DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-113 
 
XXXXXXXXXXX 
XXXXXXXXXXX 
   

 

 

Disputed OER Marks and Comments 
 

 

The applicant alleged the following comments and marks in the disputed OER are erroneous:  

• 

In the Planning and Preparedness category (block 3a), the applicant disputed the mark of 
3  and  the  following  comments:    “Poor  planner,  reactive  vice  pro  active  [sic],  often 
controlled  by  events  vice  being  prepared  with  a  plan  action.”      “.  .  .    failed  to 
administratively  assign  member  when  directed,  inhibiting  ability  of  ISC  to  handle 
continued medical care of member.” 

 

 
 

 

 

FINAL DECISION 

 
 
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 March 
15, 2007, upon receipt of a completed application and subsequently prepared the final 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 29, 2007, is approved and signed by the three duly 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  by  removing  the  officer 
evaluation  report  (OER)  for  the  period  June  1,  2004  to  June  10,  2005  (disputed  OER).    The 
applicant further requested that he be placed back into consideration for assignment to graduate 
school.  During  the  period  covered  by  the  disputed  OER,  the  applicant  was  the  commanding 
officer  (CO)  of  a  cutter.      The  disputed  OER  covers  the  second  of  his  two  year  command 
assignment.  
 

APPLICANT’S ALLEGATIONS 

In  the  Workplace  Climate  category  (block  5e),  the  applicant  disputed  the  mark  of  3 
supported  by  the  following  disputed  comments:    “Kept  FN  assigned  to  cutter  months 
after  being  directed  by  D17  to  ADASSIGN  mbr  for  medical  reasons,  creating  extra 
burden for the crew.”  “Several minor human relations and work-life incidents on cutter 
indicative of low morale and lack of leadership role model.”  “PO promotion delayed due 
to non-completion of enlisted marks.” 

In block 7 of the  reporting officer’s comments, the applicant  challenged  the comment: 
“At my direction supervisor counselled [sic] [the applicant] Dec 04 to discuss strategies 
to resolve repeated Ready for  Operations deficiencies . . .”  “Failed to empower crew, 
weak oversight of XO & EPO.” 

In  the  Judgment  (block  8b)  and  Responsibility  (block  8c)  categories,  the  applicant 
disputed the marks of 3 and the comments:  “Failed to add freeboard painting in drydock 
package  despite  ole  suggestion,  sought  funding  after  drydock  commenced.”    “Did  not 
fully follow specific D17 guidance on boarding of fishing vessel, required D17 (ole) to 
rescind  case  package,  write  apology  to  fishing  vessel  owner  and  make  amends  with 
NMFS. 

In block 10, where the reporting officer evaluates the applicant’s potential, the applicant 
disputed the comment:  “had difficulty keeping . . . the cutter’s material condition at an 
acceptable level.” 

• 

• 

• 

• 

• 

 

 

 

 

In block 121 where the reporting officer compares the applicant with all other LTJGs he 
has known throughout his career, the applicant disputed his placement in the third lowest 
category,  on  the  scale  of  1  to  7  with  7  being  the  highest  mark.   The  reporting  officer 
described as a “Fair performer; recommended for increased responsibility.” 

 
Applicant’s Arguments 
 
 
In challenging the above comments and marks as erroneous, the applicant alleged that his 
supervisor,  Commander  (CDR)  W  was  located  400  miles  away  from  the  applicant’s  unit  and 
spoke with the applicant approximately once a month.  The applicant claimed that this lack of 
interaction and distance led to the alleged erroneous marks and comments.   
 
 
With respect to the comment “Poor planner, reactive vice pro active [sic], often controlled 
by  events vice being prepared with a plan of action,” the applicant stated that he was a  good 
planner and offered as corroboration a statement from a  chief petty officer who served  as the 
engineering  petty  officer  (EPO)  from  June  2004  to  June  2005.        The  EPO  stated  that  the 
applicant was a good planner and further stated: 
 

If there was something to do, he would bring us all together to discuss the issue.  
He tried to ensure we knew what needed to be done and how we were going to get 
it  done.    However,  with  the  mission  we  had  to  carry  out,  plans  would  be 

                                                 
1   This is block 9 on the disputed OER. 

established and implemented, then factors would change and we would have to 
change.  It was impossible to account for or plan for all possible events that could 
come  up  on  a  mission.    At  times,  we  had  to  make  adjustments  to  overcome 
obstacles. 
  
 
 
Regarding the comment “. . .  failed to administratively assign member when directed, 
inhibiting ability of ISC to handle continued medical care of member,”  the applicant contended 
that  he  took  all  measures  within  his  power  to  get  a  correct  disposition  for  the  injured 
crewmember.    He  stated  that  he  coordinated  with  the  Seventeenth  District  (D17)  Personnel 
division in a timely and efficient manner, and although he explored administratively assigning 
the injured crewmember to another unit, it could not be accomplished because no unit could be 
found that would take the injured member.  The applicant stated that it took time to resolve the 
issue of where the injured member would go and he indicated there was a possible problem with 
the funding source for it.  He stated that during the period of resolution the injured member was 
actively engaged on the ship in his assigned billet.  The applicant subsequently stated that he 
used  the  FN  effectively  to  stand  watches  and  as  a  watchstanding  trainer  and  that  without  a 
realistic reassignment option he decided to utilize the member as best he could.  The applicant 
also contended that the lengthy process in getting the applicant moved was primarily the result of 
poor coordination and communication between medical personnel and D17 and that he received 
little direction from them.  He also stated that the situation was further complicated by the fact 
that  the  crewmember  was  aboard  a  cutter  was  that  was  frequently  underway  due  to  mission 
requirements.  He stated that he did all he could for the FN and blamed D17 for mishandling the 
situation.   
 
 
In  support  of  his  contentions  about  his  handling  of  the  situation  with  the  injured 
crewmember, the applicant submitted a statement from the cutter’s ombudsman.2  She stated the 
following: 
 

During the time frame I assisted an injured crew member who was stationed on 
the cutter.  This was a new member of the Coast Guard who had sustained a back 
injury.  The Coast Guard was telling him that he was going to be separated due to 
his  medical  condition.    Unfortunately  the  coordination  and  communication 
between  medical  personnel  and  [the]  District  was  poor.    He  was  getting  little 
guidance  and  information  from  them.    In  particular,  [the]  District  handled  the 
situation poorly.   
 
I know that [the applicant] was the CO of the cutter at the time.  Based upon my 
involvement  in  the  situation,  I  cannot  see  where  solving  the  problem  with  the 
member was his entire fault.  This issue was being handled by medical personnel 
and District.  Granted, [the applicant] and LTJG [H] started the proceedings and 
maybe some blame lies there; however it quickly evolved into a situation that was 
out of [the applicant’s] hands to get a resolution. 

 
                                                 
2   The applicant also submitted a statement from his attorney summarizing a conversation between the attorney and 
LT S about the applicant’s handling of the FN situation.  The attorney’s reporting of what LT S told him constitutes 
hearsay.   

The  applicant  alleged  that  the  comment  “Several  minor  human  relations  and  work-life 
incidents on cutter indicative of low morale and lack of leadership role model” is erroneous.   He 
pointed  to  the  statement  by  the  EPO  that  the  applicant  was  a  good  CO  who  was  new  and 
assigned to a difficult situation.    The applicant argued that there is no indication of what the 
minor  human  relation  incidents  were  and  that  there  were  no  complaints  filed  with  the  human 
relations  officer.    The  minor  issues,  if  any,  “sound  more  like  concerns  that  would  arise  from 
being frequently underway.”    
 
 
The  applicant  stated  that  poor  morale  had  nothing  to  do  with  him  but  was  due  to  the 
relocation  of  the  cutter  from  San  Diego  to  Alaska  and  that  the  “austere  conditions  and  the 
arduous  mission  requirements  took  a  toll  on  the  crew’s  morale.”    The  applicant  submitted  a 
statement from a BM3 who served on the cutter from June 2003 through January 2005.   She 
offered the following: 
 

At  the  beginning  of  my  time  on  the  [cutter]  the  crew  morale  was  not  good.  
People were not happy because the cutter was supposed to be stationed out of San 
Diego but was moved to Alaska after the personnel were assigned to it.  Towards 
the end of my time with [the applicant] the morale was better.  [The applicant] did 
what he could to boost the crew’s morale.   
 
I thought [the applicant] was a good leader.   I thought that he explained things 
well to others.  He took time to explain my job to me which helped me improve.  
He taught me new things about my job.   

 
 
The EPO wrote that the “morale on the cutter was typical for a patrol boat with a high 
operations tempo.  I do not think morale problems can be attributed to [the applicant].”   This 
individual  also  noted  that  the  cutter  was  relocated  from  San  Diego  to  Alaska  with  a  new 
inexperienced crew and that under the circumstances the applicant did “pretty well.” 
 
 
In refuting the comment about poor morale the applicant also pointed to the following 
comment  in  the  supervisor’s  portion  of  the  disputed  OER,  which  allegedly  contradicts  the 
comment about the low morale: 
 

Counseled 2 junior personnel on marriage entitlements & followed up to ensure 
rapid change to pay.  Entered u/w watch rotation to allow member to take leave, 
making  exception  to  standard  “no  leave”  while  u/w  policy.    Helped  [member] 
with separation issues form new family as well as naturalization issues for spouse 
. . . Developed ship handling skills for u/w OODs through coaching and repetition 
of  evolutions  under  various  conditions.    Mentored  junior  GM  and  helped  him 
hone his skills in his critical independent duty billet.   

 
 
The applicant concluded his argument about the minor work life incidents by stating such 
problems were not a result of any lack of leadership on his part, but rather they were vague unit 
problems that occurred despite his leadership.  
 

 
The applicant challenged the comment “PO promotion delayed due to non-completion of 
enlisted  marks”  by  stating  that  he  completed  all  enlisted  marks  on  time  but  they  were  lost  in 
People Soft.  He asserted that the lost marks were a computer error and not his fault.   
 
 
 The  applicant  stated  that  the  reporting  officer’s  comment  “At  my  direction  supervisor 
counseled [the applicant] Dec 04 to discuss strategies to resolve repeated Ready for Operations 
deficiencies . . .” is erroneous.  The applicant stated he was the one to repeatedly seek feedback 
on his performance and even went so far as to set up a temporary active duty (TAD) trip in order 
to  see  his  supervisor  and  get  feedback.    He  stated  that  during  that  meeting  there  was  no 
discussion of any sub par performance and the supervisor told him that he was performing okay 
and that his marks were low because he was a new LT and a new CO.   
 

The applicant contended that the reporting officer’s comment “Failed to empower crew, 
weak oversight of XO & EPO,” is erroneous.  He argued that this comment conflicts with the 
supervisors  comment  that  he  “[d]elegated  operations  planning  to  the  Ops  Dept  Head,  and 
encouraged  the  EPO  to  become  more  involved  in  administrative  aspects  of  the  cutter.”    The 
applicant stated that the XO had known personnel issues before his assignment to the cutter and 
although he tried to lead the XO through theses issues, the XO would not heed the applicant’s 
guidance.   

 
The  applicant  stated  that  the  comment  “Failed  to  add  freeboard  painting  in  drydock 
package  despite  ole  suggestion,  sought  funding  after  drydock  commenced”  is  inaccurate  and 
unfair.    The  applicant  stated  that  he  had  several  meetings  with  MLC  (Material  Logistics 
Command) and he was told that the drydock was full and no new projects could be added.  He 
stated that during this time, the drydock contract was tied up in litigation which prevented adding 
and addressing any new issues.  He stated that once in drydock he was able to work out the issue 
of the freeboard painting and had it added to the package at a very good price.  He argued that 
this set of circumstances had no adverse impact on his primary or secondary missions.    

 
With respect to the comment that he  “[d]id not fully follow specific D17 guidance on 
boarding of fishing vessel, required D17 (ole) to rescind case package, write apology to fishing 
vessel owner and make amends with NMFS,” the applicant stated that he followed the direction 
from D17 that was incorrect and that he documented this to his supervisor.  He stated that he 
should not be held responsible for a D17 error. 

 
The applicant stated that the comment “had difficulty keeping . . . the cutter’s material 
condition at an acceptable level” is erroneous.  In support of his contention, the applicant again 
referenced the statement from the EPO, which stated the following in pertinent part: 

 
The [cutter] is an old cutter.  I think its condition is typical for that type of ship.  
While  most  ships  have  a  maintenance  augmentation  team  on  board,  ours  was 
several hundred miles away . . .  The maintenance that had to be accomplished 
was  some  of  the  most  extensive  that  I  have  seen.    The  cutter’s  condition  was 
inherited,  not  created.    Considering  the  inherited  condition,  the  environmental 
impact of rough seas, and the climate . . . , I think that [the applicant] did a good 
job maintaining the cutter.   

 
. . . Bottom line, the maintenance was done and the ship was operational, in better 
condition than when we got it.   
 
The  applicant  also  submitted  a  statement  from  a  civilian  who  worked  at  the  shipyard 
where  the  cutter  was  placed  in  dry  dock.    He  stated  that  the  cutter  was  in  great  shape  and 
comparable to any cutter that he has worked on.  He stated that he knew there were problems 
with the contract that covered the service to the cutter.  “The freeboard painting had not been 
included in the original drydock package,” and the applicant worked with this individual to have 
it included in the contract at a very good price.  This individual stated that it is not uncommon to 
have additions to a contract.   
 

The applicant concluded his arguments by stating that the marks of 3 were supported by 
comments that he has refuted.  He further argued that once the comments supporting a mark are 
proven erroneous, the marks must be invalidated as well.  He cited to Article 10.A.4.k.1. of the 
Personnel Manual.  

 
The applicant alleged that his assignment to graduate school was terminated as a result of 
the disputed OER and he requested that the Board direct the Coast Guard to consider him for 
such an assignment.   
 
Applicant’s Other Performance 
 
 
The applicant was promoted to LT, his current rank, on May 19, 2003.  He also reported 
as the CO of the cutter on the same date.  The applicant immediate prior OER was excellent.  It 
covered the period from May 19, 2003 to May 31, 2004, the applicant’s first year as CO of the 
cutter.  He had marks of mostly 5s and no mark lower than a 4.  In block 9 on the comparison 
scale, he received a mark in the middle block, which indicated that he was a good performer to 
whom tough, challenging assignment should be given.     
 
 
and Ensign.   
 

The applicant also had above average OERs while serving the grades of Lieutenant (JG) 

VIEWS OF THE COAST GUARD 

On July 31, 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).   
 
 
The  JAG  stated  that  in  support  of  his  arguments  that  the  disputed  OER  contains 
erroneous comments and marks, the applicant provided statements from his former subordinates 
and others whom he had professional dealings with during the reporting period of the OER in 
dispute.  The JAG stated that while those who submitted statements in support of the applicant’s 
case are welcome to express their opinions of his performance, the responsibility for preparing 
an OER rests with the rating chain.  The JAG noted that each member of the rating chain had 
submitted statements affirming that the OER accurately reflected the applicant’s performance for 
the period under review.   
 
 
(CGPC) as part of the advisory opinion.    CGPC offered the following: 
 

    The JAG adopted the comments from Commander, Coast Guard Personnel Command 

Based  on  the  record,  the  rating  chain  carried  out  its  duties  in  accordance  with 
policy . . .  There is no evidence that indicates the rating chain erred during the 
preparation,  review  or  submission  of  the  applicant’s  disputed  OER.    The 
comments and marks are well supported and well documented for the period of 
the disputed OER . . .  
 
Coast Guard policy required that all officers be evaluated in an accurate, fair and 
objective  manner  and  that  an  officer’s  performance  be  measured  against 
established performance and character standards . . .  The rating chain clearly did 
so  and  refuted  the  applicant’s  allegations  of  an  inaccurate  and  unwarranted 
evaluation through their detailed and well supported declarations  . . .     
 
In  summary,  the  rating  chain  carried  outs  its  responsibilities  and  submitted  the 
applicant’s disputed OER in accordance with the Coast Guard Personnel Manual.  
They were in the best position to observe the applicant’s performance and provide 
a  fair,  accurate,  and  objective  OER.    There  is  no  basis  for  removing  the 
applicant’s OER from his record.  No other relief is warranted in this case.   

The Coast Guard obtained declarations under the penalty of perjury from the supervisor, 

 
 
reporting officer, and reviewer.   
 
1.   Along  with  his  declaration,  the  supervisor  provided  notes  that  he  taken  during  the 
 
applicant’s  tenure  as  CO  and  as  well  as  other  documentation  obtained  during  the  reporting 
period, which included a letter from a crewmember’s spouse to a chaplain.  The supervisor stated 
that  the  evaluation  of  the  applicant’s  performance  in  the  disputed  OER  is  accurate  and  the 
applicant  has  presented  nothing  to  challenge  it  except  for  allegations  that  the  comments  are 
erroneous.    He  stated  that  the  applicant  took  command  of  the  cutter  on  May  19,  2003,  and 
therefore the disputed OER covered the second and last year of his assignment as CO.   
 
 
The supervisor stated that the applicant simply failed to prepare.  In this regard, he noted 
that the applicant barely passed a ready for operations visit in August 2004 and that in May 2005 

the  applicant’s  cutter  completely  failed  the  inspection.    The  supervisor  noted  some  of  the 
discrepancies found during the August 2004 inspection, as follows:  oil in the bilges, training 
records were not in order, cutter manuals were not updated to even reflect the new homeport, 
machinery space fire doctrine was not updated, and rust on the hull.  The supervisor stated that 
the  failure  of  the  applicant’s  cutter  was  only  1  of  2  he  witnessed  in  over  24  such  inspections 
during his Alaskan tour.   
 

With respect to the reassignment of the FN, the supervisor stated, “after being directed to 
administratively assign FN [S] ashore, [the applicant] continued to delay until intervention by the 
D17 staff . . .  FN [S] was not assigned ashore until [January  13, 2005] at  ISC Seattle, three 
months after [the applicant] was directed to do so.”  The supervisor stated that the applicant’s 
decision to leave the FN ashore, at home, with no supervision for weeks at a time and to not 
temporarily assign him to another command was stunning.  The supervisor submitted notes from 
an October 13, 2004 meeting about the FN that included the applicant, the supervisor, and other 
D17 personnel.  The notes of that meeting show that an assignment had been identified for the 
FN and that when the FN was onboard the cutter and stood watches he required a shadow in case 
of emergencies.   
 
 
The supervisor stated that the applicant’s claim that he inherited poor morale is bogus.  
He noted that during the period, he received comments from a master chief petty officer about 
morale  on  the  cutter,  a  letter  to  a  chaplain  written  by  a  spouse  about  the  lack  of  morale  and 
general climate onboard the cutter, and an email from a civilian contracting officer.   
 
 
With  respect  to  the  applicant’s  claim  that  he  entered  marks  for  the  enlisted  member 
whose promotion was delayed but there was a problem with People Soft, the supervisor stated 
that  the  computer  program  did  not lose  the  marks  because  it  was  broken  and  the  marks  were 
never entered.   He stated “There are many other computers available [and] that [the applicant] 
simply had to log into the evaluation system from a different location.”  He stated that the D17 
Command Master Chief got involved and had the marks entered from another location so the 
member  could  advance.    “The  [applicant]  could  have  done  the  same  thing  but  his  lack  of 
initiative and apathy resulted in the delay.”   
  
 
The  supervisor  stated  that  he  counseled  the  applicant  in  December  2004  at  the  CO’s 
conference which was a mandatory TAD trip for all COs, and he disagreed with the applicant 
that the trip was arranged by the applicant for feedback, as the applicant contended. He stated 
that  he  counseled  the  applicant  on  the  ready  for  operation  deficiencies.    “It  was  during  this 
counseling session that I told [the applicant] that the Admiral had suggested he be relieved for 
cause back in October.”    The supervisor stated that he told the applicant that he thought the 
applicant was a capable officer and that he did not see the need to relieve him.  According to the 
supervisor, his comments in this regard “does not translate to high marks on an OER, all it means 
is that [the applicant] was not relieved for cause.”   
 
 
The  supervisor  stated  that  although  the  applicant  delegated  often  and  well,  he  did  not 
empower his senior leadership.  In this regard, he stated that he saw a crew that was afraid to act 
without  [the  applicant’s]  direction  or  permission,  which  is  totally  contrary  to  empowerment.   

The supervisor stated that he was not aware of any problems with the applicant’s XO and that the 
applicant never requested that either his prior or his then-current XO be relieved or reassigned.   
 
 
wrong.  On this issue, the supervisor further stated: 
 

With respect to freeboard painting, the supervisor stated that the applicant has his facts 

Additional  items  could  not  be  added  to  his  drydock  package  at  MLC  expense.  
D17  maintained  a  separate  funding  account  for  WPB  maintenance.    [The 
applicant] was told how to access that funding to add this item to his package at 
D17  expense  but  he  didn’t  care  to  listen  or  access  the  funding.    Once  [the 
applicant] arrived at drydock, the contractor asked about freeboard painting.  [The 
applicant] called D17 and we once again walked him through the process and paid 
for the painting.  This lack of attention was evident throughout [the applicant’s] 
tour and speaks to his lack of initiative . . .   

 
 
With respect to the 3 in judgment, the supervisor stated that the mark is supported by the 
following poor decisions made by the applicant:  leaving the FN ashore unsupervised with no 
tasks,  being  unprepared  for  RFOs,  allowing  his  XO  to  depart  on  leave  while  he  was TAD  (a 
violation of D17 policy), and causing severe wake damage to several vessels due to excessive 
speed.   
 

Regarding the applicant’s statement that he received incorrect direction from D17 with 
respect to boarding the  fishing vessel  and should not be held responsible for a  D17 error, the 
supervisor stated that the question is not whether the guidance is good or bad but whether the 
applicant followed the guidance given to him.  The supervisor stated that the applicant did not 
follow the guidance as directed and he did not provide any specifics to the contrary.   

 
With respect to the condition of the cutter, the supervisor stated that there were two other 
cutters in the same area and neither had the maintenance issues that that the applicant alleged 
were created by the distance from the maintenance team, by the rough seas, and by the climate.  
He stated that the applicant’s cutter was the newest of the three.  The supervisor offered a list of 
maintenance issues with respect to the applicant’s cutter that could have been easily addressed 
with preventive maintenance.  He also submitted a copy of a May 27, 2005 message from D17 to 
the applicant’s cutter stating that the cutter was not ready for sea.  Among the issues found during 
the  inspection  was  the  cleanliness  of  the  cutter,  which  according  to  D17  was  not  up  to  Coast 
Guard standards.   

 
The supervisor stated that the applicant did not do a fantastic job as CO, as suggested.  
He stated that in his opinion, the mark given on the comparison scale, describing his as a fair 
performer  who  is  recommended  for  increased  responsibility,  is  generous  based  on  his  overall 
performance.  The supervisor further stated: 

 
As the [CO] of a USCG cutter, [the applicant was] ultimately responsible for the 
actions  of  [his]  unit,  the  actions  of  the  people  onboard,  the  maintenance  of  the 
cutter, and the health of the crew.  As stated in the disputed OER, [the applicant] 

often seeks to shift blame to others and appears unable to grasp the responsibility 
he had while serving as [CO] . . .   

 
 
2.  The reporting officer wrote a declaration under penalty of perjury that the disputed 
OER is a balanced, fair, accurate, and error free evaluation of the applicant’s performance for the 
period.  The reporting officer stated that the OER comment that the applicant failed to empower 
and oversee his crew is not in error.  He stated that while the applicant may have empowered the 
crew occasionally, he did not ensure that they were managing things correctly.  The reporting 
officer  stated  that  although  the  applicant  claimed  that  the  shortcomings  were  the  fault  of  his 
subordinates, his claim that inferior people were assigned to his cutter could not be substantiated.   
The reporting officer further stated: 
 

Freeboard painting—This comment is accurate and fair . . . [The applicant] did 
get the painting added to the drydock package and funding for the work from [his 
supervisor] and myself, but not until after the cutter was in drydock as stated.  The 
drydock  package  was  completed  over  30  days  prior  to  entering  drydock.    He 
failed  to  get  the  freeboard  painting  added  to  the  contract  as  expected  and 
communicated by D17 to him prior to going to the shipyard, [which] is what the 
OER addresses.  A “very good price” and no adverse impact have no bearing on 
the validity of the OER comment.   
 
D17 Guidance—This statement is accurate in my opinion, [the supervisor] briefed 
me on this incident . . .  We did write an apology to the fishing vessel owner.  The 
local  NMFS  official  acknowledged  and  accepted  our  rescinding  of  the  case 
package and thanked us for our apology to the owner. 
 
The  Cutter’s  Condition—This  statement  is  accurate  and  fair.    This  statement 
addresses  unit  level  cleanliness  and  other  preventative  maintenance  aspects  of 
material  condition  that  [the  applicant]  as  [CO]  was  solely  responsible  for.  
Material condition items addressed by  a shipyard are largely material condition 
items  beyond  ships  force  capability,  knowledge  or  training  to  perform.    [The 
applicant] may have inherited some poor material conditions, but this OER covers 
his second full year in command and any inherited conditions that were within the 
ship’s force capability to correct should have long since been corrected but many 
were  not  and  had  been  pointed  out  to  him  repeatedly.    The  “remarkable” 
maintenance  [the  cutter]  did  accomplish  was  infrequent.    This  statement 
accurately  states  he  failed  to  maintain  the  cutter’s  material  condition  at  an 
acceptable level.   
 
Comparison Scale—[The applicant] was a fair performer compared to the other 
LTs I have known in my career.  I have evaluated 18 LTs as Reporting Officer in 
my career.   

 

3. The reviewer, who at the time was the Commander of D17, wrote that he visited all 
units  under  his  command,  including  the  applicant’s.    He  stated  that  based  upon  his  notes  and 
recollection  of  the  time  in  question,  the  applicant  was  less  than  thorough  in  his  planning  for 

 
I  was  escorting  the  visiting  Russian  General  from  the  Northwest  Border  Guard 
District in Kamchatka . . .  During this official visit I took the Russian delegation 
and the General to Valdez.  One of our stops was to visit the [applicant’s cutter].    
The cutter’s mission was to sail around the port of Valdez while describing the 
operations and security zone requirements.  The day of the visit was a beautiful 
fall  day,  but  it  was  obvious  to  the  entire  delegation  that  the  cutter  was  not 
prepared  for  the  day’s  events.    [The  applicant]  was  not  ready  to  explain  the 
waterfront operations or the operation of the security zone.  He stumbled through 
a brief explanation, and was not prepared to have his XO handle the underway 
responsibilities of operating the cutter.  During the entire time, he kept the Con 
while at the same time attempting to give the briefing of the port.  This did not 
flow well.  This was clearly a lack of planning and preparation for what was a 
high profile international visit.  While the visit was completed without incident, 
[the applicant] did not demonstrate good planning and preparation.   

 

With respect to the comment on the applicant’s failure to reassign the sick crewmember, 
the  Reviewer  wrote  that  it  is  incorrect  that  the  applicant  did  not  have  the  authority  to  single 
handedly  reassign  the  member.    In  this  regard,  he  stated  that  a  CO  has  the  responsibility  and 
authority to work with shore units to temporarily assign individuals to a shore command because 
he or she is unable to sail with the cutter.  He stated that it was a failure of leadership on the 
applicant’s part to allow the sick crewmember to be left ashore taking medication alone, with no 
one to report to, while the cutter is at sea or deployed for extended periods of time.   

 
The  reviewer  stated  that  while  morale  is  not  totally  a  reflection  of  the  CO,  it  is 
significantly affected by the attitude and leadership of the CO.  He stated that there is no single 
factor  that  is  more  important  to  the  overall  unit’s  morale  than  the  CO.    “In  the  [applicant’s 
cutter’s] situation, certainly the relocation was a factor, but the aloof, arrogant attitude of the CO 
had a significant negative impact on the crew’s morale.” 

 
With respect to the freeboard painting issue, the reviewer corroborated the supervisor’s 
statement in this regard.  The reviewer stated that the applicant’s “leadership and performance 
was . . . not satisfactory and not to the level that is expected of our [CO’s].  I consider the OER 
for this period . . . to be a fair and accurate assessment of his performance.” 

operations, deployments, and shipyard period.  He stated that the applicant did not communicate 
plans to his crew or prepare alternative backup plans. He noted that a lack of preparation was 
clearly  evident  in  the  cutters  repeated  deficiencies  in  meeting  its  Ready  for  Operations 
requirements  and  stated  that  the  applicant  failed  such  inspections  on  two  occasions  in  May                 
2005.   He offered the following example of the lack of proper planning by the applicant: 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On August 27, 2007, the Board received the applicant’s reply to the views of the Coast 

 

 
 
Guard.  He offered the following: 
 

[The  applicant’s]  application  .  .  .  was  supported  with  statements  from  four 
different  individuals  who  worked  with  him  on  a  daily  basis  or  who  were 
personally involved in the matters on which they commented.  His raters on the 
other hand, were hundred of miles away and saw [the applicant] maybe two times 
during the disputed rating period.  [The applicant] proved by a preponderance of 
the evidence that the disputed OER was erroneous.   

 
The  applicant  disagreed  with  the  JAG‘s  statement  that  the  presumption  that  the 
 
applicant’s raters acted correctly, lawfully, and in good faith can only be rebutted by “cogent and 
clearly convincing evidence.”   The applicant stated that that standard only applies to a challenge 
of a military correction board decision in the Court of Federal Claims.   
 

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 

1. 

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     
 

3.    The  applicant  alleged  that  the  disputed  OER  should  be  removed  from  his  record 
because certain of the OER comments are erroneous and that such a finding by the Board would 
invalidate  the  marks  of  3  that  he  received  in  the  contested  areas.    However,  for  the  reasons 
discussed below, the Board finds that the applicant has failed to prove that either the comments 
or marks are erroneous or unjust.   

 
4.   One of the applicant’s major arguments is that he was geographically separated from 
his  rating  chain  and  therefore  they  were  not  knowledgeable  enough  about  his  performance  to 
accurately evaluate it.  There is nothing in the Personnel Manual that says that the members of 
the  rating  chain  must  be  physically  co-located  with  the  reported-on  officer.    In  fact, Articles 
10.A.4.c.4.d. and 10.A.4.c.7.d. of the Personnel Manual state that the supervisor and reporting 
officer  shall  draw  on  their  observations,  those  of  any  secondary  supervisors,  and  other 
information  accumulated  during  the  reporting  period.   Therefore,  the  supervisor  and  reporting 
officer’s  reliance on the inspection reports of the applicant’s unit, reports obtained from other 
personnel, their own observations during command visits, and other reports were appropriate for 

                                                 
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). 

use  in  evaluating  the  applicant’s  performance.      Moreover,  the  then  Secretary’s  Delegate 
disagreed  with  the  Board’s  finding  in  Docket  No.  43-91  that  that  applicant  has  suffered  an 
injustice because his rating chain had personally observed him only one or two times over the 
course of a year, although she granted relief to that applicant on other grounds.  With respect to 
minimal observation by a rating chain, the Secretary’s Delegate wrote: 
 

. . . I find that the Coast Guard Evaluation Branch was correct in contending that 
the  supervisor  and  reporting  officer  could  in  substantial  part  measure  the 
applicant’s  performance  and  the  “health”  of  the  unit  through  their  own  visit, 
inspection  by  others  supervising 
the  station,  and  routine  administrative 
correspondence  and  message  traffic.    There  is  no  specific  requirement  for  the 
raters to directly observe the reported-on officer for any extended length of time. 
 
Similarly,  I  have  found  no  judicially-imposed  requirement  for  on-site  personal 
observation  by  a  rater  of  a  member  in  a  remote  location.    Indeed,  in  Boyd  v. 
United States, 207 Ct. Cl. 1 (1975), the court accepted an Air Force procedure in 
which  raters  obtained  evaluation  letters  from  an  official  most  familiar  with  the 
performance  of  the  officer  being  rated,  rather  than  personally  observing  the 
member.  There, the member was located at an Air Force base in Kansas; his rater 
and deputy chief was at Langley AFB, Virginia, and did not visit him.  While the 
governing personnel regulations of the Air Force differ from the Coast Guard’s, 
the facts here also differ in that [that applicant’s] raters had directly observed him 
on several separate occasions. 

 
 
In light of the above, even if the applicant’s rating chain did not visit him on a frequent 
basis, their evaluation of his performance must be accepted unless it is proven to be inaccurate.      
 

5.   The applicant has failed to prove that the comment “Poor planner, reactive vice pro 
active [sic], often controlled by events vice being prepared with a plan of action.” was erroneous.  
The applicant offered the opinion of his then-EPO to prove that he was a good planner who tried 
to ensure that the crew knew what was needed and how to get it done.  The EPO further stated 
that although plans were established and implemented by the applicant, unexpected events would 
necessitate changes.  However, the EPO, a chief petty officer, was not responsible for evaluating 
the applicant’s performance or for ensuring that the cutter was ready operationally.  In contrast to 
the EPO’s statement, all three members of the rating chain stated under penalty of perjury that 
the applicant was poor at planning and offered evidence in corroboration of this comment.  For 
instance, all three pointed out that the applicant barely passed a ready for operation inspection 
(RFO)  in August  2004  and  failed  this  inspection  completely  in  May  2005.   The  fact  that  the 
applicant failed the inspection in May 2005 after barely passing in May 2004 shows either poor 
planning and preparedness or a severe lack of understanding of his responsibility as CO.  The 
rating chain was charged with assessing the applicant’s planning and preparedness, and in their 
judgment his performance in this area was below average.  The applicant has failed to prove that 
the supervisor’s comment in this regard was erroneous. 
 

6.  The applicant has also failed to prove that the comment “failed to administratively 
assign  member  when  directed,  inhibiting  ability  of  ISC  to  handle  continued  medical  care  of 

member” is inaccurate.  The supervisor wrote that the applicant did not reassign the sick FN until 
three months after being directed to do so.  While the applicant offered several explanations why 
he  failed  to  reassign  the  FN  as  directed,  he  does  not  dispute  the  fact  that  he  did  not  do  so 
promptly.  He submitted a statement from the unit’s ombudsman.  However her opinion that the 
blame for the FN’s situation should be shared between the applicant and D17 does not prove that 
the applicant acted to reassign the FN as directed by his superiors; nor does it disprove the rating 
chains assessment that his failure to do so inhibited the ISC’s ability to handle his medical care.  
There is no evidence that the ombudsman was privy to all conversations between the applicant 
and his rating  chain and there is no indication that she attended the  October 2004 meeting in 
which  the  FN  situation  was  discussed.    Nor  did  she  state  how  often  she  interacted  with  the 
injured member during this period.  She offered her opinion that blame should be shared (not that 
the applicant was blameless) by both the applicant and D17, but her opinion does not prove that 
the comment is inaccurate and it is not proof that the applicant’s actions in this regard were those 
expected of a CO.   
  

7.  The applicant failed to prove that the following comments in the Workplace Climate 
category of the disputed OER are inaccurate:  “Kept FN assigned to cutter months after being 
directed by D17 to ADASSIGN mbr for medical reasons, creating extra burden for the crew.”  
“Several minor human relations and work-life incidents on cutter indicative of low morale and 
lack  of  leadership  role  model.”    “PO  promotion  delayed  due  to  non-completions  of  enlisted 
marks.”   
 
a.  The  applicant’s  failure  to  reassign  the  sick  member  is  discussed  in  Finding  6.  The 
applicant denied that keeping the injured member assigned to the cutter was a burden to the crew.  
In this regard, the applicant stated that during this period the FN was actively engaged on the 
ship in his assigned billet.  Contrarily, the supervisor and reviewer stated that the FN was left 
ashore for extended periods without supervision while the cutter was on patrol.  Keeping the sick 
FN  assigned  to  the  cutter  and  leaving  him  ashore  while  the  cutter  was  on  patrol,  without  a 
replacement, must have created an extra burden for the crew because some other member had to 
cover his assignment.  The applicant does not deny that the FN was left ashore during patrols. In 
addition, if the applicant suffered a back injury as stated by the ombudsman, it is difficult to see 
how  keeping  him  assigned  to  the  cutter  would  not  have  been  a  burden  to  the  crew.      In  this 
regard, the supervisor’s submission of notes from the October 2004 meeting indicates that when 
the FN stood watches he required a shadow in case of emergencies.  Therefore, the applicant has 
not shown the comment to be inaccurate or unjust.     

 
b.  The  applicant  challenged  the  OER  statement  “Several  minor  human  relations  and 
 
work-life incidents on cutter indicative of low morale and lack of leadership role model.”  The 
applicant stated that the supervisor does not identify the minor incidents that were indicative of 
low morale.   However, the supervisor noted in his declaration that he had received comments on 
the cutter’s low morale  from a master  chief petty  officer, a letter to the  chaplain written by a 
spouse, and an email from a contractor.  The applicant acknowledged that low morale existed 
because  he  blamed  it  on  the  relocation  of  the  cutter  to  Alaska  from  San  Diego,  the  austere 
conditions in Alaska, and the arduous mission requirements.  Even if the Board were to find the 
disputed comment about minor human relations and work-life incidents to be vague, the disputed 
OER could be corrected to remove it without removing the entire OER from the record, and the 3 

in the Workplace climate category would remain because it would be supported by the comment 
about the negative impact on the crew of leaving the sick FN assigned to the cutter after D17 
directed his removal.   Further, even if the Board were to find the comment to be in error due to 
vagueness, such  an error would not necessarily require corrective action  in light of the below 
average marks of 3 and the unfavorable comments in the planning and preparedness, judgment, 
and responsibility categories, as well as the mark left of center on the comparison scale and the 
negative assessment of the applicant’s potential for future command assignments.  As CO, the 
morale of the crew was the applicant’s responsibility and a proper subject of comment by the 
rating chain.    
 

The applicant further argued that the following supervisor’s comment in section 5 of the 

OER contradicts the comment about poor morale: 
 

Counseled 2 junior personnel on marriage entitlements 7 followed up to ensure 
rapid change to pay.  Entered u/w watch rotation to allow member to take leave, 
making  exception  to  standard  “no  leave”  while  u/w  policy.    Helped  [member] 
with separation issues form new family as well as naturalization issues for spouse 
. . . Developed ship handling skills for u/w OODs through coaching and repetition 
of  evolutions  under  various  conditions.    Mentored  junior  GM  and  helped  him 
hone his skills in his critical independent duty billet.    

  

The Board finds the above comment speaks to the applicant’s abilities in categories of 
looking  out  for  others  and  developing  and  directing  others  more  than  it  does  to  the  issue  of 
morale.  While the comment about the incidents leading to low morale could have been more 
precise, the Board finds it is sufficiently succinct to inform the applicant of the problems and the 
applicant has not shown the comment to be inaccurate  
 

c. The applicant has not proven that the comment “PO promotion delayed due to non-
completion of enlisted marks” is inaccurate.  His explanation that he entered the marks but they 
were lost in People Soft is directly rebutted by the supervisor who wrote that the marks were 
never entered by the applicant because the computer assigned to him was broken and he failed to 
make use of other available computers.  According to the supervisor, the enlisted marks were 
entered by the D17 master chief and the enlisted member was subsequently advanced.   
 

8.  The applicant challenged the following reporting officer’s comment but failed to prove 
that it was erroneous: “At my direction supervisor counseled [the applicant] Dec 04 to discuss 
strategies to resolve repeated Ready for Operations deficiencies . . .”   Both, the supervisor and 
reporting  officer  stated  that  the  supervisor  counseled  the  applicant,  particularly  on  the  RFO 
deficiencies at the CO’s conference, in which attendance was mandatory.  The supervisor wrote 
that he told the applicant that he thought he was a capable officer even though the Admiral had 
suggested his relief.  However, the supervisor stated that his comment to the applicant does not 
mean that he was entitled higher marks than received, only that he was not relieved of command.  
Therefore, the applicant argument that there was no discussion of sub-par performance during 
the supervisor’s counseling session is without merit, especially with the applicant barely having 
passed the RFO in August 2004.   
 

9.  The applicant challenged the reporting officer’s comment “Failed to empower crew, 
weak  oversight  of  XO  &  EPO.   The  applicant  argued  that  the  reporting  officer’s  comment  is 
contradicted by the supervisor’s comment that he “[d]elegated operations planning to the Ops 
Dept Head, and encouraged the EPO to become more involved in administrative aspects of the 
cutter.” OER’s are divided into three parts, supervisor’s portion, the reporting officer’s portion, 
and the reviewer’s section.  Each is entitled to make their own independent assessment of the 
applicant’s  performance.5    Therefore,  even  if  the  two  comments  can  be  read  somewhat 
differently, that is not necessarily error.  In this case, the Board finds that the applicant may have 
delegated and encouraged his XO and EPO, but that does not mean the he empowered them to 
take action of their own volition or that he provided strong oversight of them.   

 
10.   The Board finds the comment “Failed to add freeboard painting in drydock package 
despite ole suggestion, sought funding after drydock commenced” is not  erroneous.   Both the 
supervisor and reporting officer stated that the applicant failed to add this item to his drydock 
package prior to arriving at drydock despite being told to do so.  The applicant offered several 
explanations why this was not accomplished until he reached drydock, but he has not proven that 
the comment is inaccurate.    
 

11.  The applicant alleged that the comment  “Did not fully follow specific D17 guidance 
on  boarding  of  fishing  vessel,  required  D17  (ole)  to  rescind  case  package,  write  apology  to 
fishing  vessel  owner  and  make  amends  with  NMFS  is  inaccurate  because  he  did  follow  the 
guidance of D17, which was erroneous.   Both the supervisor and reporting officer stated that the 
applicant failed to follow D17 guidance which required the issuance of an apology to a vessel 
owner.  The applicant’s statement is not sufficient to prove that he followed the advice of the 
rating chain in this regard; nor does he provide the Board with the actual guidance provided to 
him by D17 that was erroneous.      
 

12.  The applicant offered a statement from the EPO and a civilian drydock worker to 
prove that the comment that he “had difficulty keeping . . . the cutter’s material condition at an 
acceptable level” is inaccurate.   The EPO’s statement that the cutter was old, that its condition 
was  typical  for  that  type  of  ship,  that  the  condition  of  the  cutter  was  inherited,  and  that  the 
maintenance  team  was  located  hundreds  of  miles  from  the  cutter,  does  not  prove  that  the 
reporting  officer’s  comment  that  the  applicant  had  difficulty  keeping  the  cutter’s  material 
condition  at  an  acceptable  level  is  erroneous.   As  the  supervisor  stated,  even  if  the  applicant 
inherited some of the material deficiencies with the cutter, the OER covers his second year as CO 
of the cutter and those inherited problems should have been cured long ago. According to a D17 
email, even cleanliness was a problem with the cutter.    A civilian drydock worker stated that the 
applicant’s  cutter  was  in  great  shape  and  comparable  to  others  that  he  had  helped  to  repair.  
However, this individual does not state what he meant by great shape; nor does he explain to the 
Board  how  many  other  ships  of  this  type  he  had  previously  worked  on.    The  EPO  and  the 
drydock worker provided their opinions about maintenance of the applicant’s cutter, but it was 
the  responsibility  of  the  rating  chain  to  make  decisions  and  judgments  about  whether  this 

                                                 
5      Article  10.A.2.a.  of  the  Personnel  Manual  states  that  ”the  rating  chain  provides  as  assessment  of  an  officer’s 
performance  and  value  to  the  Coast  Guard  through  a  system  of  multiple  evaluators  and  reviewers  who  present 
independent views and ensure accuracy and timeliness of reporting.”   

applicant has performed his duties in an acceptable manner.  The applicant has not shown by a 
preponderance of the evidence that the comment is in error.   
 

13.  The various marks of 3 and supporting comments are evidence that the members of 
the rating chain determined that some areas of the applicant’s performance were below average.6  
The Board will not modify an OER or remove it from the record unless the applicant provides 
persuasive evidence that it is in error.  The evidence offered by the applicant in this case does not 
persuade  the  Board  that  any  of  the  disputed  comments  are  in  error  or  unjust.    Moreover,  the 
Board finds particularly persuasive that each member of the rating chain submitted declarations 
under  penalty  of  perjury  reaffirming  their  evaluation  of  the  applicant’s  performance  in  the 
disputed  OER.    Further,  the  Board  notes  that  the  record  does  not  indicate  that  the  applicant 
submitted a reply to the disputed OER under Article 10.A.4.g. of the Personnel Manual.  While 
the Board does not base its decision on whether to grant or deny relief on an applicant’s failure to 
submit an OER reply, it is one factor the Board takes into consideration during its deliberations.   

 
14.    The  applicant  made  note  of  his  other  excellent  performance.    However,  prior 
excellent performance is not proof that the applicant’s performed in a similar manner during the 
period under review.  Each period of performance must stand on it own merits.    

 
15.   The  applicant  has  failed  to  prove  that  the  disputed  marks  of  3  and  comments  are 
inaccurate.  Neither they nor the OER will be removed from the applicant’s military record.  In 
addition,  the  Board  finds  that  the  comparison  scale  mark  in  block  9  is  the  reporting  officer’s 
evaluation of the applicant compared to other LTs he has known during his career.  The applicant 
has not demonstrated that the block 9 mark is anything except the honest opinion of the reporting 
officer.   
 
  16.  The applicant has failed to prove error or injustice in this case and his request for 

relief should be denied.   
 
 
 

[ORDER AND SIGNATURES ON NEXT PAGE]

                                                 
6   Marks range from a low of 1 to a high of 7.  Marks of 4 are considered average grades. 

The application of XXXXXXXXXXXXXX, USCG, for correction of his military record 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 George J. Jordan 

 

 

 
 James E. McLeod 

 

 

 
 Dorothy J. Ulmer 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ORDER 

 

 
 

 
 

is denied.