applicant
provided no evidence to support his claim that the Supervisor lowered his marks based
on an erroneous belief that the applicant had searched the barracks after the burglary at
the PX. Moreover, CGPC pointed out, the statements of the Supervisor and Reporting
Officer, refute this allegation in that they indicate that they knew that CWO X conduct-
ed the search and disapproved of the applicant’s failure to prevent it from happening
since he had recently been counseled about such matters.
With respect to the applicant’s allegation (2), CGPC stated that the applicant pre-
sented no evidence to support his claim that the Supervisor lowered his marks based on
an erroneous belief that the applicant was present and responsible for how a petty offi-
cer’s threats were handled. CGPC pointed out that both the Supervisor and Reporting
Officer have stated that it was how the applicant responded to his staff members’
improper actions afterwards that dissatisfied them.
With respect to the applicant’s allegation (3), CGPC stated that it is clear from the
Supervisor’s statement and an e-mail he submitted from the applicant to him that it was
not the Supervisor but CDR Y, Chief of the Response Division, who accused the appli-
cant of picking on BMC X because of his outdated decal. CGPC pointed out that both
the Supervisor and Reporting Officer apparently felt that poor leadership by the appli-
cant over a relatively minor issue “escalated [the issue] to a level that required higher-
level intervention to defuse.”
With respect to the applicant’s allegation (4), CGPC stated that while the situa-
tion was clearly “very difficult and sensitive,” both the Supervisor and the Reporting
Officer have provided “supporting documentation … to justify their concerns with the
Applicant’s inability to contain the situation” as the officer responsible for supervising
the housing at Xxxxxx. CGPC stated that they were entitled to base the marks they
assigned on their views of his handling of the situation and that “[w]hile the Applicant
may disagree with the views of his Supervisor, he has provided no evidence that there
was a violation of policy.”
With respect to the applicant’s allegation (5), CGPC stated that while CWO X
may not recall making the statement about the applicant rarely being at work to the
Supervisor, the Supervisor has provided ample evidence from various individuals,
including CWO X, that the applicant was often absent from work. CGPC stated that the
Supervisor has provided “very convincing evidence to justify his concern and dissatis-
faction with the Applicant’s work ethic.”
CGPC concluded that in light of the statements of the rating chain and the
accompanying documentation, the applicant’s allegation that the disputed OER was
based on false information is not supported. CGPC pointed out that there are no com-
ments in the OER that specifically concern the applicant’s five allegations of error but
that the Supervisor “was well within his right to consider them in his evaluation of the
Applicant’s performance.”
Regarding the Comparison Scale mark, CGPC stated that it “reflects the Report-
ing Officer’s ranking of the Reported-On Officer relative to all other officers of the same
grade the Reporting Officer has known. The mark represents a relative ranking of the
Reported-On Officer, not necessarily a trend in performance. … [T]he mark, by policy,
is based solely on the experience, judgment and discretion of the Reporting Officer.”
Regarding the applicant’s complaint about a lack of counseling, CGPC stated
that counseling may take place informally or formally and that the Supervisor has con-
tradicted the applicant’s claim and provided e-mail messages that he sent the applicant
with counseling. Moreover, CGPC stated, under the Personnel Manual, the applicant
was responsible for managing his own performance and obtaining sufficient perform-
ance feedback.
In light of the statements by the rating chain and CGPC’s memorandum, the JAG
argued that the OER should not be removed from the applicant’s record because he has
failed to prove a “clear and prejudicial violation of a statute or regulation, or alterna-
tively, a misstatement of a significant hard fact.” Germano v. United States, 26 Cl. Ct.
1446, 1460 (1992). He argued that the applicant has failed to overcome the presumption
that his rating chain prepared the OER “correctly, lawfully, and in good faith.” Arens v.
United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804,
813 (Ct. Cl. 1979); see 33 C.F.R. § 52.24(b). The JAG alleged that the “record establishes
that the OER was properly prepared in accordance with the Personnel Manual, it repre-
sents the honest professional judgment of the Supervisor and Reporting Officer, and
accurately reflects Applicant’s actual performance during the period of the report.”
The JAG argued that the applicant’s argument that the marks in the disputed
OER are lower than others he has received during his career is irrelevant, citing Grieg v.
United States, 640 F.2d 1261, 1269 (Ct. Cl. 1981), in which the court held that “the fact
that this fine officer had better ratings before and after the challenged OER is of no legal
moment nor of probative value as to the rating period covered by the one OER with
which he is dissatisfied.” The JAG concluded that the challenged OER in this case “rep-
resents the honest professional judgment of the Supervisor and Reporting Officer” and
should not be removed.
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
On September 2, 2005, the applicant responded to the views of the Coast Guard.
The applicant repeated his allegations that the marks in the OER were based on the
Supervisor’s misunderstanding of his performance in five situations. Regarding the
Coast Guard’s views on his allegation (1), the applicant stated that he had no previous
knowledge of and was not present at the unauthorized barracks search by CWO X.
Regarding allegation (2), the applicant stated that he had no knowledge of his staff
members’ e-mail campaign until after the fact and that he immediately prepared a nega-
tive “page 7” entry documenting her actions. He submitted a copy of the page 7, dated
August 23, 2001, which was to be signed by the Supervisor. Regarding allegation (3),
the applicant alleged that BMC X’s behavior gave him “no choice but to report him,”
and that his own handling of the problem was “obviously appropriate and necessary
under the circumstances.”
Regarding allegation (4), the applicant alleged that the situation with Mrs. Q and
her family was neither caused nor escalated by himself or his family. The applicant
alleged that the Supervisor’s submissions indicate that he relied solely on Mrs. Q’s ver-
sion of events in finding fault with the behavior of the applicant’s family, which was
“irresponsible and unethical.” The applicant also submitted a copy of a charge sheet he
completed on CPO Z, who responded to Mrs. Q’s complaint about his daughter staring
at them by going to the neighbor’s house to speak to the applicant’s wife and other
adults. The charge sheet shows that he charged CPO Z with breach of peace by
“wrongfully using abusive, provoking, and reproachful language toward” the
applicant’s wife, the neighbor, and the neighbor’s mother; with assault by lunging and
raising his hand while using threatening words so as to put the neighbor’s mother “in
apprehension of being struck”; with using indecent language in the presence of
children; and with communicating a threat.
Regarding allegation (5), the applicant stated that the accusation that he was
never at work “is clearly a false statement coming from one source—[CWO X]—who
has contradicted himself throughout this process depending on who was asking for his
input. … His assertions are therefore suspect and should be deemed unreliable.” The
applicant alleged that he was consistently at his office and was often there after hours.
The applicant stated that marks of 4 in an OER are well known throughout the
service as “damning by faint praise.” He pointed out that RADM Y called the OER
marks “mediocre” and asked the Supervisor and Reporting Officer to explain them.
Moreover, the applicant alleged that RADM Y has called into question the Supervisor’s
own leadership abilities by saying that he did not like to “give bad news, nor hear bad
news” and that the applicant “may not have received the level of oversight expected.”
The applicant alleged that the Supervisor has “been shown repeatedly to be an inade-
quate leader,” which “casts serious doubt upon the credibility of any of [the Supervi-
sor’s] assertions as well as his justifications for performance evaluation marks.”
In support of his allegations, the applicant submitted several signed statements,
including the following (which are lettered consecutively with his prior submissions):
(I) YNC X stated that he “always observed [the applicant] at work during
normal work hours in uniform prescribed by regulations” and that if the applicant was
unable to be in the office during the day, he was there in the evening. YNC X stated
that after 9/11 everyone in their office “was putting in a 16-20 hour workday trying to
procure supplies and parts for the numerous patrol boats responding, buying needed
emergency supplies, cooking food for the many boat crews and support personnel 24
hours a day, finding and arranging lodging for the numerous additional personnel
arriving every day, processing the mountain of administrative work. … This continued
until November without a let up. [The applicant] was in the midst of this keeping track
of everything that my team was doing and giving direction and guidance to new
upcoming issues.” He stated that the applicant had a “good work ethic.”
YNC X stated that he was unaware of any issues between the applicant’s and
Mrs. Q’s families except that Mrs. Q accused the applicant’s daughter of sticking her
tongue out at her son. He stated that because he could not find adequate off-base
housing, Mrs. Q’s family chose to stay at Xxxxxx. YNC X also stated that the applicant
reacted in a professional manner following the suicide of a chief petty officer.
YNC X stated that BMC X, the station XPO, was “very unstable in character”
because he would watch and take notes on other families’ behavior and complain when
they broke rules. He alleged that BMC X also tried to get a chief petty officer in trouble
by lying about him. He stated that BMC X also would complain about the lack of
administrative support from the applicant’s office at a time when the office only pro-
vided support for “supply, housing, facilities engineering, and the armory,” and it was
BMC X’s own duty to provide administrative support for his unit. YNC X stated that
after 9/11, BMC X ignored a direct order by the applicant to get a valid Coast Guard
sticker and got a DOD sticker instead.
(J) YNC M stated that the applicant “was regularly in the office and in uniform”
and “also stayed late many times, long after others had gone home.” She stated that
some days he was out of uniform because he “had physical therapy scheduled due to a
car accident.”
YNC M stated that BMC X was one of the people at Xxxxxx who “felt that they
were above the rules and would not comply” with the order to have a valid decal. YNC
M stated that although she spent days issuing new decals and “never turned anyone
away,” BMC X refused to find the time to get one until December, three months after he
was asked to do so. YNC M stated that whenever the guards at the gate asked BMC X
about the decal he would “belittle/berate them.” She stated that as the station XPO, he
should have been setting an example. Instead, he “seemed to enjoy causing strife.”
(K) The applicant’s wife stated that sometime after 9/11, the applicant told her
that Mrs. Q had complained that their daughter had stuck out her tongue at Mrs. Q’s
son. The applicant had told Mrs. Q “that they were children, what did she want him to
do,” but Mrs. Q was upset. So they told their daughter not to stick out her tongue at
others. Their daughter responded by saying that she was nervous when Mrs. Q or her
son would stare at her and that “other children told her they were not allowed to play
with [the son].” The applicant’s wife stated that when she tried to discuss the matter
with Mrs. Q, the latter complained that Mrs. M, who lived next door to Mrs. Q, was
spying on her family and that her son was not allowed to play with other children.
Thereafter, the applicant spoke with Mrs. M, who denied spying on Mrs. Q, and the
applicant and YNC X built a fence between their houses, so that Mrs. M would have to
walk around Mrs. Q’s property to visit the applicant’s wife.
Thereafter, the applicant’s wife stated, her daughter “became withdrawn and
was unnerved because of what I consider [Mrs. Q’s] malevolent behavior towards my
daughter. Other residents would also mention to me that [Mrs. Q] seemed to be trying
to intimate my 9-year-old daughter … [who] was afraid to go outside & started having
nightmares because of [Mrs. Q’s] behavior.” Therefore, the applicant’s wife contacted
the police, “unbeknownst to my husband,” “to document what they stated was abusive
behavior towards a minor.” She alleged that the police stated that “cases like this
would lead to further abuse and potentially physical abuse if not documented and
interceded early.” She alleged that she wanted to resolve the situation with Mrs. Q “as
parents” but her husband told her he could not speak to Mr. or Mrs. Q. She further
alleged that “[s]ome residents stated that they respected and liked me but would not
trust me if I continued to be friends with [Mrs. M],” but her husband told her not to let
others choose her friends for her.
The applicant’s wife stated that the Work-Life counselor told her that the best
solution would be for Mrs. Q’s family to move off of the Xxxx as Mrs. Q “was not
allowing the situation to be resolved.” She alleged that he told her that Mrs. Q saw the
applicant’s family as “perfect” and was jealous and “lashing out.” Therefore, she and
the applicant began looking for non-Government housing.
The applicant’s wife stated that in April 2002, two members came to Mrs. M’s
porch and said that their children were staring at Mrs. Q. Therefore, she called the chil-
dren and had them play inside. However, CPO Z began screaming and cursing at Mrs.
M and blaming her for all the problems on Xxxxxx. The applicant arrived and mediated
the situation, and thereafter Mr. M built a privacy fence “to avoid any more potential
staring from the children.”
(L) SK1 P stated that the applicant “was available in his office during and after
hours. … During the closing of the [fiscal year], I always worked late and he was in his
office signing any documents I needed to perform my job. … During the WTC opera-
tion, [the applicant] … was available day and night whenever the duty personnel called
him.”
(M) A Coast Guard auxiliarist stated that the applicant “was a strong person
who made improvements to facilities, working environment, and really cared for his
people. He did all these things while dealing with everyday problems and adversities,
including the terrible attack on America of 9/11.”
(N) Another auxiliarist stated that the applicant was a professional who “use[d]
his work ethic to restore Xxxxxx. He worked on the grounds, the electronic gate was
repaired and work areas improved. He did these and many more while standing duty
not only at Xxxxxx but Xxxxxxx xxxxx [and] would come in to Xxxxxx Office at night.
[BMC X] tried to blame everyone else for the assignments he couldn’t accomplish …
and wouldn’t sign auxiliarist orders to volunteer at the Xxxx.”
The applicant also submitted e-mails from others who praised his performance of
duties in prior and later assignments. In addition, he submitted copies of e-mail
communications he initiated with various officers after receiving the disputed OER.
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.1.c.5. states that “[n]o specific form or forum is prescribed for per-
formance feedback except for ensigns and lieutenants (junior grade). Performance feed-
back occurs whenever a subordinate receives advice or observations related to their per-
formance in any evaluation area. Performance feedback can take place formally (e.g.,
during a conference) or informally (e.g., through on-the-spot comments). Regardless of
the forum, each officer should be clear about the feedback received. If the feedback is
not fully understood, it is the Reported-on Officer’s responsibility to immediately seek
clarification.” Article 10.A.2.c.2.e. states that it is a Reported-on Officer’s responsibility
to seek feedback on his performance as necessary. Article 10.a.2.c.2.k. states that an
officer “[a]ssumes ultimate responsibility for managing [his] own performance, not-
withstanding the responsibilities assigned to others in the rating chain. This includes
ensuring performance feedback is thorough … .” Article 10.A.2.d.2.e. provides that the
Supervisor “[p]rovides performance feedback to the Reported-on Officer upon that offi-
cer’s request during the period or at such other times as the Supervisor deems appro-
priate.”
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. …
• • •
• • •
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, who completes the
remainder of the OER):
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.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
1.
2.
4.
3.
The Board has jurisdiction concerning this matter pursuant to 10 U.S.C.
The Board makes the following findings and conclusions on the basis of the
applicant's military record and submissions, the Coast Guard's submission, and appli-
cable law:
§ 1552. The application was timely.
The 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.
Absent specific evidence to the contrary, the Board presumes that an
applicant’s rating officials acted “correctly, lawfully, and in good faith” in making their
evaluations.3 Once an applicant has rebutted the presumption of regularity by present-
ing at least some evidence that “specifically and convincingly contradicts his rating offi-
cials’ marks and comments,”4 the Board weighs the evidence in the record to determine
whether the applicant has met his burden of proof—the preponderance of the evidence
—with respect to the disputed OER.5 The Board determines whether the applicant has
proved by a preponderance of the evidence that the disputed OER was adversely
affected by a “misstatement of significant hard fact,” factors “which had no business
being in the rating process,” or a prejudicial violation of a statute or regulation.6 With
this standard in mind, the Board has carefully considered all of the evidence regarding
the disputed OER and draws the following conclusions with respect to the evidence.
The applicant argued that the marks in the disputed OER are erroneous
and cited as evidence the fact that they are lower than the marks he received in OERs
for assignments before and after his assignment to Xxxxxx. The Board notes that the
disputed OER is the first that the applicant received as a lieutenant commander. More-
over, as the JAG argued, the fact that the applicant has received better OERs during his
career does not prove that the marks in the disputed OER are erroneous.7
3 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct.
Cl. 1979); see 33 C.F.R. § 52.24(b).
4 See CGBCMR Docket No. 2000-194.
5 33 C.F.R. § 52.24(b). In determining the preponderance of the evidence, the Board continues to consider
the evidentiary weight of the rating chain’s assessment even though the presumption of regularity has
been rebutted. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256 n.10 (1981).
6 Hary v. United States, 618 F.2d 704, 708 (Cl. Ct. 1980); CGBCMR Docket No. 86-96.
7 Grieg v. United States, 640 F.2d 1261, 1269 (Ct. Cl. 1981) (holding that “the fact that this fine officer had
better ratings before and after the challenged OER is of no legal moment nor of probative value as to the
rating period covered by the one OER with which he is dissatisfied”).
5.
7.
6.
The applicant argued that the marks in the disputed OER are erroneous
because they are “wildly inconsistent” with the corresponding written comments. Arti-
cle 10.A.2.f.2. of the Personnel Manual provides that an OER should “reflect[] a reason-
ably consistent picture of the Reported-on Officer’s performance and potential.” How-
ever, under Article 10.A.4.c.4., numerical marks are assigned by comparing the officer’s
performance with the written standards on the OER form, and written comments are
added merely to support the marks, especially those higher than a 4. After reviewing
the marks, the written standards for those marks on the OER form, and corresponding
comments in the disputed OER, the Board is not convinced that the comments are so
laudatory as to be inconsistent with the marks and corresponding written standards.
The fact that the Supervisor and Reporting Officer included many nice comments and
details about the applicant’s performance does not prove that the applicant’s overall
performance in each of the various performance categories exceeded the assigned mark
of 4 or 5 during the evaluation period.
The applicant argued that the marks in the disputed OER were based on
his Supervisor’s misunderstanding of five situations. There are no specific comments
concerning the applicant’s five allegations in the OER. Moreover, the Supervisor stated
in his declaration that the marks in the OER were not based merely on the five situa-
tions identified by the applicant but on a “multitude of mishaps and blunders” that
resulted in the applicant’s removal as supervisor of Xxxxxxxx Xxxxxx and in the
disputed OER. The Supervisor also indicated that a primary consideration was the
applicant’s conflicts with the tenant commands at Xxxxxx. The Supervisor’s statements
were strongly supported by the Reporting Officer, who stated that he himself was
dissatisfied with the performance of the applicant, who was relieved of duty for a
“multitude of reasons.” In support of his allegations, the Supervisor submitted state-
ments from CWO X, CWO Z, and CPO Y, who strongly criticized the applicant’s
performance.
The applicant alleged that his Supervisor mistakenly believed that the
applicant searched the barracks or acquiesced in CWO X’s search of the barracks after a
burglary at the PX and that this mistaken belief caused his marks to be lowered. The
declarations of the Supervisor and Reporting Officer clearly indicate that they knew
that CWO X searched the barracks but believed that the applicant wrongly allowed the
search of the barracks even though he had recently been warned that only a military
judge or the Commander, XXXX, could authorize the search of a barracks. The
Reporting Officer stated that the “scenario seemed contrived considering that [the
applicant] was the officer responsible for the PX that was broken into.” The Board notes
that in CWO X’s statement on behalf of the applicant, he wrote that he received permis-
sion to search the barracks from his immediate supervisor, who was not the applicant.
However, he did not say that the applicant had no foreknowledge of his search or that
he did not discuss the break-in at the PX with the applicant before conducting the
search. As supervisor of the Xxxxxxxx, the applicant had a duty, once he was warned
8.
9.
following the first improper search, to ensure to the best of his ability that no further
improper search was conducted on the base. Therefore, the Board finds that the appli-
cant has not proved by a preponderance of the evidence that the Supervisor and
Reporting Officer were wrong in finding fault with his performance in connection with
the second improper search or in believing that he should have prevented it.
The applicant alleged that his Supervisor mistakenly believed that he
improperly handled a situation in which a petty officer threatened a corpsman despite
the fact that he was away on leave at the time and did not learn of the threat until after
the Reporting Officer had handled the situation by ordering a psychiatric evaluation for
the petty officer. The declarations of the Supervisor and Reporting Officer show that
they were not mistaken about the applicant’s lack of involvement on the day of the
threat but were dissatisfied with how he handled the subsequent improper actions of
his staff members on behalf of the petty officer. The applicant submitted a copy of a
page 7 documenting the improper actions for one staff member’s record. However, the
record also contains evidence that his response was considered inadequate by the base
chiefs, who therefore held a Chiefs’ Mast, and that he excessively delayed submitting a
special performance evaluation to document his staff member’s misdeeds. The Super-
visor and Reporting Officer concluded that the applicant only reluctantly supported the
Reporting Officer’s decision. The applicant has not proved by a preponderance of the
evidence that his Supervisor or the Reporting Officer were mistaken about how he
responded to his staff members’ subsequent improper reactions.
The applicant alleged that his Supervisor mistakenly believed that he was
“picking on” BMC X by attempting to bring UCMJ charges against him for failing to
acquire a valid decal and that this mistaken belief caused his marks to be lowered. The
record indicates that it was not the Supervisor but BMC X’s own supervisor who
accused the applicant of “picking on” BMC X. Statements by a senior chief petty officer,
YNC X, and YNC M strongly support the applicant’s allegation that BMC X behaved
improperly about the decal. The applicant, however, has not proved that the
Supervisor or Reporting Officer were mistaken in their understanding of BMC X’s
behavior or of the applicant’s response. While he believed that criminal charges were
justified, his rating chain clearly believes that his response was due in part to past con-
flicts between himself and BMC X and that a more skillful leader could have handled
the situation better and without causing BMC X’s chain of command to complain.
Although the applicant has proved that BMC X’s behavior was unacceptable, he has not
proved that his Supervisor and Reporting Officer were misinformed of BMC X’s
behavior or of his response to it. He has not proved that their separate, necessarily sub-
jective judgments that the applicant’s response was “petty” and “way out of propor-
tion” and that he could have handled the problem better were erroneous.
The applicant alleged that his Supervisor mistakenly believed that he and
his family were causing Mrs. Q’s life to be “unlivable” and exacerbating conflicts among
residents instead of ameliorating them. He alleged that this mistaken belief caused his
10.
marks to be lowered. The statements by the Supervisor and the Reporting Officer indi-
cate that they found at least some of Mrs. Q’s allegations to be credible, whereas the
applicant believes that Mrs. Q was paranoid, irrational, abusive to his child and her
own, and quite mistaken about his own conduct and the conduct of his daughter, his
wife, and Mrs. M. His wife supports him in his characterization of Mrs. Q and their
own actions. The tone and content of Mrs. Q’s e-mails suggest that she was highly dis-
traught, that she improperly reacted to hurtful statements the applicant’s daughter
made about her son by “watching” or “staring at” the daughter, and that she may have
overreacted to the warnings of the police. In addition, the applicant submitted evidence
that Mr. and Mrs. Q either failed or long delayed to get counseling for their son, as
ordered by the State.
11.
In the applicant’s e-mail to the Supervisor dated March 10, 2002, he
attempted to hide his family’s involvement in the issue by referring to a “10-year-old
girl” without identifying her as his daughter and by stating that Mrs. Q “threatened to
scratch the eyes out of the girl’s father”—i.e., himself. The Supervisor’s statement indi-
cates that he noted the applicant’s deception by omission after receiving an e-mail from
Mrs. Q. Moreover, the Board notes that on March 10, 2002, the applicant told the Super-
visor that he had asked YNC X to “address this hostile situation to avoid conflict
between the families,” but YNC X recently stated that he was unaware of any issues
between the applicant’s and Mrs. Q’s families except that Mrs. Q had accused the appli-
cant’s daughter of sticking her tongue out at his son. Therefore, it appears that if the
applicant did hand the problem to YNC X, he did so without adequately informing him
of the scope of the hostilities or admitting the extent of his own family’s involvement.
12.
The record indicates that increasing hostilities between Mrs. M, Mrs. Q,
the applicant’s wife, and their children spread conflict among residents of Xxxxxx. The
applicant’s wife stated that some residents told her that they would no longer trust her
if she remained a friend of Mrs. M. The Supervisor stated that the Work-Life counselor
told him that the applicant contributed to the conflicts by “violating command
confidentialities,” which increased gossip. The Reporting Officer (presumably also
based on reports) concluded that the applicant’s wife was “relentless” in trying to get
Mrs. Q’s family moved off the Xxxx and that the applicant “totally failed to contain the
situation.” The record also contains other serious allegations about the applicant’s
inappropriate comments to residents and children. Although the applicant was clearly
faced with an extremely difficult and delicate situation with respect to Mrs. Q and her
son and their accusations against his family, he has not proved by a preponderance of
the evidence that his Supervisor and Reporting Officer were mistaken in their under-
standing of the situation or of his response to it. He has not proved that they were
mistaken in their belief that he could have and should have better handled the difficult
conflicts that arose between the residents of Xxxxxx.
The applicant alleged that his Supervisor mistakenly believed that he was
rarely at work and that this mistaken belief caused his marks to be lowered. He submit-
13.
ted statements by YNC X, YNC M, ET1 M, SK1 P, and an auxiliarist indicating that he
was regularly at work and in uniform and often worked late. CWO X told the Report-
ing Officer, however, that the applicant “never seemed to be there.” CWO X related an
incident from which he concluded that the applicant had been “hiding in his home” to
avoid dealing with a problem. CWO X also stated that the applicant claimed to have
been spending a lot of time at XXXX but he learned from LT F that this was not true.
The ADO watch rotation manager stated that the applicant stopped serving as an ADO
at XXXX in July 2001. LT F reported in November 2001 that the applicant skipped a
meeting with her to take his daughter to the dentist and that both CWO X and another
member told her that the applicant was “rarely there.” CPO Y complained in April
2002 that the applicant must have “what appears to me to be a very different work
schedule than most of us which … does make it difficult to conduct business on a daily
basis if he is not there. It just seems to most of the senior personnel here at Xxxxxx that
when something needs his attention he has been very difficult to track down.” This
evidence indicates that the applicant’s own staff was satisfied with his work habits but
that others often could not find the applicant when they needed him. The Reporting
Officer, noting that the applicant lived a few yards from his office, concluded not that
the applicant was actually absent from the base a lot, but that the applicant “did not
project enough command presence.” The Supervisor did not state that he believed that
the applicant was never at work but that the complaints of other officers led him to
question the applicant’s performance and contributed to the mark of 4 he assigned the
applicant for the performance category “Results/Effectiveness.” The Board finds that
the applicant has not proved by a preponderance of the evidence that his Supervisor
and Reporting Officer were mistaken about his work ethic or erred in taking the
complaints of other officers into account in assigning the numerical marks in the
disputed OER.
15.
14.
The applicant stated that CWO X was the source of misinformation about
his work habits and that CWO X was not a reliable witness. He pointed out that CWO
X sent him an e-mail saying that he cannot remember ever discussing the applicant’s
attendance at Xxxxxx with the Supervisor. He alleged that this contradicted CWO X’s
comments about his work ethic elsewhere in the record. However, the record contains
no evidence that CWO X ever communicated with the Supervisor directly about the
applicant’s alleged absences, and CWO X’s e-mail to the applicant was in response to a
direct query from the applicant about whether CWO X had ever told the Supervisor
that the applicant was “never at Xxxxxx.” The fact that CWO X did not admit to the
applicant that he had complained about the applicant’s work habits to officers other
than the Supervisor does not persuade the Board that CWO X is not a creditable witness
in this case. Moreover, CPO Y statement in 2002 strongly supports CWO X’s
complaints about the applicant’s work hours and availability to handle problems at
Xxxxxx.
In his declaration, the Reviewer for the disputed OER, RADM Y, criticized
the Supervisor’s own performance and suggested that the applicant “may not have
received the level of oversight expected of his immediate supervisor.” RADM Y also
opined that the Supervisor “did not like to give bad news nor hear bad news.” The
applicant alleged that the Supervisor failed to counsel him about his performance dur-
ing the evaluation period. However, the record contains several e-mails concerning
Mrs. Q that indicate that the Supervisor promptly responded to “bad news” from the
applicant and, rather than ignoring problems, assumed the responsibility for resolving
them himself. The Supervisor’s e-mail dated November 16, 2001, indicates that the
Supervisor was not averse to giving the applicant “bad news” either. The Supervisor
stated that he provided the applicant with both written guidance and “constant verbal
feedback.” In addition, he stated that the applicant was called into the Reporting Offi-
cer’s office for counseling several times. Article 10.A.1.c.5. of the Personnel Manual
states that “[p]erformance feedback occurs whenever a subordinate receives advice or
observations related to their performance in any evaluation area. Performance feedback
can take place formally (e.g., during a conference) or informally (e.g., through on-the-
spot comments).” The Board finds that the applicant has not proved by a preponder-
ance of the evidence that the Supervisor failed to provide him with sufficient counseling
and oversight during the evaluation period or that any leadership deficiencies on the
part of the Supervisor caused him to be removed from his position at Xxxxxx.
The applicant’s OER indicates that he successfully completed a great deal
of work during the evaluation period. Several statements in the record show that some
leaders of the Xxxxxx community were very pleased with his performance. Their
statements about improvements to facilities, security, and community relations, how-
ever, do not prove that his Supervisor or Reporting Officer relied on inaccurate infor-
mation in assessing his performance. The record shows that the applicant made signi-
ficant improvements at Xxxxxx, that his work was appreciated by many people, and
that he performed many difficult tasks well under trying and stressful circumstances.
Nevertheless, the Board cannot find on the basis of the record that the applicant’s rating
chain erred in removing him from the position at Xxxxxx or in assigning him primarily
marks of 4 and 5, given the written standards for those marks on the OER form.
16.
17.
The record contains many allegations by the applicant and others about
the problems at Xxxxxx and the applicant’s performance. Those allegations not speci-
fically addressed above are considered to be without merit and/or not dispositive of the
case.
The applicant has not proved by a preponderance of the evidence that the
disputed OER was adversely affected by a “misstatement of significant hard fact,” fac-
tors “which had no business being in the rating process” (such as a significant misun-
derstanding on the part of the Supervisor or Reporting Officer of the applicant’s skills
and performance), or a prejudicial violation of a statute or regulation.8
18.
8 Hary v. United States, 618 F.2d 704, 708 (Cl. Ct. 1980); CGBCMR Docket No. 86-96.
19. Accordingly, the applicant’s request should be denied.
ORDER
The application of xxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his
Toby Bishop
J. Carter Robertson
Eric J. Young
military record is denied.
CG | BCMR | OER and or Failure of Selection | 2009-029
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CG | BCMR | Advancement and Promotion | 2009-135
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CG | BCMR | Enlisted Performance | 1999-124
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CG | BCMR | OER and or Failure of Selection | 2006-085
Additionally, he hosted a meeting of the Standardiza- tion Team Chiefs and Headquarters program managers at xxxxx School to review the … Manual … [The applicant] encouraged and supported professional growth of xxxxx personnel. The reporting officer’s part of the OER includes block 7, in which the reporting officer com- ments on the supervisor’s evaluation of the officer; block 8, in which the reporting offi- cer assigns numerical marks for the categories “Initiative,” “Judgment,”...
CG | BCMR | OER and or Failure of Selection | 1999-077
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CG | BCMR | OER and or Failure of Selection | 2003-089
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CG | BCMR | OER and or Failure of Selection | 2001-017
The applicant alleged that she told her supervisor about the class. The Chief Counsel pointed out that the XO’s declaration supports the supervisor’s comment in the disputed OER. out, the applicant did not dispute in her application to the PRRB: The Chief Counsel also addressed the following comments, which, he pointed COMMENTS [A1] & [A2]: The Chief Counsel alleged that the applicant’s excuse for resisting supporting the reservists (being short-staffed) “does not refute the objectivity of...
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CG | BCMR | OER and or Failure of Selection | 2002-084
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