DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2007-027 
 
xxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxx   

 

 
 

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 November 13, 2006, upon 
receipt of the applicant’s completed application. 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  June  13,  2007,  is  approved  and  signed  by  the  three  duly 

 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, a lieutenant (LT) on active duty, asked the Board to correct his record by 
removing his officer evaluation report (OER) for the period June 1, 2005, to May 31, 2006, when 
he was serving as a marine safety inspector in xxxxxxxxxxxx.  He asked that it be replaced with 
an OER prepared for continuity purposes only.  The applicant also asked the Board to remove his 
failure of selection for promotion to lieutenant commander (LCDR) by the LCDR selection board 
that met in August 2006 and to backdate his promotion to the date he would have had if selected 
for promotion by that board. 
 
 
The applicant alleged that the disputed OER contains inaccurate dates and comments and 
that  some  of  the  comments  reflect  higher  numerical  performance  marks  than  those  he  was 
assigned.    He stated that in April 2006, near the end of the evaluation period, an Assignment 
Officer told him that he would be transferred to New Orleans during the coming summer.  There-
fore, the applicant told his supervisor, Mr. X, that he would initiate an OER in expectation of his 
transfer to New Orleans in July 2006.  He chose July 14, 2006, as the end date for the OER since 
that would be his final day on duty in Xxxxx.  Although the usual end date for a lieutenant’s 
OER is May 31, a July 14, 2006, end date was permissible under the rules and would allow all of 
his performance prior to his departure from Xxxxx to be evaluated in the OER. 
 
 
On  April  13,  2006,  the  applicant  stated,  the  Coast  Guard  announced  via  ALCGPERS-
COM 025/06 that the zone for consideration for selection for promotion to LCDR in 2006 would 

include those lieutenants with signal numbers less than or equal to 2970.  Since the applicant’s 
signal number was 2976, he did not expect to be “in the zone” for selection for promotion.  On 
June 8, 2006, however, the Coast Guard announced via ALCGPERSCOM 035/06 an increase in 
the zone size down to and including his own signal number.  The applicant stated that he saw the 
announcement on June 12, 2006, and promptly spoke with his supervisor, Mr. X, and his report-
ing officer, CDR Y, since Mr. X was to be on leave from June 13 to July 3, 2006.  He told them 
that he would have his OER input drafted and on Mr. X’s desk by the time Mr. X returned from 
leave on July 3.  He told them that ALCGPERSCOM 035/06 required the OER to be submitted 
by July 15, 2006, since the usual end of the evaluation period was May 31. 
 
 
The applicant alleged that he placed his OER input in Mr. X’s inbox on June 27, 2006, 
before  he returned from leave.  Mr. X completed and signed his part of the OER on July 16, 
2006, and CDR Y completed and signed his part on July 27, 2006.  The reviewer signed the OER 
on  July  28,  2006,  and  the  Coast  Guard  Personnel  Command  (CGPC)  received  it  on  July  31, 
2006.  The applicant stated that since the deadline for completion of his OER had been July 15, 
2006, CGPC had in the interim sent queries concerning the non-receipt of his OER. 
 
 
The applicant complained that in the final OER, the date of submission of his input in 
section 1.l. was incorrectly changed from June 27, 2006, to July 5, 2006.  Moreover, on August 
10, 2006, LT W from CGPC informed him that he had changed the end date in section 1.i. of the 
applicant’s OER from July 14 to May 31, 2006, and the reason for the OER in section 1.j. from 
“detachment of officer” to “annual/semiannual.” 
 
 
The applicant stated that in the final OER, he unjustly received a low mark of 3 for “Eval-
uations”  with  the  erroneous  supporting  comment,  “Own  OER  submitted  late  without  detailed 
input  or  supporting  documentation.”    The  applicant  argued  that  this  mark  and  comment  were 
unfair because Mr. X had agreed with him that the end date should be July 14, 2006, and had 
asked  him  “to  provide  a  finished  OER  product  to  him”  rather  than  more  detailed,  supporting 
documents.  In addition, Mr. X had agreed that the applicant’s input should be submitted by the 
time Mr. X returned from leave on July 3 since he was going on leave the next day, June 13. 
 

The applicant also alleged that no one counseled him either formally or informally during 
the evaluation period about any perceived change in his performance, even though the marks in 
the disputed OER declined dramatically from those in his prior evaluation, which was signed by 
the same reporting officer.  The applicant pointed out that his marks in six performance catego-
ries dropped from 6 to 4 (on a scale of 1 to 7, with 7 being best); his marks in three categories 
dropped from 6 to 5; his marks in four categories dropped from 5 to 4; and his mark in one cate-
gory,  “Evaluation,”  dropped  from  5  to  3.    In  total,  sixteen  of  the  eighteen  numerical  marks 
decreased, and his mark on the comparison scale dropped from the fifth spot, which denotes an 
“excellent  performer,”  to  the  fourth  spot,  which  denotes  a  “good  performer”—all  without any 
counseling about his performance from Mr. X or CDR Y.  The applicant alleged that because his 
rating chain never counseled him about a perceived decline in performance, he believed that his 
performance was in line with what was expected of a senior lieutenant.  The applicant stated that 
he is unsure whether his supervisor, Mr. X, had the required training and certification in the Offi-
cer Evaluation System (OES) before completing the disputed OER.   
 
 

The applicant further alleged that the following are clear errors in the disputed OER: 

 
In  section  2,  one  of  his  collateral  duties  is  described  as  “Duty  Investigator/Inspector,  Port 
• 
Emergency  Assessment  Team  (PEAT)  Member,”  whereas  in  fact  it  should  have  read  “Senior 
Duty Investigator/Inspector, Port Emergency Assessment Team (PEAT) Leader,” as indicated in 
section 7. 

 

In section 3, he is described as a PEAT member, whereas he was a PEAT leader and, in fact, 

• 
trained other teams, as indicated in section 7. 
 
In section 8, he received an average mark of 4 for the category “Health and Well-Being,” and 
• 
yet  a  written  comment  in  that  section  stated,  “Maintained  exceptional  military  appearance, 
prompted peers to follow command expectations.  Remained physically fit & trim through regu-
lar exercise.”  He alleged that the comments support a mark of 6 in “Health and Well-Being.” 
 
In section 9, on the comparison scale, he is described as a “good performer,” whereas com-
• 
ments  throughout  the  OER  clearly  support  a  mark  of  “excellent  performer.”    The  applicant 
pointed to comments regarding his excellent skills and confidence. 
 
 
In support of his allegations, the applicant submitted copies of the disputed OER, includ-
ing a Letter of Commendation for his efforts at the time of Hurricane Katrina; the ALCGPERS-
COMs  announcing  and  changing  the  zone  size;  his  OER  Routing  Slip  dated  June  27,  2006, 
which shows the period of the “annual” report as June 1, 2005, through May 31, 2006; an email 
from the applicant to Mr. X dated June 27, 2006, in which the applicant wrote “Hard copy [of 
OER] in your box. … It must be received by CGPC-OPM by July 14, 2006.  Thank you for rap-
idly completing it”; his previous OER with significantly higher marks; a chart of all of his OER 
marks; and a letter from his prior supervisor, a senior investigating officer at Xxxxx, who wrote 
the following: 
 

I  have  known  [the  applicant]  since  January  2000.    [He]  was  a  qualified  duty  investigator  from 
December 2000 to June 2006 and a member of the Investigation Division from June 2004 to July 
2005.  …  I  found  [the  applicant’s  leadership  and  performance]  extremely  proficient  and  profes-
sional, and I would encourage other junior officers to emulate them.  [He] is without a doubt one 
of the most knowledgeable and well rounded Coast Guard officers that I have supervised.  [He] 
exceeded  my  expectations  as  an  investigator  and  supervisor.    He  has  mentored  others  and  per-
formed extremely well under a vast array of situations.  Several major marine casualties and per-
sonnel action cases against merchant mariners were executed professionally and thoroughly with-
out any significant direction from me or other senior officers. 
 
On or about July 2005, [the applicant] volunteered to transfer to the Inspections Division to assist 
that division during a severe senior personnel shortage to finish his tour of duty at Sector Xxxxx, 
Xxxxx.  His experience and leadership was welcomed during the shortage.  Throughout the last 
year and up to his permanent change of station to … New Orleans, LA, I never received any com-
plaints,  constructive  criticisms  or  feedback  from  my  peers  or  senior  officers indicating that [the 
applicant’s] performance was on a decline.  I would classify [his] performance while assigned to 
me at Sector Xxxxx, xxxxx as exemplary. 

 

VIEWS OF THE COAST GUARD 

On March 26, 2007, the Judge Advocate General (JAG) of the Coast Guard submitted an 

 
 
advisory opinion in which he recommended that the Board deny relief in this case.   
 
 
The JAG admitted that Mr. X did not have the required certification in his record when he 
prepared the disputed OER, but argued that the error is harmless because Mr. X is a retired Coast 
Guard officer who during his 30 years of active duty “attended formal training sessions pertain-
ing to officer, enlisted and civilian evaluation systems.”  The JAG noted that in BCMR Docket 
No. 2006-065, the Board concluded that the assignment of a civilian without OES training as a 
supervisor was harmless error because the supervisor received the requisite OES training during 
the evaluation period and before he prepared the disputed OER. 
 

 

The JAG adopted the findings and analysis provided in a memorandum on the case pre-
pared by the Coast Guard Personnel Command (CGPC).  CGPC stated that the applicant did not 
submit his OER input to his rating chain within 21 days of the end of the evaluation period as 
required by Article 10.A.2.c.2.f. of the Personnel Manual.  CGPC stated that affidavits by the 
applicant’s supervisor and reporting officer (see below) show that the applicant did not have an 
agreement with them to delay the end date of his evaluation period to July 14, 2006, and so his 
OER input should have been submitted at least 21 days before May 31, 2006.  CGPC argued that 
the mark of 3 for “Evaluations” in the disputed OER was also warranted by the poor quality of 
the applicant’s OER input, as indicated in the affidavits. 

 
CGPC alleged that the end date of the applicant’s OER was properly corrected by CGPC 
from July 14 to May 31, 2006, because under Article 10.A.3.a. of the Personnel Manual, lieuten-
ants who are in or above the zone for selection for promotion to LCDR may not extend their 
evaluation periods beyond the usual May 31 end date.  Therefore, the “administrative correction 
was made at the Personnel Command in order to make the report a valid evaluation.” 

 
Regarding  performance  counseling,  CGPC  alleged  that  the  Personnel  Manual  lays  the 
responsibility  for  such  counseling  on  the  reported-on  officer,  not  on  the  rating  chain.    CGPC 
stated that the affidavits show that the applicant did not receive formal counseling because he 
was meeting the expected standard of performance for commissioned officers in all categories 
until the very end of the evaluation period when he “fail[ed] to meet his own OER responsibili-
ties prior to his transfer.”  CGPC stated that the applicant did not receive counseling about the 
OER because he was transferred before his rating chain completed it. 

 
With respect to the applicant’s complaint about the description of his collateral duty in 
section 2, CGPC argued that the applicant had submitted no evidence to support his allegation 
and that no such designation existed. 

 
With respect to the applicant’s mark of 4 for “Health and Well-Being,” CGPC alleged 
that the comment about the applicant’s “exceptional military appearance” supported the appli-
cant’s mark of 5 for “Professional Presence.”  CGPC stated that the disputed mark of 4 was sup-
ported  by  the  comment,  “Remained  physically  fit  &  trim  through  regular  exercise,”  which  is 
expected of commissioned officers. 

Regarding  the  mark  in  the  fourth  spot  on  the comparison scale, denoting a “good per-
former,” CGPC pointed out that the same reporting officer had previously assigned the applicant 
a mark in the fifth spot, denoting an excellent performer,” and that there is no evidence that the 
reporting officer’s judgment was incorrect.  CGPC stated that the comparison scale mark does 
not necessarily reflect any trend but reflects the reporting officer’s judgment of how the reported-
on  officer’s  performance  compares  to  the  performance  of  all  other  officers  of  the  same  rank 
whom the reporting officer has known throughout his career.  

 
CGPC alleged that the fact that the marks in the disputed OER are lower than those he 
received in his prior OER is irrelevant because an OER is intended to reflect only the officer’s 
performance during the evaluation period and is “not an indicator of trends in relation to other 
OERs during the career of the officer.”  CGPC concluded that the applicant’s rating chain prop-
erly carried out its responsibilities and that the supervisor and reporting officer “were in the best 
position to observe [his] performance and proved a fair, accurate, and objective OER.”  CGPC 
argued  that  the  applicant  failed  to  prove  that  there  were  any  incorrect  dates  or  comments  or 
inconsistent comments in the disputed OER.  Therefore, CGPC argued, there are no grounds for 
removing the OER or his failure of selection for promotion from the applicant’s record. 

 

Statement of Supervisor, Mr. X 
 
 
Mr. X stated that he is the chief of the Inspection Division in Xxxxx.  He alleged that the 
disputed  OER  is  “an  accurate,  fair,  and  objective  evaluation  …  for  this  reporting  period  with 
strict and conscientious adherence to the specific wording of the standards set forth in the OER.” 
 
 
Regarding the end date of the OER, Mr. X stated that he did not “agree[] to allow [the 
applicant] to submit his OER upon detachment from Sector Xxxxx on or about July 14, 2006.  
Although I do not remember the specific dates, [the applicant] did discuss his options with me.  I 
dispute that we agreed to a departure date when we spoke in April 2006, but I did agree to defer 
the OER submission, if permitted by Chapter 10 of the PERSMAN and provided that my super-
visor, [CDR Y], agree[d].  To the best of my knowledge, no agreements or timeline was ever 
established during our conversation.” 
 
 
Regarding the applicant’s allegations about their conversation on June 12, 2006, Mr. X 
alleged that his “last day in the office was Friday, June 9, 2006, just prior to departing on an 
extended vacation in Europe until July 5, 2006.  I have no knowledge of any conversations or 
emails  pertaining  to  the  subject  prior  to  my  departure.    No  agreements  or  arrangements  were 
conveyed to [the applicant] concerning this matter.”  Mr. X stated that because the end date of 
the OER was May 31, 2006, the applicant should have submitted his input no later than May 10, 
2006, not June 27, 2006.  He stated that he “received [the applicant’s] poorly written OER on an 
outdated  …  form  without  supporting  documentation  on  July  5,  2006,  my  first  day  back  from 
vacation.  The result of [his] submitting his OER late was the entire rating chain having 10 days 
to complete the OER as opposed to the 45 days normally allowed.”  

 
Mr. X strongly objected to the applicant’s claim to having submitted his OER input on 
June 27, 2006, since Mr. X did not return from vacation or receive the OER input or the appli-
cant’s email until July 5, 2006.  Moreover, because the applicant used the wrong OER form, his 
input had to be rewritten on the correct form.  Furthermore, because the applicant did not super-

vise any subordinates during the evaluation period, his mark for “Evaluations” was based purely 
on how he fulfilled his own OER responsibilities.  Mr. X stated that the mark of 3 was accurate 
in this regard.  Mr. X argued that the applicant “should not have delayed his regular annual OER 
past the scheduled due date [May 31, 2006] once he realized that he was in the zone for promo-
tion. 

 
Regarding the mark on the comparison scale in the disputed OER, Mr. X stated that the 
applicant’s prior comparison scale mark is immaterial because he was “doing a different job for a 
different supervisor” during the evaluation period.  Mr. X stated that he evaluated the applicant 
on his performance during the evaluation period and assigned accurate and objective marks. 

 
Regarding counseling, Mr. X agreed that the applicant never requested performance feed-
back.  Mr. X admitted that he “never spoke to [the applicant] about his declining performance 
because  my  observations  during  the  rating  period  and  the  marks  assigned  for  this  evaluation 
period indicated that he met or exceeded the minimum CG standard performance criteria with the 
exception of the Evaluation performance dimension.”  Mr. X stated that because the applicant’s 
performance met or exceeded the high level expected of all Coast Guard officers, “no perform-
ance feedback was conducted or warranted.”  Mr. X stated that he did not provide counseling 
after the OER was completed and before it was submitted to CGPC because of the hurried timing 
and deadline for the OER.  After the OER was submitted, he did provide counseling to the appli-
cant about how to improve his mark for “Evaluations.” 

 
Regarding the description of the applicant’s duties in section 2 of the OER, Mr. X stated 
that in his 20-plus years in the marine safety field, he has “never heard of or designated anyone as 
a ‘senior’ duty investigator/inspector.”  He further stated that the applicant was a PEAT member 
during the evaluation period and that “no further or amplifying designation is required or war-
ranted.”  Mr. X stated that the reporting officer’s description of the applicant’s performance as a 
“PEAT leader” in section 7 of the OER reflected a “one time event” during the evaluation period, 
and that the applicant’s actual collateral duty was accurately described as being a PEAT member. 

 
Regarding the mark of 4 for “Health and Well-Being,” Mr. X stated that it is accurate 
because  the  applicant’s  military  bearing  was  accounted  for  in  the  mark  of  5  for  “Professional 
Presence.”    Mr.  X  stated  that  to  exceed  a  mark  of  4  for  “Health  and  Well-Being,”  an  officer 
“must be contributing beyond the standard and impacting others through their actions.” 

 
Regarding  his  own  training  in  the  OES,  Mr.  X  stated  that  as  a  retired  lieutenant  com-
mander in the Coast Guard, he has “attended formal training sessions pertaining to officer, enlist-
ed and civilian evaluation systems throughout my 30-year career.”  Mr. X concluded that the dis-
puted OER is “an accurate assessment of [the applicant’s] performance.” 

 

Statement of Reporting Officer, CDR Y 
 
 
 

CDR Y, who is the Chief of the Prevention Department at Xxxxx stated that the applicant  

knew he needed to provide OER input to his supervisor 21 days prior to the end of his marking 
period.  He made the decision to hold off on submitting his input until well after the required time 
frame despite the fact that he would be just six signal numbers away from being within the zone for 
promotion consideration.  [He] decided to submit his input to his supervisor, who was not at work 

and would not return until 5 July 2006, on 27 June 2006, 15 days after he learned that he would be 
within the zone for promotion consideration.  [His] actions gave the rating chain 10 days to com-
plete the OER. …  [His] OER made it into his record in time for the selection board, therefore the 
amount of time it took for the OER to be completed has no bearing on his assertion that he was 
served an injustice. 
 
[Regarding the mark of 3 for Evaluations, the] sum total of information turned into the rating chain 
consisted  of  a  very  poorly  written  OER,  submitted  on  an  outdated  form  and  nothing  else.    It 
appeared to me that [the applicant] did not really care about what he turned in, just that he turned it 
in. …  At no time during the marking period did [he] ever seek input or counseling on the perform-
ance of his duties from me.  [He] did not meet his own OER responsibilities as the Reported-on-
Officer per Article 10.A.2.c.2.k. of the Coast Guard Personnel Manual.  He didn’t ensure that he 
provided an accurate list of accomplishments for the marking period; he did not seek counseling; 
and he failed to manage his own performance. 
 
[The applicant] … was marked objectively against the standards of the performance dimensions on 
the OER.  His comparison of previous marks against his most recent OER is immaterial in that he 
was performing a different job for a different supervisor and performing at a different level of per-
formance throughout the marking period.  [He] received numerical marks and an OER that was 
indicative of his performance during the period observed. 
 
During  the  two  years  I  have  been  at  this  unit,  [the  applicant]  has  consistently  told  everyone  he 
came into contact with that he was going to retire from the Coast Guard upon the completion of his 
tour at Sector Xxxxx.  He submitted a retirement letter to CGPC-opm in 2005 with a retirement 
date of 2007 which was ultimately not acted upon by CGPC-opm.  His attitude for the time that I 
have known him is one of “I’m retiring, so you can’t bother me.”  This attitude in my view carried 
over into his performance, which, while not to the point of being poor, was not to the standards of 
a 6.  It wasn’t until he saw his name as being in the zone for being considered for O-4 did his atti-
tude  change,  albeit  very  little,  and  he  took  some  interest  in  continuing  his  career  in  the  Coast 
Guard.    [The  applicant]  did  enough  to  reach  the  expected  standard,  a  4,  in  each  performance 
dimension and in the cases where he did more he was marked accordingly. 
 
I strongly disagree with [the applicant’s] assertion that block 9, the comparison scale, should be 
marked as an excellent performer.  The instructions for block 9 state, “Compare this officer with 
other of the same grade whom you have known in your career.”  For the year that [the applicant] 
was working as a Marine Inspector he was not in my opinion, which is what block 9 is, my opin-
ion, an excellent performer.  [He] did just enough to get by and no more, consistent with his out-
look that he was retiring and didn’t need to do any more than was necessary. 
 
…  I believe that [the supervisor, Mr. X] has a better grasp of the OES than [the applicant] given 
[Mr. X’s] 23 years of active duty service, as well as his time spent as a civilian at this unit.  [Mr. 
X’s] job title is “Supervisory Inspector” and he is also the Chief of the Inspection Division. … 
 
[The applicant] was not served an injustice with his 2005-2006 OER.  What he received was an 
accurate assessment of his performance for the period.  The typical high performing officer in the 
Coast Guard is defined by the OER form as one that receives 4’s in all performance dimensions.  
[He] met or exceeded those requirements and in my view didn’t need to be counseled on the fact 
that he was meeting the expectations. 
 

Statement of the OER Reviewer, CAPT B 
 
 
CAPT  B  repeated  CDR  Y’s  allegations  about  the  applicant  delaying  his  input  for  his 
OER.  CAPT B stated that he reviewed the OER for accuracy and “found nothing out of sorts in 
regard to the marks given and the comments that supported them.”  CAPT B stated that his dep-
uty, CAPT S, also reviewed the OER and “found nothing inconsistent or otherwise noteworthy.”  

CAPT B stated that he asked CDR Y about the mark of 3 for Evaluations and was told that the 
applicant  “submitted  only  a  poorly  written  and  completely  unsupported  OER  on  the  incorrect 
form as his total input.  Virtually every other OER that comes to me for review includes at least 
several pages of supporting documentation.  Given the paucity of information that [Mr. X and 
CDR Y] had to work with, it is surprising that [the applicant] received as good an OER as he did.  
I fully trust [Mr. X and CDR Y] to provide unbiased, accurate assessments of the Officer under 
them and have had no reason to question their abilities to do so for the past year and nine months 
that I have been the Sector Commander.” 
 
 
CAPT B further stated that the applicant’s chart of his OER marks and the statement by 
his  prior  supervisor,  the  senior  investigating  officer,  “serve  very  effectively  to  highlight  the 
marked drop in performance by [the applicant] during the period in question from ‘excellent’ to 
‘good.’  A previous record of sustained excellent performance has no bearing on the period of 
performance being evaluated.”  He alleged that the disputed OER is an accurate assessment of 
the applicant’s performance. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On March 27, 2007, the Chair sent the applicant a copy of the views of the Coast Guard 
and  invited  him  to  respond  within  thirty  days.    The  applicant  was  granted  an  extension  and 
responded on May 9, 2007. 
 
 
The applicant repeated some of the arguments in his application.  He also argued that Mr. 
X’s lack of OES training and certification as a civilian employee cannot be considered harmless 
error because (a) he has not been a uniformed officer since July 31, 1998, and had a six-month 
break in service before being hired as a civilian on February 1, 1999; (b) Mr. X has not proved 
that he actually received OES training during his uniformed career; (c) Mr. X has been a civilian 
employee  for  seven  years  and  the  OES  procedures  and  performance  dimensions  have  been 
amended during that period; and (d) Mr. X did not serve on a rating chain for his first six years as 
a civilian employee so he had not evaluated an officer under the OES for many years.  The appli-
cant pointed out that the Personnel Manual provides no waiver of the requirement that civilian 
employees have OES training and certification for retired officers reemployed as civilians.  The 
applicant also alleged that the fact that CGPC had to correct a date on the disputed OER shows 
that Mr. X’s lack of OES training and certification as a civilian was harmful. 
 

The applicant submitted a copy of Mr. X’s official Position Description dated February 1, 
1999, which indicates that although Mr. X was hired as a “Supervisory Marine Inspector,” he 
was not assigned to be a supervisor at that time.  The applicant complained that when Mr. X was 
appointed Chief of the Inspection Division in March 2005, the Coast Guard never updated Mr. 
X’s official position description to include that role. 
 
 
The applicant argued that the final decision in BCMR Docket No. 2006-065 is not ger-
maine to his case, because in that case the supervisor received very timely OES training during 
the evaluation period for the disputed OER.  The applicant argued that his case is similar to that 
of  the  applicant  in  BCMR  Docket  No.  2002-101,  whose  OER  was  removed  by  the  BCMR 
because his civilian supervisor was not properly trained in the OES and so was deemed unquali-
fied to serve on a rating chain. 

 
 
The applicant stated that his attitude was not “you can’t bother me” during the evaluation 
period, as described in CDR Y’s affidavit, and that if that was the rating chain’s perception of his 
attitude, they should have counseled him about.  However, contrary to regulation, he received no 
performance feedback during the evaluation period or at the end of the period.  He alleged that 
after his last day, but before he left the area, he asked Mr. X “if he needed anything else for my 
OER.  He stated, “No, I got everything I need” and did not provide any performance counseling 
until the applicant received the OER and contacted him.  The applicant again criticized his rating 
chain  for  not  providing  timely  end-of-period  counseling  and  for  not  submitting  the  OER  to 
CGPC until July 31, 2006, even though it was due on July 15, 2006. 
 
 
Regarding the timing of his OER input, the applicant stated that his belief that he would 
not  be  in  the  zone  for  selection  for  promotion  was  reasonable  based  on  the  announcement  in 
ALCGPERSCOM 025/06. 
 
 
Regarding Mr. X’s affidavit, the applicant submitted a “PCS Departing/Separation Work-
sheet,” signed by Mr. X on May 4, 2006, which shows the applicant’s departure date as July 14, 
2006.  The applicant argued that the form proves that, contrary to Mr. X’s claim, Mr. X agreed 
that the applicant’s departure date would be July 14, 2006.  In support of his allegation that he 
discussed the timing of his OER input with Mr. X on Monday, June 12, 2006, the applicant sub-
mitted a copy of an office calendar, which indicates that Mr. X was on annual leave only from 
Tuesday, June 13, 2006, through Friday, June 30, 2006.  The applicant alleged that on June 12, 
2006,  he  was  notified  by  message  that  he  was  in  the  zone  for  selection  for  promotion  and 
“immediately made his rating chain aware of this situation and started preparing my OER.”  The 
applicant argued that he submitted his OER input on June 27, 2006, and that the fact that Mr. X 
was on leave at the time was immaterial. 
 
 
The applicant also alleged that he was only in the office 25% of the time since he was in 
the field conducting inspections 75% of the time.  He argued that since Mr. X never accompanied 
him on his field inspections, Mr. X was not able to accurately assess his performance.   
 

Regarding CDR Y’s affidavit, the applicant stated that it reveals that CDR Y was con-
cerned  about  the  applicant’s  declining  performance  and  yet  failed  to  counsel  him  about  it,  as 
required by regulation.  The applicant asked how he could have received high marks in his prior 
OER at Xxxxx if his attitude were truly as CDR Y alleged.  The applicant also pointed out the 
similarities between CDR Y’s affidavit and CAPT B’s affidavit and alleged that the similarities 
suggest that they were not independently written. 
 

APPLICABLE REGULATIONS 

 
OES Policies 
 
 
 

Article 10.A.1.b. of the Personnel Manual provides the following policy: 

1. Commanding officers must ensure accurate, fair, and objective evaluations are provided to all 
officers  under  their  command.  To  that  end,  performance  evaluation  forms  have  been  made  as 
objective as possible, within the scope of jobs and tasks performed by officers. In using the Officer 

Evaluation Form, CG-5310 (series), strict and conscientious adherence to specific wording of the 
standards is essential to realizing the purpose of the evaluation system. 
 
2. Individual officers are responsible for managing their performance. This responsibility entails 
determining job expectations, obtaining sufficient performance feedback, and using that informa-
tion to meet or exceed standards. 

Article 10.A.1.c.5. provides the following policy regarding performance feedback: 

No specific form or forum is prescribed for performance feedback except for ensigns and lieuten-
ants  (junior  grade).    Performance  feedback  occurs  whenever  a  subordinate  receives  advice  or 
observations related to their performance in any evaluation area.  Performance feedback can take 
place  formally  (e.g.,  during  a  conference)  or  informally  (e.g.  through  on-the-spot  comments). 
Regardless  of  the  forum,  each  officer  should  receive  timely  counseling  and  be  clear  about  the 
feedback received.  If the feedback is not fully understood, it is the Reported-on Officer’s respon-
sibility to immediately seek clarification and the rating chain’s responsibility to provide it. 

Article 10.A.1.d.1.d. states the following: 

 
 
 

 
 
 

Performance  feedback  is  an  essential  part  of  every  officer’s  career  development.  Performance 
feedback  by  use  of  the  OSF  is  the  prescribed  format  for  ensigns  and  lieutenants  (junior grade).  
However,  rating  chains  are  strongly  encouraged  to  provide  timely  performance  feedback  during 
and at the end of each reporting period for all officers.  Rating chains are strongly encouraged to 
provide a copy of the completed OERs to reported-on-officers prior to submission of the OERs to 
OER administrators. 

 
Command Responsibilities 
 
 
Article  10.A.2.b.2.g.  states  that  it  is  the  responsibility  of  each  commanding  officer  to 
“[e]ncourage  supervisors  and  reporting  officers  to  properly  counsel  subordinates  by  providing 
them  timely  feedback  at  the  end  of  each  reporting  period  and  providing  copies  of  completed 
OERs to them prior to submission to the OER administrator.” 
 
 
 

Article 10.A.2.b.2.i. states that it is the responsibility of each commanding officer to 

[o]btain formal training from Commander (CGPC-opm) or Commander (CGPC-rpm) for civilian 
employees of the Coast Guard who must perform the duties of either Supervisor or Reporting Offi-
cer.  Civilians shall not be assigned to a rating chain before receiving OES training certification 
from  Commander  (CGPC-opm)  or  Commander  (CGPC-rpm)  and  having  incorporated  the  OES 
rating chain responsibilities in their Core Competencies. 

 
Rating Chain Responsibilities 

 
Article 10.A.2. provides that a “rating chain” includes the reported-on officer himself; his 
supervisor,  who  is  normally  the  person  to  whom  the  reported-on  officer  reports  on  a  daily  or 
regular basis; his reporting officer, who is normally the supervisor’s supervisor; and the reviewer, 
who is normally the reporting officer’s supervisor. 

 
Article  10.A.2.c.2.  includes  the  following  among  an  officer’s  responsibilities  regarding 

his own performance and performance evaluations: 

 

c. As necessary, seeks performance feedback from the Supervisor during the period. 
d. Prepares OER Section 1, Administrative Data, and Section 13, Return Address (found on page 4 
of the OER form), and forwards the OER with proposed OER attachments to the Supervisor not 
later than 21 days before the end of the reporting period. 
e. May submit to the Supervisor not later than 21 days before the end of the reporting period a 
listing  of  significant  achievements  or  aspects  of  performance  which  occurred  during  the  period. 
Submission is at the discretion of the Reported-on Officer, unless directed by the Supervisor. … 
f.  Notifies  the  Supervisor  not  later  than  21  days  before  the  end  of  the  reporting  period  if  the 
Reported-on Officer desires an end-of period conference. … 
j.  Reviews  COMDTINST  1401.4  (series),  COMDTINST  1401.5  (series)  and  COMDTINST 
M1500.10 (series) and manages performance to ensure that OERs are not delayed when eligible 
for promotion or applying for advanced training. 
k. Assumes ultimate responsibility for managing own performance, notwithstanding the responsi-
bilities  assigned  to  others  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 
 
e.  Provides  timely  performance  feedback  to  the  Reported-on  Officer  upon  that  officer’s  request 
during the period, at the end of each reporting period and 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 improvement and development. 
g. Finalizes the optional OSF worksheet, if used; Articles 10.A.6.d. and e. 
h. Prepares the Supervisor’s sections (2-6) of the OER; Article 10.A.4.c 
i. Initiates an OER if the Reported-on Officer is unavailable, unable, or unwilling to perform in a 
timely manner.  Forwards the OER, the OSF worksheet (if used), OER attachments, and any other 
relevant performance information to the Reporting Officer not later than 10 days after the end of 
the reporting period. 
 
Article 10.A.2.e.2. states that a reporting officer 
 
b. Describes the demonstrated leadership ability and the overall potential of the Reported-on Offi-
cer for promotion and special assignment such as command. Prepares Reporting Officer sections of 
the OER; Article 10.A.4.c. 
c.  Ensures  the  Supervisor  fully  meets  responsibilities  for  administration  of  the  OES.  Reporting 
Officers are expected to hold designated Supervisors accountable for timely and accurate evalua-
tions. The Reporting Officer shall return a report for correction or reconsideration, if the Supervi-
sor’s  submission  is  found  inconsistent  with  actual  performance  or  unsubstantiated  by  narrative 
comments. … 
e. Initiates an OER if the Supervisor does not perform in a timely manner.  Ensures the OER is 
forwarded to the Reviewer not later than 30 days after the end of the reporting period. 
f. Provides timely performance feedback to the Reported-on Officer at the end of each reporting 
period and at such other times as the reporting officer deems appropriate. 
 
Article 10.A.2.f.2. states that the reviewer of an OER 
 
c. Ensures the Supervisor and the Reporting Officer have adequately executed their responsibilities 
under the OES. The Reviewer shall return an OER to the Reporting Officer to correct errors, omis-
sions,  or  inconsistencies  between  the  numerical  evaluation  and  written  comments. However, the 
Reviewer may not direct in what manner an evaluation mark or comment be changed (unless the 
comment is prohibited under Article 10.A.4.f.). 

d. Counsels Reporting Officers whose evaluation habits deviate significantly from the prescribed 
procedures. Deficiencies in OES performance on the part of Reporting Officers and Supervisors 
should be noted for performance feedback and considered in the respective officers’ OERs. 
e. Expedites the reviewed report in a reasonable time to permit the OER Administrator to ensure 
the OER is received by Commander (CGPC-opm-3) or Commander (CGPC-rpm) 45 days after the 
end of the reporting period. 
 

OER Submission Schedule 

 
Article 10.A.3.a.1. provides that a lieutenant’s regular annual evaluation period ends on 
May 31.  Article 10.A.3.a.3. provides that the detachment of a reported-on officer from his unit 
on permanent transfer orders is also an occasion for a regular OER.  Article 10.A.3.a.1.b.(2) of 
states that an annual OER is optional if 

 
[a] regular OER will be submitted within the 182 days following the scheduled due date for annual 
reports or 92 days for semiannual reports. Exception: Those officers above zone, and in zone, for 
promotion as specified by ALCGOFF promulgated by Commander, (CGPC-opm) shall not delay 
their regular annual or semiannual OER past the scheduled due date, unless the Reported-on Offi-
cer has an approved retirement letter or voluntary resignation on file, and is planning on submitting 
an  OER  for  continuity  purposes  only.  For  officers  who  meet  this  criteria,  a  waiver  must  be 
obtained as provided in Articles 10.A.3.a.5.b. and 10.A.3.b. 
 
Article 10.A.3.a.3.a. provides that a regular OER upon the occasion of a reported-on offi-
cer’s  detachment  from  a  unit  on  transfer  orders  is  optional  “if  the  previous  regular  reporting 
period ended … within the last … 182 days for officers with annual submission schedules.” 

 

 

Specific Instructions for Completing OER Sections 
 

Article 10.A.4.c.1. states that the reported-on officer must complete all the blocks in sec-
tion 1 of the OER form and submit it to his supervisor “no later than 21 days before the end of 
the reporting period.  The Reported-on Officer is responsible for the accuracy of the information 
and the appropriate form for the grade.” 

 
Article 10.A.4.c.1.j. provides the following instructions for completing block i in section 

1 of an OER, which is supposed to show the start and end dates of the evaluation period: 

 
The regular reporting period commences the day after the ending date of the previous regular OER 
… and ends on the date of the occasion for the current report. … Elapsed time between permanent 
or temporary duty stations (in transit, on leave, hospitalized, etc.) shall be accounted for in the next 
period of report and noted in section 1.h., Days Not Observed.  
 
Article 10.A.4.c.1.m. states that block l in section 1 of an OER shall show “[t]he date the 

Reported-on Officer submits the OER form to the Supervisor.”  

 
Article  10.A.4.c.2.a.  states  that  a  supervisor  should  complete  section  2  of  an  OER  by 
writing “a summary of the most important aspects of Reported-on Officer’s job. Primary duties, 
collateral duties, special projects, key processes, and customer and supplier identities should be 
included. Use a common sense approach to describe the most important duties in a manner that 
will be understandable to a reader unfamiliar with the officer’s job.” 

 
b.  For  each  evaluation  area,  the  Supervisor  shall  review  the  Reported-on  Officer’s  performance 
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 Offi-
cer’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 previous reporting period. After determining which block 
best describes the Reported-on Officer’s performance and qualities during the marking period, the 
Supervisor fills in the appropriate circle on the form in ink. 

d. In the “comments” block following each evaluation area, the Supervisor shall include comments 
citing specific aspects of the Reported-on Officer’s performance and behavior for each mark that 
deviates from a four. The Supervisor shall draw on his or her observations, 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 iden-
tify 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.4. provides the following instructions for completion of the supervisor’s 
portions of an OER, which include thirteen performance categories and limited space for sup-
porting comments.  Article 10.A.4.c.7. provides almost similar instructions for how the reporting 
officer should complete the last five performance categories and the corresponding comment sec-
tion on an OER: 

g. A mark of four represents the expected standard of performance. Additional specific perform-
ance  observations  must  be  included  when  an  officer  has  been  assigned  a  mark  of  five  or six to 
show how they exceeded this high level of performance. Those assigned the superlative mark of 
seven should have specific comments demonstrating how they exceeded the six standard block. 
 
Article 10.A.4.c.8. states that the reporting officer completes the “comparison scale” in 
section 9 of an OER by “fill[ing] in the circle that most closely reflects the Reporting Officer’s 
ranking of the Reported-on Officer relative to all other officers of the same grade the Reporting 
Officer has known. NOTE: This section represents a relative ranking of the Reported-on Officer, 
not necessarily a trend of performance. Thus, from period to period, an officer could improve in 
performance but drop a category.” 
 

Article 10.A.4.c.9.a. states that in section 10 of an OER, “[t]he 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.” 
 
ALCGPERSCOMs 
 
 
pertinent part: 
 

ALCGPERSCOM 025/06, which was issued on April 13, 2006, stated the following in 

1.  As scheduled, the majority of officer evaluation reports (OERs) will arrive at CGPC-opm/rpm 
between May and Sep.  In preparation for the promotion year 2007 (PY07) board and panel sea-
son, the following info is provided for planning purposes.  Preliminary zone sizes are based upon 
historical averages and should not be construed as official PY07 zone sizes.  These zone sizes are 

maximum estimates.  Actual zones will be published upon COMDT approval of the Officer Corps 
Management Plan (OCMP) and will generally be smaller than the projected zone sizes. ….  
 
2.  For planning purposes, the estimated active duty promotion list (ADPL) zone sizes are as fol-
lows: … LCDR sel[ection]:  LT’s with SIGNO less than/equal to 3239 (2005) / 2970 (2006). 

 
 
ALCGPERSCOM 035/06, issued on June 8, 2006, announced the official zone sizes for 
the  2006  selection  boards  (promotion  year  2007).    It  stated  that  the  zone  size  for  the  LCDR 
selection board, which was to convene on August 21, 2006, would consist of the 267 lieutenants 
from signal number 2696 “down to and includ[ing] [the applicant’s name], SIGNO 2976.” 
 

FINDINGS AND CONCLUSIONS 

1. 

2. 

3. 

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

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 applicable law: 
 
 
The application was timely. 
 
 
Article 10.A.1.b.1. of the Personnel Manual provides that “Commanding officers 
must  ensure  accurate,  fair,  and  objective  evaluations  are  provided  to  all  officers  under  their 
command.”  The applicant alleged that the disputed OER is erroneous and unjust and asked the 
Board to remove it from his record.  To establish that an OER is erroneous or unjust, an applicant 
must prove that it was adversely affected by a “misstatement of significant hard fact,” factors that 
“had no business being in the rating process,” or a “clear and prejudicial violation of a statute or 
regulation.”1  The Board must begin its analysis by presuming that the disputed OER is correct as 
it appears in the record, and the applicant bears the burden of proving by a preponderance of the 
evidence that it is erroneous or unjust.2   
 
 
The applicant alleged that the mark of 3 he received for “Evaluations” in the dis-
puted  OER  and  the  supporting  comment  about  his  OER  input  are  erroneous  and  unfair.    He 
alleged that his input was timely pursuant to an oral agreement he had with his supervisor and 
that his input met the stated requirements of his rating chain.  In support of his allegations, the 
applicant submitted an office calendar that apparently shows what dates his supervisor, Mr. X, 
planned to be on leave and the applicant’s “PCS Departing/Separation Worksheet.”  The latter 
shows that on May 4, 2006, the applicant and Mr. X concurred in a departure date of July 14, 
2006, for the applicant’s transfer to another unit.  Neither document proves that Mr. X verbally 
agreed that the applicant’s evaluation period would end on July 14, 2006, or that Mr. X waived 
the regulatory deadline for the applicant’s OER input. 
 
 
Under Article 10.A.3.a. of the Personnel Manual, unless the applicant was to be 
“in the zone” for selection for promotion in 2006, the applicant’s command had the choice of 
preparing  a  regular  annual  OER  with  an  end  date  of  May  31,  2006,  or  preparing  a  regular 
“Detachment of Officer” OER with an end date of July 14, 2006.  With an end date of May 31, 
                                                 
1 Germano v. United States, 26 Cl. Ct. 1446, 1460 (1992); Hary v. United States, 618 F .2d 704 (Ct. Cl. 1980); 
CGBCMR Dkt. No. 86-96. 
2 33 C.F.R. § 52.24(b). 

4. 

2006, the applicant’s last six weeks of work at the unit would not be reflected on the OER, so the 
applicant apparently desired that July 14, 2006, be the end date for the disputed OER.  Because 
he  was  not  included  in  the  preliminary  estimate  of  the  zone  provided  in  ALCGPERSCOM 
025/06 on April 13, 2006, the applicant could not have known in May 2006 that the end date of 
his OER would have to be May 31, 2006.  But since the preliminary estimated zone size was in 
the hundreds and his signal number was just six places out of the estimated zone, he knew or 
should have known that there was a significant possibility that he would be “in the zone” when 
the actual zone size was determined.  In choosing the later end date for the disputed OER, the 
applicant assumed the risk of running into deadline problems if he ended up being “in the zone.”   
 
 
The applicant’s supervisor, Mr. X, denied that he expressly agreed to an end date 
of  July  14,  2006,  for  the  disputed  OER,  but  admitted  that  he  “did  agree  to  defer  the  OER 
submission,  if  permitted  by  Chapter  10  of  the  PERSMAN.”    Under  Articles  10.A.2.d.2.i.  and 
10.A.2.e.2.e. of the Personnel Manual, if a reported-on officer fails to initiate an OER when the 
command  believes  that  one  is  due,  the  supervisor  and  the  reporting  officer  are  charged  with 
initiating the OER themselves.  Since neither Mr. X nor CDR Y initiated an OER with an end 
date of May 31, 2006, the Board finds that even if they did not expressly agree that July 14, 2006, 
would be the end date, they certainly acquiesced in the applicant’s choice of the later end date.  
Neither  Mr.  X  nor  CDR  Y  claims  to  have  given  the  applicant  any  express  instruction  about 
choosing May 31 instead of July 14, 2006, as the end date, and either date was permissible under 
Article 10.A.3.a. of the Personnel Manual until the applicant was included “in the zone” on June 
8, 2006, when ALCGPERSCOM 035/06 was issued. 
 
 
With  an  expected  evaluation  period  end  date  of  July  14,  2006,  under  Article 
10.A.2.c.2.d. of the Personnel Manual, the applicant’s OER input was due at least 21 days earlier, 
or by Friday, June 23, 2006.  The applicant failed to submit his OER input to Mr. X by that date, 
and so his OER input was late. Moreover, the applicant must have known well in advance that 
his supervisor was taking leave during the last three weeks of June.  Nevertheless, he apparently 
made no provision for submitting his OER input so that Mr. X would have 21 days to work on it.  
After seeing his name “in the zone” in ALCGPERSCOM 035/06, which was issued on June 8, 
2006, the applicant may have told Mr. X just before he left on vacation that the applicant’s OER 
input would be on Mr. X’s desk upon his return in July.  Such a scenario, however, does not 
mean that Mr. X actually waived the applicant’s deadline or agreed that he would consider OER 
input submitted on June 27 or July 5, 2006, to be timely under the Personnel Manual, and Mr. X 
strongly denies having reached such an agreement.  In light of these circumstances, the Board 
finds that the applicant has not proved by a preponderance of the evidence that his rating chain 
verbally agreed to waive the requirement in Article 10.A.2.c.2.d. of the Personnel Manual that he 
submit his OER input to his supervisor at least 21 days before July 14, 2006.   
 
 
Even  if  the  applicant’s  submission  of  his  OER  input  after  the  21-day  deadline 
were  considered  harmless  error  because  his  supervisor  was  on  vacation  when  the  deadline 
passed,  the  mark  of  3  in  “Evaluations”  and  the  supporting  comment  were  also  based  on  the 
quality of the applicant’s input.  The applicant’s rating chain indicated that the applicant’s draft 
OER was poorly written and submitted on the wrong form and that they expected him to submit 
supporting documentation pursuant to Article 10.A.2.c.2.e., which he failed to do.  The applicant 
submitted nothing to support his allegation that his OER input was of good quality or that his 
command did not request or expect supporting documentation, as is common.   The applicant did 

6. 

5. 

7. 

8. 

not  even  submit  a  copy  of  his  OER  input  to  the  Board.    In  the  absence  of  evidence  to  the 
contrary, the Board must presume that the rating chain’s assessment of the applicant’s OER input 
was accurate.3  Although the applicant complained that he was not timely counseled about the 
mark of 3, any such counseling could not reasonably have occurred until after the applicant had 
earned the mark of 3 by failing to meet his responsibilities under the OES, and so the lack of 
counseling about the mark of 3 cannot have negatively affected the OER.  In light of (a) the fact 
that the applicant did not meet the 21-day deadline for the anticipated July 14, 2006, end date for 
the disputed OER; (b) his use of the wrong OER form in submitting his input; and (c) the poor 
quality of his OER input, the Board finds that he has failed to prove by a preponderance of the 
evidence that the mark of 3 he received in “Evaluations” or the supporting comment about the 
deficiencies of his OER input are erroneous or unfair. 
 
 
The  applicant  alleged  that  his  supervisor  erroneously  and  unfairly  changed  the 
date of his OER input in block 1.l. of the disputed OER from June 27, 2006, to July 5, 2006.  
Article 10.A.4.c.1.m. of the Personnel Manual states that block 1.l. of an OER shall show “[t]he 
date the Reported-on Officer submits the OER form to the Supervisor.”  The applicant submitted 
to the Board an “OER Routing Slip” and a copy of an email indicating that his draft OER was 
“submitted”—in the sense that it would have been available for Mr. X to review had Mr. X not 
been on leave—on June 27, 2006.  The regulation is silent about whether “submits” connotes a 
reasonable expectation of prompt receipt by the supervisor.  However, Mr. X and CDR Y stated 
that the form that the applicant emailed to Mr. X on June 27, 2006, was the wrong form, and the 
applicant has not denied it.  Under Article 10.A.4.c.1., the applicant, as the reported-on officer, 
was responsible for using the correct form to initiate the OER.  Therefore, the Board is not per-
suaded  that  the  applicant  completed  his  duty  under  that  article  on  June  27,  2006,  when  he 
emailed his input to Mr. X on the wrong form.  In light of these circumstances, the Board finds 
that the applicant has not proved by a preponderance of the evidence that the date July 5, 2006, in 
block 1.l. constitutes a “misstatement of significant hard fact,”4 or that it is erroneous or unfair as 
the date of the applicant’s OER input.  Furthermore, the Board notes that even if the July 5, 2006, 
date were deemed erroneous, it would be harmless error since either date of submission reveals 
the applicant’s violation of Article 10.A.2.c.2.d. of the Personnel Manual.  
 
 
The applicant alleged that sections 2 and 3 of the disputed OER are erroneous in 
describing him as a “PEAT Member” rather than a “PEAT Leader,” as CDR Y wrote in section 7 
of  the  OER,  and  that  section  2  also  erroneously  fails  to  indicate  that  he  was  a  “Senior  Duty 
Investigator/Inspector,” rather than just a “Duty Investigator/Inspector.”  Mr. X, however, denied 
that  such  designations  even  existed.    CDR  Y’s  comment  about  the  applicant  being  a  PEAT 
Leader in section 7 does not persuade the Board that such a designation actually existed or that 
the  applicant  was  entitled  to  it.    The  applicant  has  submitted  no  evidence  to  prove  that  the 
requested  designations  existed  or  that  he  received  them.    He  has  not proved that the disputed 
OER is erroneous in referring to him as a PEAT Member and a Duty Investigator/Inspector. 
 

The applicant alleged that the OER is inconsistent in that the written comments 
could  support  higher  numerical  marks.    In  particular,  he  alleged  that  written comments in the 
OER support a mark of 6 in the category “Health and Well-Being” and a mark as an “excellent 
                                                 
3 33 C.F.R. § 52.24(b). 
4 Germano, at 1460. 

9. 

10. 

performer” in the fifth spot on the comparison scale.  Under Articles 10.A.4.c.4. and 10.A.4.c.7. 
of the Personnel Manual, the rating chain is not supposed to write comments about an officer’s 
performance and then assign marks that reflect the comments.  Instead, the rating chain is sup-
posed to compare the officer’s observed performance to the performance standards printed above 
the numerical scales on the OER form and select the numerical marks that best describe the offi-
cer’s performance with respect to the printed standards.  The rating chain’s comments are sup-
posed to cite specific examples of the officer’s performance that are consistent with the assigned 
numerical marks.  Although the comments in the disputed OER show that the applicant complet-
ed  a  substantial  amount  of  significant  work  during  the  course  of  the  year,  none  of  the  rating 
chain’s comments is so laudatory as to demand a higher numerical mark in a corresponding per-
formance  category.    CDR  Y  has  explained  that  his  comment  that  the  applicant  maintained an 
“exceptional  military  appearance”  supported  the  mark  of  5  he  assigned  the  applicant  in  the 
category  “Professional  Presence,”  rather  than  the  4  he  assigned  the  applicant  for  “Health  and 
Well-Being.”  Nor are the marks or comments in the disputed OER so laudatory as to prove that 
the  “good  performer”  mark  that  CDR  Y  assigned  to  the  applicant  on  the  comparison  scale  is 
erroneous or unfair. 
 
 
The applicant alleged that the disputed OER is unfair because the marks are lower 
than those he received in his prior OER and he was never counseled during the evaluation period 
about any decline in his performance so he did not have a chance to improve his performance to 
earn the higher marks he expected.  The disputed OER, however, is an evaluation of the appli-
cant’s  performance  at  a  new  position  under  a  new  supervisor.    The  fact  that  the  applicant 
received  many  marks  of  5  and  6  on  his  prior  OER,  which  covered  his  work  under  the  senior 
investigating officer in the Investigations Department at Sector Xxxxx, does not prove that the 
marks of 4 and 5 he received for his work under Mr. X in the Inspections Department are errone-
ous  or  unfair.    Articles  10.A.1.c.5.,  10.A.2.c.2.c.,  and  10.A.2.c.2.k.  of  the  Personnel  Manual 
place the primary onus for performance feedback during the evaluation period on the reported -
on officer himself.  Articles 10.A.2.d.2.f. and 10.A.2.e.2.f. require the supervisor and the report-
ing officer to initiate performance counseling during the evaluation period only when they deem 
it “appropriate.”  Mr. X and CDR Y stated in their affidavits that they did not deem performance 
counseling  appropriate  during  the  evaluation  period  because  the  applicant  was  meeting  or 
exceeding  the  expected  high  standards  of  performance,  and  they  did  not  deem  his  failure  to 
exceed more of those high standards to a greater extent as sufficient reason to counsel him about 
his performance.  The Board finds that the Personnel Manual does not require rating chain mem-
bers to counsel an officer because his performance is good rather than excellent.  The applicant 
argues, in essence, that the regulations required his new supervisor, Mr. X, to review his prior 
OER and inform the applicant that, while his performance was quite good and met the expected 
standards, he was not quite as impressed with the applicant’s performance as his prior supervisor 
in  another  office  had  been.    However,  no  part  of  the  Personnel  Manual  requires  rating  chain 
members to keep such careful track of what OER marks each subordinate officer has previously 
earned and come to expect and to warn them when their performance is earning good but not 
quite as good marks.  Given the wording of Article 10.A.2.d.2.f. of the Personnel Manual, the 
Board is not persuaded that Mr. X’s failure to counsel the applicant about his job performance 
during the evaluation period constituted a clear violation of the regulation. 
 

Since the reporting officer, CDR Y, had served on the applicant’s rating chain for 
his prior OER, he may have been better situated than Mr. X to notice that the applicant’s per-

11. 

12. 

14. 

formance as a marine inspector was not as good as his performance as an investigator had been.  
CDR Y’s affidavit indicates that he thought the applicant was doing “enough to get by and no 
more.”  CDR Y could have warned the applicant about this perception but did not because the 
applicant was at least meeting the expected standards of performance in each performance cate-
gory.  The question is whether the rating chain had a duty to provide performance counseling 
even though the applicant was meeting the expected standards of performance on the OER form.  
Given the wording of Article 10.A.2.e.2.f. of the Personnel Manual, the Board is not persuaded 
that CDR Y’s failure to counsel the applicant about his job performance during the evaluation 
period constituted a clear violation of the regulation. 
 
 
In his application, the applicant complained about the fact that his rating chain did 
not complete the disputed OER within the deadlines provided in the Personnel Manual.  Given 
that the applicant’s own tardiness in submitting his OER input and his use of the wrong form 
denied the rating chain the normal time to prepare an OER, the Board finds that any deadlines 
missed are attributable at least in part to the applicant.  Moreover, since the disputed OER was 
entered correctly in his record before the selection board convened, any failure on the part of his 
rating chain to meet the deadlines was harmless. 
 
The applicant alleged that his rating chain failed to counsel him about the disputed 
 
OER after it was completed and before it was submitted to CGPC.  Such end-of-period counsel-
ing is “strongly encouraged” under Article 10.A.1.d.1.d. of the Personnel Manual, and is cited as 
a responsibility of the supervisor and reporting officer in Articles 10.A.2.d.2.f. and 10.A.2.e.2.f.  
Mr. X and CDR Y indicated that end-of-period counseling was not timely provided because the 
OER was not completed until July 28, 2006, two weeks after the applicant’s detachment from the 
unit on July 14, 2006.  The applicant alleged that he was in contact with Mr. X after he left the 
unit but before he left Xxxxx and that Mr. X did not provide counseling and only discussed the 
mark of 3 with him after the applicant received an official copy of the OER from CGPC.  The 
disputed OER was not signed by the reviewer until July 28, 2006, two weeks after the applicant 
left the unit, and about three weeks before the LCDR selection board was to convene.  Under 
these circumstances, the Board does not fault the rating chain for not attempting to provide the 
applicant  with  end-of-period  performance  counseling  before  forwarding  the  OER  to  CGPC.  
Moreover, the applicant has not shown how such end-of-period counseling harmed his record.  
He has not shown that his rating chain would have improved any of the marks or comments in 
the disputed OER had they discussed it with him before forwarding it to CGPC. 
 
 
The applicant alleged that block 1.i. of the disputed OER should show July 14, 
2006, as the end of the evaluation period.5  The record suggests that on June 27, 2006, the appli-
cant prepared his OER input with an end date of May 31, 2006; that Mr. X changed the end date 
to July 14, 2006; and that on August 10, 2006, CGPC corrected the end date back to May 31, 
2006.  Although the applicant planned to have his evaluation period end on July 14, 2006, and 
his  rating  chain  apparently  acquiesced  in  that  decision,  that  option  was  eliminated  on  June  8, 
2006, when the applicant was included “in the zone” in ALCGPERSCOM 035/06 because Arti-

13. 

15. 

                                                 
5 The applicant also, contrarily, argued that his supervisor’s insertion of the July 14 date in block 1.i. revealed his 
lack of knowledge of the OES.  However, because in his original application, the applicant alleged that the disputed 
OER contains “inaccurate dates” (plural), and the only date he seems to contest besides the date of his OER input is 
the end date shown in block 1.i., the Board decided to address the correct end date for the OER. 

 
16. 

18. 

cle 10.A.3.a.1.b.(2) of the Personnel Manual states that “officers above zone, and in zone, for 
promotion as specified by ALCGOFF promulgated by Commander, (CGPC-opm) shall not delay 
their regular annual or semiannual OER past the scheduled due date.”  Therefore, although the 
July 14, 2006, end date did not become impermissible until June 8, 2006, when the applicant was 
included “in the zone,” the Board finds that CGPC did not err by changing the end date in block 
1.i. to May 31, 2006, to comply with the requirement in Article 10.A.3.a.1.b.(2). 

17. 

The Board notes that the correction of the end date in block 1.i. to May 31, 2006, 
 
makes the date of the applicant’s OER input in block 1.l. appear later than it actually was.  This 
is a foreseeable artifact of the applicant’s having initially opted for the July 14, 2006, end date—
despite being just six numbers out of the estimated zone in the preliminary announcement—and 
of his untimely submission of his input for the July 14 end date.  The Board finds, however, that 
the dates in those blocks are accurate according to regulation, as is the written comment about his 
OER input being late. 
 
 
The  applicant  alleged  that  when  his  supervisor,  Mr.  X,  completed  the  disputed 
OER, Mr. X had not received OES training as a civilian supervisor and did not have the corre-
sponding  certification  in  his  record  or  have  rating  chain  responsibilities  included  in  his  core 
competencies, as required by Article 10.A.2.b.2.i. of the Personnel Manual.  The Coast Guard 
has admitted this violation of the regulation but argued that it was a harmless error because Mr. 
X received OES training during his long active duty career as a Coast Guard officer before he 
retired on August 1, 1998.  The applicant argued that the error was not harmless because OER 
regulations have been revised since 1998.  He pointed to CGPC’s correction of the end date in 
block 1.i. as evidence that Mr. X’s lack of OES training as a civilian employee was not harmless.  
He also asked for proof that Mr. X had in fact received OES training prior to his retirement. 
 
 
Because the Coast Guard has admitted that the applicant’s rating chain violated 
Article 10.A.2.b.2.i. of the Personnel Manual, the question before the Board is whether the viola-
tion was prejudicial to the applicant.6  Since certification and inclusion in core competencies are 
administrative record entries that follow OES training and that could not per se negatively affect 
an OER, only Mr. X’s alleged lack of OES training could have been prejudicial to the applicant 
by negatively affecting the disputed OER.  In his sworn affidavit, Mr. X wrote that he attended 
formal OES training as a Coast Guard officer prior to his retirement from active duty, and the 
Board finds that his sworn statement is sufficient to prove this point.  While it is true that some 
OES regulations have been amended since 1998, a supervisor’s instructions for assigning marks 
and writing comments in an OER have not changed significantly since the Personnel Manual, 
COMDTINST  M1000.6A  was  first  issued  in  January  1988.    In  fact,  even  the  prior  Personnel 
Manual, COMDTINST M1000.6, contained essentially the same instructions for assigning marks 
and writing comments in an OER more than 20 years ago as those currently in effect.  The Board 
also notes that the applicant has not proved that the quality and quantity of his work during the 
evaluation period was better than as assessed by Mr. X.  In light of these facts, the Board finds 
that the applicant has failed to prove that the Coast Guard’s violation of Article 10.A.2.b.2.i. of 
the Personnel Manual was prejudicial to him or to the disputed OER. 
 

                                                 
6 Germano, at 1460. 

19. 

In his response to the advisory opinion, the applicant argued that Mr. X should not 
have served as his supervisor because the applicant was performing inspections in the field 75% 
of the time and so his performance was not being observed by Mr. X.  However, Mr. X was the 
Chief of the Inspections Division in which the applicant worked, the applicant reported to him 
during the evaluation period, and the applicant has not shown that there was any other officer or 
employee of the Coast Guard more suitably placed to evaluate his performance as an inspector. 
 
Accordingly,  the  applicant’s  request  should  be  denied  because  he  has  failed  to 
 
prove that the disputed OER was adversely affected by a “misstatement of significant hard fact,” 
factors that “had no business being in the rating process,” or a “clear and prejudicial violation of 
a  statute  or  regulation.”7    Because  he  has  not  proved  that  the  disputed  OER  is  erroneous  or 
unjust, there is no basis for considering his request for removing his failure of selection for pro-
motion to LCDR in August 2006.8 

20. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 

                                                 
7 Id.. 
8  Under  Engels  v.  United  States,  678  F.2d  173,  176  (Ct. Cl.  1982),  an  applicant’s  failure  of  selection  should  be 
removed only if he has proved that his record was significantly prejudiced by an error and if it is not unlikely that the 
applicant would have been promoted in the absence of the error. 
 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for 

ORDER 

 
 
correction of his military record is denied. 
 
 

  
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 

 
 Kathryn Sinniger 

 

 

 
 Dorothy J. Ulmer 

 

 

 

 

 

 
 
 Thomas H. Van Horn