DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-042 
 
XXXXXXXXXXXXX 
xxxxxxxxxxxxxxxxxxx 
   

 

 
 

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  application  on 
December 4, 2006, upon receipt of the applicant’s completed application and military records. 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  28,  2007,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  by  removing  a  special 
officer evaluation report (SOER)1 for the period from June 9, 2004, to February 18, 2005, and 
replacing it with a report for continuity purposes only. 
 
The Special OER  
 
 
The  SOER  covers  a  period  when  the  applicant  was  the  operations  officer  (OPS)  at  a 
newly created Maritime Safety and Security Team (MSST) unit.   It was submitted pursuant to 
Article  10.A.3.c.1.a.  of  the  Personnel  Manual  to  document  performance  that  was  notably 
different  from  the  previous  reporting  period  and  to  document  the  reporting  officer’s  loss  of 
confidence  in  the  applicant’s  ability  to  effectively  perform  assigned  duties.    Section  2.  of  the 
SOER also comments that pursuant to Article 10.A.4.h.1.c., the report is derogatory  and notes 
that the applicant was removed from his primary duties on February 18, 2005.  
 

                                                 
1   Special OERs are exceptions to other OERs and may be directed by the Commandant, commanding 
officers,  higher  authority  in  the  chain  of  command,  or  the  reporting  officer  to  document  certain 
performance or events identified in Article 10.A.3.c. of the Coast Guard Personnel Manual.     

 
As recorded in section 2.of the SOER, the applicant was responsible for the leadership, 
training, performance, and readiness of all active duty boat forces, law enforcement operators, 
and for the unit’s eleven vehicles, six 25 feet defender class boats, and weapons.  He Leads two 
lieutenants junior grade (LTJGs), one chief warrant officer, one senior chief petty officer, three 
chief petty officers, and sixty petty officers.   He was also responsible for formulating strategies 
for all unit security operations. 
 

The evaluated performance on the SOER consists of three parts:  the supervisor’s portion, 
the reporting officer’s portion, and the reviewer’s portion.  Under performance of duties in the 
supervisor’s portion of the SOER, the applicant received a mark of 4 in adaptability; marks of 3 
in  planning  and  preparedness,  using  resources,  and  professional  presence;  and  a  mark  of  2  in 
results/effectiveness.2  In support of the below average marks in this section of the SOER, the 
supervisor wrote: 

 
[The applicant] consistently failed to set priorities for self & subordinates to meet 
deadlines & on numerous occasions failed to provide CMD w/plan of attack for 
admin & op tasks; during units stand up trng phase mbr was tasked w/providing 
cmd w/frequent updates on unit’s trng status.  Only made effort when approached 
by  CO/XO,  failed  to  submit  unit  OPSUM  in  a  timely  manner.    Did  not  assign 
project officer for ops mission while on leave; failure to meet CMD expectations 
have  resulted  in  several  unit  delays  &  CO/XO  intervention  to  ensure  CMD 
requirements were met.  Quickly adapted to delays in trng schedule when faced 
w/four  hurricanes  hitting  AOR;    .  .  .    Effectively  used  benchmarks  only  after 
repeated interventions by CMD; during units standup phase weapon quals status 
not racked/executed in timely manner until CO placed pressure on mbr.  Despite 
multiple  counseling  sessions  by  CO/XO,  mbr’s  performance  of  duties  did  not 
reflect  a  consistent  increase  in  improvement;  causing  CMD  to  question  his 
integrity & dedication.  Unit was the only MSST to meet all prerequisites prior to 
arrival  to  CG  Special  Missions  Trng  Ctr,  as  well  as  unit  successfully  passed 
Ready  for  Operations  eval;  did  play  a  big  part  in  Unit’s  success,  however, 
required constant coaxing to provide status & progress reports; did not take own 
initiative to keep CMD informed.   
 
In  the  communication  skills  section  of  the  SOER,  the  supervisor  gave  the  applicant  a 
mark  of  3  in  speaking  and  listening  and  a  mark  of  2  in  writing.    In  support  of  these  below 
average marks, the supervisor wrote: 

 
Effectively  expressed  ideals  &  facts  to  crew,  his  non-verbal  actions  were 
inconsistent w/message.  During muster, staff & operations briefs facial & body 
language  expressed  disapproval  of  CMD’s  vision.    Most  of  written  reports  & 
correspondence were incomplete or lacked thorough review prior to submission; 
OPSUM  format,  enl  evals,  qual  ltrs,  P7s,  &  memos  consistently  returned  for 
revision/grammatical/formatting  corrections;  negatively  impacting  units  timely 

                                                 
2   Marks on an OER are from a low of 1 to a high of 7.  A 4 is considered to be an average mark.   

submission  schedules  &  causing  CMD  to  unnecessarily  divert  from  other  unit 
priorities.   
 
In the leadership skills section of the SOER, the supervisor gave the applicant marks of 4 
in  looking  out  for  others  and  workplace  climate;  marks  of  3  in  developing  others,  directing 
others, and teamwork; and a mark of 2 in evaluations.   In support of the below average marks, 
the supervisor wrote: 
 

Failed to coach subordinates on ops & admin duties; [member] delegated OPSUM 
responsibility  to  AOPS  w/o  guidance/training;  failed  to  review  AOPS  product 
prior to submission to CMD; OPSUMs consistently returned w/ recurring errors; 
never notified CMD of change in ops reporting requirement; recurring errors & 
unknown changes caused OPSUMs to be tardy to LANTAREA . . .  Reports were 
frequently  late  &  of  poor  quality;  required  repetitive  changes/modifications, 
impeding CMD’s ability to dedicate efforts to other important unit issues.  Failed 
to  meet  deadlines  in  submitting  enlisted  eval[uations]  &  improperly  submitted 
subordinates’ OERs up the chain of command after written e-mail guidance was 
given.  Leave withheld until required eval[uations] were completed.   

 
On the comparison scale in block 9. where the reporting officer compared the applicant 
 
with all other LTs he has known throughout his career, the reporting officer marked the applicant 
as unsatisfactory, the equivalent of a 1.  The mark of 1 made the SOER a derogatory report.   

 
 
In the  reporting officer’s portion of the SOER, he wrote in block 7. that he  concurred 
with the marks and comments of the supervisor.  He stated that the applicant was counseled at 
various  stages  by  the  supervisor  and  himself,  and  although  the  applicant  showed  immediate 
course  correction,  he  quickly  returned  to  his  past  habits.  The  reporting  officer  noted  that  the 
applicant failed to meet his expectations and had lost his trust and confidence.    
 

In the personal and professional qualities section of the SOER, the reporting officer gave 
the  applicant  marks  of  4  in  initiative  and  health  and  well-being  and  marks  of  3  in  judgment, 
responsibility, and professional presence.  In support of the below average marks, the reporting 
officer wrote the following: 
 

Exemplified  poor  judgment  coordinating  unit’s  mission  requirements  prior  to 
departing on [leave], failed to develop game plan & inform chain of CMD as to 
personnel mission delegation; knowingly allowed storage of M60 machine gun in 
unauthorized safe/facility w/o CMD input approval; resulted in CO taking control 
of  mission  &  properly  stowing  weapon.    Unethically  submitted  travel  claims; 
attempted  to  submit  claims  w/full  knowledge  of  inappropriate  reimbursements; 
confronted by CO/XO on two separate occasions & asked to modify one claim to 
accurately reflect actual expenditures & to adhere to CG policy; actions resulted 
in violating CG Core Values.  Conveyed poor image of self & CMD; displayed 
uncooperative or dissenting  gesture w/implementing unit objectives during staff 
&  ops  meetings;  actions  hindered  CMD’s  effectiveness.    Relieved  of  primary 
duties for repeated failure to perform to expected level.   

 
 
In  block  10.  the  reporting  officer  did  not  recommend  the  applicant  for  promotion  and 
stated that he was not prepared at that point to assume positions of greater responsibilities.    The 
reviewer authenticated the SOER without comment. 
 
 
The  applicant  submitted  an  addendum  to  the  SOER  disagreeing  with  the  marks  and 
characterization of his performance.  The rating chain submitted statements in response to the 
addendum,  stating  that  their  evaluation  of  the  applicant’s  performance  was  an  accurate 
assessment of his performance for the period under review. 
 
Applicant’s Other OERs 
 
 
The applicant’s five prior OERs from December 17, 1999, until the beginning date of the 
SOER  were  excellent.  In  his  prior  assignments,  he  served  as  a  staff  officer  with  the  law 
enforcement division of a Coast Guard section.  The description of duties on these OERs does 
not indicate that the applicant was responsible for supervising any personnel.   He did not receive 
any marks lower than 4, and the majority of his marks were 5s and 6s.  He was marked in the 
fifth block to the right in section 9. (the comparison scale) on each of the prior  OERs.   His prior 
reporting officers described him as excellent, trustworthy, and a strong leader. 
 
 
On the OER subsequent to the one in question, the applicant was assigned to duty as the 
controller, Sector San Juan Command Center.  His marks were primarily 5s and 6s and he was 
assigned a mark in the fifth spot on the comparison scale (block 9).  There is no indication that 
he was responsible for the daily supervision of other personnel. 
 

 

Effectively  used  benchmarks  only  after  repeated  interventions  by  CMD;  during 
unit’s standup phase weapon quals status not racked/executed in timely  manner 
until CO placed pressure on mbr. (SUP) 

APPLICANT’S ALLEGATIONS 

 

 
The  applicant  alleged  that  the  reporting  officer  for  the  SOER,  who  was  also  the 
commanding officer (CO), had not been officially promoted to the grade of LCDR, but was a 
frocked LCDR.  He stated that the XO, who was his rating chain supervisor, was junior in grade.  
He alleged that the CO had a personality conflict with him and that the XO did not mitigate the 
conflict.  The applicant alleged that the command’s objectives were not clear and that he was 
often left out of command briefs and meetings, which contributed greatly to the unit’s confusion. 
 
 
The  applicant  alleged  that  the  CO  failed  to  clearly  define  expectations  and  tasks.    He 
stated that his ability to direct others was inhibited because of his isolation from the CO and XO.  
Therefore, he alleged that the following comments are erroneous: 
 

[The applicant] consistently failed to set priorities for self & subordinates to meet 
deadlines & on numerous occasions failed to provide CMD w/plan of attack for 
admin & op tasks; during units stand up trng phase mbr was tasked w/providing 
cmd w/frequent updates on unit’s trng status. (SUP) 

 
 Despite multiple counseling sessions by CO/XO, mbr’s performance of duties did 
not  reflect  a  consistent  increase  in  improvement;  causing  CMD  to  question  his 
integrity & dedication.  (SUP) 
 
[R]equired  constant  coaxing  to  provide  status  &  progress  reports;  did  not  take 
own initiative to keep CMD informed.  (SUP) 
 
Counseled  by  XO  &  CO  at  various  stages  during  this  marking  period;  CMD 
provided  detailed  concerns/issues  to  mbr  &  recommended  changes  to  remedy 
problems;  showed  immediate  course  correction  but  quickly  returned  to  his  past 
habits.  (RP) 
 
Failed to meet my expectations of an Operations Officer and has lost my trust & 
confidence in his ability to support this CMD’s initiatives and vision.  (RP) 

 
 
In support of his application, the applicant submitted a statement from LT H who at the 
time the statement was submitted served as the Waterside Section Detachment Team Leader.  He 
served with and was subordinate to the applicant from June 2004 to January 2005.  The applicant 
quoted the following from LT H’s statement: 
 

While  standing  up  the  MSST,  the  command  objectives  and  direction  were 
occasionally unclear.  [T]his was a new unit and responsibilities and requirements 
evolved  over  time.    [T]he  [CO]  was  trying  to  set  defined  responsibilities  or 
requirements, but often needed to redefine them as they changed.  [The applicant] 
was  often  not  included  in  Command  briefs  or  meetings  which  helped  the 
confusion and turmoil within the crew build.   Decisions were made then changed 
without  [the  applicant’s]  knowledge,  which  hindered  [the  applicant’s]  ability  to 
efficiently  supervise  personnel  with  the  correct  goals  and  timelines.    [The 
applicant]  seemed  to  set  priorities  and  deadlines  as  best  he  could  within  the 
amorphous environment.    

 

 
 
The applicant stated that his prior OERs from other rating chains commented favorably 
on his attention to detail and his timely updates to the command.  He stated that when he sought 
to give the current reporting officer an update, the reporting officer either became overwhelmed 
with the information or reacted negatively to it.    The applicant quoted LT H as stating “the CO 
was  a  difficult  person  to  approach  with  an  issue  which  often  contributed  to  communications 
gaps.”  LT H was further quoted as saying, “the CO . . . appeared to have a personality conflict 
with [the applicant].”   
 
 
The  applicant  contended  that  the  CO’s  expectations  were  impossible  to  meet  because 
after  giving  directions  or  defining  an  objective,  he  would  often  change  them  without  the 
applicant’s knowledge.  The applicant stated that the CO failed to empower him or to establish 
open lines of communication.  The applicant further stated that there was no established formula 
for  success.    He  stated  that  he  was  included  in  some  meetings  but  not  all  and  that  he  was 
informed  of  some  decisions,  which  changed  often.   Therefore,  he  argued  that  the  command’s 

expectations were unreasonable and as such they prevented the applicant from having a chance 
to meet them, resulting in erroneous comments and marks in the SOER.   
 
 
With  respect  to  the  marks  and  comments  about  the  applicant’s  writing  skills  in  the 
communication  skills  section  of  the  SOER,  the  applicant  stated  that  the  reporting  officer’s 
unrealistic writing expectations and requirements increased the time required to complete writing 
tasks  and  evaluations.    According  to  the  applicant,  the  CO  required  that  each  mark  on  an 
evaluation  have  a  descriptive  explanation.    The  applicant  stated  that  the  evaluations  that  he 
thought were final products would be returned with substantial edits and revisions.  He alleged 
that due to the CO’s cumbersome process, evaluations as well as other written documents were 
frequently submitted late.   
 
 
The  applicant  disagreed  with  the  SOER  comment,  “Inaction  to  heed  counseling  has 
caused  turmoil  within  the Wardroom  and  CPO  mess  &  has  affected  unit  morale  &  hampered 
comms  efforts.”    In  this  regard,  the  applicant  stated  that  it  was  the  CO’s  and  XO’s  lack  of 
leadership that created an environment of confusion that negatively impacted morale.   
 
 
The applicant alleged that the following block 8. comment shows an obvious personality 
conflict  between  the  CO  and  himself  because  the  comments  are  negative,  vague,  and 
unsubstantiated:  “Conveyed poor image of self & CMD; displayed uncooperative or dissenting 
gesture  w/implementing  unit  objectives  during    staff  &  ops  mtgs;  actions  hindered  CMD’s 
effectiveness.”   
 
 
The applicant alleged that until the reporting officer began evaluating him he was lauded 
by  three  different  CO’s  for  his  leadership,  management,  and  teamwork.    He  stated  that  it  is 
“inconceivable that he would suddenly abandon his previously noted work habits and skills at a 
new command.”  The only logical explanation for the marks and comments in the SOER is that 
they  were  assigned  by  an  inexperienced  reporting  officer  with  a  personality  conflict  with  the 
applicant.   With respect to the derogatory mark on the comparison scale), the applicant stated 
that  it  is  clearly  out  of  step  with  not  only  his  performance  at  the  unit  but  also  the  rest  of  his 
career.   
 
 
 

The applicant concluded his brief with the following argument: 

The  [CO’s]  lack  of  experience  rendered  him  incapable  of  giving  clear  and 
consistent direction to his subordinates and fostered morale issues with the crew.  
A  directive  would  be  given  and  then  changed.   The  CO  was  not  approachable.  
This further hampered decision-making and eroded unit cohesion.  The arduous 
writing and revision requirements fueled the frustration within the crew.   
 
[The applicant] got along with the crew and had significant operations experience.  
The CO saw the morale of the crew wilting and singled out [the applicant] as the 
person on whom to lay blame.  The CO was not fond of him, often excluding him 
from  meetings.    This  resulted  in  [the  applicant]  not  having  the  most  current 
information  when  directing  personnel.    He  was  set  up  for  failure  rather  than 
empowered for success.   

 
[The  applicant’s]  record  should  be  corrected  by  (1)  voiding  and  removing  the 
disputed  SOER  and  all  associated  documents  from  his  PDR;  (2)  replacing  the 
disputed  SOER  with  a  continuity  report  in  time  for  his  corrected  record  to  be 
properly  reviewed  by  his  O-4  selection  board;  and  (3)  granting  such  other  and 
further relief as may in the circumstances be just and proper.   

 

VIEWS OF THE COAST GUARD 

On May 1, 2007, the Judge Advocate General (JAG) of the Coast Guard submitted an 

 
 
advisory opinion recommending that the Board deny the applicant’s request.   
 
 
The JAG stated that to establish that an OER is erroneous or unjust, an applicant must 
prove that the challenged OER was adversely affected by a clear error and prejudicial violation 
of a statute or regulation, or alternatively, a misstatement of a significant hard fact.  Germano v. 
United  States,  26  Ct.  Cl.  1446,  1460  (1992).    The  JAG  stated  that  in  proving  his  case,  the 
applicant must overcome the presumption that his rating chain officials acted correctly, lawfully, 
and  in  good  faith  in  making  their  evaluations  under  the  officer  evaluation  system.    Arens  v. 
United States, 969 F.2d 1034, 1037 (1992).  The JAG further stated that the applicant can rebut 
the presumption by producing “cogent and clearly convincing evidence.”  Muse v. United States, 
21 Cl. Ct. 592, 602 (1990).   
 
 
With respect to the applicant’s argument that the SOER is inconsistent with his prior and 
subsequent  performance,  the  JAG  argued  that  the  contents  of  the  SOER  pertain  only  to  the 
period at issue.   The JAG stated the applicant was evaluated against the standard set forth on the 
OER  form  and  not  prior  performance.    The  fact  that  he  received  better  ratings  and  personal 
awards before and after the disputed SOER is irrelevant to the matters before the Board.  See, 
Grieg  v.  United  States,  640  F.  2d  1261,  1269  (Ct.  Cl.  1981).  (stating  that  “the  fact  this  fine 
officer  had  better  ratings  before  and  after  the  challenged  OER  is  of  no  legal  moment  nor  of  
probative value as to the rating period covered by the one OER with which he is dissatisfied.’) 
 
 
The JAG stated that the one statement from LT H, who was the applicant’s subordinate, 
is insufficient to prove that the rating chain was biased against the applicant.    The JAG adopted 
the  comments  from  Commander,  Coast  Guard  Personnel  Command  (CGPC)  as  part  of  the 
advisory opinion.    CGPC offered the following: 
 

The applicant reported to [the unit] in July 2004 following two consecutive tours 
as a staff officer at U.S. Coast Guard Greater Antilles Section (GANTSEC).  The 
record shows that the applicant received marks consistent with good performance 
while at GANTSEC.  However, the duties and responsibilities of the operations 
officer at an operational unit such as a MSST are significantly different than those 
of a staff officer  at a larger  command such as  GANTSEC.  While the  member 
excelled in his duties at GANTSEC, the challenge of being the operations officer 
during  the  stand-up  of  a  MSST  appears  to  have  been  too  demanding  for  the 
applicant.  If an officer performs well during a previous assignment, it does not 
guarantee the officer will do well at every subsequent assignment.  The previous 

assignment  is  only  relevant  as  a  reference  point  to  show  that  the  applicant 
performed at a lower level as documented in the OER. 
 
Following  his  transfer  from  MSST,  the  applicant  was  assigned  to  Coast  Guard 
Sector San Juan, Puerto Rico (formerly GANTSEC).  The applicant’s first OER in 
the new staff job illustrated that the applicant was well suited to continue working 
as a staff officer at a larger  command, but it does not provide evidence of any 
irregularity  on  the  part  of  [the  reporting  officer]  and  it  is  not  relevant  to  the 
applicant’s special OER, since it is beyond the relevant period. 
 
The record shows that regular meetings were held within the command element, 
and specifically with the applicant to clarify and prioritize expectations and tasks  
. . .  As a subordinate to the applicant, it appears that [LT H] was not privy to all 
interactions between the command and the applicant and therefore not fully aware 
of all conversations between [the reporting officer/supervisor] and the applicant    
. . .  Furthermore, [LT H’s] credibility is somewhat diminished because he also 
experienced performance problems  at MSST and was  eventually  removed from 
his primary duties. 
 
The applicant also suggested that [the reporting officer and the supervisor] lacked 
experience  and  the  background  to  effectively  evaluate  him.    The  applicant 
provides  no  evidence  to  support  his  claim.    Both  [the  reporting  officer  & 
supervisor] were fully qualified to carry out the duties and responsibilities of their 
respective positions.  

included  many  misspellings, 

The Coast Guard obtained sworn statements from the supervisor and reporting officer and 

 
 
a declaration from the reviewer.   
 
 
1.  The supervisor stated that the evaluation in the SOER is accurate.  She wrote that she 
and the applicant had daily 0615, 0900, and 1100 meetings with the reporting officer during the 
initial stand up phase, as well as afternoon staff meetings with all E-7s and above to facilitate 
open  communication  and  delineate/receive  status  updates  on  unit  goals/objectives.    The 
supervisor stated that throughout the seven-month period, she provided constructive feedback on 
the applicant’s performance of duties.  She stated that she formally counseled him on January 13, 
2005.  She stated that the applicant failed to meet certain performance standards and expectations 
laid out in the OER dimensions.  As an example, the supervisor stated that the applicant’s written 
product  constantly 
that  his  memoranda  did  not  follow 
correspondence  manual  guidelines,  and  that  his  letters  did  not  follow  the  template  in  the 
Commandant’s Instruction Manuals.   
 
 
With respect to LT H’s statement, the supervisor stated that on September 29, 2006, LT H 
was relieved of his duties and responsibilities as MSST Miami Deployable Team Leader because 
the  command  had  lost  trust  and  confidence  in  him  due  to  a  series  of  poor  decisions  and 
questionable behavior.  She noted that he was found to have violated Article 92 (disobeying a 
lawful order) and Article 133 (conduct unbecoming an officer and a gentleman) of the Uniform 
Code of Military Justice at non-judicial punishment (captain’s mast). 

 
 
The  supervisor  stated  that  according  to  the  planning  officer  and  the  CO,  during  staff 
meetings,  etc.,  the  applicant  would  exhibit  body  language  and  expressions  that  showed  his 
disapproval of her tasking  and/or  guidance in front of other officers, such as  rolling his  eyes, 
when  she  was  not  looking.    She  stated  that  the  applicant  denied  that  he  had  engaged  in  the 
behavior when he was approached about it, but when the applicant’s behavior continued, the CO 
counseled him about it.   
  
 
2.    The  reporting  officer  wrote  that  he  was  confident  that  the  applicant’s  SOER  is 
completely factual, objective, and an accurate reflection of the applicant’s performance for that 
period.   He stated that at the time he was a frocked LCDR, but denied that he did not have an 
operational background.  In this regard, the applicant stated that prior to his assignment as the 
CO of the unit under discussion, he served as the plank owner XO for another MSST, and prior 
to that assignment he served as the assistant OPS at an MSO.  In addition he stated that he had 
served in several other leadership positions in the operational community.   
 
 
The reporting officer stated that the applicant was always a part of command briefs and 
that  he  met  with  the  applicant  separately  on  several  occasions  to  provide  further  detailed 
guidance as to his expectations and how the applicant could meet them.   
 
 
The  reporting  officer  denied  that  he  had  a  personality  conflict  with  the  applicant.    He 
stated  that  “[e]nsuring  anyone’s  failure  does  not  bode  well  in  attaining  the  team’s  goals  and 
objectives.” 
 
 
The  reporting  officer  stated  that  he  had  high  writing  standards,  but  that  it  was  not 
impossible to meet them.  He stated that he and the XO offered to personally assist the applicant 
with his writing and to provide him with writing references.  He stated that the applicant never 
sought to take advantage of their offer of assistance and continued to submit sub-par work from 
himself and his subordinates.   
 
 
assertion that he was not approachable is subjective.   
 
 
The reporting officer noted that LT H had problems similar to those of the applicant while 
he  was  CO,  but  LT  H  took  heed  of  the  counseling  provided  by  the  XO  and  himself  and 
subsequently  improved.    He  further  stated  that  it  has  come  to  his  attention  that  LT  H  was 
subsequently removed from his primary duties for reasons similar to those of the applicant (loss 
of confidence, etc).   
 
 
3.    The  reviewer  stated  that  he  believes  the  SOER  accurately  reflects  the  applicant’s 
performance.  He further stated that in his opinion, the SOER was not based on any biases in the 
applicant’s rating chain.   
 
 
 
 

The reporting officer stated that he maintained an open door policy and the applicant’s 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  June  4,  2007,  the  Board  received  the  applicant’s  reply  to  the  views  of  the  Coast 
Guard.  He stated that his application provides clear evidence that the disputed SOER was the 
product of the reporting officer’s biased view of the applicant, his culture, and his family values.  
He alleged that on several occasions, the reporting officer made disparaging  comments to the 
applicant about how the applicant accomplished certain tasks.  The applicant also alleged that the 
reporting officer showed distaste for him by accusing him of working with the “Puerto Rican 
mafia.”    He also alleged that the reporting officer discriminated against the applicant’s planning 
officer who was also Puerto Rican.   
 
 
The applicant stated that his other OERs were provided to show the irregular marks in the 
disputed SOER, his vast operation background,  and the demanding environments in which he 
excelled.   The applicant also noted that he was enlisted as a small boat coxswain for eight years 
and did two years of force protection and security prior to becoming an officer.   
 
 
The applicant stated that although the advisory opinion attempted to refute his argument 
that the reporting officer and supervisor lacked operational experience, he noted that the XO was 
an Academy graduate with only two previous tours of duty, which consisted of a two year tour on 
a cutter followed by four years at the Marine Intelligence Center.  He stated that the CO came 
from the Marine Safety field and prior to arriving at MSST Miami, he was the XO at the MSST 
in San Pedro, CA for two years.   The applicant further stated: 
 

The  MSST’s  command  cadre,  as  the  program  is  designed,  should  have  been 
composed with (1) the CO having an operations background, (2) the XO having a 
marine  safety  background,  and  (3)  the  operations  officer  having  an  operations 
background.  That was not the case at the Miami MSST.  The Coast Guard was 
doing  a  test  in  New  Orleans  and  Miami  where  officers  with  Marine  Safety 
backgrounds were placed in CO positions.  This did not work for the Coast Guard.  
The  proof  was  revealed  to  [the  applicant]  when  he  was  at  a  road  show  and  a 
LCDR asked the assignment officer about the CO positions at the MSSTs.  The 
assignment  officer  said  “the  members  selected  for  MSST  command  positions 
have to have small boat experience and operations background because we [the 
Coast Guard] have had  problems with some of  the MSSTs that don’t have that 
type of leadership.” 

 

1. 

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: 
 

The Board has jurisdiction concerning this matter pursuant to section 1552 of title 

10 of the United States Code.  The application was timely. 
 
 
2.  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.”3  The 
Board  begins  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.4    For the reasons discussed below, the  Board  finds the applicant has 
failed to meet his burden of proof.   
 

3.    The  applicant  alleged  that  certain  comments  in  the  SOER  about  his  failure  to  set 
priorities,  to  meet  deadlines,  to  keep  the  command  updated/informed,  and  to  meet  the  CO’s 
expectations resulted from the CO’s and XO’s failure to define their expectations and tasks and 
from  the  fact  that  he  was  isolated  from  the  CO  and  XO  which  inhibited  his  ability  to  direct 
others.    As proof, in addition to his own allegation, the applicant offered the statement of LT H 
who was the applicant’s subordinate during the period covered by the SOER.   To his credit, LT 
H recognized that the MSST was a new unit and that the CO’s responsibilities and requirements 
would evolve over time and would need to be refined.  LT H further stated, without offering any 
examples or supporting documentation, that the applicant was left out of command briefs, which 
hindered his ability to supervise personnel efficiently.    

 
4.    However,  both  the  SOER  supervisor  and  reporting  officer  stated  the  applicant  was 
included in command briefs.   The supervisor stated that she and the applicant had daily briefings 
with the CO at 0615, 0900, and 1000 during the initial standup of the MSST, as well as afternoon 
staff meetings with the E-7s.  The supervisor further wrote that after the first phase of the MSST 
standup, she and the CO continued to hold morning briefs and staff meetings that included the 
applicant.    Moreover,  she  stated  that  the  command  published  their  expectations  and  standards 
through emails and a public MSST folder containing the units NAV standards, units organization 
manual, and the CO’s standing orders.   In contrast, the applicant failed to provide the Board with 
examples of the types of meetings from which he was excluded that, if he had been included, 
would have caused him to be able to meet the expectations of his rating chain leading to a more 
favorable evaluation.   The statement from LT H, which contains allegations against the CO but 
very little detail or examples, is insufficient to prove that the CO’s expectations of the applicant 
were unjust or that the marks and comments in the disputed SOER are inaccurate.  Nor was the 
evidence offered by the applicant sufficient to prove that the rating chain’s expectations and tasks 
were unclear or that the applicant was wrongfully excluded from any meetings by design of the 
CO or XO.   In weighing the credibility of LT H’s statement, the Board notes that he experienced 
similar performance problems to those of the applicant:  removal from his primary duties and the 
imposition of NJP.   

 
5.  With respect to comments in the SOER about his failure to provide timely updates to 
the  command  and  his  lack  of  attention  to  detail,  the  applicant  offered  his  previous  OERs  as 
examples  that  past  rating  chains  commented  favorably  about  his  performance  in  these  areas.   
However, the Board has consistently held that past and subsequent performance evaluations do 
not  prove  that  the  evaluated  performance  under  review  for  a  specific  period  is  erroneous  or 
unjust.   As  the  advisory  opinion  states,  OERs  represent  the  evaluation  of  performance  for  a 

                                                 
3 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. 
4 33 C.F.R. § 52.24(b). 

period in time and rating chains do not compare their evaluations of an officer’s performance 
with  previously  evaluated  performance,  but  rather  rate  the  officer’s  performance  during  the 
evaluation period according to the standards printed on the OER form.  Articles 10.A.4.c.2.b. & 
10.A.4.c.6.b. of the Personnel Manual state that the reported-on officer’s performance shall be 
compared  against  the  printed  standards  not  to  other  officers  and  not  to  the  same  officer  in  a 
previous  reporting  period.      It  would  also  not  be  advisable  to  compare  the  applicant’s 
performance evaluated in the SOER against his earlier evaluations because his duties evaluated 
in  the  SOER  were  different  from  those  in  his  earlier  OERs.    For  example,  in  his  earlier 
assignments he was a staff officer in the law enforcement division, but in the SOER he was head 
of the operations department5 which carried a significant increase in responsibility from earlier 
assignments.   In addition, his earlier duties did not require him to perform supervisory duties, 
but according to the SOER the applicant was responsible for leading numerous personnel and 
evaluating  their  performance.      This  too  was  an  increase  in  responsibility  from  his  earlier 
assignments and could help to explain the decline in his performance from earlier periods.   

 
6.    The  applicant  and  LT  H  state  that  the  CO  was  a  difficult  person  to  approach.  
However, they provided no examples of when they attempted to approach the CO and on what 
issues.  The applicant made a general allegation that when he approached the CO, he acted as if 
overwhelmed or responded negatively.  However, this is a mere allegation that tells the Board 
very little about the specific history between the CO and the applicant  or why the CO would 
have such a reaction, if true.     Moreover, the CO declared that he had an open door policy.  The 
applicant has failed to prove by a preponderance of the evidence that the SOER comments about 
the  applicant’s  failure  to  keep  the  command  informed  or  his  lack  of  attention  to  detail  are 
erroneous or unjust.   

 
7.    The  applicant’s  allegation  and  that  of  LT  H  that  “the  CO  appeared  to  have  a 
personality conflict with the applicant” is a mere allegation without any specific detail to give it 
any credibility.  The applicant points to the comment “conveyed poor image of self & command; 
displayed  uncooperative  or  dissenting  gesture  w/implementing  units  objectives  during  staff  & 
ops mtgs; actions hindered CMD’s effectiveness” as proof of the CO’s personality conflict with 
the  applicant,  because  according  to  the  applicant  the  comment  is  negative,  vague,  and 
unsubstantiated.  The XO stated that during staff meetings the applicant showed disapproval of 
her tasking through is body language, such as by rolling his eyes behind her back, as witnessed 
by the CO and planning officer.   Therefore, the comment has a basis in fact and is not vague.  In 
his reply to the advisory opinion, the applicant suggested that the CO was biased against him due 
to  his  ethnicity.    However,  he  provided  no  corroboration  for  this  allegation.    Moreover,  the 
members of the rating chain denied that the CO had a bias against the applicant.     In the absence 
of  specific  significant  evidence  to  the  contrary,  the  Board  finds  that  holding  the  applicant 
accountable for his performance or lack thereof does not establish bias; nor does the evidence of 
record establish that the CO had a personality conflict with the applicant.   

  
8.  The applicant argued that the CO did not empower him to succeed and that the CO 
had no formula for success.  However, the Board notes that the applicant fails to offer evidence 

                                                 
5      Article  6-4-1  of  the  United  States  Coast  Guard  Regulations  (1992)  states  that the  “operations  officer 
shall be head of the operations department.” 

that he sought out the CO and/or XO on guidance for improving his performance.  The CO and 
XO  stated  that  they  had  numerous  meetings  with  the  applicant.    However,  the  applicant  has 
failed  to  indicate  the  number  of  times  he  requested  to  meet  with  the  XO/CO  about  his 
performance and how he could meet the rating chain’s expectations.   According to the Personnel 
Manual, the applicant is responsible for managing his performance and for seeking feedback if 
directions  or  tasks  are  not  clear.    See Article  10.A.1.b.  of  the  Personnel  Manual.6   Again,  he 
alleged that the CO did not have an open door policy, but he did not provide proof that he was 
ever denied entrance through that door due to bias or a personality conflict.  As the OPS, the 
applicant should have approached the CO as often as required for clarification of assignments 
and to provide the necessary updates.   

 
9.  The CO readily admitted that he had high writing standards and requirements, but he 
also stated that they were not impossible to meet.  Each CO and/or manager has his or her own 
way of doing things and management style.  It is up to the reported-on officer, in this case the 
applicant, to make the necessary adjustments in his work product to meet the CO’s requirements.  
Apparently, the applicant was never able to do this.  Moreover, the applicant offers no samples of 
any  written  work  that  he  submitted  to  the  CO  and  that  were  returned  to  him  that  would 
demonstrate  the  CO’s  unreasonableness  in  this  area.    LT  H’s  statement  that  evaluation 
expectations were arduous and involved doing things that went well above Commandant’s policy 
lacks  detail  and  specific  examples  of  how  the  CO  requirements  in  this  regard  were  so 
unreasonable that the applicant could never be expected to meet them. Returning written work to 
a subordinate for revision is not unusual.   Communication skills is a legitimate evaluation area 
on  the  OER,  and  the  Board  will  not  remove  a  comment,  mark,  or  the  SOER  itself  based  on 
general  allegations  blaming  the  CO  for  the  applicant’s  failure  to  meet  the  expectations  of  the 
rating chain.    

 

 
10.   The applicant alleges that the CO and XO did not have the necessary experience to 
stand up the MSST and that it was their lack of leadership that created a confused environment 
and took a negative toll on unit morale.  The Coast Guard offered that both the CO and XO were 
fully qualified to carry out the duties and responsibilities of their respective positions.  Indeed, 
the CO described his background in his declaration attached to the advisory opinion as having 
prior  service  as  the  executive  officer  of  an  MSST  and  before  that,  serving  as  the  assistant 
operations officer at another MSST. In addition, the CO stated, prior to his assignment as CO, he 
had served over twenty-one years in the Coast Guard.  Moreover, he stated that he had served in 
other  leadership  positions  in  the  operational  community.    The  applicant  alleges  that  the  CO 
should  have  had  an  operations  background.      However,  he  fails  to  explain  how  the  CO’s 
background as described in the record failed to meet this requirement.   

 
11.  In addition, the applicant failed to provide the Board with the regulation that states 
that the MSST’s command cadre should be composed of a CO with an operational background, 
an  XO  with  a  marine  safety  background,  and  an  operational  officer  with  an  operational 
                                                 
6      Article  10.A.1.b.2.    of  the  Personnel  Manual  states,  “The  individual  officers  are  responsible  for 
managing  their  performance.    This  responsibility  entails  determining  job  expectations,  obtaining 
sufficient  performance  feedback,  and  using  that  information  to  meet  or  exceed  standards.”        The 
reported-on  officer  is  also  responsible  for  seeking  clarification  of  feedback,  if  not  fully  understood.  
Article 10.A.1.c.5. of the Personnel Manual.   

background.  He noted that the XO was an Academy graduate with only two tours of duty – two 
years on a cutter and four years as a marine intelligence officer.  The Coast Guard assigned the 
CO and XO of the MSST and must have found them qualified to do the job.  The fact that the 
applicant believes they were not qualified does not make it so.   The Board will not second-guess 
the  Coast  Guard’s  assignment  of  officers  based  on  general  allegations  that  they  lacked  the 
necessary experience to do the job.    

 
12.  Accordingly, the Board finds the evidence insufficient to prove that the CO and XO 
lacked the necessary experience for their positions.  In addition, the Board notes that even if they 
were  as  inexperienced  as  the  applicant  claims,  the  question  is  whether  their  evaluation  of  the 
applicant’s  performance  in  the  SOER  is  inaccurate.    In  this  regard,  the  applicant  has  simply 
failed  to  prove  that  he  performed  better  than  described  in  the  SOER,  that  the  SOER  contains 
misstatements of hard facts, that there were factors in the rating chain that should not have been 
there, or that there was a clear and prejudicial violation of the regulation.   Nor has he proved 
that the evaluation of his performance in the SOER constitutes an injustice.   

 
13.   In light of the above, the applicant’s request for relief should be denied  

 
 
 
 
 

[ORDER AND SIGNATURES ON NEXT PAGE] 

The application of xxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his military 

ORDER 

 

 
 

record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Julia Andrews 

 

 
 
 Jordan S. Fried 

 

 
 
 Richard Walter