DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2007-099 
 
xxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxx   

 

 
 

 

FINAL DECISION 

 
 
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 February 23, 2007, upon 
receipt of the completed application, and assigned it to staff member J. Andrews to prepare the 
decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 

This final decision, dated November 15, 2007, is approved and signed by the three duly 

 

APPLICANT’S REQUEST 

The  applicant  asked  the  Board  to  correct  the  reporting  officer’s  section  of  his  officer 
evaluation report (OER) for the period June 1, 2003, to July 23, 2004.  During the first three 
months of this reporting period, the applicant was serving on active duty under Title 10 orders.  
A Reserve officer, he was released to inactive duty on September 30, 2003.  He asked the Board 
to  correct  the  disputed  OER  by  raising  the  numerical  marks  he  received  for  “Judgment”  and 
“Responsibility” from 3s to 4s (7 is best); by raising his mark on the comparison scale from the 
third  spot,  which  denotes  a  “fair  performer,”  to  the  fourth  spot,  which  denotes  a  “good  per-
former”; and by replacing the following negative comments by the reporting officer with more 
suitable comments prepared by the applicant’s supervisor, his current command, or the Board: 

 
… His overall adaptability was challenged, however, by his recall under Title 10 orders & initial 
lack of understanding/support for the MSO’s Port Security roles/authorities/mission. 
 
… Demonstrated commitment to service success after initial period of not understanding/support-
ing CG role as Federal Maritime Security Coordinator & COTP authority for Homeland Security: 
engaged in written exchange w/peer that actively disparaged CG PS mission, but following educa-
tion period came to understand the importance of the service’s role in the maritime environment, 
including shoreside port facilities.  Self assured to a fault … . 
 
A decent performer who may, with guidance and example, continue to grow into a good leader.  
Needs to recognize that due to military nature of CG, missions and assignments are often contrary 
to personal desires yet must still be performed & performed well.  Similarly, needs to fully under-
stand that CG policies must be supported, even when unpopular or difficult.  Recommend consid-

eration  for  promotion  only  with  peers,  under  best-qualified  review  process.    Continued  assign-
ments should utilize civilian LE skills & knowledge.  Recommend continuation at this unit until 
end  of  tour,  then  assignment  to  a  similar  unit  to  facilitate  professional/personal  growth  as  an 
officer. 
 

APPLICANT’S ALLEGATIONS 

 
The applicant stated that upon his request, the Personnel Records Review Board (PRRB) 
has already corrected several significant factual errors in the supervisor’s portion of the disputed 
OER.    He  stated  that  the errors were inserted after his supervisor prepared and forwarded the 
OER  to  the  reporting  officer,  LCDR  [M],  who  was  the  Executive  Officer  of  his  unit.    As  an 
example, he noted that whereas the supervisor reported his primary duty to be “Assistant Chief, 
Port Security Department,” and the PRRB confirmed his title, the OER that was ultimately for-
warded to the Coast Guard Personnel Command (CGPC) by the commanding officer of his unit, 
who  served  as  the  reviewer  of  the  OER,  stated  that  his  primary  duty  was  “Assistant  Section 
Chief, Weekend Duty Team.”  In support of his allegation, the applicant submitted a copy of the 
decision of the PRRB, which found the following: 
 

There are inconsistencies between the version of the OER submitted by the supervisor and the final 
validated version of the OER in the applicant’s official record.  The supervisor documented that 
her comments and numerical marks were changed without her concurrence from those she submit-
ted to the reporting officer.  Coast Guard policy prohibits the reporting officer from directing an 
evaluation mark or comment be changed on the OER.  Additionally, the supervisor indicates that 
she was directed by the reporting officer to sign an incomplete version of the final OER, which is 
inconsistent with Coast Guard policy. … OES policy was not followed in this case. 

                                                 
1 However, the PRRB’s recommendation, which was approved by the Acting Deputy Director of Personnel on June 
19, 2006, has apparently not yet been implemented since the official Personal Data Record received by the Board 
from the Coast Guard contains the version of the OER that describes the applicant’s title as an “Assistant Section 
Chief, Weekend Duty Team,” rather than “Assistant Chief, Port Security Department.” 

 

The PRRB ordered the Coast Guard to replace the supervisor’s section of the OER with 
the marks and comments originally prepared by the supervisor but did not order any changes to 
the reporting officer’s section of the OER.1  The decision of the PRRB includes a sworn state-
ment from the applicant’s supervisor, who wrote that the applicant served as the Assistant Chief 
of the Port Security Department and that, although the department tripled in size during the first 
few months of the reporting period, the applicant “met that challenge head on.”  The supervisor 
also wrote the following: 

 
In  April  of  2004,  I  submitted  an  Officer  Evaluation  Report  for  [the  applicant].    The  numbers  I 
assigned  for  marks  ranged  from  a  couple  of  “4s,”  mostly  “5s”  and  a  couple  of  “6s”.    I  did  not 
assign [him] a mark of “3” in any category.  When the final OER was printed, the Executive Offi-
cer, LCDR [x], brought me page two to sign and there were no marks assigned.  LCDR [x] did not 
give  me  the  opportunity  to  review  the  OER  prior  to  signing.    In  fact,  he  did  not  relinquish  the 
document while I signed it.  Given the command climate at the time, I don’t believe that I would 
have been permitted to review the OER even if I had asked.  Several weeks later, I received [the 
applicant’s]  copy  of  the  submitted  OER  and  discovered  that  he  had  been  given  numerous  “3s” 
without my knowledge or concurrence.  Edits were also made to the comments that I had provided 
for blocks 3, 4, and 5.  A copy of my original input is attached to this statement for your review 
and comparison. …  [The applicant] did an outstanding job as the Assistant Chief of Port Security 
and as an officer assigned to MSO … .  He did not deserve the OER that was given him. 
 

The applicant argued that the reporting officer’s section of the disputed OER should be 
corrected, as well as the supervisor’s section, because it contains low marks and negative com-
ments, whereas the PRRB found he had been a “consistently good performer.”  He alleged that 
the actions of the reporting officer in making unauthorized and inaccurate negative changes to the 
supervisor’s part of the OER indicate that the OER section prepared by the reporting officer was 
“tainted with negative bias.”  Therefore, he asked the Board to raise the low marks and remove 
the negative comments from the reporting officer’s section of the OER and replace the comments 
with more appropriate comments about his performance.   

 
The  applicant  submitted  a  copy  of  his  supervisor’s  original  input  for  the  OER,  which 
contains significantly better marks and comments than the OER that CGPC received and vali-
dated  on  August  6,  2004,  and  a  copy  of  a  Commandant’s  Letter  of  Commendation,  which 
authorizes  him  to  wear  the  ribbon  bar  for  his  outstanding  service  on  active  duty  from  March 
through September 2003.   

 

 

VIEWS OF THE COAST GUARD 

 
 
On  June  25,  2007,  the  Judge  Advocate  General  of  the  Coast  Guard  forwarded  to  the 
Board a memorandum on the case prepared by the Coast Guard Personnel Command (CGPC) 
and asked the Board to accept it as the Coast Guard’s advisory opinion.   
 

CGPC stated that under Article 10.A.2.g.2.b. of the Personnel Manual, an officer is dis-
qualified from serving on another officer’s rating chain in any “situation where personal interest 
or  conflict  on  the  part  of  the  Supervisor,  Reporting  Officer,  or  Reviewer  raises  a  substantial 
question as to whether the Reported-on Officer will receive a fair, accurate evaluation.”  CGPC 
stated that “[b]ased upon the inconsistencies noted in the PRRB application and final decision, it 
can be concluded that the OER rating chain beyond the supervisor should be disqualified.  The 
procedural irregularities on the part of the OER chain raise a ‘substantial question as to whether 
the reported-on officer [received] a fair, accurate evaluation.’”   

 
CGPC noted that the comments in the reporting officer’s section of the OER “are not in 
alignment with the observations presented by the supervisor and are inconsistent with the appli-
cant’s overall performance as documented in his record and may represent a bias.”  In addition, 
CGPC noted that in prior and subsequent OERs, the applicant has received above-standard marks 
and supporting comments and that his record contains no documentation of any performance or 
disciplinary problems.   

 
CGPC stated that there is no alternate reporting officer or reviewer who directly observed 
the applicant’s performance and could prepare a substitute OER, and there is no policy provision 
for any other entity to prepare new written comments.  Therefore, CGPC recommended, “given 
the nature of irregularities in the rating chain and procedural errors, and lack of suitable alternate 
rating chain, the Coast Guard recommends that the OER for the period June 1, 2003, through 
July 23, 2004, be replaced with a report for continuity purposes, pursuant to [Article 10.A.3.a.5. 
of the Personnel Manual].” 

 

On July 24, 2007, the applicant responded to the Coast Guard’s advisory opinion by con-
curring with CGPC’s recommendation that the disputed OER be removed and replaced by one 
prepared for continuity purposes only.  He also noted that he had received a Commandant’s Let-
ter of Commendation, which should be noted as an attachment to the continuity OER as well. 
 

FINDINGS AND CONCLUSIONS 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

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 negative marks and comments in the disputed OER 
are the result of bias on the part of members of his rating chain.  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.”2  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.3  Absent evidence to 
the contrary, the Board presumes that the OER was prepared “correctly, lawfully, and in good 
faith.”4   
 
 
Under Article 10.A.2.d.2.h. of the Personnel Manual, supervisors are supposed to 
complete their section of an OER before forwarding it to the reporting officer.  Under Article 
10.A.2.e.2.c.,  a  reporting  officer  “shall  return  a  report  for  correction  or  reconsideration,  if  the 
Supervisor’s submission is found inconsistent with actual performance or unsubstantiated by nar-
rative comments.  The Reporting Officer may not direct that an evaluation mark or comment be 
changed (unless the comment is prohibited under Article 10.A.4.f.).”  In light of the supervisor’s 
sworn statement and the decision of the PRRB, the Board finds that the applicant has proved by a 
preponderance of the evidence that his rating chain violated these regulations in two significant 
respects:  First, the reporting officer required the supervisor to sign an incomplete version of the 
OER in which the marks and comments she prepared had been removed and/or altered; second, 
either the reporting officer or the reviewer changed the marks and comments in the supervisor’s 
section of the OER for the worse without her knowledge or concurrence.   
 

4. 

The  applicant  argued  that  his  reporting  officer’s  improper  conduct  in  making 
unauthorized and inaccurate negative changes to the supervisor’s section of the OER proves that 
                                                 
2 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. 
3 33 C.F.R. § 52.24(b). 
4 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

5. 

7. 

6. 

the  reporting  officer’s  own  section  of  the  OER  was  “tainted  with  negative  bias.”    The  Coast 
Guard has admitted that the “procedural irregularities on the part of the OER chain raise a ‘sub-
stantial question as to whether the reported-on officer [received] a fair, accurate evaluation,’” and 
so the reporting officer and reviewer of the OER should be disqualified as members of his rating 
chain  pursuant  to  Article  10.A.2.g.2.b.  of  the  Personnel  Manual.    The  Board  agrees  with  the 
Coast Guard that the strange and obviously improper violations of the OER regulations by the 
applicant’s reporting officer and/or reviewer—who were the Executive Officer and Commanding 
Officer of his unit—raise a “substantial question as to whether the reported-on officer [received] 
a fair, accurate evaluation.”  Therefore, in accordance with Article 10.A.2.g.2.b., the reporting 
officer and reviewer of the OER should be disqualified as members of his rating chain. 
 
 
The conduct of the applicant’s reporting officer and/or reviewer in preparing his 
OER violated several sections of the Personnel Manual and casts significant doubt on the propri-
ety of their motivations in skirting proper OES procedures.  The Board finds that the preponder-
ance of the evidence shows not only that the OER as a whole was prepared in violation of regu-
lations to the prejudice of the applicant but also that it was negatively affected by factors that 
“had no business being in the rating process.”5   
 
The applicant originally asked the Board to remove the negative marks from the 
 
OER and to replace the negative comments with more positive comments.  The Coast Guard rec-
ommended removing the entire OER and replacing it with one prepared for continuity, and the 
applicant has concurred in that recommendation.  In BCMR Docket No. 151-87, it was held that 
“an OER will not be ordered expunged unless the Board finds that the entire report is infected 
with the errors or injustices alleged; unless the Board finds that every significant comment in the 
report is incorrect or unjust; or unless the Board finds it impossible or impractical to sever the 
incorrect/unjust material from the appropriate material.”  In this case, the Board finds that the 
prejudicial effect of the OES violations is not clearly delineated but is likely pervasive and that it 
is  “impossible  or  impractical  to  sever  the incorrect/unjust material from the appropriate mate-
rial.”  Therefore, the disputed OER should be removed from the applicant’s records and replaced 
with one prepared for continuity purposes only. 
 
 
Under Article 10.A.3.a.5. of the Personnel Manual, continuity OERs are prepared 
when “an OER is required by these instructions, but full documentation is impractical, impossi-
ble to obtain, or does not meet officer evaluation system goals.”  Article 10.A.3.a.5.d. states that 
on a continuity OER, there are no performance comments and, instead of numerical marks, the 
performance dimensions are marked as “not observed.”  However, Article 10.A.3.a.5.d. requires 
that section 2 of the OER form, which is for the “Description of Duties” and the notation of any 
attachments  to  the  OER,  be  properly  completed  in  accordance  with  Articles  10.A.4.c.2.  and 
10.A.4.c.3.  The latter article states that in preparing an OER, any award listed under Chapter 
1.A.17. of the Medals and Awards Manual that is received during a reporting period should be 
listed as an attachment in section 2 of the OER form.  The Commandant’s Letter of Commenda-
tion ribbon bar was awarded to the applicant on September 30, 2003, during the reporting period 
for  the  disputed  OER,  and  that  award  is  listed  in  Chapter  1.A.17.  of  the  Medals  and  Awards 
Manual.  Therefore, the award would normally be listed in section 2 of his continuity OER, along 
with the description of his duties for the period. 
                                                 
5 Germano, at 1460. 

  
8. 

Accordingly,  relief  should  be  granted  by  removing  the  disputed  OER  from  the 
applicant’s record and replacing it with one prepared for continuity purposes only in accordance 
with  Articles  10.A.3.a.5.,  10.A.4.c.2.,  and  10.A.4.c.3.  of  the  Personnel  Manual,  including  the 
Description of Duties originally provided by the supervisor as amended by the PRRB in section 2 
on the OER form with a notation of the applicant’s receipt of the Commandant’s Letter of Com-
mendation ribbon bar on September 30, 2003. 
 
 
 

 
  

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 
military record is granted as follows: 
 

ORDER 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCGR,  for  correction  of  his 

•  His officer evaluation report for the period June 1, 2003, to July 23, 2004, shall be 
removed from his record and replaced with one prepared “for continuity purposes only” 
in accordance with Article 10.A.3.a.5.d. of the Personnel Manual.   

•  Section 2 of this new continuity OER shall include the Description of Duties received 
from  his  supervisor  (which  indicates  that  his  primary  duty  was  “Assistant  Chief,  Port 
Security  Department”)  and  amended  by  adding  the  phrase  “Title  10:  120  days,”  in 
accordance with the relief granted by the Personnel Records Review Board, as well as a 
notation  of  his  receipt  of  the  Commandant’s  Letter  of  Commendation  ribbon  bar  on 
September  30,  2003,  in  accordance  with  Articles  10.A.4.c.2.  and  10.A.4.c.3.  of  the 
Personnel Manual. 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Patrick B. Kernan 

 

 

 
 William R. Kraus 

 

 

 
 Kathryn Sinniger