DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2006-149 
 
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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 July 21, 2006, upon receipt of the completed application and military records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  February  28,  2007,  is  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
The applicant asked the Board to correct her military record by changing the "3" 
 
in the Judgment performance dimension on her officer evaluation report (OER) for the 
period  from October 1,  2003  to  January  31,  2004  (disputed  OER).    She  also  asked  the 
Board to further correct the disputed OER by removing a comment from the reporting 
officer's portion of the OER and by removing her reply to the disputed OER together 
with all rating chain endorsements.   
 

APPLICANT’S ALLEGATIONS 

 
 
The  applicant  alleged  that  the  3  in  judgment  was  based  on  an  unlawful  order 
that  required  her  to  take  a  flu  "vaccination  against  the  direction  of  a  medical 
prescription  [and  that  the  flu  shot]  had  not  been  authorized  by  [the]  prescribing 
physician."  She further alleged that the 3 and the disputed comment resulted from a 
miscommunication and did not result from any action or inaction on her part.  In this 
regard, she stated that she could not have acted sooner because doctors failed to keep 
scheduled medical appointments, that she was assigned to a training class, that she took 
leave that was already scheduled, and that the command's work tempo did not allow 

for  taking  time  to  resolve  the  matter.    She  also  alleged  that  the  disputed  mark  and 
comment  were  based  on  factors  expressly  restricted  by  Article  10.A.4.f.5  &  7  of  the 
Personnel Manual.1   
 
Disputed OER 
 

The applicant was given a "3" in the judgment category, which was supported by 
the  comment,  "In  one  Instance,  failed  to  comply  w/COMDT  policy  and  command 
direction.  The applicant's other marks on the disputed OER were two 4s, fifteen 5s, and 
one 6.  The comments supporting these marks were positive.  
 
 
The reporting officer rated the applicant in the fourth block to the right in block 
9.  on  the  OER,  which  is  where  the  reporting  officer  compares  the  applicant  with  all 
other LTGSs that he has known in his career.  This mark equates to a 4 on a scale of 1 to 
7,  with  7  being  the  best.  A  mark  of  4  describes  an  officer  who  is  one  of  the  many 
competent professionals who form the majority of the LTJG grade.  The applicant was 
"Strongly recommended for promotion with peers." 
 
 
The applicant submitted an OER reply setting forth many of the contentions she 
made  in  her  BCMR  application.    Each  member  of  the  rating  chain  placed  an 
endorsement  on  the  OER  reply  stating  that  the  3  in  judgment  was  an  accurate 
assessment  of  the  applicant's  performance  in  that  dimension  during  the  reporting 
period. 
 

BACKGROUND 

 

 
During  the  period  covered  by  the  disputed  OER,  the  applicant  served  as  the 
assistant chief of the security branch for a Marine Safety Office (MSO).  Her supervisor 
was  the  Chief  of  the  security  branch,  her  reporting  officer  was  the  assistant  chief  of 
operations, and her reviewer was the commanding officer (CO).   
 
 
On November 3, 2003, ALCOAST 497/03 was issued making it mandatory for all 
Coast Guard members on active duty for more than 30 days to be immunized with the 
flu vaccine (flu shot).  The directive also stated that exemptions for the shot would be 
given for members with an allergy to any component of the vaccine.   
 
 
The announcement about the flu shot was made at an all hands meeting which 
the  applicant  attended  on  November  12,  2003.  The  applicant  stated  that  earlier  on 
August  7,  2003,  Dr.  S,  a  civilian  doctor  who  treated  her  at  a  women's  clinic,  had 

                                                 
1   These provisions state that members of the rating chain shall not mention any medical or psychological 
conditions,  whether  factual  or  speculative  in  the  OER.    Further  the  rating  chain  members  may  not 
expressly evaluate, compare, or emphasize tender, religion, color, race or ethnic background in an OER.   

prescribed the drug Dexamethasone, which she was taking on November 12, 2003. She 
stated that she was concerned about taking the flu shot while on Dexamethasone.   She 
submitted a copy of the information sheet accompanying the medication.  It stated in 
pertinent part:  "PRECAUTIONS:  Do not have a vaccination, other immunization, or 
any other skin test while you are taking this drug unless your doctor specifically tells 
you that you may."   The applicant stated that on November 12, 2003, she requested to 
meet  with  a  doctor,  but  since  no  doctor  was  available  she  met  with  the  senior  chief 
health  services  technician  (HSCS)  and  expressed  her  concerns  about  the  contra-
indication of taking the flu shot while taking the prescribed medication.  She also stated 
that she expressed her personal spiritual beliefs with regard to the flu shot (although 
she did not specifically state what those beliefs were).  According to the applicant, the 
HSCS informed her that she could pursue a waiver but that she needed to inform her 
chain of command that she was doing so.  The applicant stated that on the same day she 
informed her supervisor that she did not get the flu shot due to the medication that she 
was taking and that she would be pursuing a waiver.   
 

The applicant stated that on December 1, 2003, she informed the executive officer 
(XO) that she could not take the flu shot for medical reasons, that she had a physical 
scheduled for December 3, and that she planned on pursuing a waiver.  According to 
the applicant, the XO told her to keep her chain of command informed.  The applicant 
stated  that  the  doctor  was  not  available  for  her  scheduled  December  3  physical.  
According to the applicant, the nurse said no determination as to the safety of the flu 
shot could be made because the applicant's medical records had not been received from 
the  women's  clinic.    The  applicant  stated  that  she  informed  her  supervisor  and 
reporting officer of this situation.  She stated that she further told them that she could 
not pursue resolution of the matter if she continued in a training class that she had been 
assigned to and that was scheduled to last all that week.  She stated her supervisors told 
her to stay in class. 
 

The applicant submitted an email string that began with an email from a CWO2 
on December 15, 2003, advising the applicant, among others, that they needed to get the 
flu shot that week.  The same day, the XO emailed the operations officer, who was the 
applicant's department head, inquiring as to whether the applicant had had the flu shot 
since she had not submitted a waiver request that was due on December 5, 2003.  On 
December 16, 2003, the operations officer directed the applicant, along with the others 
to take one of the following actions with a reply to him by close of business that day: 
provide proof to the administrative department that you have had the shot at the clinic; 
get the shot now and provide proof of same; or provide the waiver request that excuses 
you from the shot."  
 
The  applicant  stated  that  on  December  16,  she  discussed  the  situation  with 
 
medical personnel, but no doctor was available.  She stated that the HSCS told her that 
the medication might not be a complication but she should discuss it with a doctor.  She 

stated that she informed the XO of the situation, to which the XO replied "she would 
book me if I did not get it (waiver) in by Thursday (Dec 18))."  The applicant stated that 
on  the  morning  of  December  18  she  had  an  appointment  with  Dr.  W,  wherein  she 
discussed an injury that she had received and that she was concerned about the changes 
in her physiology and wondered if it was due to the medication.  She stated that Dr. W 
stated that he did not have knowledge in that area and told the applicant to contact her 
prescribing physician.  The same day, the applicant stated that she consulted with the 
Chaplain who advised her on how to submit the waiver.  She stated that she put the 
waiver in the XO's box for review at 1600 on December 18, 2003.  There is no evidence in 
the record of any final action ever being taken on it. 
 
 
The applicant stated that on December 19, 2003, the operations officer told her 
that the XO had signed her waiver request and given it to the CO, but that since she did 
not have an approved waiver she was not excused from the flu shot.  According to the 
applicant, the operations officer told her that she had had sufficient time to process the 
waiver and that if she did not get the shot and continue to wait out the waiver, it would 
be reflected in her performance marks.  She stated that she subsequently discussed the 
matter with her supervisor and told him that she had not been medically cleared to take 
the flu shot and that it was not right to mark her poorly when she had done all they 
requested  her  to  do.    She  stated  that  she  was  under  the  impression  that  she  was 
supposed to meet with the operations officer to further discuss the matter, but when she 
asked  her  supervisor  about  a  meeting  with  the  operations  officer,  he  told  her  to  "let 
sleeping dogs lie."    
 
 
The applicant stated that on January 8, 2004, she met with Dr. W and discussed 
the flu shot.  She stated that on January 9, 2004 Dr. W emailed her and stated "medicine 
should be safe to take."    She stated that during a subsequent phone call Dr. W stated 
that if I had concerns, I should contact my physician and schedule a follow-up visit. 
 
 
The applicant stated that on February 20, she had a follow-up appointment with 
Dr S, who had prescribed the medication and discussed certain physiological changes 
and the ability to take the flu shot.  According to the applicant, Dr. S did not think the 
physiological changes were a side effect of the medication, but he took her off of it. The 
applicant  stated  that  Dr.  S  gradually  took her  off  of  the  medication  over  a  two-week 
period and that it took another two weeks for it to clear her system.  The applicant did 
not  state  whether  Dr.  S  recommended  that  she  not  take  the  flu  shot  while  on  the 
medication.   
 
 
On March 1, 2003, the applicant stated that she met with the reporting officer to 
review her OER, wherein she objected to the mark in judgment.  The applicant stated 
that she also met with the XO and tried to explain her situation.  She told the XO that 
she  intended  to  follow  the  process  for  disagreeing  with  the  mark,  to  which  the  XO 

replied:  "If you pursue this [option] you will be opening a Pandora's box.  We can say 
anything we want in response." 
 

The applicant took the flu shot on March 16, 2004.  She stated that she received 
her copy of the OER around May 4 and routed her OER reply on May 18, 2004.  She 
stated that she was advised by a Navy JAG to pursue relief from the BCMR.  
  
Statements from the Rating Chain  
 
 
The  Coast  Guard  obtained  letters  from  the  rating  chain.    The  supervisor  and 
reporting officer stated that the 3 in judgment was an accurate mark.  Each stated that 
he or she witnessed the operations officer direct the applicant to get the shot that day 
which was December 19, 2003.  The reviewer stated that the supervisor, the reporting 
officer and he counseled the applicant about the flu shot situation.  He stated that the 
applicant failed to obey a direct order and that he concurs with the mark and comments 
as written.     
 
 
The Coast Guard also obtained a statement from the operations officer, the head 
of the Department to which the applicant was assigned.  The operations officer stated 
that he directed the applicant to take action from the options that were available to her 
and to cease waiting.  He stated the following: 
 

The  issue  of  getting  the  vaccination  had  dawdled  along  for  some  time 
(several  weeks)  and,  given  the  prompting  from  the  Executive  Officer,  I 
issued the ultimatum in the form of an order that [the applicant] should 
produce  a  result,  of  her  choosing,  from  any  of  the  options  that  was 
available to her.  But, and I was quite clear about this, she should produce 
a  result  e.g.  some  documentation  or  proof  that  she  received  the 
vaccination  or  some  documentation  that  she  was  exempt  from  the 
vaccination (for whatever reason).  The order given to her was to take an 
avenue of action, of her choosing, from the available options and to cease 
waiting.  This in my opinion  . . . did not constitute an unlawful order.  If a 
competent medical authority has reason to believe that the administration 
of  some  medication  is  contraindicated,  the  written  opinion  of  that 
authority would have been sufficient to meet the demands of myself, and I 
presume, the [XO].   
 
Knowing that the ISC Seattle clinic is prone to closing up early on Fridays 
and  that  there  are  on  call  personnel  who  can  respond  to  a  variety  of 
circumstances,  I  indicated  to  [the  applicant]  that  she  should  contact  the 
Executive  Officer  directly  if  she  felt  either  grieved  or  placed  in  an 
untenable  situation  for  carrying  out  the  order.    Virtually  any  service 
member    .  .  .  would  have  made  the  effort  in  an  emergency  to  rectify  a 

situation such as this and returned from liberty, if necessary, to provide 
some advice or opinion.   
 

  * 

 

* 

* 

 

 
[The  applicant's]  conduct  of  prolonging,  unnecessarily  delaying  and  not 
diligently pursuing constructive resolutions in the matter of obtaining the 
required  vaccination  or  appropriate  waiver  indicated  an  inadequate 
weighing of the risks associated with a readiness posture for the unit and 
displayed  substandard  judgment.    Further,  her  lack  of  motivation  and 
expediency  in  resolving  the  matter  consumed  an  inordinate  amount  of 
administrative  effort;  failure  to  prioritize  tasks  and  follow  through  on 
higher priority items reflects poor judgment.   

 

VIEWS OF THE COAST GUARD 

 
 
On December 1, 2005, the Board received the advisory opinion from the Judge 
Advocate  General  of the  Coast  Guard.     The  JAG  recommended  that  the  Board  deny 
relief.    The  JAG  argued  that  the  applicant  has  not  proved  that  the  disputed  OER  is 
erroneous  or  unjust.    The  JAG  stated  that  ALCOAST  490/03  made  influenza 
immunizations mandatory for all active duty members including the applicant.  Based 
on this ALCOAST the applicant's command gave her direct order to either receive the 
immunization or provide a waiver.  The applicant did neither.  The JAG stated that the 
applicant's  failure  to  follow  the  direct  order  from  her  command  was  reflected  in  the 
mark of 3 in judgment on her OER and supported with the statement "in one instance 
failed  to  comply  w/COMDT/policy  &  command  direction"  as  required  by  Article 
10.A.4.c.4. of the Personnel Manual.    
 
 
The  JAG  further  argued  that  the  applicant  has  failed  to  demonstrate  why  the 
OER reply should be removed.  In this regard, the JAG stated that the applicant offered 
no  argument  or  justification  for  removal  of  the  reply  beyond  her  argument  that  the 
mark and comment were erroneous.  The JAG asserted that without a finding that the 3 
and corresponding comment are erroneous the OER reply should not be removed from 
the record.      
 
 
CGPC offered the following, in pertinent part: 
 

The JAG attached a memorandum from CGPC as part of the advisory opinion.   

The applicant's emphasis on the command's order to her in December as 
an  unlawful  order  is  misplaced.    There  is  no  indication  from  the  rating 
chain  that  the  command  told  the  applicant  to  get  a  flu  shot  despite  the 
consequences  of  her  medication    .  .  .  They  directed  her  to  seek  an 
exemption from the flu shot requirement due to the applicant's medication 

 
 

  

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On January 5, 2007, the BCMR received the applicant's response to the views of 
the Coast Guard.  The applicant took issue with almost each paragraph of the advisory 
opinion and restated many of the arguments that she made in her original statement to 
the Board, including the following:  her actions showed good judgment, the order was 
unlawful, the mark was based on her medical condition, gender, and/or religion, and 
the comment was based on a medical event rather than her performance.    

or authorization to get the flu shot and made it a direct order based on the 
applicant's  failure  to  address  this  in  a  timely  manner  .  .  .  The  applicant 
was  given  a  reasonable  period  of  time  to  comply  with  this  requirement 
but she failed to do so and she cites several excuses which may account 
for some of the delay but it does not excuse her lack of due diligence in 
talking directly to the prescribing physician.  Further, there is no evidence 
of miscommunication that would excuse such a delay on the applicant's 
part.    Finally,  there  is  no  merit  to  the  applicant's  assertion  that  the 
disputed  OER  violated  PERSMAN  Article  10.A.4.f.5.&7.    The  comment 
that  supports  the  mark  of  3  does  not  mention  the  applicant's  medical 
condition, race, gender, etc.  It is a neutral sentence within the disputed 
OER  that  simply  states  the  applicant  failed  to  comply  with  the 
Commandant's policy and the command's direction.   

 
The  applicant  stated  that  she  wanted  to  emphasize  that  she  followed  the 
regulations and did what she was told to do, but in retrospect she was given conflicting 
information.   She further stated the following: 
 

[T]he  Coast  Guard  Regulations  COMDTINST  6000.1C  CH22  require  the 
command  to  determine  [whether]  a  refusal  is  unreasonable  before  taking 

                                                 
2        Chapter  2.A.4.a.  of  the  Medical  Manual  restating  Section  8-2-1  of  the  Coast    Guard  Regulations 
provides that: 
 

(1)  "Persons in the Coast Guard shall not refuse to submit to necessary and proper medical or 
dental  treatment  to  render  themselves  fit  for  duty,  or  refuse  to  submit  to  a  necessary  and  proper 
operation not endangering life." 

(2)  "Persons in the Coast Guard shall permit such action to be taken to immunize them against 

disease as is prescribed by competent authority." 

 
Chapter  2-A-4.b.  (1)(a)  states  that  it  is  the  Commandant's  policy  that  compulsion  is  not 
permissible at any time to require Coast Guard personnel to submit to various types of medical or dental 
treatment, diagnostic procedures, or examinations.   Subsection 2-A-4.b. (1)(c) states that individuals who 
refuse  to  submit  to  measures  considered  by  competent  medical  or  dental  officers  to  be  necessary  to 

disciplinary action.  Although, as I have stated, my intent was not to refuse 
the shot but merely to seek clearance from a doctor for medical suitability, 
and to pursue a waiver as authorized by COMDTINST 6230.4E.  I requested 
permission  to  pursue  the  waiver  request  prior  to  pursuing  the  medical 
suitability  and  was  granted  permission. 
  Although  all  emails  and 
conversations  had  indicated  this  approach  was  permissible  by  the 
command, after submitting the proper documentation, the command gave 
me an order to take the flu shot, which as previously described is against 
Commandant policy.  In seeking clarification on this order, I was told the 
command was looking into it and to leave it alone.  They would approach 
me when they wanted to talk.  So the question once again remains:  was my 
action  unreasonable  or  unjustified.    I  was  following  prescribed  course  of 
action per COMDTINST 6230.4E Section 13, and informing my command of 
my progress while accomplishing a variety of significant and high priority 
missions.  I, in fact, followed up on the medical suitability, was taken off the 
medication, and took the shot, prior to having received any response on the 
waiver request.  All of these actions are within regulations and my rights as 
described  in  the  Immunization  and  Chemoprohylaxis  (joint  publication), 
Medical Manual, and United Stated Coast Guard Regulations, 1992.   

 
 
With  respect  to  the  OER  reply,  the  applicant  stated  it  "was  to  describe 
unrestricted parts of events that occurred during the incident that prompted the '3'.  It is 
a digested description of the timeline, and was a futile and failed cry for help to persons 
outside the Chain of Command.  If the Board finds in my favor, this document should 
no longer belong in my record."     
 

The  applicant  submitted  six  character  and  performance  references.    Each 
individual  spoke  of  her  excellent  performance  of  duties  and  stated  that  she  was 
involved in several difficult and high priority projects during the period covered by the 
disputed OER.   

 

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. 

                                                                                                                                                             
render them fit for duty may be processed for separation from the Coast Guard.  Such individuals may be 
subjected to disciplinary action for refusal of necessary treatment or surgery if the refusal is determined 
to be unreasonable.   

 
2.  The applicant requested an oral hearing before the Board.  The Chair, acting 
pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the 
case without a hearing.  The Board concurs in that recommendation. 

 
3.   For the reasons discussed below, the Board finds that the applicant has failed 
to  prove  that the  disputed  below  average mark  of  3  in  judgment  and  the  supporting 
comment "In one instance, failed to comply w/COMDT policy & command directive" 
are  in  error  or  unjust.    It  is  clear  from  the  evidence  that  on  November  3,  2003,  the 
Commandant, in ALCOAST 497/03, made it mandatory for all active duty members to 
take the flu shot, except those who were granted exemptions because of allergies to a 
component  of  the  vaccine.    The  applicant  knew  about  the  Commandant's  directive 
because  she  admitted  she  learned  about  it  at  an  all  hands  meeting  on  November  12, 
2003.    Therefore,  ALCOAST  497/03  was  an  order  from  the  Commandant  that  the 
applicant's chain of command had a duty to enforce and that the applicant had a duty 
to obey. Para 14.b.(2)(g) of the Manual for Courts-Martial states that "If an order does 
not  indicate  the  time  within  which  it  is  to  be  complied  with,  either  expressly  or  by 
implication, then a reasonable time in compliance does not violate [the Uniform Code of 
Military  Justice]."  Although  the  ALCOAST  contained  no  specific  date  by  which  the 
applicant  had  to  take  the  flu  shot  or  have  an  approved  waiver,  she  was  under  an 
obligation to act within a reasonable time because flu shots work best if taken within a 
certain  period  of  the  year.  The  reporting  period  ended  on  January  31,  2004,  and  the 
applicant had neither an approved waiver nor had she taken the flu shot.  She did not 
even  submit  her  waiver  request  until  December  18,  2003,  after  the  XO  threatened  to 
place  her  on  report  if  she  did  not  do  so.  Therefore,  the  applicant  should  have  acted 
more  diligently  in  complying  with  the  Commandant's  directive  and  it  was  not 
unreasonable  for  the  rating  chain  to  consider  the  manner  in  which  the  applicant 
handled/mishandled the matter in evaluating her judgment in the performance of her 
duty to obtain the flu shot or an approved waiver.  

 
4.    The  applicant  alleged  that  the  3  in  judgment  was  based  on  an  unlawful 
command order that required her to take the flu vaccination against the direction of a 
medical prescription and without the approval of her prescribing physician and that it 
was in violation of Article 2.A.4.b.(1) of the Medical Manual, which states that that it is 
the  Commandant's  policy  that  compulsion  is  not  permissible  at  any  time  to  require 
Coast  Guard  personnel  to  submit  to  various  types  of  medical  or  dental  treatment, 
diagnostic  procedures,  or  examinations.    Further,  Article  2.A.4.b.(1)(c)  of  the  Medical 
Manual  states  such  individuals  may  be  subjected  to  disciplinary  action  for  refusal  of 
necessary treatment or surgery if the refusal is determined to be unreasonable. These 
provisions  say  nothing  about  immunizations.  But,  even  if  the  provisions  are  read  to 
include  immunizations,  the  Board  finds  that  the  applicant  failed  to  act  reasonably  in 
complying  with  her  command's  directions  and  could  have  been  placed  on  report  for 
disobeying  an  order.      In  support  of  its  conclusion  here,  the  Board  finds  that  on 

December  19,  2003,  the  operations  officer  stated  that  after  learning  that  the  applicant 
had not taken the flu shot and did not have an approved waiver, he ordered her to get 
the shot or produce an approved waiver by the end of that day or her failure to do so 
would be reflected in her OER.  The applicant argued that the only option given to her 
by the operations officer was to get the shot, which she argued is corroborated by the 
statements of the reporting officer and supervisor. 

 
5.  Even if the order from the operations officer to the applicant included only the 
option of getting the shot, it was still a lawful order.  The applicant was aware of her 
available options as early as November 12, 2003 and apparently had not presented her 
command with a medical opinion/waiver stating that it was not safe for her to take the 
shot by December 19, 2003.  With this lack of medical evidence and the amount of time 
given  to  the  applicant  to  resolve  the  situation,  the  operations  officer  determined  that 
any further delay on her part was unreasonable.  The applicant further exacerbated the 
situation  by  not  acting  immediately  upon  receiving  the  order  from  the  operations 
officer and has not shown that it was impossible for her to comply with the operations 
officer's order.  She provided no evidence that she attempted to talk with a Coast Guard 
medical officer or contract civilian doctor immediately after that order.  While there is 
evidence that the clinic was closed that weekend, the applicant offered no evidence that 
she attempted to get the necessary medical documentation to support a medical waiver 
the following Monday.  Rather her focus was the alleged unfairness of including this 
event  in  her  OER,  which  was  based  upon  her  failure  to  act.  One  further  note:  the 
applicant's  claim,  even  if  true,  that  her  supervisor  told  her  to  "let  sleeping  dogs  lie" 
when she questioned him about meeting with the operations officer to further discuss 
the situation, does not excuse her disobedience of the order.  The applicant  was  well 
aware that the order came from the operations officer and not her supervisor.  Her duty 
was to the operations officer.  She did not comply with the operations officer's order by 
close of business on December 19, 2003, nor did she comply with it by January 31, 2004 
the end date for the disputed OER.  The Board notes that the applicant did not comply 
with the command's directive until March 16, 2004, when she apparently determined it 
was safe to take the medication.   

 
6.  Nor has the applicant submitted evidence showing that complying with the 
operations  officer's  direction  would  have  been  injurious  to  her  health.  None  of  the 
doctors the  applicant consulted  with  or  who  examined  her  during  this  entire  process 
wrote  a  statement  or made  a  finding  that  it  was  not  safe  for  her to take  the  flu  shot. 
According to the applicant, she consulted with Dr. W on December 18, 2003, but did not 
get an opinion about the flu shot due to the absence of certain medical records from her 
file.  She met with Dr. W again on January 8, 2004, and he gave the okay for the shot, 
but apparently, the applicant was still not persuaded as to the safety of the flu shot and 
further delayed taking action. On February 20, 2004, the applicant met with Dr. S the 
prescribing physician.  She stated that she discussed taking the flu shot with Dr. S as 
well  as  possible  side  effects  of  the  medication  she  was  taking.    In  this  regard,  the 

applicant stated that Dr. S did not think her physiological changes were a side effect of 
the medication but that he would take her off of it. If she asked Dr. S about taking the 
flu shot while on the medication or while he was methodically taking her off of it, she 
did not provide his opinion in her statement.  Nor has she presented this Board with 
any medical evidence that the flu shot would have been injurious to her health at any 
point.  The  applicant's  command  found  that  the  general  warning  on  the  prescription 
information  sheet  was  insufficient  to  excuse  her  from  the  flu  shot.    Otherwise,  she 
would  not  have  been  required  to  seek  a  medical  opinion.    Accordingly,  the  Board  is 
satisfied  that  the  applicant  had  sufficient  time  to  obtain  a  medical  opinion  as  to  the 
safety  of  the  flu  shot  prior  to  the  December  19,  2003,  deadline  given  to  her  by  the 
operations officer and certainly by January 31, 2004, the end date for the disputed OER.   
 

7.  Para  14.c.(2)(a)(i)  of  the  Manual  for  Courts-Martial  states  that  "an  order 
requiring the performance of a military duty or act may be inferred to be lawful and it is 
disobeyed at the peril of the subordinate."  Section 8-2-1 of the Coast Guard Regulations 
(1992)  states,  "Persons  in  the  Coast  Guard  shall  permit  such  action  to  be  taken  to 
immunize  them  against  disease  as  is  prescribed  by  competent  authority."    The 
applicant's decision not to act on her command's direction was at her peril. 
 

8.    In  light  of the  above,  the  Board  finds  that  it  was  appropriate for  the  rating 
chain  to  comment  on  the  applicant's  judgment  in  handling/mishandling  the  flu  shot 
situation.  She did not timely carry through with the Commandant's directive even after 
being  ordered  by  her  command  to  do  so.    Nor  did  she  obey  the  operation  officer's 
December  16  or  December  19  orders  to  get  the  shot or  produce an  approved  waiver.  
The applicant set forth several arguments for not completing action on the flu shot.  In 
this regard, she stated that scheduled medical examinations fell through, that she was in 
class,  that  she  was  on  scheduled  leave,  or  that  the  command's  work  tempo  did  not 
allow  for  resolving  the  matter.    However,  these  are  excuses  and  do  not  establish 
impossibility to comply with the directives.  The applicant's inaction after being told to 
take action by the operations officer by a day certain constituted poor judgment and her 
decision not to act was properly reflected in the OER.   

 
9.  In addition, according to the prewritten standard on the OER form, a mark in 
the  judgment  category  measures  an  officer's  "ability  to  make  sound  decisions  and 
provide  valid  recommendations  by  using  facts,  experiences,  common  sense,  and 
analytical thought."  In opinion of the rating chain, the applicant's performance in this 
area did not meet the standard for a 4 because it was not at the high level expected of all 
Coast  Guard  officers.3      As  the  Board  stated  above,  it  was  appropriate  for  the  rating 

                                                 
3 Article 10.A.1.b.2. c. of the Personnel Manual 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 

chain  to  consider  the  applicant's  handling/mishandling  of  the  flu  shot  situation  in 
evaluation her judgment for the period covered by the disputed OER.  The applicant 
has not demonstrated by a preponderance of the evidence that the 3 in judgment or the 
disputed comment are in error or unjust.   

 
10.    The  applicant's  contention  that  the  below  average  mark  and  disputed 
comment  were  inappropriate  because  they  were  based  on  her  medical  condition,  her 
religious beliefs, and/or her gender is without merit.  Nor has the applicant presented 
sufficient  evidence  to  support  the  claim.    The  comment  mentions  none  of  these 
prohibited  subjects.    The  Commandant  issued  the  order requiring the  flu  shot  unless 
excused for medical reasons and the applicant had a duty to obey the order.  

 
11.  The applicant contended that she showed good judgment by concentrating 
on the mission first, following the chain of  command, adhering to Coast Guard rules 
and regulations, and preparing for multiple outcomes by continuing to follow-up with 
medical suitability.   She further argued that her character references show that she was 
an excellent performer and exercised good judgment in her duties. The opinion of the 
applicant and those of her character witnesses are not a substitute for the opinion of the 
rating  chain  who  is  charged  with  the  responsibility  of  evaluating  their  subordinates.  
Apparently, the members of her rating chain who had a responsibility to carry out the 
Commandant's directive with respect to the flu shot and to maintain a fit and ready unit 
did  not  share  the  applicant's  opinion  that  she  had  exercised  good  judgment  in  this 
situation.    The  Commandant  sets  the  policy  not  individual  members  of  the  Coast 
Guard. 
 
12.  The applicant contended that the events leading up to the comment being 
placed in the OER was medical and not performance based.  While there may have been 
a medical component to the issue of whether the applicant should take the flu shot, the 
fact that the applicant showed poor judgment in not promptly resolving the matter and 
in  disobeying  an  order  as  discussed  above  was  a  proper  matter  for  comment  by  the 
reporting officer.    

 
13.    The  Board  will  not  remove  the  OER  reply  because  the  applicant  has  not 
shown that it was placed in the record in error or that it is unjust.  Since the applicant 
has not proved an error or injustice in the OER proper, the Board has no basis on which 
to consider removal the OER reply and endorsements from the her record. 
 

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

case and her request for relief should be denied.   
 
                                                                                                                                                             
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. 

 
 
 
 
 
 
 

 

 
 

 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

The application of ssssssssssssssssssssssssssssssssss, USCG, for correction of her 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 William R. Kraus 

 

 

 
 Dorothy J. Ulmer 

 

 

 

 

 
 Thomas H. Van Horn 

 

 

 

 

 

 

 

 

 

 

 

military record is denied.