DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                 BCMR Docket No. 2006-104 
 
Xxxxxxxxxxxxxxxxxxxx 
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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 April 28, 2006, 
upon receipt of the completed application.   
 
 
members who were designated to serve as the Board in this case. 

This final decision, dated January 11, 2007, is signed by the three duly appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

 
 
The  applicant  asked  the  Board  to  correct  his  military  record  by  changing  two 
numerical  marks  and  two  comments  in  his  officer  evaluation  report  (OER)  for  the 
period June 1, 2002, through June 27, 2003.  The disputed OER is the second he received 
while serving as the executive officer (XO) of a buoy tender with a crew of 49 officers 
and enlisted members.  The applicant asked the Board to 
 
(a) raise his mark for “Professional Competence” from 4 to 6;1 
(b) replace  the  supporting  comment  “Continued  to  develop  cognitive  perception  to 
react, maneuver single screw ship” in block 3 with the comment “Confident, highly 
skilled ship handling and seamanship in demanding conditions”; 

(c) replace the comment “Enjoys being at sea; recommended for continued sea service 
as  XO  of  WHEC/WMEC”  in  block  10  with  the  comment  “Has earned my highest 
recommendation  for  immediate  command  afloat  of  a  WLB,  WTGB  w/  barge  or 
WPC”; and 

(d) raise his mark for “Evaluations” from 4 to 5 or 6. 
 
                                                 
1 In OERs, Coast Guard officers are evaluated on their performance in various categories, such as “Judg-
ment” and “Using Resources,” on a scale of 1 to 7, with 7 being the highest possible mark. 

As  a  less  preferred,  alternative  correction,  the  applicant  asked  the  Board  to 

remove the entire OER from his record. 

 
The applicant alleged that soon after he reported aboard the tender in June 2001, 
he informed the commanding officer (CO) that his primary professional career goal was 
to be recommended for command afloat and to be assigned as the CO of a cutter once 
he was promoted from lieutenant to lieutenant commander.  (The applicant was select-
ed for promotion in August 2001 but was not promoted to lieutenant commander until 
July 1, 2003.)  In his first OER from the CO, she acknowledged his career goal by writing 
that  he  was  “progressing  well,  expect  to  offer  recommendation  for  command  afloat 
during his next marking period.”   

 
The  applicant  stated  that  during  his  second  year  on  the  buoy  tender,  the  crew 
had many operational successes.  As shown on the disputed OER, he himself “had deck 
or conn for 63 buoy evolutions, 13 moorings, moored ship in challenging 20 kt off-dock 
wind conditions.  Gained valuable experience during 31 ice breaking missions in worst 
ice conditions on … in 25 years.”  The CO had designated him as the coach of all deck 
watch officers and of those in training to be deck watch officers.  Moreover, following 
inspection, the cutter was evaluated as satisfactory in its administration, personnel, and 
financial management, and the crew received an Operational Readiness Award and a 
Meritorious  Unit  Commendation.  Therefore,  since  his  CO  never warned him that she 
did not intend to recommend him for command afloat, he felt “confident going into my 
final OER counseling session that I would be recommended for command.”  

 
The applicant stated that on his last day on the buoy tender, he asked his CO if 
he could see his OER.  At first she said the OER was at home but, when he offered to 
come by later, stated that she had already submitted it to the District office and asked 
him what he wanted to know about it.  Therefore, he asked her what comments she had 
made  about  his  leadership  potential,  and  she  admitted  that  she  had  not  included  a 
specific recommendation for command afloat.  The applicant alleged that the CO had 
said  nothing  to  him  during  the  evaluation  period  about  not  recommending  him  for 
command  afloat  and  would  have  taken  action  to  correct  any  deficiencies  had  she 
warned him instead of waiting till the last day he was aboard.  He stated that it is com-
mon practice for COs to warn their subordinates of perceived shortcomings so that they 
may try to improve and that the Personnel Manual requires such feedback. 

 
The applicant alleged that when he asked the CO why she had not recommended 
him for command afloat, she told him that (a) he was “too principled,” (b) he did not 
“fit in,” and (c) he “like[d] to wear the labels of cutterman and XO.”  She did not criti-
cize his ship handling, seamanship, or leadership.  The applicant alleged that none of 
the  “typical reasons” for a CO not to recommend an XO for command afloat existed, 
such  as  inferior  ship  handling,  seamanship,  or  leadership;  grounding,  colliding,  or 
otherwise damaging the ship; having an inappropriate relationship; losing government 
money or property; or violating policies or the Uniform Code of Military Justice.  He 
alleged that the CO further told him that she ascribed the ship’s successes to the efforts 

of  herself  and  other  officers  as  his  “role  was  marginal,  supported  by  strong  subordi-
nates who essentially covered for [him].” 

 
The applicant alleged that when the CO referred to him as being “too principled” 
(in the OER, she described him as “firmly principled”) she was denigrating his Chris-
tian faith and his ban on pornography in the common areas of the ship.  He noted that 
during a meal in the wardroom, she once joked “about her ‘enjoyment of a good issue 
of Playgirl magazine every now and then.’”  He stated that such a comment would have 
received an immediate reprimand had a senior male officer joked about enjoying Pent-
house magazine in a wardroom full of junior female officers.  The applicant alleged that 
when he asked what she meant when she said he did not fit in, she would not explain.  

 
The applicant alleged that at one point in the discussion of the disputed OER, the 
CO told him “at least you still have your family.”  He alleged that the CO would have 
been firmly reprimanded had the situation been reversed—i.e., had a male, unmarried 
CO said such a thing to a married, female junior officer.  The applicant stated that dur-
ing  the  counseling  session,  he  “felt  betrayed,  insulted,  and  lied  to  in  a  cowardly 
fashion.” 

 
The applicant alleged that the CO’s decision to make him the coach for all deck 
watch officers was inconsistent with the mark of 4 she assigned him for “Professional 
Competence.”  He argued that she would not have appointed him to train deck watch 
officers  during  the  most  difficult  ship  handling evolutions if she did not, if fact, trust 
him to handle the single screw ship.  He also argued that the mark of 4 for “Professional 
Competence”  and  the  lack  of  a  recommendation  for  command  afloat  are  inconsistent 
with  the  end-of-tour  Achievement  Medal  she  awarded  him.    The  applicant  further 
argued that the OER input he provided to the CO would amply justify a higher mark of 
6 or at least 5 for “Professional Competence.”  He alleged that he was amply qualified 
and prepared to assume command of a ship.  He noted that the CO’s failure to recom-
mend  him  for  command  afloat  is  inconsistent  with  the  recommendations  he  received 
from prior and subsequent COs. 

 
The applicant stated that after speaking with the CO, he addressed his concerns 
with  the  OER  reviewer  at  the  District  office  and  the  afloat  detailer.    However,  they 
refused to ask the CO to revise the OER. 

 
The applicant alleged that because of the lack of a recommendation for command 
afloat in the disputed OER, subsequent Junior Command Afloat Screening Panels have 
not selected him for command.  He alleged that his career has been delayed six years 
because  since  leaving  the  buoy  tender,  he  has  spent  four  years  as  an  Area  force 
readiness branch chief and will begin another tour of duty as an XO in 2007. 

 
The applicant alleged that the reason the CO never counseled him about any per-
formance deficiencies was because there were, in fact, no such deficiencies that would 

justify  not  recommending  him  for  command  afloat.    Regarding  the  CO’s  motive  for 
unjustifiably not recommending him, the applicant cited four possibilities: 

 
1)    The  prior  XO,  whom  the  CO  had  recommended  for  command  afloat,  was 
given command of a 140’ WTGB and later relieved of command for cause.  The appli-
cant alleged that the investigation blamed the CO, in part, for having recommended the 
prior  XO  for  command.    He  alleged  that  the  investigator  reported  that  the  prior  XO 
“had not been sufficiently trained and prepared for command by his CO.”  Therefore, 
the CO felt pressure not to recommend the applicant for command. 

 
2)  The applicant alleged that he was an “easy target” since he had never served 
on a black hull buoy tender before and had previously received one poor OER due to 
the grounding of his prior ship. 

 
3)  The applicant’s wife gave birth to twin sons during his tour on the buoy ten-
der and he “was able to be a successful husband and father all while being a successful 
cutterman.”    The  applicant  alleged  that  when  he  was  showing  ultrasound  pictures of 
the twins to fellow officers, the CO refused to look at them.  The applicant also alleged 
that the CO was displeased that married members receive a bigger housing allowance 
than  do  unmarried  members  and  was displeased when he voiced his approval of the 
policy. 
 
4)  The CO, although selected for promotion to O-5 in 2002, was passed over for 
promotion in August 2001, and the “psychological effect of this [was] that she became 
much  more  willing  to  negatively  impact  another  officer’s  career,  having  recently  suf-
fered a significant career setback herself.” 

 
The applicant alleged that his CO’s failure to recommend him for command and 
assignment of the mark of 4 for “Professional Competence” are ironic because he twice 
corrected her, in private—once when she said that the “quality of fix” was not a part of 
a  standard  navigation  evolution  and  another  time  when  she  did  not  know  how  to 
maneuver the ship during a man overboard drill.  In addition, she received the lowest 
grade (80%) during a navigation rules quiz administered by a visiting Afloat Training 
Group.  He alleged that the disputed OER has caused him “unwarranted professional 
humiliation and embarrassment” by preventing his selection for command afloat. 
 
 
Regarding the mark of 4 for “Evaluations,” the applicant alleged that it should be 
raised to a 5 or 6 because the CO “often asked me to help her write her sections of OERs 
for other officers.  I would sit beside her in the cabin and help her with sentence struc-
ture, word selection, and proper grammar.” 
 
The applicant alleged that he asked six fellow officers on the buoy tender to write 
 
statements on his behalf but all but one refused due in large part to their fear of future 
retribution  by  the  CO.    The  lieutenant  who  did  write  for  the applicant stated the fol-
lowing: 

I served as the Operations Officer and Training Officer aboard the [buoy tender] during 
the period 2002/01/02 to 2003/06/30.  During this time I observed [the applicant] dem-
onstrate both astute leadership qualities and adept ship handling skills. 
 
[The applicant] was instrumental in imparting his ship handling and seamanship skills to 
break-in  Deck  Watch  Officers  assigned  to  the  ship.    His  efforts  directly  resulted  in  the 
Underway  Deck Watch Officer qualification of four junior officers, including myself, as 
well as the qualification of one senior petty officer. 
 
In addition, as the Executive Officer, [the applicant’s] overall supervision and coordina-
tion of the cutter’s on-board training teams and the bridge navigation team were instru-
mental in the [cutter] receiving the coveted Coast Guard “E” ribbon during the cutter’s 
2002 refresher training. 
 
Not only was [the applicant] looked upon as a leader and mentor aboard the cutter, [he] 
was often the “go-to” ship driver during particularly complex maneuvering evolutions.  
[He] was called upon several times to conduct [aids to navigation], mooring, and under-
way evolutions where other Deck Watch Officers’ abilities were questioned or had failed.  
[He] was completely trusted with the safety and well-being of the cutter and crew in the 
most arduous situations. 
 
Based  upon  my  observations,  there  is  nothing  lacking  in  [the  applicant’s]  knowledge, 
ship handling, and leadership abilities that would preclude him from serving in a com-
mand afloat assignment.  Rather, based upon my limited experience, what I’ve witnessed 
of [his] abilities would serve as qualifications toward a command afloat assignment. 

SUMMARY OF THE APPLICANT'S MILITARY RECORD  

 

 

 
 
On May 20, 1992, the applicant received his commission as an ensign.  From May 
1992 through June 1994, he served as a deck watch officer on a medium endurance cut-
ter.  On his OERs, his commanding officer strongly recommended him for promotion 
and noted the applicant’s desire to serve as the XO or CO of a cutter.  The CO stated 
that the applicant had moored/unmoored the ship six times, that his knowledge of ship 
handling was good, and that he was gaining confidence in conning.  The applicant was 
promoted to lieutenant junior grade on November 20, 1993.   
 

From July 1994 through July 1996, the applicant served as the XO of a 110’ patrol 
boat.  On his first OER in this position, the applicant received all marks of 4 and 5 and 
his CO’s recommendation for promotion.  The CO noted that the applicant’s ship han-
dling was improving.  On his second OER in this position, the applicant received pri-
marily marks of 5 but a low mark of 3 for “Judgment” because he was the Officer of the 
Deck (in charge) when the patrol boat grounded while chasing another vessel.  The CO 
commented that the applicant’s “[i]ndecision as underway OOD [was] evident during 
grounding  …  waited  for  direction  rather  than  initiate  action  …  needed  reminding  to 
follow underway standing orders.”  The CO recommended the applicant for promotion, 
for assignment to post-graduate school in finance, and for assignment as an operations 
or supply officer on a medium endurance cutter.  The OER reviewer added a page of 
comments indicating that he would have assigned the applicant higher marks, includ-

ing  a  4  for  “Judgment.”    On  his  third  OER  as  XO  of  the  patrol  boat,  the  applicant 
received primarily marks of 6, a mark in the sixth spot on the comparison scale2—which 
denotes an exceptional officer—and his CO’s recommendations for promotion and for 
command  of  a  patrol  boat.    The  CO  wrote  that  the  applicant  “possesses  tremendous 
courage of character, has rigorously tested and proved his ship handling skills in diffi-
cult situations, … and has demonstrated remarkable maturity and a positive leadership 
influence as XO.”  On his fourth OER as XO of the patrol boat, the applicant received 
primarily  marks  of  6,  a  mark in the sixth spot on the comparison scale, and his CO’s 
recommendations for promotion and for command of a patrol boat.  The CO wrote that 
the  applicant  “possesses  the  requisite  courage,  responsibility  and  confidence  to  com-
mand at sea, superior ship handling skills, … remarkable maturity and positive leader-
ship.” 
 
 
From August 1996 through January 1998, the applicant attended graduate school, 
as  duty  under  instruction,  to  receive  a  master’s  degree  in  business  administration 
(finance).  He was promoted to lieutenant on November 20, 1996. 
 
From February 1998 through May 1999, the applicant served as a contract spe-
 
cialist.  On his OER for this work, he received primarily marks of 6, a mark of 5 on the 
comparison  scale—which  denotes  an  “excellent  performer;  give  toughest,  most  chal-
lenging  leadership  assignments—and  his  reporting  officer’s  recommendation  for 
assignment to command afloat or ashore.  The reviewer added a comment page, stating 
that the applicant‘s “demonstrated leadership potential, interpersonal skills and ability 
to solve complex problems will enable him to excel in demanding command positions.” 
 
 
From June 1999 through May 2001, the applicant served as a budget analyst and 
financial manager.  On his first OER for this work, he received eight marks of 5 and ten 
marks of  6 in the various performance categories and a mark of 5 on the comparison 
scale.    In  addition,  he  received  strong  recommendations  for  promotion  and  for  com-
mand afloat.  On his second OER for this work, the applicant received four marks of 5, 
thirteen marks of 6, and one mark of 7 in the performance categories and a mark of 5 on 
the comparison scale, as well as strong recommendations for promotion and for com-
mand afloat. 
 

On May 27, 2001, the applicant began serving as the XO of the buoy tender.  He 
supervised 6 other officers and 41 enlisted personnel.  In August 2001, he was selected 
for promotion to lieutenant commander.  On his first OER as XO of the buoy tender, 
dated May 31, 2002, the applicant received thirteen marks of 5, five marks of 6, and a 
mark of 4 on the comparison scale, which denotes a “good performer; give tough, chal-
lenging  assignments.”    The  CO,  who  served  as  both  the  applicant’s  supervisor  and 
reporting officer, included the following written comments in support of the marks: 

 

                                                 
2  The  comparison  scale  is  not  numbered,  but  the  scale  has  seven  possible  marks.    A  reporting  officer 
completes the scale by comparing the reported-on officer with all other officers of the same rank whom 
the reporting officer has known throughout her career.   

First reporting period as WLB XO.  Mastering myriad of admin, managerial, operational 
responsibilities & missions on a new platform.  Learning single screw shiphandling tech-
niques,  applying  pivot  point  theory,  restricted  water  shiphandling,  increasing  in  skill 
level; successfully conned ship during 21 buoy evolutions, 5 moorings & 6 ice breaking 
missions  in  increasingly  difficult  conditions  (wind  20+  kts,  -0  temps,  low  vis).    Always 
acted  [in  accordance  with]  NAVRULS;  scored  100%  on  closed  book  NAVRUL  exam.  
Coached 1 ENS & 2 QM1 DWOs in trng; all are on track to qual[ify]ing on sked.  Effec-
tively delgated projects & tasks to JOs & POs; unit was ready for every mission, visit & 
inspection…. 
 
… Principled, firm supporter of CG core values & COMDT policies…. 
 
[The  applicant]  launched  his  XO  responsibilities  immediately  after  reporting  aboard; 
effective performance in the demanding WLB XO role.  He is extremely familiar & com-
fortable  w/  the  CG’s  budget  making  process  &  handling  a  unit’s  finances.    He  has 
expressed desire for Comptroller & upper level finance positions & has my highest rec-
ommendation for any of these most challenging, high visibility finance positions.  He has 
also  stated  interest  to  command  an  afloat  unit;  is  progressing  well,  expect  to  offer  rec-
ommendation for command afloat during his next marking period.  Was selected for O-4 
in AUG 01 & is waiting for his OPAL msg to be released. 
 
 
On  the  disputed  OER,  which  covers  the  applicant’s  service  as  XO  of  the  buoy 
tender from June 1, 2002, to his departure on June 27, 2003, he received the marks and 
supporting  comments  shown  in  the  table  below  (with  the  disputed  marks  and  com-
ments shaded). 

all.  [The applicant’s] strong suit is in financial mgmt & budget making; strongly recommended 
for 30 coded “F”-type assignments.  Expertly utilized MBA deg. in finance.  Expressed a strong 
desire for Comptroller & upper level finance positions & has my highest recommendation for 
any of these positions.  Strong, career-motivated CG officer.  Enjoys being at sea; 
recommended for continued sea service as XO of WHEC/WMEC.  Recommended for Sr. 
Service School.  Selected for promotion to O-4; OPAL 07-03 authorized his promotion to O-4 
effective 01 JUL 03. 

The CO also awarded the applicant an end-of-tour Achievement Medal, the cita-

11  Signature of the CO as the Reporting Officer, dated July 25, 2003  
12  Signature of reviewer, dated September 15, 2003 
 
 
tion for which commends his superior performance of duty as XO. 
 
On July 1, 2003, the applicant was promoted to lieutenant commander.  On June 
 
28, 2003, the applicant began serving as chief of the Pacific Area’s Training and Readi-
ness Section and then branch chief of the Readiness Force.  On his OERs for this work, 
he has received high marks of 5, 6, and 7 in the performance categories, marks of 5 on 
the comparison scale, and his reporting officers’ strong recommendations for command 
afloat and promotion to commander.  
 

VIEWS OF THE COAST GUARD 

 
 
On  September  27,  2006,  the  Judge  Advocate  General  (JAG) of the Coast Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  the  applicant’s 
request.  The JAG alleged that the applicant’s “allegations of error are not supported by 
the record.”  He argued that the applicant’s CO “was in the best position to observe and 
evaluate the Applicant’s performance.  The Applicant has not established facts to over-
come  the  presumption  that  his  commanding  officer  acted  correctly,  lawfully  and  in 
good faith in preparing his OER.”  The JAG adopted the facts and analysis of the case 
provided in a memorandum prepared by CGPC. 
 

CGPC noted that the applicant did not submit an OER reply when he received 
the disputed OER, as he was permitted to do to express his own views about his per-
formance, or apply to the Personnel Records Review Board for the requested OER cor-
rections. 

 
CGPC stated that the CO was responsible for evaluating the applicant’s perform-
ance fairly and that he reported to her on a daily basis and received most of his assign-
ments and direction from her.  CGPC stated that “[d]ue to the exigent and often isolated 
environment aboard a cutter, [the CO] was consistently, if not solely, the principal offi-
cer best positioned to evaluate the Applicant’s conduct and performance.”  

 
CGPC stated that the CO was better positioned than the Operations Officer, who 
wrote on behalf of the applicant, to judge the applicant’s abilities and leadership poten-
tial to command a cutter.  CGPC stated that the Board should grant greater deference to 
the  CO’s  assessment  of the applicant’s abilities than to that of the cutter’s Operations 
Officer. 
 

CGPC stated, that although the applicant complained that the CO failed to warn 
his specifically about not recommending him for command afloat on the disputed OER, 
the Personnel Manual does not mandate such counseling.  CGPC argued that the Per-
sonnel  Manual  places  responsibility  on  the  reported-on  officer  to  seek  performance 
feedback.  CGPC noted that the CO did counsel the applicant about his ship handling in 
close  quarters  situations  and  about  his  situational  awareness  and  navigation.    CGPC 
argued that there “is no basis for amending the [disputed] OER or expunging it from 
his record.”  CGPC included with its memorandum declarations signed by the CO and 
by the review of the disputed OER. 

 
In  a  declaration  signed  on  August  14,  2006,  the  CO  stated  that  she  would  not 
respond to the applicant’s “ad hominem attacks on my intentions and alleged conduct [so 
as not to] detract the focus from [the applicant’s] performance.”  Regarding the mark of 
4  she  assigned  the  applicant  for  his  “Professional  Competence,”  the  CO  stated  that 
while the applicant was knowledgeable of Coast Guard operations and ship handling 
methodology,  

 
in applying his seamanship and navigation skills to maneuver the cutter, he did not con-
sistently anticipate, plan for, and avoid situations that placed the cutter in close quarters 
situations.    In  repeated  training  and  counseling  sessions,  I  conveyed  to  [him]  and  the 
other OODs the manner in which I expected the ship to be conned and the bridge watch 
to be conducted while servicing aids to navigation, breaking ice, and during open water 
steaming.  Regardless of the number of aids that [the applicant] had the conn or deck, at 
the  end  of  his  tour  he  was  still  placing  the  cutter  between  the  shoals  and  the  aids  that 
marked the shoals while the Bridge Positioning Team informed him that he was “within 
the danger range.”  Although a competent ship handler, he was too reactive, and had still 
not developed the more “global” sense of awareness and defensive ship handling skills 
that make an exceptional operator. 
 
The CO also stated that the applicant was also frequently unavailable to handle 
emergencies after hours when he should have been reachable by telephone.  She stated 
that  she  was  required  to  handle  situations  because  the  applicant’s  home  telephone 
would be turned off and he would not return messages.  The CO stated that even after 
she  counseled  the  applicant  about  keeping  his  telephone  turned  on,  she  continued  to 
receive calls because he was unreachable.  The CO stated that an “XO who makes him-
self  inaccessible  to  the  officers  and  crew  is  unable  to  discharge  the  full  scope  of  his 
duties.” 
 
Regarding  the  mark  of  4  for  “Evaluations,”  the  CO  stated  that  the  applicant 
sometimes missed the deadline for submitting his subordinates’ evaluations to her, so 
she  had  to  rush  to  make  her  own  deadline.  The CO alleged that upon his departure 
from the buoy tender, the applicant failed to leave notes for five subordinate officers’ 
evaluations that were that coming due as he had agreed to do since the new XO would 
have observed their work for only five weeks before having to complete their OERs. 

 
 The CO stated that she could not recommend the applicant for command afloat 

because he  

 
did  not  demonstrate  the  professional  competence  and  judgment  expected  of leadership 
positions that operate with little or no experience. … He simply did not demonstrate that 
he could handle all of the facets of the position by assimilating and processing all relevant 
facts  and  coming  to  a  sound  and  authoritative  decision,  often  under  time  constraints. 
While  he  was  a  competent  Executive  Officer  in  the  majority  of  endeavors,  he  had  not 
demonstrated the potential to move beyond the requirements of the position he occupied. 
… Although capable of good things, he did not take the next step to show commanding 
officer potential.  I didn’t see it happen. 

 
 
The  CO  further  stated  that  soon  after  the  applicant  reported  aboard,  she 
“explained to him that before he saw the command endorsement in an OER, he would 
have  a  letter  in  his  hand  … that stated that [she] considered him qualified to assume 
command of [the buoy tender] in all vessel statuses during [her] absence and that [the 
District office]  would get a copy of the letter.  [She] never did give [the applicant] an 
unrestricted letter, for the reasons detailed above.” 
 
 
The CO concluded that the comments in the disputed OER “are factually accu-
rate  and  reflective  of  [the  applicant’s]  performance.”    She  stated  that  she  carefully 
crafted the OER to ensure that he would be competitive for promotion and “to limit the 
impact  of  [her]  reservations  to  [his]  potential  for  command  afloat,  which  necessarily 
involves  consideration  of  qualifications  that  are  quite  unique  in  the  seagoing military 
service.” 
 
 
or inconsistencies when he reviewed it.  
 

The reviewer of the disputed OER stated only that he found no errors, omissions, 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On October 10, 2006, the applicant responded to the views of the Coast Guard.  
He  alleged  that  the  affidavit  of  the  Operations  Officer  clearly  refutes  the  CO’s  com-
ments  about  his  ship  handling  and  professional  competence.    He  alleged  that  “[n]ot 
once  [during  the  evaluation  period]  did  [the  CO]  indicate  that  I  was  performing  at  a 
level  that  would  preclude  her  from  recommending  me  for  command  afloat.”    He 
alleged that her only comment about that recommendation prior to the disputed OER 
was her comment in the prior OER about expecting to recommend him for command 
afloat. 

 
Regarding  the  CO’s  statement  about  the  letter,  the  applicant  stated  that  soon 
after their discussion of the letter, there was a mishap in the region, and the CO told 
him that the District had instituted a new policy that prohibited XOs from taking ships 
out as acting COs.  Therefore, he though that he would not be receiving an unrestricted 
letter  to  assume  command  no  matter  how  superlative  his  performance.    He  thought 
such letters were no longer allowed and so he did not expect any.  The applicant noted 

that the next junior command afloat screening panel would convene on November 14, 
2006.3 
 

APPLICABLE REGULATIONS 

 
Duties of an Executive Officer 
 

Chapter 4-1-5.A. of Coast Guard Regulations (M5000.3B) states that “[t]he com-
manding  officer  shall  normally  issue  all orders relative to the duties of the command 
and  the  administration  of  personnel  through  the  executive  officer,  and  shall  keep  the 
latter informed of all policies.”  Chapter 4-2-15.A. provides that the CO “shall as often 
as possible entrust the handling of the vessel during important evolutions to the execu-
tive officer … .”  Chapter 6-2-1.A. of the Regulations states that “[t]he executive officer 
shall be primarily responsible for the organization, coordination of effort, performance 
of duty, and good order and discipline of the entire command.  While recognizing the 
right  and  duty  of  heads  of  departments  and  other  officers  to  confer  directly  with  the 
commanding officer on important matters relating to their duties, the executive officer 
must be responsible for keeping appropriately informed of such matters.”  Chapter 6-2-
3.A. of the Regulations provides that the specific duties of the XO include supervising 
the administration of the business of the ship; performing the functions of the personnel 
officer  of  the  unit;  preparing  and  maintaining  bills  and  orders  for  the  organization; 
supervising  and  coordinating  work,  exercises,  and  training;  supervising  and  coordi-
nating  the  procurement  of  supplies;  preparing  and  promulgating  work  schedules; 
inspecting departments; functioning as safety officer; and endeavoring to maintain high 
morale. 
 
Rating Chain Responsibilities 
 
 
Article 10.A. of the Personnel Manual governs the preparation of OERs. Article 
10.A.1.b.1.  provides  that “Commanding officers must ensure accurate, fair, and objec-
tive evaluations are provided to all officers under their command.” Every officer nor-
mally has a “rating chain” of three senior personnel, including a Supervisor, the Report-
ing  Officer,  and  the  Reviewer.    However,  a  commanding  officer  is  normally  both  the 
Reporting  Officer  and  Supervisor  for  an  executive  officer.    Personnel  Manual,  Article 
10.A.2.e.1.e.   
 

Article 10.A.1.b.2. states that “[i]ndividual officers are responsible for managing 
their  performance.    This  responsibility  entails determining job expectations, obtaining 
sufficient  performance  feedback,  and  using  that  information  to  meet  or  exceed  stan-
dards.”    Article  10.A.2.c.2.c.  states  that  a  responsibility  of  a  reported-on  officer  is  to, 
“[a]s  necessary,  seek[] performance feedback from the Supervisor during the period.”  
Article 10.A.2.c.2.k. states that a reported-on officer “[a]ssumes ultimate responsibility 
for managing own performance, notwithstanding the responsibilities assigned to others 

                                                 
3 ALCGPERSCOM 096/06 indicates that the applicant was not selected for command afloat by this panel. 

in the rating chain.  This includes ensuring performance feedback is thorough, and that 
OERs and associated documentation are timely and accurate.” 

 
Article 10.A.2.d.2. states that a Supervisor  
 
a. Evaluates the performance of the Reported-on Officer in the execution of duties. 
b.  Provides direction and guidance to the Reported-on Officer regarding specific duties 
and responsibilities. 
c. Discusses at the beginning of the period, upon request, or when deemed necessary, the 
Reported-on Officer’s duties and areas of emphasis.  … 
e. Provides performance feedback to the Reported-on Officer upon that officer’s request 
during the period or at such other times as the Supervisor deems appropriate. 
f.  Counsels  the  Reported-on  Officer  at  the  end  of  the  reporting  period  if  requested,  or 
when  deemed  appropriate,  regarding  observed  performance.    Discusses  duties  and 
responsibilities for the subsequent reporting period and makes suggestions for improve-
ment and development. … 
j.  Provides  the  new  Supervisor  with  a  draft  of  OER  sections  (3-6)  when  the  Supervisor 
changes  during  a  reporting  period.  The  draft  may  be  handwritten  and  shall  include 
marks and comments (bullet statements are acceptable) for the period of observation. It 
shall be prepared and signed by the departing Supervisor prior to departing. 
 

Instructions for Preparing an OER 

 
Article 10.A.4.c.4. instructs Supervisors to assign marks and write comments for 
the first thirteen performance categories on an OER as follows (nearly identical instruc-
tions appear in Article 10.A.4.c.7. for Reporting Officers, who complete the rest of the 
OER): 
 

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  and 
compare the Reported-on Officer's performance to the level of performance 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 pre-
vious  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.  Mere repetition or paraphrasing of the 
standards is not sufficient narrative justification for below or above standard marks. 

 
 
Article  10.A.4.c.8.a.  instructs  the  reporting  officer  to  complete  the  comparison 
scale on an OER by filling in the circle that most accurately reflects his or her ranking of 
the reported-on officer in comparison to all other officers of the same grade whom the 
reporting officer has known. 
 
 
 

Article 10.A.4.c.9. states that in block 10 of an OER,  

a. The Reporting Officer shall comment on the Reported-on Officer’s potential for greater 
leadership roles and responsibilities in the Coast Guard. These comments shall be limited 
to performance or conduct demonstrated during the reporting period. 
b.  Comments  in  this  section  reflect  the  judgment  of  the  Reporting  Officer  and  may 
include, but are not limited to, the following: 
- Qualification to assume the duties of the next grade. 
- Specialties or types of assignment, such as command, for which the Reported-on Officer 
is qualified or shows aptitude. 
- Recommendations for selection to a senior service school. 
-  Special  talents  or  skills  (or  lack  of)  such  as  military  readiness  and  warfare  skills,  sea-
manship or airmanship, etc., as applicable. 
c. Comments shall be confined to the allotted space on the form. 

 

Replies to OERs 
 

Articles 10.A.4.g.1. and 2. of the Personnel Manual provide that a “Reported-on 
Officer may reply to any OER regardless of its content and have this reply filed with the 
OER.  Replies provide an opportunity for the Reported-on Officer to express a view of 
performance  which  may  differ  from  that  of  a  rating  official.  …  Comments  should  be 
performance-oriented,  either  addressing  performance  not  contained  in  the  OER  or 
amplifying the reported performance. … Comments pertaining strictly to interpersonal 
relations or a personal opinion of the abilities or qualities of a rating chain member are 
not  permitted.”    Article  10.A.4.g.4.  requires  that  such  replies  be  submitted  within 
fourteen days of the day the Reported-on Officer receives an official copy of the OER 
from CGPC. 

 

  
1. 

 
2. 

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 submission, and appli-
cable law: 
 

The Board has jurisdiction over this matter pursuant to 10 U.S.C. § 1552. 

The application was timely.   

3. 

The applicant requested an oral hearing before the Board.  The Chair, act-
ing pursuant to 33 C.F.R. § 52.31, denied the request and recommended disposition of 
the case without one.  The Board concurs in that recommendation. 
 
 
The applicant did not submit a reply to the OER within fourteen days of 
receiving  it,  as  allowed  under  Article  10.A.4.g.  of  the  Personnel  Manual,  and  did  not 
apply to the Personnel Records Review Board for correction of the disputed OER within 
one  year  of  receiving  it,  as  allowed  under  Article  14.B.3.    However,  under  10  U.S.C. 
§ 1552,  Congress  established  a  three-year  statute  of  limitations  for  this  Board,4  and  a 
member’s failure to exercise expired administrative remedies does not waive the mem-
ber’s right to seek a record correction via this Board.  
 
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.5  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,”6 the Board weighs the evidence in the record to determine 

4. 

                                                 
4  Moreover,  under  Detweiler  v.  Pena,  38  F.3d  591,  598  (D.C.  Cir.  1994),  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.” 
5  33 C.F.R. § 52.24(b); Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 
594 F.2d 804, 813 (Ct. Cl. 1979). 
6 Final Decision, BCMR Docket No. 2000-194. 

5. 

whether the applicant has met his burden of proof—the preponderance of the evidence 
—with  respect  to  the  challenged  OER.7    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.8   
 
 
The applicant asked the Board to improve his CO’s assessment of his ship 
handling in the disputed OER by replacing the comment “Continued to develop cogni-
tive  perception  to  react,  maneuver  single  screw  ship”  in  block  3  with  the  comment 
“Confident,  highly  skilled  ship  handling  and  seamanship  in  demanding  conditions.”  
The  applicant  alleged  that  (a)  the  fact  that  he  was  assigned  to  train  subordinates  to 
become  deck  watch  officers;  (b)  the  fact that the CO trusted him to drive the ship on 
numerous  occasions  under  difficult  conditions;  and  (c)  the  Operations  Officer’s  state-
ments about his ship handling ability prove that the contested comment is unjust and 
should be replaced with high praise of his ship handling and seamanship.  The Opera-
tions  Officer  called  the  applicant’s  ship  handling  “adept”  and  noted  that  he  was  the 
“’go-to’ ship driver during particularly complex maneuvering evolutions.”  
 

6. 

Chapter 4-2-15.A. provides that the CO “shall as often as possible entrust 
the handling of the vessel during important evolutions to the executive officer … .”  The 
record  shows  that  the  CO  complied  with  this  regulation  even  though  she  was  not 
overly  impressed  with  the  applicant’s  handling  of  the  buoy  tender.    Her  compliance 
does not persuade the Board that the applicant’s ship handling merited the high praise 
he requests.  Nor does the fact that the CO assigned the applicant to train other deck 
watch officers persuade the Board that she did so because she was impressed with his 
ship handling ability.  In her declaration for CGPC, the CO elaborated on the disputed 
comment by explaining that the applicant “did not consistently anticipate, plan for, and 
avoid situations that placed the cutter in close quarters situations” and that even “at the 
end  of  his  tour  he  was  still  placing  the  cutter  between  the  shoals  and  the  aids  that 
marked the shoals while the Bridge Positioning Team informed him that he was ‘within 
the danger range.’  Although a competent ship handler, he was too reactive, and had 
still  not  developed  the  more  ‘global’  sense  of  awareness  and  defensive  ship  handling 
skills that make an exceptional operator.”  The Operations Officer’s statements do not 
sufficiently  rebut  the  CO’s  comments.    The  Board  finds  that  the  applicant  has  not 
proved by a preponderance of the evidence that the comment “Continued to develop 
cognitive  perception  to  react,  maneuver  single screw ship” in block 3 of the disputed 
OER  is  erroneous  or  unfair  or  should  be  replaced  with  the  laudatory  comment  pro-
posed by the applicant. 

 
7. 

The applicant asked the Board to raise his mark for “Professional Compe-
tence” from a 4 to a 6.  He alleged that the end-of-tour Achievement Award he received 
                                                 
7 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). 
8  Hary v. United States, 618 F.2d 704, 708 (Cl. Ct. 1980); CGBCMR Docket No. 86-96. 

from the CO and the high ratings, awards, and commendations received by the buoy 
tender during the evaluation period prove that his “Professional Competence” met the 
criteria for a mark of 6.  The Board notes that the criteria for a mark of 4 in this category 
on an OER form are that the reported-on officer was a “competent and credible author-
ity  on  specialty  or  operational  issues.    Acquired  and  applied  excellent  operational  or 
specialty expertise for assigned duties.  Showed professional growth through education, 
training  and  professional  reading.    Shared  knowledge  and  information  with  others 
clearly and simply.  Understood own organizational role and customer needs.”  The cri-
teria for a mark of 6 in this category are “superior expertise; advice and actions showed 
great breadth and depth of knowledge.  Remarkable grasp of complex issues, concepts, 
and  situations.    Rapidly  developed  professional  growth  beyond  expectations.    Vigor-
ously  conveyed  knowledge,  directly  resulting  in  increased  workplace  productivity.  
Insightful  knowledge  of  own  role,  customer  needs,  and  value  of  work.”  The  record 
shows that both the applicant and the buoy tender enjoyed significant successes during 
the evaluation period and that the Operations Officer found he had “astute leadership 
qualities.”  Nevertheless, the Board cannot say that the applicant’s performance clearly 
exceeded the criteria for the mark of 4 as the record also shows that the CO had signifi-
cant reservations about specific, important aspects of the applicant’s professional com-
petence: his situational awareness and ship handling, his willingness or ability to stay 
accessible for emergencies, and assimilation of facts and authoritative decision making 
under time constraints.  The Board finds that the applicant has not proved by a prepon-
derance of the evidence that the mark of 4 he received for “Professional Competence” in 
the disputed OER is erroneous or unjust. 
 

8. 

The applicant asked that the mark of 4 he received for “Evaluations” be 
raised to a 5 or 6 because he often helped the CO draft her parts of their subordinates’ 
evaluations.  The criteria for a mark of 4 in this category are “Reports consistently sub-
mitted  on  time.    Narratives  were  fair,  concise,  and  contained  specific  observations  of 
action and impact.  Assigned marks against standards.  Few reports, if any, returned for 
revision.    Met  own  OER  responsibilities  as  Reported-On  Officer.”    The  criteria  for  a 
mark  of  6  are  “No  reports  submitted  late.    Narratives  were  insightful,  of  the  highest 
quality, and always supported assigned marks.  Subordinates’ material reflected same 
high  standards.    No  reports  returned  for  revision.    Returned  reports  to  subordinates 
when  appropriate.”    The  CO  stated  in  her  declaration  that  the  applicant  sometimes 
missed  his  deadlines  for  forwarding  subordinates’  OERs  and  that  he  failed  to  submit 
draft OERs for officers he supervised upon his departure from the ship.  A supervisor’s 
failure to submit draft OERs violates Article 10.A.2.d.2.j. of the Personnel Manual and 
can negatively affect subordinates’ careers.  The applicant has failed to rebut the CO’s 
statements.  The Board finds that the applicant has not proved by a preponderance of 
the evidence that the mark of 4 for “Evaluations” in the disputed OER is erroneous or 
unfair. 
 
9. 

The  applicant  asked  the  Board  to  replace  the  comment  “Enjoys  being  at 
sea;  recommended for continued sea service as XO of WHEC/WMEC” in block 10 of 
the  disputed  OER  with  the  comment  “Has  earned  my  highest  recommendation  for 

immediate command afloat of a WLB, WTGB w/ barge or WPC.”  He alleged that the 
CO’s failure to recommend him for command afloat was both erroneous because he was 
well  qualified  for  command  afloat  and  unfair  because  she  knew  he  wanted  such  a 
recommendation yet failed to forewarn him that he was not gaining her recommenda-
tion for command afloat.  Article 10.A.4.c.9. of the Personnel Manual does not require a 
reporting officer to make any specific recommendation or non-recommendation about 
an officer’s potential for command afloat or even for promotion.  The Operations Officer 
stated only that “[b]ased upon my observations, there is nothing lacking in [the appli-
cant’s]  knowledge,  ship  handling,  and  leadership  abilities  that  would  preclude  him 
from serving in a command afloat assignment.  Rather, based upon my limited experi-
ence, what I’ve witnessed of [his] abilities would serve as qualifications toward a com-
mand afloat assignment.”  Neither this statement nor anything else in the record con-
vinces the Board that the applicant’s performance entitled him to his CO’s recommen-
dation for command afloat in the disputed OER rather than to the recommendations she 
willingly made. 

The applicant’s CO wrote in the first OER she prepared for him that she 
expected to be able to recommend him for command afloat in his next OER.  Instead, in 
the  next,  disputed  OER,  she  recommended  him  highly  for  non-sea  service  or  for  sea 
service as an XO of a high or medium endurance cutter.  The applicant alleges that the 
omission of the recommendation for command afloat was unfair because she never spe-
cifically advised him during the evaluation period that he had not yet gained her rec-
ommendation.    However,  the  CO  stated  that  she  did  counsel  him  about  important 
aspects  of  his  performance,  including  his  ship  handling  and  accessibility  after  hours.  
The Board finds that the applicant has not proved that the CO failed to provide proper 
feedback on appropriate occasions as required by Article 10.A.2.d.2.e. of the Personnel 
Manual.  The applicant clearly knew at the beginning of the evaluation period that he 
did not yet have his CO’s recommendation for command afloat, which was apparently 
extremely important to him.  He failed to ask her for an entire year thereafter whether 
he was gaining or had gained her recommendation for command afloat.  Even though 
she  had  told  him she would give him a letter when he received her recommendation 
and she never did so, he apparently assumed that he had nevertheless gained her rec-
ommendation  because  of  a  change  in  the  District’s  policy  about  XOs  acting  as  COs.  
Given  such  circumstances,  the  Board  cannot  find  that  the  CO’s  failure  specifically  to 
advise the applicant that he had not gained her recommendation for command afloat 
during the evaluation period renders her subsequent comments in block 10 of the dis-
puted OER erroneous or unjust. 
 

11. 

The applicant made numerous allegations with respect to the actions and 
attitude of his CO.  Those allegations not specifically addressed above are considered to 
be unproved and/or not dispositive of the case. 

 
10. 

 
12. 

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,” 

factors “which had no business being in the rating process,” or a prejudicial violation of 
a statute or regulation.9 

 
13.  Accordingly, the applicant’s request should be denied. 
 

 

[ORDER AND SIGNATURES ON NEXT PAGE]

 
 

                                                 
9  Hary v. United States, 618 F.2d 704, 708 (Cl. Ct. 1980); CGBCMR Docket No. 86-96. 

military record is denied. 

 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

ORDER 

        

 
 Jordan S. Fried 

 

 

 
 George J. Jordan 

 

 

 

 

 
 
 Charles P. Kielkopf