Search Decisions

Decision Text

CG | BCMR | OER and or Failure of Selection | 2005-076
Original file (2005-076.pdf) Auto-classification: Denied
DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                       BCMR Docket No. 2005-076 
 
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. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 

 
 

 
 

 
 

 
 

 
 

 

 



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  • CG | BCMR | OER and or Failure of Selection | 2001-017

    Original file (2001-017.pdf) Auto-classification: Denied

    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...

  • CG | BCMR | OER and or Failure of Selection | 2008-066

    Original file (2008-066.pdf) Auto-classification: Denied

    On March 19, xxxx, the RO forwarded to the District Commander the report of the investigation into the grounding of the XXXX on December 2, xxxx. In light of CDR L’s assessment of the RO’s behavior on March 12, xxxx, when the applicant exercised her right to remain silent and consult an attorney; the EPO’s statement about receiving an email on March 12, xxxx, inviting the crew to attend a public mast the fol- lowing Friday; and the Family Advocacy Specialist’s description of the RO’s...

  • CG | BCMR | OER and or Failure of Selection | 1998-018

    Original file (1998-018.pdf) Auto-classification: Denied

    Allegations Concerning Second Contested OER The applicant alleged that the second disputed OER, which covered the period from July 16, 199x, to August 5, 199x, should be removed because the supervisor [S] and reporting officer [RO2] for that OER married each other within a year of completing the OER. The third OER that the applicant received for his work on the XXXX project (no. In regard to the second disputed OER, he alleged, and the Coast Guard admitted, that the supervisor and...

  • CG | BCMR | OER and or Failure of Selection | 2002-084

    Original file (2002-084.pdf) Auto-classification: Denied

    Among the duties of managing his or her performance, the reported-on officer requests an “end-of-period conference” not later than 21 days before the end of the reporting period with his supervisor and informs the Commander of CGPC “directly by written communication … if the official copy of the OER has not been received 90 days after the end to the reporting period.” Personnel Manual, Articles 10.A.2.c.2.f. The Board finds that the applicant has failed to prove that his rating chain...