DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-162 
 
XXXXXXXXXXXXXXXX 
xxxxxxxxxxxxxx, Ensign  
   

 

 
 

FINAL DECISION 

 
AUTHOR: Ulmer, D. 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section  1552  of 
title 10 and section 425 of title 14 of the United States Code.  The Chair docketed the 
case  on  September  6,  2005,  upon  receipt  of the  applicant’s  completed  application  and 
military records. 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  April  26,  2006  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  by  adjusting  the 
marks and remarks in sections 8., 9., and 10. of the Officer Evaluation Report (OER) for 
the period October 1, 2004, to March 31, 2005 (disputed OER).  On September 2, 2005, 
the  Chair  of  the  Board  contacted  the  applicant  to  clarify  his  request  since  he  did  not 
specify  what  the  disputed  marks  should  be.  The  applicant  clarified  his  request  by 
stating  that  he  wanted  the  entire  reporting  officer's  section  of  the  disputed  OER 
removed from his record.   
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that certain of the reporting officer's marks and comments 
are erroneous and inaccurate because they were based on an incident that a command 
investigation  found  resulted  from  racial  discrimination  and  not  from  the  applicant's 
misuse of alcohol.  In this regard, the applicant stated the following: 

 

there  was  no  need 

An  investigation  was  done  and  the  result  stated  that  the  incident  was 
racially motivated and alcohol was not a contributing factor.  On the night 
in  question  the  [civilian  police]  officer  assured  me  that  the  incident  was 
confidential  and 
inform  my  command.  
Understanding  that  this  was  a  confidential  situation  and  realizing  that  I 
had  done  nothing  wrong  I  felt  as  though  there  wasn't  any  significant 
information to report.  After all, I wasn't drunk.  I didn't fight with anyone 
and  I  did  the  responsible  thing  by  taking  a  taxi  out  that  night.    In 
retrospect, even though I felt I was the victim I should have informed my 
command.  By doing so my character would not be in question.  Although, 
I  did  not  inform  my  command  I  do  not  feel  this  level  of  punishment  is 
appropriate.   

to 

 
Disputed OER 
 
 
In  block  8.  of  the  reporting  officer's  section  of  the  OER,  the  applicant  received 
marks  of  4  in  initiative  and  well  being,  marks  of    3  in  judgment  and  professional 
presence,  and  a  mark  of  2  in  responsibility.        The  comments  supporting  the  below 
average marks were as follows: 
 

In  March  2005,  [the  applicant]  was  involved  in  an  altercation  with 
bouncers  at  a  local  night  club  resulting  in  his  being  held  by  city  police.  
Demonstrated  poor  judgment  and  avoided  responsibility  for  his  actions 
when  did  not  contact  the  command;  provided  no  information  about  the 
incident  until  approached  by  his  supervisor  two  days  after  it  had  been 
reported  to  the  unit.    This  command  determined  that  alcohol  was  not  a 
factor  in  the  incident.    However,  [the  applicant's]  negative  involvement 
with local police reflected poorly on the Coast Guard and the officer corps.  

 
The  reporting  officer  rated  the  applicant  as  a  qualified  officer  (the  second  of 
 
seven  blocks,  with  the  seventh  block  being  the  highest)  when  he  compared  him  with 
other ensigns the reporting officer has known throughout his career.   
 
 
follows: 
 

The  reporting  officer  evaluated  the  applicant's  potential  for  future  service  as 

While [the applicant's] performance of duties was satisfactory during the 
reporting  period,  his  personal  conduct  while  off-duty  was  questionable 
and  demonstrates  a  reluctance  to  acknowledge  his  responsibilities  as  an 
officer  when  he  is  not  at  work  or  on  duty.    He  has  not  earned  the 
confidence  of  this  command  to  resume  law  enforcement  duties  or  be 
granted  access  to  classified  materials  &  weapons.    His  potential  for 

assuming  positions  of  increased  authority  and  responsibility  remains 
poor.  [The applicant] is not recommended for promotion with his peers.  

 

SUMMARY OF THE RECORD 

 
 
The  applicant  was  commissioned  an  ensign  in  the  Coast  Guard  Reserve  on 
February 2, 2004.  He began serving on a three-year active duty contract on March 10, 
2004, and was assigned to a Marine Safety Office. 
 
 
During liberty hours on the evening of March 18, 2005, the applicant went to a 
bar  with  friends.    He  had  been  there  for  approximately  an  hour  to  two  hours  when, 
according to the applicant, one of the bouncers came up behind him, grabbed his arms, 
and  told  him  to  leave  the  club  for  no  apparent  reason.  The  applicant  stated  that  he 
pulled his arms away from the bouncer but did not touch him, at which point several 
other bouncers arrived and handcuffed the applicant and removed him from the club.  
A  city  police  officer  (not  called  by  the  club)  was  driving  by  and  saw  an  individual 
handcuffed and on the ground.  The bouncers told the police officer that they did not 
want to file a complaint against the applicant, but the police officer took the applicant to 
a detoxification center where he remained until approximately 5:30 that same morning.  
No  sobriety  tests  were  administered  to  the  applicant.    The  applicant  did  not 
immediately  report  the  incident  to  his  command,  but  the  police  officer  notified  the 
command that the applicant was in the detoxification center.    
 
Investigating Officer Report 
 
 
On  March  25,  2005,  the  executive  officer  appointed  an  officer  to  investigate 
(investigating  officer  (IO))  the  circumstances  regarding  the  applicant's  alleged 
misconduct on March 18 and 19, 2005. 
 
 
According  to  the  IO  report,  a  city  police  officer  arrived  at  the  club  and  the 
bouncers  told  him  that  the  applicant  was  asked  to  leave  the  club  because  he  had 
removed  his  shirt  after  being  told  to  put  his  shirt  on  earlier.        One  of  the  bouncers 
stated that the applicant struck him and a second bouncer corroborated the allegation.  
In  contrast,  the  applicant  stated  that  he  and  his  friend  overheard  the  bouncer  tell  the 
police officer that the bouncer approached the applicant because he had his shirt off and 
because the applicant was dancing with the bouncer's girlfriend.  The applicant's friend 
stated  that  the  applicant's  shirt  was  not  off,  only  unbuttoned,  and  there  was  another 
shirt beneath the unbuttoned shirt.   
 

The IO report stated that according to the applicant, the police officer told him 
that he was taking the applicant to the city's detoxification center so that he could cool 
down,  and  that  his  placement  in  the  detoxification  center  was  a  confidential  matter.  
However, the police officer found the applicant's Coast Guard identification card and 

reported  the  incident  to  the  applicant's  command.    The  applicant  remained  in  the 
detoxification center until approximately 0530 March 19, 2005.   
 
The  IO  report  stated  that  no  sobriety  tests  were  performed  on  the  applicant 
 
during the entire incident.  According to the IO report, the police officer stated that the 
applicant  had  been  drinking  but  he  was  not  falling  down  drunk.    The  police  officer 
described  the  applicant's  eyes  as  watery  and  bloodshot  and  his  breath  as  smelling  of 
alcohol.   However, the applicant stated that he had drunk only one beer that evening, 
which was corroborated by his friend.   
 
The IO offered the following pertinent opinions: 
 
"1.There  are  two  stories  as  to  why  [the  applicant]  was  approached  by  the  bouncers.  
Both stories do not seem to justify why a bouncer would approach a person in a bar.  
Removing a shirt does not seem worthy of a bouncer approaching a person in a bar.  A 
person dancing with someone's girlfriend when she appears to be accepting of this is 
also not worthy of a bouncer approaching a person in a bar.  It seems probable that the 
situation could be exacerbated by [the applicant] being Afro-American.  [The applicant] 
stated there seems to be a history of the [club] being prejudiced to African Americans.  I 
[IO] could not determine any way to prove or disprove this claim.   
 
"2.  There is not enough evidence available to prove [the applicant] actually did punch a 
bouncer at the [club]. 
 

  * 

* 

* 

 
"4.    There  does  not  seem  to  be  enough  evidence  to  suggest  [the  applicant]  was 
intoxicated or that alcohol was a cause for this incident  . . .     
 
"5.    Looking  at  the  definition  of  an  Alcohol  Related  Incident  from  [the  Personnel 
Manual] and the facts available for this investigation, this incident should not be labeled 
as an Alcohol Related Incident.  Alcohol does not appear to be a 'significant causative 
factor  that  results  in  the  member's  loss  of  ability  to  perform  assigned  duties,  brings 
discredit upon the Uniformed Services, or is a violation of the Uniform Code of Military 
Justice, Federal, State, or local laws.'  It appears an unknown person came up  behind 
[the  applicant]  and  grabbed  him  forcibly.    This  person  asked  him  to  leave  the  bar 
without  any  explanation.    It  is  understandable  that  [the  applicant]  pulled  away  from 
this person, who turned out to be a bouncer.  [The applicant] did what most members 
would be expected to do without any alcohol in their system.  [The applicant] admits to 
drinking one beer throughout the entire evening so alcohol was consumed, but there is 
not enough evidence to indicate alcohol was why this incident occurred  . . . "  
 

The  IO  recommended  that  the  applicant  suffer  no  penalties  resulting  from  the 

 
incident.    
 

VIEWS OF THE COAST GUARD 

 
 
On January 24, 2006, the Judge Advocate General of the Coast Guard submitted 
an advisory opinion recommending that the Board grant the following alternative relief 
to the applicant.  "Replace the disputed [OER] for the period 1 October 2004 to 31 March 
2005 with an OER for Continuity Purposes Only in accordance with [Article 10.A.3.5.c. 
of  the  Personnel  Manual]."    The  JAG  agreed  with  the  comments  of  the  Commander, 
Coast  Guard  Personnel  Command  (CGPC)  that  were  attached  as  Enclosure  (1)  to  the 
advisory opinion. 
 
CGPC,  in  preparing  his  memorandum,  obtained  statements  from  the  reporting 
 
officer,  the  reviewer,  and  the  commanding  officer  (CO).  CGPC  stated  that  there  was 
sufficient  evidence  in  the  record  to  support  the  applicant's  allegation  that  racial 
discrimination  was  a  likely  or  even  probable  factor  that  led  to  the  altercation  and 
subsequent detainment of the applicant by local officials.  CGPC offered the following 
facts to support his evaluation of the evidence: 
 

a.    [The]  investigating  officer  opined  that,  "It  seems  probable  that  this 
situation  could  be  exacerbated  by  [the  applicant]  being  an  African 
American  . . .   
 
b.    In  an  endorsement  dated  25  July  2005  [the]  Applicant's  [CO], 
concluded from the Administrative Investigation report that, "the incident 
was clearly racially motivated." 
 
c.  In his declaration [to CGPC] dated 08 Nov 2005, [the CO] states, "It is 
also my opinion upon review of the facts and having lived in the Portland 
area for three years, that the incident was probably racially motivated or 
that, at least, [the applicant's] race was used against him in this situation 
in that he was assumed by the police to be guilty until shown otherwise     
. . . 
 
d.    [The  OER  reviewer  who  was  also  the]  Applicant's  Executive  Officer, 
acknowledges in his declaration [to CGPC] that "The Investigating Officer 
believed that race may have been a factor in [the applicant's] being taken 
to  the  .  .  .    Detoxification  Center"  .  .  .    [The  Executive  Officer]  neither 
agrees    nor disagrees with the opinion of the investigating officer.   
 
Based  upon  this  evidence,  any  mention  of  the  incident  or  subsequent 
conduct or performance relating to the incident should not be included in 

the  OER.    Per  [Article]  10.a.  [of  the  Personnel  Manual]  Commanding 
Officers must ensure accurate, fair, and objective evaluations are provided 
to  all  officers  under  their  command.    Though  not  a  member  of  the 
Applicant's  rating  chain,  the  Applicant's  [CO]    .  .  .  is  responsible  for 
ensuring that officers under his command receive fair evaluations.  [The 
CO]  clearly  feels  that  the  incident  was  most  likely  the  result  of  racial 
discrimination,  and  therefore  the  accuracy  and  fairness  of  the  disputed 
OER is called into question.   

   
 
CGPC noted that the reporting officer disagreed that the marks and comments 
on the disputed OER were inaccurate or erroneous.  The reporting officer stated that the 
OER records the fact that the applicant was involved in a skirmish/altercation, but that, 
"No judgment was passed in the OER on who caused it or why it happened," and he 
noted  that the  OER  does  not  state that  the altercation  was  racially  motivated.    CGPC 
stated,  however,  that  a  "judgment"  of  why  the  incident  happened  should  have  been 
made by the reporting officer to ensure a fair and unbiased evaluation was provided, 
and  that  simply  documenting  that  the  altercation  happened  without  any  due 
consideration  of  the  substantial  evidence  suggesting  that  racial  discrimination  was  a 
factor was irresponsible.   
 
 
CGPC also noted that the reviewer's declaration indicated that he was potentially 
biased  in  his  review  and  verification  of  the  disputed  evaluation  because  of  the 
applicant's  previous  involvement  in  a  similar  incident  during  the  previous  reporting 
period.  In this regard, CGPC stated that the reviewer wrote in his declaration that "The 
marks on the [disputed] OER dated 2005/03/31 should be viewed from the perspective 
of  the  applicant's  previous  OER  dated  2004/09/30."      CGPC  stated  that  the  facts 
surrounding the previous incident, already documented in the Applicant's earlier OER 
should not have been the basis on which to evaluate the applicant's performance for the 
reporting period under review.  CGPC stated that the Personnel Manual states that the 
reviewer shall limit comments on performance or behavior to that which was observed 
during the reporting period.  CGPC stated that although the marks were supported by 
comments, it cannot be ignored that had the applicant been a white male instead of a 
black male the incident may not have occurred at all.  CGPC stated that removal of the 
OER is warranted because policy does not support the option of having a partial OER 
for continuity purposes only placed in the record, as requested by the applicant.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On February 22, 2006, the applicant responded to the views of the Coast Guard 

 
 
and agreed with the recommended relief.   
 

 

FINDINGS AND CONCLUSIONS 

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

1. 

The Board has jurisdiction concerning this matter pursuant to section 1552 

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

 
2.  The Coast Guard recommends, and the Board agrees, that the disputed OER 
should  be  removed  from  the  applicant's  record  and  replaced  with  a  report  for 
continuity  purposes  only.    The  Board  also  agrees  with  the  Coast  Guard  that  the 
applicant's rating chain violated the Personnel Manual by failing to prepare an objective 
and  fair  evaluation  of  the  applicant's  performance  during  the  period  covered  by  the 
disputed OER.  In this regard, the reporting officer gave the applicant below average 
marks and comments without taking into consideration the findings of the IO that racial 
discrimination against the applicant by the bouncers and civilian police officer, rather 
than any misbehavior by the applicant, probably caused the incident on March 18 and 
19, 2005.    

 
3.    The  Coast  Guard  also  found  that  the  reviewer  probably  had  a  prejudice 
against the applicant because of his involvement in a similar incident during an earlier 
reporting  period.    For  the  reviewer  to  reach  a  conclusion  about  the  applicant's 
performance  based  on  performance  during  another  reporting  period  violates  Article 
10.A.4.c.11.g. of the Personnel Manual, which states, "the Reviewer shall limit comments 
to  performance  or  behavior  observed  during  the  reporting  period and/or  discussions  
of the Reported-on Officer's potential."  Based on the reviewer's declaration to CGPC, 
the Board agrees with the Coast Guard's assessment on this issue.   
 

4. 

Accordingly, relief should be granted as described above.    

 
 
 

 
 
 
 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

ORDER 

 

 
 

 
 

 

 

 

 
 

 
 

        

 
 Bruce D. Burkley 

 

The application of Ensign XXXXXXXXXXXXXXXXXXXXXX, USCG, for correction 
of his military record is granted as follows:  The OER for the period October 1, 2004, to 
March 31, 2005, shall be removed from the applicant's record and replaced with a report 
for continuity purposes only.   
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 J. Carter Robertson 

 
 George A. Weller