DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2006-035 
 
XXXXXXXXXXXXXX 
xxxxxxxxxxxx, LCDR  
   

 

 
 

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  December  30,  2005,  upon  receipt  of  the  completed  application  and  military 
records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated August 31, 2006, is signed by the three duly appointed 

APPLICANT’S REQUEST 

 
 
The applicant asked the Board to correct his military record by changing the "3" 
to  "4"  in  the  Health  and  Well-being  performance  dimension  on  his  officer  evaluation 
report (OER) for the period from May 1, 2000 to April 30, 2001 (disputed OER). 
 

APPLICANT’S ALLEGATIONS 

 
 
The applicant stated that his rating chain originally assigned him a mark of "4" in 
the Health and Well-being category on the disputed OER.  By letter dated August 15, 
2001,  Commander,  Coast  Guard  Personnel  Command  (CGPC)1  returned  the  disputed 
OER to the rating chain for correction of deficiencies.  In particular, CGPC stated that 
"[a] '4' in block 8.e. is inconsistent with the OER performance standard of an officer who 

                                                 
1   The office within CGPC responsible for processing active duty OERs is CGPC-opm and is referred to in 
this decision as OPM or OPM-3. 

has had an alcohol incident.  Please adjust  the mark to better represent the member's 
performance during the reporting period."  The applicant alleged that in response to the 
CGPC letter, his rating chain lowered the Health and Well-being mark to "3".   
 
 
Article  10.A.4.j.  of  the  Personnel  Manual  states  that  CGPC-opm-3  staff  reviews 
OERs paying particular attention to inconsistencies between numerical evaluations and 
written  comments.    The  provision  further  states  that  the  review  is  not  intended  to 
question a rating official's judgment about a subordinate, but to ensure that OERS have 
been prepared in accordance with officer evaluation system guidelines.  The applicant 
argued that this provision gives CGPC the authority to determine whether marks and 
comments are consistent, but not to arbitrarily set a ceiling on what marks an officer can 
receive or direct the rating chain in how to correct the inconsistency, as he alleged was 
done in his case.  In this regard the applicant stated the following: 
 

By  returning  an  OER to  the rating  chain  for  inconsistencies  between  the 
numbers  and  comments,  OPM-3  is  in  essence  saying  that  (in  their 
interpretation)  the  comments  do  not  support  the  mark(s)  assigned.  
Clearly, the performance standards are open to interpretation, and in my 
case,  OPM-3  and  my  rating  chain  interpreted  them  differently.    Rather 
than  allowing  my  rating  chain  the  option  of  providing  additional 
comments  to  support  the  intended  mark  of  "4",  Opm-3  mandated  that  I 
receive a mark lower than "4".  There is no OES guidance that gives them 
such authority.  Section 10.A.4.k. of the Personnel Manual states, "On those 
marks indicated by CGPC-opm-3 as not being supported, the rating chain should 
either  provide  additional  narrative  support  reflecting  specific  performance 
observations or adjust the marks to the information already provided."  So if the 
rating  chain  disagrees  with  OPM-3's  interpretation,  they  can  strengthen 
the  comments  to  support  the  original  marks  rather  than  lowering  the 
marks  to  a  level  they  believe  the  reported-on  officer  does  not  deserve.  
Similarly, an OER Reviewer may also return an OER to the rating chain 
for  inconsistencies  between  the  numbers  and  comments,  but  may  not 
direct the manner in which the mark should be changed (Section 10.A.2.f.).  
In  both  cases,  the  guidance  provides  the  rating  chain  two  alternatives:  
either  lower  the  mark,  or  provide  additional  narrative.    In  my  case,  the 
rating  chain's  hands  were  unjustly  tied  because  OPM-3's  letter  clearly 
states  that  nothing  higher  than  a  "3"  would  be  accepted.    Based  on  the 
phrasing of that letter, as well as phone conversations with OPM-3 staff, 
the members of my rating chain did not believe they had the option . . . of 
providing additional comments to support the intended mark.   

 
As mentioned earlier, the applicant stated that OPM's review of an OER is not 
 
intended  to  question  the  rating  official's  judgment.    In  this  regard,  he  stated  that  the 
rating  chain  is  familiar  with  the  reported-on  officer's  performance  while  OPM  is  not.  

He stated that his rating chain had carefully weighed all factors before assigning the "4", 
but OPM directed that he receive a lower mark based solely on the knowledge that he 
had an alcohol incident during the period.   He argued that OPM had no information on 
the  nature  of  the  incident  or  about  his  other  performance  throughout  the  period,  yet 
overturned the rating chain's decision anyway.  He again stated that OPM removed the 
option  of  having  his  rating  chain  strengthen  the  narrative  to  support  the  "4".        The 
applicant stated that OPM does not have authority to set ceilings on officer's marks for 
particular incidents.  Doing so he argued, assumes that all incidents are the same, which 
is clearly not true.   
 
 
Board should raised the Health and Well-being mark to  "4". 
 

The applicant concluded his statement by offering the following reasons why the 

 

. 

. 

a.    The  Health  and  Well-being  category  measures  the  officer's  "ability  to 
invest  in  the  Coast  Guard's  future  by  caring  for  the  physical  health  and 
emotional  Well-being  of  self  and  others."    My  alcohol  incident  did  not 
negatively impact my ability to do that, as attested to by the original mark 
of  "4"  assigned  by  my  rating  chain.    On  the  night  following  the  alcohol 
incident, I stood duty as a HH-60J Aircraft Commander . . . 
 
b.  Throughout the reporting period I maintained a healthy lifestyle and 
exercised regularly to maintain excellent physical condition.  My exercise 
regimen  included  weight  lifting,  cardiovascular  work,  bicycling,  and 
hiking.    Through  this  program,  I  optimized  my  performance,  managed 
stress,  maintained  vitality,  alertness  and  energy,  and  supported  my 
emotional  Well-being 
.  This  is  evidenced  by  my  performance 
documented  on  the OER  as  an  Alaska Qualified  HH60J  Flight  Examiner 
who routinely demonstrated stamina and epitomized alertness and stress 
management by successfully executing lengthy operational flying sorties . 
.  .    in  Coast  Guard  Aviation's  most  demanding  and  hazardous  flight 
environment.   
 
c.    The  Reviewing  Officer's  comments  indicate  that  I,    ".  .  .  worked 
tirelessly,  particularly  during  the  critical  late  spring  and  early  summer 
period, ensuring members of the afloat and ashore command's PCS move 
and housing needs were met." 
 
d.    Following  the  Alcohol  incident  and  in  accordance  with  Coast  Guard 
policy,  I  underwent  a  comprehensive  screening  at  a  dependency  clinic.  
The  resulting  diagnosis  indicated  no  evidence  of  alcohol  abusive 
tendencies or dependence.   
 

e.  While it is true that I "failed to meet minimum standards of sobriety" 
("2"  block)  on  one  occasion,  I  also  met  many  of  the  standards  in  the  "6" 
block.    Both  I  and  my  Supervisor  and  Reviewer  believe  that  the  many 
examples of performance above the "4" level combined with one example 
of performance below the "4" level averaged out to performance at the "4" 
level.    

 
 
The  applicant  stated  that  he  did  not  submit  a  reply  to  the  OER,  although  he 
drafted one, on the advice of senior officers who thought the reply would be interpreted 
by promotion boards as an attempt to escape responsibility for the alcohol incident.   
 
Statements in support of the applicant 
 
1.    The  supervisor  for  the  disputed  OER  stated  that  the  command  cadre 
 
discussed  at  great  length  how  the  alcohol  incident  should  be  documented.    The 
command  approved  a  decision  to  award  a mark  of  "4"  in  Health and  Well-being  and 
lowering the judgment mark by two points on the applicant's OER.  The decision was 
deliberate  and  believed  to  be  within  the  spirit  of  documenting  the  applicant's 
momentary indiscretion.  "The OER was returned with direction from [OPM] indicating 
a below average mark was required in Health and Well-being."  The supervisor stated 
that the Personnel Manual does not require a specific mark for an alcohol incident.  He 
stated  that  the  command  adjusted  the  applicant's  marks  to  a  lower  level  than  would 
have normally been assigned to an officer of such high caliber, as the applicant.  In the 
supervisor's  opinion,  OPM  may  have  inappropriately  overturned  the  command's 
interpretation for a much more strict interpretation in opposition to the judgment and 
intentions of [the applicant's] rating chain.   
 
 
2.    The  applicant's  commanding  officer,  who  was  also  the  reviewer  for  the 
disputed  OER,  stated  that  the  OER  that  he  initially  approved  and  submitted  for  the 
period  in  question  was  rejected  by  [OPM]  and  that  his  discretion  as  a  CO  was  taken 
from  him  because  he  was  given  no  option  except  to  reduce  the  mark  in  Health  and 
Well-being to "3".  He stated that OPM's letter of August 15, 2001, clearly stated that he 
must correct the deficiency before the OER would be accepted and that his follow-up 
phone calls to the OPM office validated their position.      
 
 
The CO stated that it was his responsibility to ensure that personnel within his 
command  received  evaluations  in  accordance  with  their  performance  over  the  entire 
reporting  period.    He  argued  that  OPM's  conclusion  that  the  original  OER  was 
inconsistent in regard to Health and Well-being is strictly interpretative, as evidenced 
by the fact that there is no specific guidance provided in the Personnel Manual.  The CO 
stated, "I was wrongly constrained in my authority, and this superior officer paid the 
price.  It is a tragedy that [the applicant] is today not an O-5 (CDR) or higher."   
 

The Disputed OER 
 
As previously stated, the applicant was given a "3" in the category of Health and 
 
Well-being, which is at issue in this case.  OER forms contain prewritten standards by 
which an officer is marked.  According to the form, the Health and Well-being category 
measures  an  officers  "ability  to  invest  in  the  Coast  Guard's  future  by  caring  for  the 
physical  health  and  emotional  Well-being  of  self  and  others."    The  predetermined 
standard for a mark of 2 in this category reflects that an "officer failed to meet minimum 
standards of weight control or sobriety.  Tolerated or condoned others' alcohol abuse.  
Seldom  considered  subordinates'  health  and  well-being.    Unwilling  or  unable  to 
recognize  and  manage  stress  despite  apparent  need."  A  "3"  reflects  an  officer's 
performance  that  falls  between  the  prewritten  standards  for  a  2  and  "4".      The 
prewritten  standard  for  a  "4"  in  this  category  means  that  an  officer  has  "maintained 
weight  standards.  Committed  to  health  and  well-being  of  self  and  subordinates.  
Enhanced personal performance through activities supporting physical and emotional 
well-being.  Recognized and managed stress effectively."   
 
 
The applicant's other marks on the disputed OER were one "4" in "Evaluations", 
two 5s, twelve 6s, and two 7s.  The comments supporting the marks on the OER were 
extremely  flattering  but  neither  the  supervisor  nor  reporting  officer  mentioned  the 
alcohol incident in their comments.  
 
 
The reporting officer rated the applicant in the fifth block to the right in block 9. 
on the OER, which is where the reporting officer compares the applicant with all other 
LCDRs that he has known in his career.  This mark equates to a 5 on a scale of 1 to 7, 
with  7  being  the  best.  A  mark  of  5  describes  an  excellent  performer  who  should  be 
given the toughest and most challenging leadership assignments.  The reporting officer 
described the applicant's potential as follows: 
 

[The  applicant]  is  a  superb  performer  &  dynamic  leader  w/unlimited 
potential.  He  demonstrated  exemplary  tact/poise  while  serving  as  unit 
POC for politically sensitive project to remove/repatriate Native Alaskan 
remains from Coast Guard property.  While acting as Operations Officer, 
he  consistently  showed  keen 
risk 
management  &  operational  principles  to  make  intelligent/constructive 
decisions  &  recommendations.    Member  has  clearly  demonstrated  an 
exceptional ability to lead and motivate others to achieve CG/unit goals.  
He is the best candidate & is well qualified for future assignments as an 
Air station Operations Officer; highest recommendation for promotion to 
O5 with peers.   

judgment/superior  grasp  of 

  
 
The  reviewer  for  the  OER,  who  was  also  the  commanding  officer  attached 
comments  to  the  OER  on  a  separate  sheet.    The  reviewer's  comments  were  favorable 

and  mentioned  the  alcohol  incident  about  halfway  down  the  page.  He  wrote  the 
following with respect to the alcohol incident: 
 

[The applicant] had an alcohol incident during this period.  As a result he 
did  not  receive  a  7  in  judgment,  a  mark  he  would  have  otherwise 
received.  Since the incident, I have closely watched him to determine if 
this was the start of an undesirable trend and to ensure his performance 
stayed  at  the  same  high  level.    While  remorseful  and  quite  obviously 
shaken by the event, in the months that I have scrutinized him, I am very 
confident that this was a singular event, and that [the applicant] quickly 
got back on step performing at the same high level that I had noted in the 
past.  He is still exceptionally motivated and career oriented, and I do not 
sense  that  this  incident  will  detract  him  from  achieving  his  professional 
goals.    

 
Alcohol Incident Letter 
 
 
The CO documented the alcohol incident in a March 7, 2001 letter counseling the 
applicant about it.  The applicant was told that his March 3, 2001 alcohol incident was 
his first alcohol incident and that any further such incidents would result in his being 
processed for separation.  The letter was acknowledged by the applicant and placed in 
the applicant's military record.  
 
An  administrative  remarks  page  (page  7)  of  the  same  date  was  placed  in  the 
 
applicant's  military  record,  noting  the  applicant's  referral  to  Unit  Collateral  Duty 
Addictions Representative (CDAR) and medical officer for evaluation due to an alcohol 
incident.  The page 7 stated that a flight surgeon diagnosed the applicant with alcohol 
misuse  pending  an  alcohol  screening  on  March  21,  2001,  and  grounded  the  applicant 
until the proper personnel screened him.    The applicant was placed on a pre-treatment 
plan pending alcohol  screening of abstinence from alcohol, weekly meetings with the 
unit's CDAR, and attendance at a minimum of two AA meetings per week.   
 
 

VIEWS OF THE COAST GUARD 

 
 
On  May  15,  2006,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  relief.    The  JAG 
stated that the CO's comments in the disputed OER were consistent with Coast Guard 
policy.  Article 20.A.2.d. of the Personnel Manual describes an alcohol incident as: 
 

Any behavior, in which alcohol is determined, by the commanding officer, 
to be a significant or 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 (UCMJ), 
State  or  local  laws.    The  member  need  not  be  found  guilty  at  courts-
martial, in a civilian court, or be awarded non-judicial punishment for the 
behavior to be considered an alcohol incident.   

 
 
The JAG further stated that OPM had the authority to return applicant's OER to 
the CO, with a request for him to adjust the mark in Health and Well-being to better 
represent the member's performance during the reporting period.  In this regard, OPM 
noted  that  the  "4"  in  Health  and  Well-being  was  inconsistent  with  the  "OER 
performance  standard  of  an  officer  who  had  has  an  alcohol  incident,"  and  that  the 
rating chain subsequently returned it to OPM with the mark lowered to a "3".  The JAG 
noted that the applicant did not submit a reply to the OER, which he had the right to 
do.    
 
 
The  JAG  noted  the  applicant's  argument  that  OPM's  letter  directed  his  rating 
chain to lower the mark, and further noted the supervisor's and  CO's statements that 
the  "direction  from  [OPM]  indicated  a  below  average  mark  was  required."    The  JAG 
stated that Article 10.A.4.k. of the Personnel Manual states that for marks OPM believes 
are  unsupported,  the  rating  chain  should  either  provide  additional  narrative  support 
reflecting  specific  performance  observations  or  adjust  the  marks  to  the  information 
already  provided.    The  JAG  stated  that  OPM's  advice  to  the  CO,  although  possibly 
incomplete, was still  permissible under the Personnel Manual.  In addition, the Coast 
Guard obtained a statement from the reporting officer for the disputed OER.  According 
to the JAG, the reporting officer stated that although he believes that CGPC directed the 
applicant's  rating  chain  to  lower  the  mark,  he  agreed  with  OPM's  review  and 
interpretation based on the wording of the standard for a "2".  Therefore, the JAG stated 
that the reporting officer agreed that the applicant did not meet the minimum standards 
for sobriety.   The JAG concluded as follows: 
 

Although  Applicant  has  provided  some  evidence,  he  did  not  meet  his 
burden  of  production.    The  action  taken  by  [OPM]  under  its  review 
authority was proper.  Applicant has shown insufficient evidence of any 
error  on  the  part  of  the  Coast  Guard.    Additionally,  [the  reporting 
officer's]  sworn  statement 
the  Reviewer's  and 
Supervisor's  comments  that  the  rating  chain  disagreed  with  the  mark  of 
"3".    [The  reporting  officer]  states  that  he  agrees  with  [OPM's]  guidance 
and the revised mark as submitted.   

to  dispute 

tends 

 
 
The JAG attached a memorandum from CGPC as part of the advisory opinion.  
GCPC stated that the applicant's contention that OPM directed that nothing higher than 
a "3" would be accepted in the Health and Well-being category of the disputed OER is 
inaccurate.  CGPC stated that in fact, the letter from OPM states that "a '4' in block 8.e. is 
inconsistent  with  the  OER  performance  standard  of  an  officer  who  has  an  alcohol 

incident.  Please adjust the mark to better represent the member's performance during 
the reporting period."     CGPC stated that OPM is correct in stating that a mark of "4" is 
inconsistent  for  an  officer  who  received  an  alcohol  incident  for  DUI.    CGPC  further 
stated as follows: 
 

In  light  of  the  irrefutable  evidence  that  the  applicant  failed  to  meet  the 
minimum standards of sobriety, a criteria of the below-standard mark of 2 
for the Health and Well-being performance dimension, and the absence of 
other  strong,  specific  supporting  documentation  that  the  Applicant 
excelled  in  other  areas  of  the  dimension,  CGPC  was  correct  in  their 
statement  that  the  mark  needed  to  be  adjusted  to  better  represent  the 
member's documented performance.  

 
CGPC stated that the rating chain might have believed that they did not have the 
 
option  of  submitting  additional  comments  to  support  the  intended  mark.    However, 
CGPC argued that the applicant failed to provide sufficient evidence to prove that OPM 
violated  its  own  policy.    In  this  regard,  CGPC  stated  that  while  the  letter  from  OPM 
does not specifically state that additional comments could not be provided to support 
the  initial  mark  of  "4",  neither  does  it  state  that  the  rating  chain  could  not  provide 
additional  supporting  comments.      CGPC  noted  that  while  the  CO  claimed  that  in 
telephone  conversations  with  OPM,  the  rating  chain  was  not  given  the  option  to 
provide additional comments to support the "4", the CO did not provide any names of 
individuals he spoke with at OPM.  "One has to wonder that if indeed there were other 
compelling  achievements  that  would  have  more  strongly  supported  the  mark  for 
Health and Well-being, why was this information not included in the initial evaluation 
or in the corrected evaluation."   
 
Statement from the Reporting officer 
 
 
In  addition  to  the  comments  mentioned  above,  the  reporting  officer,  who  is 
responsible  for  assigning  the  mark  in  Health  and  Well-being,  wrote  the  following  in 
pertinent part: 
 

During  this  reporting  period,  [the  applicant]  was  cited  by  the  local 
policemen  for  Driving  Under  the  Influence  (DUI).    Since  [the  applicant] 
was a top notch officer at our unit, the command cadre labored long and 
hard over the marks and comments for his OER.  The command's intent 
was  to  document  the  infraction  and  hold  him  accountable  while  taking 
into account his otherwise outstanding performance record.  Our ultimate 
decision  was  to  dock  his  marks  in  the  performance  dimensions  we  felt 
would  hold  him  accountable  for  this  singular  lapse  of 
judgment: 
Judgment  and  Health  and  Well-being.    This  strategy  resulted  in  [the 
applicant's]  OER  being  submitted  with  an  assigned  mark  of  "5"  in 

judgment,  where  without  the  incident  he  would  have  earned  a  "7".  
Likewise, we assigned him a mark of "4" in Health and Well-being, where 
without the incident he would have earned a "6".   
 

* 

 

 

* 

* 
 

In retrospect, I agree with [OPM's] review and interpretation based on the 
wording found in the "2" block of the  Health and Well-being dimension 
which says, "failed to meet the minimum standards of weight control or 
sobriety."  Given the unfortunate fact that [the applicant] did incur a DUI 
during this OER period, I feel that G-OPM did their job by identifying a 
mark  inconsistent  with  the  verbiage  cited  and  responded  correctly  by 
notifying the command to adjust that mark to meet the standard outlined 
in that dimension.   

 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On June 6, 2006, the BCMR received the applicant's response to the views of the 
Coast  Guard.    He  disagreed  with  them.    The  applicant  took  issue  with  almost  each 
paragraph of the advisory opinion and restated many of the arguments that he made in 
his original statement to the Board.  
 
Specifically, the applicant disagreed with the statement in the advisory opinion 
 
that  OPM's  direction  was  permissible  under  the  Personnel  Manual.    He  restated  his 
contention that OPM exceeded its authority by directing the rating chain to lower the 
mark to "3".   He argued that for the Coast Guard to characterize the letter as advisory is 
disingenuous, since the rating chain believed they had no option other than to lower the 
mark.  He points to the statements of the CO and supervisor, in which each stated that 
they believed they were directed to lower the mark from "4" to "3".   
 
 
The  applicant  further  argues  that  the  advisory  opinion  mischaracterizes  the 
statement obtained from the reporting officer.  In this regard, the applicant stated that 
the reporting officer did not state that he agreed with OPMs review, but rather he stated 
that  in  retrospect  he  agrees  with  it. 
  The  applicant  stated  that  retrospective 
reconsideration  has  been  rejected  by  CGPC  for  amending  a  record  and  therefore  it 
should not be a basis for failing to correct a record.  The applicant stated that BCMR No.  
2000-016 states that retrospective reconsideration cases are those in which an evaluating 
official seeks to retroactively change the opinions expressed in that evaluation.  "Most 
such  after-the-fact  statements  by  raters  are  given 
little  weight  because  a 
contemporaneous expression of opinion representing a fair and accurate assessment in 
the  context  of  the  specific  rating  period  at  issue  is  to  be  preferred  over  a  non-
contemporaneous one . . ."   

 
 
The applicant continued to argue that the rating chain carefully considered his 
performance  including  the  alcohol  incident  when  it  originally  assigned  him  a  "4"  in 
Health and Well-being.  Therefore, he disputed CGPC's comment that the rating chain 
failed to hold him accountable or that it failed to accurately evaluate his performance.  
In  this  regard,  the  applicant  stated  that  officers  are  evaluated  throughout  the  entire 
reporting period, in his case a total of 365 days.  He argued that in assigning a mark of 
"4",  the  rating  chain  considered  all  of  his  performance  and  considered  the  alcohol 
incident  to  be  an  aberration,  a  one  time  incident,  and  not  indicative  of  his  typical 
behavior.   
 
 
The  applicant  argued  that  any  contention  by  the  Coast  Guard  that  the  alcohol 
incident  is  so  grave  that  no  other  performance  during  the  period  can  raise  the  mark 
above "3" is not supported by the OES guidance.  He stated that officers often have one- 
time  performance  which  falls  within  the  standards  of  the  "2"  block,  but  their  rating 
chains  do  not  assign  them  2s  or  3s  because  they  base  their  evaluation  on  the  entire 
period.  He stated that all officers make mistakes, but it is incumbent on the rating chain 
to  assign  marks  based  on  full  knowledge  of  the  circumstances  surrounding  those 
mistakes and the reported-on officer's other performance throughout the period.  The 
applicant  stated  that  his  rating  chain,  in  response  to  what  they  knew  was  a  one-time 
incident, held him accountable by lowering his mark in Health and Well-being from "6" 
to  "4"  and  his  mark  in  judgment  from  7  to  5.    He  stated  that  his  CO  had  the 
responsibility  to  ensure  that  the  OER  reflected  a  reasonably  consistent  picture  of  his 
performance,  which  is  exactly  what  his  rating  chain  did  before  it  was  wrongly 
constrained by OPM.  
 
 
selection board.  It reads in pertinent part, as follows: 
 

The applicant submitted a copy of a statement on his behalf from the CO to the 

[The  applicant]  has  a  proven  track  record  of  sustained  exemplary 
performance.  He is an officer I implicitly trust and rely upon for his advice 
on the most complex operational matters.  He has learned a valuable lesson 
and  I  hope  this  isolated  infraction  can  be  put  behind  [him]  in  light  of  the 
scores of noteworthy contributions this member has performed in the past, 
and  is  most  capable  of  performing  in  his  future  career  as  a  Coast  Guard 
Officer.    

 

APPLICABLE REGULATIONS 

 

Personnel Manual 
 
 
Article  10.A.1.b.2.  c.    states  that  there  are  prescribed  expectation  levels  within 
each performance dimension.  The standards are written to provide a common frame of 

reference  among  rating  officials  to  which  an  officer's  observed  performance  and 
qualities may be compared.  Each dimension has three separate standards, as follows:  
below  standard  which  is  performance  not  measuring  up  to  the  levels  expected; 
standard  performance  which  is  the  high  level  of  performance  expected  of  all  Coast 
Guard officers; and above standard which is superlative performance. 
 
 
Article  10.A.2.i.2.c.  states  that  the  Officer  Evaluations  Branch  (CGPC-opm-3) 
provides final quality control review of OERs containing substantive errors, including 
"restricted" remarks.   
 

Article 10.A.4c.7.a. & b. of the Personnel Manual provide the following guidance  
to reporting officers in completing section 8. of the OER (which includes the Health and 
Well-being category): 

 
This  section  measures  an  officer's  personal  and  professional  qualities.  
Each  performance  dimension  is  defined  in  terms  of  three  performance 
standards:    below  standard,  standard,  or  above  standard  .  .  .  Reporting 
Officers  must  read  each  standard  carefully.    A  space  for  supporting 
comments follows each set of dimensions. 
 
For this Evaluation area, the Reporting Officer shall review the Reported-
on  Officer's  performance  and  qualities  observed  and  noted  during  the 
reporting  period.    Then,  for  each  performance  dimension,  the  Reporting 
Officer  shall  carefully  read  the  standards  and  compare  the  Reported-on 
Officer's  performance  to  the  level  of  performance  described  by  the 
standards  .  .  .  After  determining  which  standard  best  describes  the 
Reported-on  Officer's  performance  and  qualities  during  the  marking 
period,  the  Reporting  Officer  fills  in  the  appropriate  circle  on  the  form 
itself. 

 
Article 10.A.4.j.2. of the Personnel Manual states that CGPC-OPM reviews OERs 
 
for  substantive  errors,  paying  particular  attention  to  inconsistencies  between  the 
numerical evaluations and written comments.  This provision further provides that the 
purpose of the review is to ensure OERs have been prepared in accordance with OES 
guidelines and not to second-guess the rating official's judgment.  Subsection 3. of this 
provision states that reports found unacceptable are returned to the reporting officer via 
the reviewer with a letter identifying areas of correction.     
 
 
Article  10.A.4.k.1.  states  that  on  those  marks  indicated  by  OPM  as  not  being 
supported by the comments, the rating chain should either provide additional narrative 
support  reflecting  specific  performance  observations  or  adjust  the  marks  to  the 
information already provided.   
 

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 

 
2.    The  applicant  was  involved  in  an  alcohol  incident  as  documented  by  a 
counseling letter dated March 7, 2001, and a page 7 of the same date, both of which are 
a part of his military record.  The applicant was initially assigned a mark of "4" in the 
Health and Well-being category of the reporting officer's section of the disputed OER.  
There  was  no  mention  of  the  alcohol  incident  by  either  the  supervisor  or  reporting 
officer in the OER.  However, the reviewer, who was the CO, attached a comment page 
to  the  OER  in  which  spoke  very  highly  of  the  applicant's  performance,  skills,  and 
abilities.  About halfway down on the page, he mentioned that the applicant had been 
involved in an alcohol incident during the reporting period. (Reviewers do not assign 
marks in any of the performance categories.) The OER was forwarded to OPM and on 
August 15, 2001, OPM returned it to the CO/reviewer stating that multiple reviewers of 
the OER agreed that it contained inconsistencies that must be corrected before it could 
be accepted into the officer's record.  The OPM letter further stated that a "4" in Health 
and Well-being was inconsistent with the performance standard of an officer who has 
had an alcohol incident, and requested that the rating chain adjust the mark to better 
represent the member's performance during the reporting period.  The reporting officer 
lowered the mark to "3" and returned it to OPM, and it was subsequently placed into 
the applicant's record.  

 
3.    The  applicant  does  not  deny  the  alcohol  incident;  nor  does  he  deny  OPM's 
authority to return the OER to the reporting officer for correction of substantive errors.  
He alleged however that OPM exceeded its authority by directing the rating chain on 
how  to  correct  what  it  interpreted  to  be  an  inconsistency  between  the  mark  of  "4"  in 
Health and Well-being category and the applicant's involvement in an alcohol incident 
during the reporting period.   The applicant claimed that OPM mandated that the rating 
chain assign a below average mark ( "4" is considered an average mark) and that OPM's 
letter clearly stated that only a mark of "3" or below would be accepted, in violation of 
Article 10.A.4.j.2. of the Personnel Manual.  This provision states that the OPM reviews 
OERs for substantive errors, paying particular attention to inconsistencies between the 
numerical evaluations and written comments.  This provision further provides that the 

                                                 
2  See  Detweiler  v.  Pena,  38  F.3d  591,  598  (D.C.  Cir.  1994)  (holding  that  section  205  of  the  Soldiers’  and 
Sailors’ Civil Relief Act of 1940 “tolls the BCMR’s limitations period during a servicemember’s period of 
active duty”). 

purpose of the review is to ensure that OERs have been prepared in accordance with 
OES guidelines and not to second-guess the rating official's judgment.  Subsection 3. of 
this  provision  states  that  reports  found  unacceptable  are  returned  to  the  reporting 
officer via the reviewer with a letter identifying areas of correction.     
 

4.    The  rating  chain  may  have  interpreted  OPM's  letter  as  directing  them  to 
assign  the  applicant  a  "3"  in  Health  and  Well-being,  but  the  letter  itself  contains  no 
language  directing,  ordering,  or  mandating  the  rating  chain  to  lower  the  applicant's 
mark  in  Health  and  Well-being  to  "3".      The  letter  states,  "A  '4'  in  block  8.e.  is 
inconsistent with the OER performance standard of an officer who has had an alcohol 
incident," and to "[p]lease adjust the mark to better represent the member's performance 
during the reporting period." While the letter suggested, an maybe strongly so, that the 
"4"  in  Health  and  Well-being  was  inappropriate  for  an  officer  who  had  an  alcohol 
incident approximately two months prior to the end of the reporting period, the letter 
by no means directed or mandated a "3" or any grade.  
 

5.  The rating chain, particularly the CO (reviewer) and the supervisor stated that 
based on the letter and conversations with OPM staff, they felt they had no other option 
but  to  assign  a  "3".  In  this  regard,  the  supervisor  stated  that  OPM  returned  the  OER 
"indicating  that  a  below  average  mark  was  required  in  Health  and  Well-being."    The 
Board notes the supervisor's use of the word indicating rather than the word ordering or 
directing.    Such  evidence  supports  the  conclusion  that  OPM  did  not  order  or  direct  a 
lower  grade,  even  though  it  may  have  strongly  suggested  lowering  the  grade  as  the 
appropriate avenue.  The CO stated that he felt he had no choice but to change the mark 
to "3" because OPM's letter stated that the deficiency must be corrected before the OER 
would be accepted into the applicant's record. This was the CO's interpretation of the 
letter but it simply does not state that the reporting officer had to assign the applicant a 
"3".  In addition, the letters from the rating chain stating that they believed they had no 
option  but  to  lower  the  mark  comes  approximately  three  years  after  the  OER  was 
completed and placed in the record.  There are no letters to CGPC from the rating chain 
or  contemporaneous  notes  of  their  telephone  conversations  with  OPM  staff  that 
corroborate  their  contentions  that  at  the  time  they  believed  that  OPM  left  them  no 
choice but to lower the applicant's mark in Health and Well-being.  In light of the above, 
the  Board  finds  that  the  applicant  has  failed  to  prove  by  a  preponderance  of  the 
evidence that OPM directed the rating chain to give him a "3" in Health and Well-being. 
Even  if  the  letter  is  interpreted  as  direction  from  OPM  to  lower  the  mark,  the  Board 
finds that such was permissible under OPM's responsibility for the overall integrity of 
the OES system and its responsibility for final quality control review of OERs.  Neither 
Articles  10.A.4.j.  nor  10.A.4.k.  of  the  Personnel  Manual  contains  language  prohibiting 
OPM from directing how substantive errors should be corrected.   In contrast, Articles 
10.A.2.e.2c.  and  10.A.2.f.2.c.  allow  the  reporting  officer  and  reviewer,  respectively,  to 
return an OER to the subordinate members of the rating chain for correction of errors, 
omissions,  and  inconsistencies,  but  they  prohibit  them  from  directing  the  manner  in 

which a mark or comment should be changed.  The Personnel Manual contains no such 
provision for OPM.  There has to be some entity to ensure that OERs are prepared in 
accordance  with  policy  and  to  ensure  consistency  in  the  OER  preparation  and 
evaluation process throughout the Coast Guard.  That authority was reserved for OPM.   
 

6.  The applicant's arguments in this case tend to suggest that OPM returned the 
OER only for an inconsistency between a mark and comment.  This really is not the case 
because the OER as originally submitted did not have an inconsistency between the "4" 
and  the  comments  provided  by  the  reporting  officer.  In  fact  had  the  reviewer  not 
submitted a comment page, there would have been no indication of the alcohol incident 
in the evaluation at all.  OPM returned the OER because the "4" was inconsistent with 
the  prewritten  standards  on  the  OER  for  marking  an  officer  who  had  an  alcohol 
incident during the reporting period documented by a counseling letter and page 7 in 
his military record.  
 

7.  Articles  10.A.4c.7.a.  &  b.  of  the  Personnel  Manual  provide  the  following 
guidance  to reporting officers in completing section 8. of the OER (which includes the 
Health and Well-being category) 

 
This  section  measures  an  officer's  personal  and  professional  qualities.  
Each  performance  dimension  is  defined  in  terms  of  three  performance 
standards:    below  standard,  standard,  or  above  standard  .  .  .  Reporting 
Officers  must  read  each  standard  carefully.    A  space  for  supporting 
comments follows each set of dimensions. 
 
For this Evaluation area, the Reporting Officer shall review the Reported-
on  Officer's  performance  and  qualities  observed  and  noted  during  the 
reporting  period.    Then,  for  each  performance  dimension,  the  Reporting 
Officer  shall  carefully  read  the  standards  and  compare  the  Reported-on 
Officer's  performance  to  the  level  of  performance  described  by  the 
standards  .  .  .  After  determining  which  standard  best  describes  the 
Reported-on  Officer's  performance  and  qualities  during  the  marking 
period,  the  Reporting  Officer  fills  in  the  appropriate  circle  on  the  form 
itself.    
 
Article  10.A.1.c.  of 

the  Personnel  Manual  defines  below  standard  as 
"performance not measuring up the levels expected."  Standard performance is defined 
as "the high level of performance expected of all Coast Guard officers."  Above standard          
is described as "superlative performance."  The reporting officer in this case apparently 
failed  to  "carefully  read  the  standards  and  compare  the  Reported-on  Officer's 
performance  to  the  level  of  performance  described  by  the  standards"  because  the 
prewritten standard for a 2 in health and Well-being category describes an officer who 
"failed  to  meet  minimum  standards  of  weight  control  or  sobriety."      A  documented  alcohol 

incident is surely evidence of a failure to meet the minimum standard of sobriety.  The  
"4" in Health and Well-being as originally assigned indicated that during the reporting 
period, the applicant met the high standards expected of every officer.  This is simply 
not the case.  Officers are not expected to be involved in alcohol incidents, and members 
of the rating chain are not expected to evaluate officer's performance without regard to 
the  prewritten  OER  standards.    OPM  found,  and  the  Board  agrees,  that  the  OER 
contained a substantive error in that the "4" in Health and Well-being was inconsistent 
with  the  prewritten  standard  on  the  OER  form  for  an  officer  who  had  an  alcohol 
incident during the reporting period.  
 

8.  OPM having found substantive error in the OER, returned it to the reporting 
officer  via  the  reviewer  as  required  by  Article  10.A.4.j.3.  of  the  Personnel  Manual, 
identifying the areas for correction.  Nowhere in this section of the Personnel Manual 
does  it  state  that  OPM  cannot  suggest,  advise,  counsel,  or  state  how  the  correction 
should be made.   The applicant argued that in returning the OER for correction, CGPC 
should have given the rating chain options of either providing additional narrative to 
support  the  "4"  or  adjusting  the  mark  to  fit  the  information  already  provided,  as 
required by Article 10.A.4.k. of the Personnel Manual.  This provision states in pertinent 
part:  "On those marks indicated by [OPM-3] as not being supported [by the comments], 
the  rating  chain  should  either  provide  additional  narrative  support  reflecting  specific 
performance  observations  or  adjust  the  marks  to  the  information  already  provided."   
However, as stated above, it was not an inconsistency between the original mark and 
comments  that  caused  the  OER  to  be  returned,  but  the  reporting  officer's  failure  or 
refusal  to  mark the  appropriate  prewritten  standard  in  Health  and  Well-being  on  the 
OER form that reflected the applicant's involvement in an alcohol incident.   The rating 
chain readily admitted that it made a decision to lower the applicant's mark in Health 
and Well-being from "6" to "4", with no mention of the alcohol incident in any of the 
supervisor's  and  reporting  officer's  comment  sections  of  the  OER.    For  good  reason, 
mentioning the applicant's involvement in the alcohol incident would have required the 
reporting  officer  to  chose  the  prewritten  performance  standard  on  the  OER  that 
revealed  the  applicant  had  failed  during  the  period  to  meet  minimum  standards  of 
sobriety.  Neither  the  applicant  nor  the  rating  chain  provided  examples  of  what 
additional comments could have been added to section 8. that would have negated the 
fact that this applicant  was involved in an alcohol incident during the reporting period. 

 
9.    An  alcohol  incident,  particularly  one  that  is  documented  in  an  officer's 
military record, is a significant performance event. The applicant and CO suggest that it 
was  an  aberration  and  that  its  importance  was  mitigated  by  the  applicant's  superior 
performance  in  other  areas.    If  such  were  the  case,  the  CO  could  have  exercised  his 
authority and discretion under Chapter 20 of the Personnel Manual and not classified 
the DUI as an alcohol incident.  Moreover, the Health and Well-being dimension is for 
measuring an officer's "caring for the physical health and emotional well-being of self 
and others," which includes sobriety.  There are seventeen other performance categories 

for evaluating the applicant's superior performance of his other duties. Therefore, not 
only  is  the  "4"  inconsistent  with  the  prewritten  Health  and  Well-being  performance 
standards for an officer who did not maintain sobriety during the reporting period, it is 
also  inconsistent  with  the  applicant's  military  record  which  documents  an  alcohol 
incident approximately two months prior to the end of the reporting period.   

 
10. The Board finds that OPM acted in accordance with its responsibility under 
the  Personnel  Manual  when  it  returned  the  OER  to  the  reporting  officer  via  the 
reviewer  and  informed  the  reporting  officer  that  the  mark  of  "4"  in  Health  and  Well-
being was inconsistent with the performance standard of an officer who was involved 
in  an  alcohol  incident  during  that  reporting  period.    The  Board  finds  no  error  or 
injustice in the manner in which the OER was returned for correction. 
 

11.  Accordingly, the applicant has failed to prove an error or injustice in this 

case and his request for relief should be denied.   
 
 

 
 
 
 
 
 
 
 
 
 

 
 

 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

The application of LCDR XXXXXXXXXXXXXXXXXXXX, USCG, for correction of 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

his military record is hereby denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Elizabeth F. Buchanan 

 

 

 

 
 
 Adrian Sevier 

 

 

 
 Thomas H. Van Horn