DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                        BCMR Docket No. 2007-124 
 
xxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxx   

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 April 13, 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  January  24,  2008,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

 
 

 

The applicant asked the Board to raise his performance mark for “Professional Compe-
tence” on his officer evaluation report (OER) for the period June 1, 2003, to June 7, 2004, from a 
mark of 3 to a mark of 4 or 5.1  The applicant alleged that his test scores and flight evaluations 
show that he met the written standard for a mark of 4 or higher on the OER form.  Block 3.e. of 
the disputed OER appears as follows: 
 
Professional 
Competence 
Ability to acquire, 
apply, and share 
technical and 
administrative 
knowledge and 
skills associated 
with description of 
duties.  (Includes 
operational aspects 
such as marine 
safety, seaman-
ship, airmanship, 
SAR, etc., as 
appropriate.) 

Superior expertise; advice 
and actions showed great 
breadth and depth of knowl-
edge. Remarkable grasp of 
complex issues, concepts, 
and situations. Rapidly 
developed professional 
growth beyond expectations. 
Vigorously conveyed knowl-
edge, directly resulting in 
increased workplace produc-
tivity. Insightful knowledge of 
own role, customer needs, 
and value of work. 
○ 

Competent and credible 
authority on specialty or 
operational issues. Acquired 
and applied excellent 
operational or specialty 
expertise for assigned 
duties.  Showed profession-
al growth through education, 
training and professional 
reading. Shared knowledge 
and information with others 
clearly and simply. Under-
stood own organizational 
role and customer needs. 

Questionable competence 
and credibility. Operational 
or specialty expertise 
inadequate or lacking in key 
areas. Made little effort to 
grow professionally. Used 
knowledge as power against 
others or bluffed rather than 
acknowledging ignorance. 
Effectiveness reduced due 
to limited knowledge of own 
organizational role and 
customer needs. 

3 
 
 
 
 
 
 
● 

5 
 
 
 
 
 
 
○ 

○ 

○ 

1 
 
 
 
 
 
 
○ 

 

                                                 
1 Coast Guard officers are rated in numerous categories of performance on a scale of 1 to 7, with 7 being best.  A 
middle mark of 4 is the “expected standard of performance.”  Personnel Manual, Art. 10.A.4.c.4.g. 

7 
 
 
 
 
 
 
○ 

The following written comment in the OER supports the mark of 3:  “Displayed lack of 
motivation & leadership to upgrade to Aircraft Cdr, well beyond the normally expected timeline 
of peers; aviation status terminated, reassigned to duties not involving flight ops.”   

 
The applicant stated that he was designated as an HH-60 First Pilot on December 4, 2002, 
and that the “normal progression from HH-60 First Pilot to Aircraft Commander is 18 months.”  
By May 20, 2003, he alleged, less than six months after he became a First Pilot, he had submitted 
a  request  form  to  be  upgraded  to  Aircraft  Commander  and  had  “started  working  to  complete 
other prerequisites.”  He argued that because he submitted the request form and started working 
to complete the prerequisites less than six months after becoming a First Pilot, the comment in 
the OER that he “[d]isplayed lack of motivation & leadership to upgrade to Aircraft Cdr, well 
beyond the normally expected timeline of peers” is clearly erroneous and unfair.  The applicant 
further alleged his motivation during the reporting period is proved by the fact that in July 2003, 
he completed the Aircraft Commander Upgrade Syllabus Open Book Exam; in September 2003, 
he completed the air station’s Closed Book Exam; and in November 2003—less than a year after 
becoming a First Pilot—he completed the National Search and Rescue Fundamental Course.  In 
support of his allegations, the applicant submitted the following documents: 

 

 

 

 

 

 

•  An undated copy of his Aircraft Commander Upgrade Syllabus Open Book Exam, which 
indicates that he scored 92% correct. 

•  An “Annual NVG Check” dated August 13, 2003, in which the instructor wrote, “Excel-
lent  flight  by  [the  applicant].    Good  knowledge  of  identifying  simulated  emergencies  and 
providing  the  correct  bold-faced  response.    Very  comfortable  with  the  NVG  environment.  
Great job, flew all maneuvers and handled simulated emergencies at the AC level.” 

•  A critique of the applicant’s flying dated August 24, 2003, in which the instructor wrote 
that during a flight to pick up and deliver a law enforcement team to a hijacked Cuban vessel, 
the applicant “did a great job of VFR navigating across the state and used his ‘Army’ training 
to point out all towers and hazards en route. … We discussed different options with the crew 
as to our mission and [the applicant] provided good input and recommendations.” 

•  A second critique dated August 24, 2003, in which the instructor wrote that during a night 
flight to Cortez with calm winds and calm seas, the applicant “[f]lew all maneuvers to stan-
dard on first attempt except the MATCH. … Recommended for the AC syllabus DN!” 

•  A third critique dated August 24, 2003, in which the instructor stated that during a night 
flight  to  practice  rescuing  a  swimmer,  the  applicant  used “[g]ood visual cues for hoisting.  
Well-prepped  for  brief,  knew  procedures  well,  and  nice  aircraft  control  during  swimmer 
evolutions.  All hoists completed the first time to the level of an AC.  Throughout flight, nice 
acft control.” 

•  A fourth critique dated August 24, 2003, in which the instructor wrote that in a heavy 
landing exercise, the applicant performed “[a]ll maneuvers … to the S level first time and 

 

 

 

 

 

 

 

with excellent aircraft control.  Discussed limits, EP and techniques for flying in heavy gross 
weight conditions.” 

•  A copy of an “A/S Xxxxxxxx Closed Book Exam” dated September 16, 2003, shows that 
he scored 98% correct. 

•  A critique of the applicant’s performance dated September 24, 2003, in which the instruc-
tor  stated  that  the  applicant  showed  “above  average  knowledge  of  the  Tactical Navigation 
system!  Easily worked through the search and DF exercise.  Nice Job.” 

•  A  second  critique  dated  September  24,  2003,  in  which  the  instructor  wrote  about  an 
“external load” carrying exercise, “Excellent flight.  Used good judgment to go around when 
he realized the approach was too steep and we risked getting into power settling.” 

•  A third critique dated September 24, 2003, in which the instructor wrote about a “rough 
area/stops” exercise, “Nice job.  Almost as if you have been in down these tactically before.” 

•  A fourth critique dated September 24, 2003, in which the instructor wrote about a “day 
land”  exercise,  “An  excellent  pattern  flight  for  [the  applicant].    Great  systems  knowledge.  
Excellent aircraft control and maneuver knowledge.  Needs a little more practice on Autos.  
AFCS off flight was above average.” 

•  A critique of the applicant’s performance dated October 2, 2003, in which the instructor 
wrote that it was an “[e]xcellent flight overall.  Most of maneuvers were to the “S” level.  
[The applicant] has trouble with station keeping in calm winds in both DIW hoist and RS 
ops.  He tends to select reference points too far away from the aircraft.  Try using foam about 
50 feet at the 2 o’clock.” 

•  An  evaluation  of  the  applicant’s  performance  during  his  HH-60J  Proficiency  Course, 
dated October 27, 2003, in which the instructor wrote that the applicant 

 
arrived for his Pcourse motivated and ready to learn.  All maneuvers were completed to the appro-
priate level, though with some difficulty.  It was evidence that [he] spent some time preparing for 
his Pcourse because he was well versed in all procedures.  I was also impressed with how open and 
receptive he was to input from both his instructor and stick buddy, and his effective use of CRM.  
We had the opportunity to discuss and dissect many systems and how each EP affects its associ-
ated  components.    As  far  as  stick  and  rudder  skills,  I  noticed  [he]  had  some  difficulty  with  his 
autos and matches.  I realize these are very difficult to do in the simulator, but these were not the 
normal problems we see with those maneuvers.  After watching him extensively, I noticed he was 
not using an effective instrument scan (i.e. – he wasn’t looking at the right instrument at the right 
time).  [He] was making corrections when he was off parameters, but was not catching the error in 
a timely manner and over correcting.  Knowing this, I gave [him] some scanning techniques and 
we  tried  to  nail  these  two  maneuvers  down  on  the  last  day.  I am happy to say that he greased 
almost all of his autos and shot some of the best matches that I have seen in the sim[ulator] to date 
– nicely done!  Before we started this week, I noticed [he] is still qualified as an FP [First Pilot] at 
Airsta Xxxxxxxx.  I kept this in mind over the entire week to use as a benchmark for consideration 
to  AC  [Aircraft  Commander].    All  things  considered,  only  after  [he]  gets  a  little  more  practice 

doing some night matches and work developing a good instrument scan would I consider him for 
the AC syllabus.  I do, however, believe it can be done with some work.  Great effort this week! 
 

•  A critique of the applicant’s performance dated November 3, 2003, in which the instruc-
tor wrote about a “night land” exercise, “Great Flight – Solid acft control with smooth control 
inputs.  Quizzed [the applicant] on EP’s, systems and limits throughout flight.  His knowl-
edge level was up to par.  No deficiencies noted in maneuvers execution or Dash-1 knowl-
edge.  All maneuvers flown to the S level first attempt except the min speed approach.” 

•  A letter dated November 4, 2003, congratulating the applicant for having successfully a 
correspondence course called Search and Rescue Fundamentals. 

•  A critique dated November 6, 2003, in which the instructor wrote that during an “airways 
trainer” flight, the applicant  
 

completed many items that were incomplete on previous IFR trainer with [LCDR M].  Preflight 
briefing asserted that [the applicant] was “acting AC” and I would be “acting CP” to offer oppor-
tunity  to  demonstrate  decision  making  capabilities.    I  only  interjected  when  safety  or  deviation 
from requirements was necessary.  Most items completed to required level.  However some lapses 
occurred.  Initial flight planning was completed to required levels with minor discrepancies (see 
specific  tasks).    Enroute  portion  of  flight  was  mostly  uneventful  (see  comment  on  clearance).  
Never  completed  ILS  due  to  aircraft  equipment  malfunction  (see  specific  comment  on  CRM).  
Completed NDB at Zepherhills Airport (see specific comments on NDB).  VFR return was com-
pleted to required levels. 

•  A critique of the applicant’s performance dated November 14, 2003, in which the instruc-
tor wrote about a “NVG EP Review” that the 

[f]light began with an explicit brief that [the applicant] would act as the AC to demonstrate ability 
to  maintain  situational  awareness,  provide  leadership,  and  make  sound  decisions.    During  entry 
into  MacDill  RWY  04  traffic  pattern,  tower  required  us  to  enter  a  mid-field  downwind  (stated 
twice).  [The applicant] elected to enter downwind at the base leg point.  Tower requested “ident” 
to confirm our position and advised of two aircraft on final.  With T-38 traffic on short final and 
second T-38 traffic on 8 nm final,  [the applicant] began to turn base at approx 5-6 nm final.  [I] 
stated “turn right now” to return to downwind heading.  Rest of approach was uneventful.  [The 
applicant] failed to comprehend the reason for tower’s request to enter at mid-field.  He then failed 
to communicate to the aircrew his intent or level of understanding of the current situation.  The 
situation  was  resolved  safely  and  with  adequate  safety  margins  but  required  [my]  intervention.  
Extensive post flight debrief discussed this and other less glaring CRM breakdowns.  Bottom line: 
AC must never lose SA [situational awareness] or immediately take steps to regain it. … Stick and 
rudder  skills  were  at  required levels.  CRM was not at AC levels (see specific task comments).  
EP/systems/procedural knowledge generally good with some exceptions. 

•  A  letter  dated  November  25,  2003,  indicating  that  the  applicant  had  completed  the 
requirements in the Air Operations Manual for the HH-60J Proficiency Course on October 
31, 2003; for Rotary Wing Instrument Check on October 29, 2003; and for CRM Refresher 
on October 29, 2003. 

   

 

 

 

 

 

SUMMARY OF THE APPLICANT’S RECORD 

 
On August 12, 1999, the applicant was appointed a lieutenant junior grade in the Coast 
Guard Reserve.  He had previously served on active duty in the Army for almost ten years, during 
which he trained as a helicopter pilot, accumulated more than 1000 flight hours, advanced to the 
Army  equivalent  of  an  Aircraft  Commander,  and  was  promoted  to  the  rank  of  captain  (O-3).  
Based on his experience, the applicant was assigned to a Coast Guard air station as a helicopter 
(HH-60J) copilot and began serving on an extended active duty.   

 
On  the  applicant’s  first  OER  as  a  helicopter  copilot,  for  the  period  August  12,  1999, 
through July 31, 2000, he received all marks of 4 in the performance categories, including “Pro-
fessional Competence,” and the comparison scale, except for one mark of 5 for “Speaking and 
Listening”  and  one  low  mark  of  3  for  “Responsibility,”  due  to  “not  arriving  at  the  appointed 
place of duty on time.”  The written comments about his performance include the following: 
 

•  “Notable aviation/[public affairs officer] skills & knowledge.  Flew 163.2 H60 mishap-
free flight hours, 53 sorties, 7 SAR cases.” 
•  “Supervisor’s marks reflect the best performance of the period, not the overall perform-
ance.” 
•  “Showed progress as copilot:  aggressively pursued, obtained NVG Level II qualification; 
qualified as ODO.” 
•  “[The  applicant]  has  the  potential  and  the  skills  to  be  a  successful  officer  and  aviator.  
Minimum performance standards were not met during the first few months assigned at this 
unit.  Had a slow start meeting expectations even after numerous counseling sessions.  Pos-
sesses good flight skills and operational awareness, performance while on deployment lauded 
by deployed H-60 Aircraft Commander.  Coming on speed as a Coast Guard Officer, present-
ly performing at the LTJG level.  I expect that based on observed performance towards the 
end of this reporting period [he] will become a fully productive and reliable member of Team 
Coast Guard.” 

 

On the applicant’s second OER as a helicopter copilot, for the period August 1, 2000, to 
January 31, 2001, which was prepared by a new Supervisor and Reporting Officer, he received 
mostly  marks  of  4  in  the  performance  categories,  including  “Professional  Competence,”  five 
marks of 5, and a mark in the fourth spot on the comparison scale.  The supporting comments 
include the following: 
 

•  “Solid  aviation  skills.    Flew  180+  hours  including  21  SAR  cases  resulting  in  2  lives 
saved. … played integral role in fugitive hunt after smugglers abandoned vsl … ” 
•  “[C]ontinued  to  solidify  and  expand  reputation  as  a  trusted  and  operationally  effective 
pilot.” 
•  “Sound  judgment  in cockpit decision making; while engaged in International SAR/LE; 
evaluated  risks  associated  with  rough  area  landings,  reduced  exposure,  completed  mission 
and maintained safety of aircraft & crew.  Deployed Aircraft Commanders praised thorough-
ness  and  initiative  shown  coordinating  missions  with  OPBAT  controllers  geographically 
remove from deployed site.  Astute attention to detail on preflight inspection identified incor-
rect installation of engine cowling; prevented potential aircraft damage/inflight emergency.” 

•  “Progressing  steadily as an aviator; showed strong interest/ability in growing pilot role 
beyond already considerable stick and rudder skills to broader mission mgmt issues; will be 
ready for First Pilot upgrade soon.  I saw purposeful improvement in approach & attentive-
ness to duties throughout the period; began by waiting to be told what to do & tending to let 
deadlines  slip,  ended  with  more  diligent  responsiveness  &  several  notable  examples  of 
leadership initiative. … I expect continued aviation/admin challenges will be easily met; clear 
potential to succeed as O3 [lieutenant].” 

On the applicant’s third OER as a helicopter copilot, for the period February 1 through 
June 30, 2001, he received five marks of 4 and thirteen marks of 5 in the performance categories, 
as well as a mark of 5 for “Professional Competence” and a mark in the fifth spot on the com-
parison scale.  The supporting comments include the following: 

•  “Notable  aviation  skills.    Flew  62  sorties  totaling  over  180  mishap-free  flight  hours.  
Efforts crucial to successful completion of 12 SAR cases resulting in 2 lives saved … Com-
pleted NVG upgrade flight syllabus; raised own qualifications to highest level for night aided 
operations.” 
•  “Steadily progressing aviator abilities demo’d on several notable SAR/LE cases.” 
•  “[The applicant] showed strong determination to exceed expectations & actively expand 
knowledge/quals in prep for increased responsibility.  Balanced approach to aviation & col-
lateral duties ensured robust professional growth in both arenas.  Info Tech continues as an 
area of high personal interest/ability offering opportunity for specialization. … Progressing 
nicely as an aviator with obvious motivation and talent.  I strongly recommend promotion to 
O3.” 

On the applicant’s fourth OER as a helicopter copilot, for the period July 1, 2001, through 
January 31, 2002, he received ten marks of 4 in the performance categories, including “Profes-
sional Competence,” eight marks of 5, and a mark in the fourth spot on the comparison scale.  
The supporting comments include the following: 

 

 

 

 

•  “Flew over 140 flight hrs on a wide variety of missions including 6 SAR cases resulting 
in 2 lives saved. … Played integral role in complex pursuit of smuggling suspect engaged by 
multiple  government  agencies.    Provided  vital  backup  to  Acft  Cmdr;  rapidly  located  safe 
landing  site  when  suspects  grounded  vessel  …  Vigilant situational awareness during night 
boat hoist trng averted likely mishap; observed Acft Cmdr’s unintentional descent, assertively 
took control of acft to prevent collision with vessel.” 
•  “Airmanship & positive interaction with aircrews contributed to ops success.  Comfort-
able and earned my full trust in copilot role but evidence of efforts to show skill/knowledge 
for FP [first pilot] upgrade was limited.”  
•  “Notable  initiative  in  operational  aspects  of  duties;  stepped  up  readily  for  missions  & 
deployments.    Evaluated  risks  intuitively  as  ODO  and  copilot,  applied  ‘assertiveness  with 
respect’ in recommending courses of action, keeping superiors informed, and even coming on 
flight controls autonomously when needed to ensure safety when acft cmdr experienced ver-
tigo during night hoist.” 
•  “[The applicant] is a capable pilot and officer with clear potential.  Solid performance in 
operational flying & OPCEN watches … Effort in expanding horizons in aviation & collat-

eral  duty  knowledge/professionalism  appeared  to  plateau  and  retrograde  toward  minimum 
required this period.  Has intellect/skills to upgrade to FP and shoulder more responsibility if 
matched in kind w/ more robust motivation displayed previously. … Fully capable to succeed 
as O3 

On the applicant’s fifth OER as a helicopter copilot, for the period February 1 through 
July  31,  2002,  which  was  prepared  by  a  new  Supervisor  and  Reporting  Officer,  he  received 
twelve  marks  of  4  in  the  performance  categories,  including  “Professional  Competence,”  six 
marks of 5, and a mark in the fourth spot on the comparison scale.  The supporting comments 
included the following: 

 

 

•  “Solid performing aviator & officer.  Flew 130 hours, including 16 on SAR & 45 on LE 
resulting in 4 lives saved.  Excellent performance on Stan check & exam: check pilot praised 
that ‘airwork far exceeded copilot level,’ scored 96% on written exam; selected for entry into 
First Pilot syllabus.  Superbly planned night medevac 250 nm offshore …” 
•  “Steady, concerned team member readily deployed on short notice to allow fellow pilot to 
attend  to  medical  emer  at  home  …  Obtained  CG  mentoring  training  to  expand  leadership 
skills; put knowledge to immediate use.” 
•  “[The  applicant]  is  progressing as a copilot.  Performed well on recent standardization 
check/exam & now in First Pilot syllabus.”  
•  “Possesses capable aviation and leadership skill, and ability to accomplish assigned tasks. 
… Clearly has the potential to provide bigger and better results as a pilot and carrying out 
collateral duties yet motivation is lacking to employ considerable intellect and interpersonal 
skills.    When  directly  tasked  and  challenged  shows  the  sparkle  and  organizational  skills 
needed to get things done.  I believe is fully capable of succeeding as an O-3 but high per-
formance without close supervision must be forthcoming.  Recommended for promotion with 
peers.” 

 
 
The  applicant  was  integrated  into  the  regular  Coast  Guard  on  May  25,  2002,  and  pro-
moted to lieutenant on August 14, 2002.  On his first OER as a helicopter First Pilot, for the 
period August 1, 2002, through May 31, 2003, the applicant received ten marks of 4 in the per-
formance categories, including “Professional Competence,” eight marks of 5, and a mark in the 
fourth spot on the comparison scale.  The supporting comments include the following: 
 

•  “Employed resource maturely, prosecuted SAR/LE cases as pilot & ODO w/ admirable 
results … Flew 270+ hrs, deployed 49 days, 10 SAR cases & 45 LE missions- saved 5 … 
professional aviation skills growing steadily, first pilot upgrade was well deserved, mature 
expertise  in  medevac  of  child  from  a  ship’s  confined  hoist  area  w/  inop  acft  stabilization 
equip.” 
•  “Displayed leadership skills & concern for others; readily accepted duties on holidays & 
weekends; filled short notice flights. … Sought add’l OCONUS deployments. … Postively 
controlled H-60 operational/training flights; directed crews through all evolutions – openly 
accepted feedback & adjusted mission profile as appropriate. … Led by example—arrived in 
maintenance  control  one  hour  prior  to  flights  to  review  aircraft  &  logs  &  brief  crews  for 
flts/missions.” 

•  “[The  applicant]  completed  a  number  of  important  tasks  this  rating  period,  including 
upgrading to First Pilot. …  Showed improvement in the ability to accomplish assigned tasks 
without supervision.” 
•  “Clearly  has  the  skills  and  judgment  to  assume  greater  leadership  roles,  assume  larger 
responsibilities and upgrade to Aircraft Commander as demonstrated with the improvements 
made … the successful upgrade to First Pilot qualification.  Possesses the intellect and mili-
tary  bearing  to  be  excellent  example  for  fellow  officers  and  enlisted  as  professional  self-
discipline, motivation and dedication to Coast Guard increase with maturity. … Recommend-
ed for promotion with peers.”   
•  “Supervisor’s marks reflect the best performance of the period, not the overall perform-
ance.” 

On August 28, 2003, the applicant’s commanding officer (CO) sent him a letter stating 

 
 
the following: 
 

1.  On 24 July 2003, the unit Flight Examining Board has determined that your motivation is not at 
the level to support a recommendation for entry into the aircraft commander syllabus.  Although 
you  submitted  a  Request  for  Pilot  Upgrade  memorandum  on  20  May  2003,  you  have  not  com-
pleted the closed book exam and emergency procedures review, both [of which] are required prior 
to entering the syllabus flight phase.  In addition, you have not completed the SAR fundamentals 
course, which is required for an aircraft commander designation. 
 
2.  As required in [the Personnel Manual], when an aviator’s performance is considered substan-
dard, you are hereby directed to compete a training program to improve performance.  That train-
ing program developed to improve your skills will consist of completing the 
 

a.  HH-60 Aircraft Commander Closed Book Exam 
b.  HH-60 Emergency Procedures Review 
c.  National Search and Rescue Fundamental Course 
d.  Preparatory training syllabus enclosed 

 
3.  The syllabus is to begin immediately and must be completed by 01 November 2003.  This syl-
labus contains all preparatory requirements of [the Air Operations Manual] as well as a syllabus of 
13 flights designed to offer you the opportunity to develop skill necessary to succeed as an H60 
aircraft commander.  Each flight in the syllabus will be flown with a flight examiner.  Upon timely 
completion  of  all  items  contained  in  the  syllabus,  the  Flight  Examining  Board  will  review  your 
package  for  aircraft  commander  and  make  a  recommendation  to  me  regarding  your  potential  to 
upgrade. 
 
4.    In  the  event  you  are  not  successful  in  upgrading  to  aircraft  commander  prior  to  31  January 
2004, I will request that a Coast Guard Aviation Evaluation Board be convened to determine con-
tinued aviation suitability. 

 

 

On December 11, 2003, the applicant’s CO informed him that his flight status would be 
reviewed by an Aviator Evaluation Board (AEB) “due to a demonstrated lack of motivation to 
progress to Aircraft Commander, recurrent loss of situational awareness during flight operations 
and demonstrated poor leadership practices relating to flight situations.”  The applicant acknowl-
edged the notice, acknowledged having reviewed the AEB regulations, and indicated that he did 
not want to consult legal counsel. 

On February 24, 2004, the Coast Guard Personnel Command (CGPC) convened the AEB, 
which  recommended  termination  of  the  applicant’s  flight  status.    CGPC  approved  the  recom-
mendation  and  terminated  his  flight  status.    Therefore,  his  collateral  duty  of  Assistant  IRM 
Department Head became his primary duty until he was transferred in June 2004. 
 

The applicant’s second OER as a First Pilot, for the period June 1, 2003, through June 7, 
2004, is the disputed OER in this case.  It was prepared by a new rating chain at the Air Station. 
Aside from the mark of 3 he received for “Professional Competence,” the applicant received ten 
marks of 4, six marks of 5, and one mark of 6 in the performance categories and a mark in the 
fourth spot on the comparison scale.  The comments concerning his aviation skills in the disputed 
OER are the following: 
 

Capably flew as [First Pilot] during training exercise with FBI; vertical delivery (VDEL) evolution 
simulated  response  to  major  maritime  incident  in  Greater  Tampa  Bay  area;  improve  inter-
operability  with  counter  terrorism agencies.  Amassed 140 flt hrs including 12 maintenance test 
flights; contributed to successful execution of 8 [search and rescue] cases; assisted 5 & saved 2 
lives.  Displayed lack of motivation & leadership to upgrade to Aircraft Cdr, well beyond the nor-
mally  expected  timeline  of  peers;  aviation  status  terminated,  reassigned  to  duties  not  involving 
flight ops. 

 
 
applicant’s flight status and stated the following regarding his potential as an officer: 

The applicant’s Reporting Officer made no direct comments about the termination of the 

 
[The  applicant]  has  the  operational  knowledge,  experience  &  intellect  to  succeed  in  the  Coast 
Guard.  Rendered solid performance as Asst. IRM Officer; capably stood in as Department Head 
during Supervisor’s absences and retirement.  [He] facilitated the transition of the IRM Dept to a 
streamlined division.  I have high expectations that the change in venue to the Lant Area/D5 Acc 
branch will offer ample opportunities for [him] to demonstrate leadership capacity for increased 
responsibilities outside the aviation environment.  [The applicant] would be a good candidate for 
IT or HLS postgraduate opportunities with marked improvements in leadership and initiative. 

 

VIEWS OF THE COAST GUARD 

On  August  28,  2007,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard  recom-

 
 
mended that the Board deny relief in this case.   
 
 
The  JAG  stated  that  the  applicant’s  submissions  “may  indicate  comprehension  of  the 
given  subject  matter,  [but]  they  do  not  encapsulate  the  totality  of  circumstances  surrounding 
those test scores; nor do they show the existence of a clear and prejudicial violation of statute, 
regulation, or misstatements of significant facts” in the disputed OER regarding his professional 
competence.  The JAG argued that the applicant’s evidence was insufficient to overcome the pre-
sumption of regularity with respect to his rating chain’s preparation of the OER, and noted that 
some statements in his evidence supports the comments made in the rating officials’ declarations 
(see below).  The JAG alleged that the disputed OER, including the mark of 3, “was properly 
prepared  in  accordance  with  the  Personnel  Manual;  that  it  represents  the  honest  professional 
judgment  of  his  command;  and  that  it  accurately  reflects  [his] actual professional competence 
during the period of the report.” 
 

The JAG adopted the findings and analysis of the case provided in a memorandum pre-
pared by CGPC, which the JAG forwarded as the Coast Guard’s advisory opinion.  CGPC stated 

that the applicant’s allegation about the mark of 3 for “Professional Competence” being errone-
ous and unjust “is without merit.”  CGPC stated that the copilot critiques and task proficiency 
reports submitted by the applicant are refuted by the declarations of  his Supervisor and Report-
ing Officer, which are summarized below.  CGPC alleged that the written comment adequately 
supports the mark of 3, as required by the Personnel Manual, and the applicant has “not provided 
evidence that overcomes the presumption of regularity” afforded the disputed OER. 

Declaration of the Applicant’s Supervisor  
 

The commander who supervised the applicant as head of the IRM Department, stated that 
since three years have passed and he has retired from the Coast Guard, he has only general rec-
ollections of the issues involved in the application.  The Supervisor stated that he did not person-
ally fly with the applicant but was informed  

 

 

 
by the Operations Department that [the applicant] was faltering in his progression to Aircraft Com-
mander.  To furnish impetus for [him], the Operations Officer provided a reasonable timeline with 
syllabus benchmarks to attain that would put him back on track to upgrade to Aircraft Commander.  
It was my understanding that special dispensations were made to accommodate the “eleventh hour” 
completion of this syllabus.  This individually tailored program to kick-start [his] progression is 
atypical and speaks both to the Command’s willingness to go the extra mile and unfortunately, [the 
applicant’s] paucity of initiative.  These difficulties culminated in the convening of an Aviator’s 
Evaluation Board (December 2003, I believe) to determine [his] suitability for continuance as a 
Coast  Guard  pilot.    I  was  not  privy  to  the  results;  however,  the  mere  fact  that  the  Board  was 
assembled bespeaks to substandard performance as an aviator. 
 
I do not agree with [the applicant’s] premise that his progression through the upgrade syllabus was 
chronologically normal.  According to the Air Operations Manual, among the criterion for the heli-
copter Aircraft Commander Designation is to have not less than 700 hours of total pilot time in 
military aircraft, of which at least 150 hours is in rotary wing.  [The applicant] joined the Coast 
Guard in the fall of 1999 with well over 1,000 hours of total pilot time in the U.S. Army, most of 
which was flying a helicopter which is very similar, if not identical, to the Coast Guard Jayhawk.  
He alludes to an 18 month time period to upgrade from First Pilot to Aircraft Commander.  I’m 
unsure where he obtained this figure because it’s not in the Air Ops Manual.  The Coast Guard’s 
expectation is that even the lowest common denominator, a fledgling aviator with no previous mili-
tary experience (i.e., nugget), should be able to ascend to the Aircraft Commander designation well 
within the completion of his or her first tour of duty.  As a rule, the majority of Direct Commission 
Aviators upgrade in considerably less time because of their flight hours accumulated and expertise 
gained in another military service.  [The applicant] benefiting from previous H-60 experience and 
unconstrained by the need to build flight hours prior to entering the upgrade syllabi, was unable or 
disinclined to successfully achieve Aircraft Commander despite being at Air Station Xxxxxxxx for 
over 4 years. 

 
Declaration of the Applicant’s Reporting Officer 

 
The Deputy Executive Officer of the air station, who served as the applicant’s Reporting 
Officer, stated that the applicant earned the mark of 3 for “Professional Competence” because his 
competence to become a safe and effective Aircraft Commander was in question and he “did not 
take full advantage of training opportunities afforded to him during the period.”  The Reporting 
Officer further stated that the command asked CGPC to convene an Aviator Evaluation Board 
(AEB) for the applicant on December 11, 2003, to assess his performance, potential, and motiva-
tion for aviation service.  He explained that the applicant 

was designated a Copilot in the HH-60J aircraft on 29 October 1999 and First Pilot on 4 December 
2002.  The command disapproved [his] 20 May 2003 request to upgrade to Aircraft Commander 
based on the Air Station Xxxxxxxx Flight Examining Board’s (FEB) recommendation.  [He] did 
not  have  the  prerequisites  completed,  such  as  the  National  Search  and  Rescue  Fundamentals 
Course  required  by  the  CG  Air  Operations  Manual  and  the  Emergency  Procedure  Review  and 
Closed Book Exam required by Air Station Xxxxxxxx Organizational Manual.  The FEB members 
also  advised  the  command  that  they  lacked  confidence  in  [his]  ability  to  provide  the  necessary 
leadership required as an Aircraft Commander. 
 
On 28 August 03, in an effort to provide [the applicant] an opportunity to gain the FEB’s confi-
dence, the command directed that [he] be entered in an Aircraft Commander preparatory training 
syllabus.  The syllabus and all remaining prerequisites required by the CG Personnel Manual and 
the Air Operations Manual were to be completed prior to 1 November 2003.  However, [he] did 
not take the National Search and Rescue Fundamentals Course exam until 1 November 2003 and 
did not receive positive results from the exam until 4 November 2003.  More importantly, five of 
thirteen flights in the training syllabus remained incomplete as of the 1 November 2003 deadline.  
[The applicant] did complete the syllabus on 14 November 2003, two weeks beyond the deadline. 
 
The preparatory training plan afforded [the applicant] the opportunity to demonstrate his willing-
ness and desire to assume the role as an Aircraft Commander.  Areas during the preparatory train-
ing identified as points of concern were situational awareness, motivation, and leadership.  There 
were  several  occurrences  when  situational  awareness  and  communication  breakdowns  occurred 
that required safety pilot intervention to maintain compliance with Air Traffic Control instructions 
and to ensure the safety of the crew.  During these situations, [the applicant] did not exercise the 
authority and leadership he was given during preflight briefs to manage the flight as if he was the 
Aircraft Commander. 
 
[The applicant’s] behavior was inconsistent with that of an aspiring Aircraft Commander, especial-
ly when considering that he had over 1,250 flight hours of experience in the HH-60J helicopter and 
a total of over 2,250 military flight hours.  [He] demonstrated a lack of motivation to develop as an 
aviator and a lack of desire to accept additional responsibility and leadership in the aircraft during 
the reporting period. 

 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
 
On  October  12,  2007,  the  Chair  received  the  applicant’s  response  to  the  views  of  the 
Coast Guard.  Regarding his Supervisor’s claim that he was given a reasonable amount of time to 
complete the syllabus, the applicant alleged that he had only “two months to complete flights that 
normally take six months,” and that during those two months he had a two-week deployment in 
the Bahamas, one week of annual training at an Aviation Training Center, and one week assigned 
to Maintenance Test Pilot duties.  Therefore, he had to complete the fifteen flights required by 
the syllabus in just the remaining month of time, and he worked very hard to do so.  For example, 
on November 4, 2003, he “performed 3 hours’ worth of aircraft maintenance ground runs and a 
short test flight in order to get a flyable aircraft for syllabus training.  After the maintenance flight 
I quickly completed an Instrument flight plan and flew the syllabus RT-6 Airways training flight 
… .  Due to a high maintenance spike there was a shortage of aircraft available for training dur-
ing this period.  Because of this the flying portion of the syllabus was not completed until 14 
November 2003.” 
 
The applicant also challenged the Supervisor’s claim that the syllabus was specially tai-
 
lored  for  him.    He  stated  that  it  comprised  the  same  eleven  recurrent  training  flights  that  all 
aviators must complete every six months and nothing special was added to enhance his training.  

His  instructors  “were  told  to  get  the  flights  done  as  soon  as  possible.”    The  applicant  further 
alleged that two other helicopter pilots at the station who received Aircraft Commander training 
plans “were given five tailored scenario flights to determine their readiness level.” 
 
 
The applicant claimed that he completed all of the written prerequisites on time since he 
passed the HH-60 Aircraft Commander Closed Book Exam on September 16, 2003; the HH-60 
Emergency  Procedure  Review  on  October  31,  2003,  as  part  of  his  annual  training;  and  the 
National Search and Rescue Fundamentals Course on November 1, 2003, although the grade was 
posted on November 3, 2003.  He submitted copies of his pilot flight log for November 2003; his 
instructors’  critiques;  his  examination  results;  the  letter  dated  November  25,  2003,  about  his 
completion of three courses; 
 
 
The applicant challenged his “command’s concern that I have an uncorrectable situational 
awareness  and  communications  problem.”    He  alleged that such a problem would have mani-
fested itself during all of his flights and would have been addressed in all of the training records.  
He further alleged that “[a]ll aviators make mistakes while flying training and real world mis-
sions.  The small mistakes I made on my training flights were typical and reviewed after each 
flight.  My mistakes were not an indication of an uncorrectable trend.” 
 
 
The  applicant  argued  that  because  his  Supervisor  cannot  remember  all  the  marks  and 
comments he included in the OER, it is possible that he assigned the applicant a mark of 5 for 
“Professional Competence” and that the command changed it without authorization or opportu-
nity to observe the applicant’s performance.  The applicant stated that he “invested many hours 
studying  and  practicing  aircraft  limitations,  emergency  procedures  and  numerous  aviation-
specific tasks to attain/maintain proficiency in all aspects of Coast Guard aviation.”  He argued 
that his dedication is proven by his test scores and flight critiques.  He further argued that the 
declarations of his Supervisor and Reporting Officer “provided feedback that is relative to ques-
tioning my motivation, but is not appropriate for determining my professional competence.” 
 
 
and was not given a chance to submit a reply to it. 
 

Finally, the applicant argued that he was not counseled about the low marks on his OER 

APPLICABLE REGULATIONS 

•  Be recommended for the FP designation by the unit Operations Officer … 
•  Fulfill, to a more advanced degree, all requirements for [copilot] designation. 
•  Have not less than 500 hours of total pilot time in military aircraft. 
•  Complete an appropriate flight syllabus including a check flight. 
•  Complete a written closed book examination on critical aircraft systems, emergency procedures, 
and limitations.  
•  Complete a written open book examination on:  

o  Aircraft systems and emergency procedures  
o  All applicable SAR and law enforcement directives and publications, pertinent Coast 
o  Weight and balance  
o  Fuel management  

Guard manuals, and Commandant Instructions  

Under Chapter 8.C.5. of the Air Operations Manual, to be designated a First Pilot (FP), a 

 

helicopter copilot must 

 

o  Ground security of aircraft away from home unit  

 

 
Under Chapter 8.C.6. of the Air Operations Manual, to be designated an Aircraft Com-

mander (AC), a helicopter First Pilot must 

 

•  Be recommended for the AC designation by the unit Operations Officer.  
•  Fulfill to a more advanced degree all requirements for FP.  
•  Complete Incident Command System (ICS-200) training in accordance with the Coast Guard Inci-

dent Command Implementation Plan, COMDTINST M3120.15 (series).  

•  For rotary wing (R/W) aircraft, have not less than 700 total pilot hours in military aircraft (exclud-

ing 3rd pilot time), of which at least 150 hours is in R/W aircraft.  

•  Complete a formal National Search and Rescue residence or correspondence course. The Search 
and Rescue Fundamentals Correspondence Course (Short Title: SARFND) was designed to fulfill 
this requirement.  

•  Complete an appropriate flight syllabus including a check flight.  
•  Complete  a  closed  book  examination  on  critical  aircraft  systems,  emergency  procedures,  and 

limitations.  

•  Complete an open book exam on:  

o  Air Operations Manual, COMDTINST 3710.1 (series)  
o  U.S.  Coast  Guard  addendum  to  the  United  States  National  Search  and  Rescue 
Supplement (NSS) to the International Aeronautical and Maritime Search and Rescue 
Manual (IAMSAR), COMDTINST M16130.2 (series)  

o  Current directives, including unit, district, and Commandant Instructions  
o  Pertinent technical data and publications concerning aircraft operations  
o  Application of operations and communications plans  

•  Complete an oral exam that focuses on the practical application of the material examined via the 
open and closed book exams. Special emphasis will be placed on evaluating the candidate’s judg-
ment and maturity during this exam.  

•  Demonstrate, to a high degree, ability to:  

Resource Management principles  

o  Exercise  flight  discipline  and  aircrew  supervision,  including  the  use  of  Crew 
o  Carry  out  all  types  of  SAR  missions  including  duty  as  on-scene  commander,  as 
o  Carry out all other types of missions normally performed by the unit (i.e., Drug or 

appropriate for type  

Fisheries LE, SAR, MEP, ATON, etc.)  

 

Under Article 6.A.1.h. of the Personnel Manual, CGPC convenes an Aviator Evaluation 
Board (AEB) “when necessary to evaluate the performance, potential, and motivation for con-
tinued  service  in  flight  status  of  certain  Coast Guard aviators.  The Board will function in an 
advisory capacity to the convening authority and will recommend appropriate action to perform 
the duties required.”  Article 6.A.1.h.1. states that CGPC will normally convene an AEB within 
30  days  of  advisement  by  the  commanding  officer  that  any  of  the  following  conditions  are 
thought to exist: 

 
a.  The  aviator  has  demonstrated  faulty  judgment  in  flight  situations.  This  may  be  evidenced  by 
serious or repeated violations of flight discipline or mishaps involving pilot judgment. 
b. The aviator has demonstrated a lack of general or specific flight skills. This may be evidenced 
by mishaps or near mishaps involving pilot skill, failure to satisfactorily complete all or any part of 
a prescribed training syllabus, or failure to comply with minimum annual flight requirements for 
reasons within his/her control. 
c.  The  aviator  has  demonstrated  certain  habits, traits of character, emotional tendencies, lack of 
mental  aptitude,  or  motivation  that  makes  questionable  his/her  continuance  in  assigned  flying 
duties. 
d. The aviator is considered to be professionally unfit for flying for any reason not specified above. 

e. The aviator is considered by a military flight surgeon not to be aeronautically adaptable. 

 

Article  6.A.1.h.2.  states  that  in  preparing  for  an  AEB,  the  commanding  officer  must 
gather any supporting documentation, such as informal investigations, Flight Examining Board 
(FEB)  minutes,  notes  to  the  file,  evaluation  reports,  training  records,  etc.”    It  also  states  that 
before reporting to CGPC, the CO must discuss the deficiencies with the aviator; fly with the 
aviator  if  the  CO  is  qualified  on  the  type  of  aircraft  flown  by  the  aviator;  ensure  that  several 
members of the FEB evaluate the aviator’s performance in writing; direct a plan or program for 
improvement with definite objectives if the aviator’s performance is substandard; and ensure that 
the aviator’s “[e]valuation report comments and marks should coincide with those of the aviator's 
training and/or syllabus records.” 
 

Article 6.A.1.h.3. of the Personnel Manual states that the CO will send CGPC a summary 
of the pertinent facts of the case, including the CO’s own evaluation of the aviator’s abilities; 
statements  of  any  witnesses;  a  copy  of  the  written  notification  of  the  AEB  to  the  aviator;  the 
aviator's  flight  logs,  training  records,  and  any  pertinent  correspondence,  such  as  ATC  Mobile 
evaluation, minutes of Unit Standardization Board, etc.; a summary of the aviator’s total flight 
hours,  total  hours  for  the  previous  three  months,  total  hours  by  model  for  the  previous  three 
months, and the types of aircraft which the aviator is currently qualified to fly; and a physical 
evaluation  by  a  military  flight  surgeon.    This  case  file  is  provided  to  the  AEB  members  in 
advance. 
 

Article  6.A.1.i.  states  that  an  aviator  is  not  entitled  to  be  represented  by  legal  counsel 
before an AEB since an AEB is an informal board, but CGPC may appoint legal counsel upon an 
aviator’s  request.    Article  6.A.1.j.  states  that  an  AEB consists of one flight surgeon and three 
Coast Guard aviators who are senior to the aviator under evaluation and who are “completely 
familiar with the type of flight operations involved. No member shall be appointed who is con-
sidered to be a prospective witness or interested party.”  Article 6.A.1.k.2. states that the AEB 
shall have informal proceedings “to permit a free exchange of information and development of 
additional relevant facts.”  Article 6.A.1.k.3. states that both the AEB members and the evaluee 
shall “be given the opportunity to cross-examine witnesses. It is also important that the Board 
question the evaluee.  The evaluee and a reasonable number of witnesses should appear in person 
during Board proceedings.”  Article 6.A.1.k.4. states that CGPC shall provide the senior member 
of  the  AEB  with  sample  opening  comments  and  statements  to  make  to  witnesses.    Article 
6.A.1.k.1. states that after considering all of the available information, the AEB will make one or 
more of the following recommendations: 
 

a. Continuation in full flight status. 
b. Probationary flight status for a definite period. 
c. Additional training. 
d. Orders to duty not involving flying. 
e. In the case of a Reserve officer, retention on or release from active duty. 

 
 
Article  6.A.1.l.  states  that  the  AEB  will  submit  to  Commander,  CGPC,  for  review  all 
pertinent documents, as well as its finding and recommendations, including a minority report, if 
any.  Commander, CGPC, notifies the aviator by letter of his final decision about the aviator’s 
flight status.  Article 6.A.1.o. states that an aviator “whose flight status has been terminated as a 

result  of  actions  taken  under  paragraphs  d.,  g.,  or  h.  will  be  reassigned  to  duty  or released as 
required by the needs of the Service at that time.” 
 

Article 10.A.4.c.4. of the Personnel Manual provides the following instructions for Super-
visors completing their section of an OER (similar instructions are provided for Reporting Offi-
cers in Article 10.A.4.c.7.): 
 

b.  For  each  evaluation  area,  the  Supervisor  shall  review  the  Reported-on  Officer’s  performance 
and qualities observed and noted during the reporting period. Then, for each of the performance 
dimensions, the Supervisor shall carefully read the standards and compare the Reported-on Offi-
cer’s  performance  to  the  level  of  performance  described  by  the  standards.  The  Supervisor  shall 
take care to compare the officer’s performance and qualities against the standards—not to other 
officers and not to the same officer in a previous reporting period. After determining which block 
best describes the Reported-on Officer’s performance and qualities during the marking period, the 
Supervisor fills in the appropriate circle on the form in ink. 

d. In the “comments” block following each evaluation area, the Supervisor shall include comments 
citing specific aspects of the Reported-on Officer’s performance and behavior for each mark that 
deviates from a four. The Supervisor shall draw on his or her observations, those of any secondary 
Supervisors, and other information accumulated during the reporting period. 
 
e. Comments should amplify and be consistent with the numerical evaluations. They should iden-
tify specific strengths and weaknesses in performance. Comments must be sufficiently specific to 
paint a succinct picture of the officer’s performance and qualities which compares reasonably with 
the picture defined by the standards marked on the performance dimensions in the evaluation area. 
Mere repetition or paraphrasing of the standards is not sufficient narrative justification for below 
or above standard marks. 

g. A mark of four represents the expected standard of performance. Additional specific perform-
ance  observations  must  be  included  when  an  officer  has  been  assigned  a  mark  of  five  or six to 
show how they exceeded this high level of performance. Those assigned the superlative mark of 
seven should have specific comments demonstrating how they exceeded the six standard block. 

●  ●  ● 

●  ●  ● 

 

Article 10.A.4.c.8.a. states that on the comparison scale in an OER, a Reporting Officer 
“shall fill in the circle that most closely reflects the Reporting Officer’s ranking of the Reported-
on Officer relative to all other officers of the same grade the Reporting Officer has known.” 

 
Article 10.A.4.g. allows an officer to submit a written OER Reply within fourteen days of 
receiving any OER in order to “express a view of performance which may differ from that of a 
rating official.”  The OER Reply must be “performance-oriented” and may not address interper-
sonal relations or include “a personal opinion of the abilities or qualities of a rating chain mem-
ber.”  An OER Reply is forwarded to CGPC through the rating chain, whose endorsements may 
include comments about the OER Reply. 

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions based on the applicant's military 

 
 
record and submissions, the Coast Guard's submissions, and applicable law: 
 

 

1. 

2. 

5. 

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

3. 

The application was timely.2 
 
 
Article 10.A.1.b.1. of the Personnel Manual provides that “[c]ommanding officers 
must ensure accurate, fair, and objective evaluations are provided to all officers under their com-
mand.”  The applicant alleged that the low mark of 3 he received for “Professional Competence” 
on the disputed OER is erroneous and unfair because, contrary to his Supervisor’s written com-
ment, he did not display a lack of motivation or leadership to upgrade to Aircraft Commander 
and he was not “well beyond the normally expected timeline of peers” for upgrading to Aircraft 
Commander.  To establish that an OER is erroneous or unjust, an applicant must prove that it 
was adversely affected by (a) a “misstatement of significant hard fact,” (b) a “clear and prejudi-
cial violation of a statute or regulation,” or (c) factors that “had no business being in the rating 
process.”3  The Board begins its analysis in every case by presuming that the disputed OER is 
correct as it appears in the record, and the applicant bears the burden of proving by a preponder-
ance of the evidence that it is erroneous or unjust.4  Absent evidence to the contrary, the Board 
presumes that the applicant’s Supervisor and Reporting Officer prepared the disputed OER “cor-
rectly, lawfully, and in good faith.”5 
 
The record indicates that the applicant failed to file an OER Reply to rebut the dis-
 
puted  OER,  as  provided under Article 10.A.4.g. of the Personnel Manual.  Although he com-
plained that no one told him about his right to file an OER Reply, he is charged with knowing the 
OER regulations, which accord all officers the right to reply to any OER.  Failure to file an OER 
Reply does not waive an officer’s right to seek correction of the disputed OER but may be con-
sidered evidence that he considered the OER to be correct at the time he received it. 
 
The applicant alleged that the criticism of his motivation in the disputed OER was 
 
unfair because from the beginning of the evaluation period on June 1, 2003, until his flight status 
was removed by the AEB, he diligently worked toward acquiring the Aircraft Commander desig-
nation.    The  applicant  argued  that  his  motivation  should  not  have  been  criticized  in  the  OER 
because he did not become a First Pilot until December 4, 2002; because he submitted a request 
form regarding his progression to Aircraft Commander on May 20, 2003; because he diligently 
worked through the syllabus he was given and failed to meet the November 1, 2003, deadline 
through no fault of his own; and because First Pilots normally take 18 months to progress to Air-
craft Commander.   
 
 
The record shows that throughout the applicant’s five years at the air station, his 
command frequently commented in his OERs about his motivation, or lack thereof, to progress 
as an aviator.  On his first OER as a copilot, his Reporting Officer noted that the applicant had 
made “a slow start meeting expectations.”  On his second OER as a copilot, his new Reporting 
Officer noted that he was “progressing” and was expected to upgrade to First Pilot soon.  How-
                                                 
2 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that section 205 of the Soldiers’ and Sailors’ Civil 
Relief Act of 1940 “tolls the BCMR’s limitations period during a servicemember’s period of active duty”). 
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). 
5 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

4. 

6. 

7. 

ever, the applicant did not upgrade to First Pilot until almost two years later.  On the applicant’s 
third OER as a copilot, the Reporting Officer praised his “obvious motivation” but noted that he 
was still “progressing.”  On his fourth OER as a copilot, the Reporting Officer indicated that the 
applicant’s apparent motivation to progress as an aviator had declined.  On his fifth OER as a 
copilot, the Reporting Officer wrote that the applicant’s “motivation is lacking.”  After the appli-
cant upgraded to First Pilot, his Reporting Officer indicated on his next OER that the applicant 
had the potential to upgrade to Aircraft Commander as his “self-discipline, motivation, and dedi-
cation to the Coast Guard increase with maturity,” although the applicant was already 38 years 
old.   
 
 
Such  recurrent  commentary—primarily  negative—on  the  applicant’s  motivation 
to progress as an aviator by all of the officers who served as his Reporting Officers at the air sta-
tion from 1999 through 2004 indicates that the applicant’s career as an aviator, although “pro-
gressing,” was not, in fact, progressing at the expected rate and that his Reporting Officers deter-
mined  that  his  slow  progress  resulted  from  a  lack  of  motivation.    However,  under  Articles 
10.A.4.c.4.b. and 10.A.4.f.11. of the Personnel Manual, an OER may reflect only the officer’s 
observed performance during the evaluation period.  Therefore, the numerical mark of 3 and the 
comment  about  the  alleged  “lack  of  motivation  &  leadership  to  upgrade  to  Aircraft  Cdr, well 
beyond the normally expected timeline of peers” in the disputed OER are required to reflect per-
formance that occurred after the start of the evaluation period on June 1, 2003, and cannot be 
based on his alleged lack of motivation during prior evaluation periods. 
 
 
The record shows that on July 24, 2003—almost eight weeks into the evaluation 
period  for  the  disputed  OE—a  Flight  Examining  Board  convened  at  the  air  station  and  deter-
mined that the applicant lacked motivation to progress to Aircraft Commander.  Although the 
applicant had submitted a request form for the upgrade on May 20, 2003, he had done so without 
completing  the  prerequisites.    Therefore,  although  the  applicant  may  have  become  motivated 
after  receiving  his  CO’s  August  28,  2003,  letter  and  tried  to  complete  the  syllabus  and  other 
requirements by November 1, 2003, he has not proved by a preponderance of the evidence that 
the comment that he lacked motivation and leadership to upgrade during the reporting period is 
either erroneous or unfair.  In this regard, the Board notes that his command’s concerns about his 
motivation and leadership stemmed not only from his rate of completion of the requirements but 
also from his performance in the cockpit, and this concern is reflected in some of the flight cri-
tiques submitted by the applicant. 
 
 
The applicant alleged that the OER comment that he displayed the alleged lack of 
motivation  and  leadership  “well  beyond  the  normally  expected  timeline  of  peers”  is  unfair 
because he had upgraded to First Pilot on December 4, 2002.  However, the applicant’s “peers” 
were officers who, like him, started serving as aviators for the Coast Guard in 1999.  The appli-
cant has not proved by a preponderance of the evidence that during the reporting period for the 
disputed OER he was not “well beyond the normally expected timeline of peers” for upgrading to 
Aircraft Commander. 
 
 
The  accuracy  of  the  mark  of  3  and  written  comments  in  the  disputed  OER  is 
strongly  supported  in  the  declarations  of  the  applicant’s  Supervisor  and  Reporting  Officer.  
Moreover, in challenging the mark of 3 for “Professional Competence,” the applicant has ignored 
the  proverbial  800-pound  gorilla  in  the  living  room:    An  Aviator  Evaluation  Board  of  senior 

8. 

9. 

aviators convened during the evaluation period to assess the applicant’s performance, potential, 
and motivation as an aviator, in accordance with Article 6.A.1.h. of the Personnel Manual, and 
recommended  the  termination  of  his  flight  status,  which  CGPC  then  approved.    While  many 
comments in the disputed OER show that the applicant was quite competent and motivated in 
performing his collateral duties (which became his primary duties by default after his flight status 
was terminated), the mark of 3 for “Professional Competence” is amply supported by the written 
comments in the OER as required by Article 10.A.4.c.4. of the Personnel Manual.  Although the 
applicant argued that his level of motivation should be considered irrelevant to his professional 
competence as an aviator, the written standards for the “Professional Competence” mark on an 
OER form encompass the officer’s efforts to “grow professionally.” 
 
 
Accordingly, the applicant’s request should be denied because he has not proved 
by a preponderance of the evidence that the disputed OER was adversely affected by (a) a “mis-
statement of significant hard fact,” (b) a “clear and prejudicial violation of a statute or regula-
tion,” or (c) factors that “had no business being in the rating process.”6   
 

10. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

                                                 
6 See footnote 3 above. 

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

ORDER 

 

record is denied. 
 
 
 
 
 

 

 

 
 

 
 
 
 

 
 

 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

 
 

 
 
 
 

 

 
 

 
 
 
 

 

 
 

 
 
 
 

 

 
Francis H. Esposito 

 

 

 
Randall J. Kaplan 

 

 

 
 
Darren S. Wall