Search Decisions

Decision Text

CG | BCMR | OER and or Failure of Selection | 2007-138
Original file (2007-138.pdf) Auto-classification: Denied
DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                        BCMR Docket No. 2007-138 
 
xxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxx   

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 June 1, 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  March  13,  2008,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST  

The applicant, a lieutenant commander (LCDR) in the Coast Guard Reserve, asked the 
Board  to  correct  his  officer  evaluation  report  (OER)  for  the  period  June  1,  2005,  to  May  31, 
2006, by  

 

 
 

 

•  adding his days of active duty and number of inactive duty drills performed during the 

reporting period to the “Description of Duties” in the disputed OER; 
removing four derogatory sentences in block 5 of the OER; 
raising his mark for “Workplace Climate” from 4 to 5;1 
raising his mark for “Evaluations” from 3 to 4;  
removing a sentence included by his Reporting Officer that refers to the low marks and 
negative comments of the Supervisor; and 
removing his OER Reply and his rating chain’s endorsements thereto as well as any other 
documentation concerning the disputed OER. 
 
In the alternative, the applicant asked that the entire OER be removed from his record and 

replaced with one prepared by an alternative rating chain. 

• 
• 
• 
• 

• 

 

 

                                                 
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. 

The applicant further asked that his failure of selection for promotion to LCDR in August 
2006 by the promotion year 2007 (PY07) inactive duty promotion list (IDPL) LCDR selection 
board be removed from his record and that his LCDR date of rank—stemming from his selection 
for promotion in August 2007 by the PY08 IDPL LCDR selection board—be backdated to what 
it would have been had he been selected for promotion by the PY07 IDPL LCDR selection board.  
He also asked to be awarded corresponding back pay and allowances. 
 

SUMMARY OF THE APPLICANT’S RECORD 

 
On June 26, 1997, the applicant, who had served as an enlisted reservist since 1988, was 
appointed an ensign in the Reserve and began serving full-time on active duty for special work 
(ADSW).  From June 26, 1997, through June 30, 1999, he served as a program analyst for the 
Reserve xxxxxxxxxxxxx.  The applicant received three OERs during this period with very high 
marks (primarily marks of 5 and 6) in the performance categories, marks in the fifth and sixth 
spots  on  the  comparison  scales,2  and  strong  recommendations  for  promotion.    The  first  two 
OERs are noted to be “concurrent” OERs, and the last is noted as a “detachment of officer” OER.  
The applicant’s record also contains an “annual/semiannual” OER for the period June 26, 1997, 
through September 30, 1998, which states that it was “[s]ubmitted for continuity purposes.  Offi-
cer  assigned  to  the  IRR  [Individual  Ready  Reserve],”  and  has  every  performance  category 
marked “not observed.”  However, the applicant was serving on active duty during this period 
and so was not actually in the IRR.3  The applicant was promoted to lieutenant junior grade on 
December 16, 1998. 

 
On June 30, 1999, the applicant was released from active duty.  He was a member of the 
IRR from July 1, 1999, to February 15, 2000, and his record contains an IRR continuity OER for 
that period. 

 
From February 16, 2000, through July 31, 2002, the applicant served on inactive duty at a 
harbor defense command as a member of the Selected Reserve.4  He initially worked as an Assis-
tant Operations Officer and then became an Assistant Planning Officer.  In his three OERs cover-
ing this period, he received primarily marks of 5 and 6 in the performance categories, marks in 
the fourth and fifth spots on the comparison scales,5 and strong recommendations for promotion.  
The applicant was promoted to lieutenant on December 16, 2001. 

 

                                                 
2 The comparison scale on an OER is not actually numbered but there are seven possible marks.  A mark in the fifth 
spot on a junior officer’s OER comparison scale means that in comparison with all the other officers of the same 
rank/grade whom the reporting officer has ever known, the applicant was deemed to be one of the best “of the many 
competent professionals who form the majority of this grade.”  A mark in the sixth spot indicates that the applicant 
was an “Exceptional Officer.”   
3 Article 1.C.2.b.(1) of the Reserve Policy Manual provides that members of the IRR may perform drills voluntarily 
but not for pay and that a reservist is not a member of the IRR while performing long periods of ADSW.  The BCMR 
staff asked the JAG whether the applicant was actually in the IRR during the period covered by the continuity OER, 
and  the  JAG  replied  that  the  applicant  was  not  in  the  IRR  at  the  time  and  that  the  IRR  continuity  OER  was  an 
administrative error that would be fixed by the Coast Guard Personnel Command (CGPC). 
4  Article  1.C.2.a.  of  the  Reserve  Policy  Manual  provides  that  members  of  the  Selected  Reserve  (SELRES)  are 
assigned to reserve billets and drill regularly for pay. 
5 See footnote 2 above.  A mark in the fourth spot on the comparison scale meant that the applicant was a “Good 
performer; give tough, challenging assignments.” 

The  applicant’s  OER  for  the  period  August  1,  2002,  to  May  31,  2004,  shows  that  he 
served  as  a  watch  officer  and  a  Maritime  Transportation  Security  Act  project  officer  on  both 
active and inactive duty in the SELRES.  The OER erroneously shows his date of rank as a lieu-
tenant to be August 1, 2002.6  He received one mark of 4 (for “Evaluations”), eight marks of 5, 
and nine marks of 6 in the various performance categories, but a mark in the fourth spot on the 
comparison scale.7  However, he was “highly recommended for promotion w[ith] peers.” 

 
From January 5, 2004, through October 31, 2005, the applicant served on active duty as 
the Chief of the Force Readiness Branch at xxxxxxxxxxxxxxx.  On his OER for the period June 
1, 2004, through May 31, 2005, the applicant received primarily marks of 6, with a few 5s and 
7s,  in  the  performance  categories;  a  mark  in  the  fifth  spot  on  the  comparison  scale;8  and  his 
reporting officer’s “strong recommendation for promotion w[ith] peers.” 

 
The disputed OER covers the applicant’s service as Chief of the Force Readiness Branch 
and Acting Chief of the xxxxxxxxxxx Planning Department from June 1, 2005, through May 31, 
2006.  Block 2 of the OER does not show how many days of active duty or how many drills the 
applicant performed during the period.  It does show that the applicant received an Achievement 
Award for his period of extended active duty ending on October 31, 2005.  The Supervisor for 
the  OER, who was the Chief of the Contingency Planning Staff, assigned the applicant a low 
mark of 3 for “Evaluations”; a mark of 4 for “Workplace Climate”; marks of 5 for “Planning and 
Preparedness,” “Results/Effectiveness,” “Adaptability,” “Speaking and Listening,” “Looking Out 
for  Others,”  “Developing  Others,”  “Directing  Others,”  and  “Teamwork”;  and  marks  of  6  for 
“Using Resources,” “Professional Competence,” and “Writing.”  Many of the Supervisor’s com-
ments concerning the applicant’s leadership skills are positive, but he also included the following 
comments in support of the mark of 3 for “Evaluations” and, presumably, in support of the mark 
of 4 for “Workplace Climate,” although a mark of 4 is not a negative mark: 

 
ROO [reported-on officer] did not provide Supervisor with requested information/clarification for 
own OER.  ROO then bypassed Supervisor to complain about that request.  ROO was asked to 
attend a scheduled meeting with the unit Commanding Officer and was reminded of the meeting 
time.  Member was late for the meeting and publicly derided superiors for failing to notify them. 
 
The applicant’s Reporting Officer, who was the Senior Reserve Officer for xxxxxxxxxxx, 
wrote in another comment block on the disputed OER that he concurred with the Supervisor’s 
part  of  the  evaluation  but  that  the  “Supervisor’s  comments  in  Section  5  regarding  ROO’s 
behavior surrounding a meeting reflect an isolated incident.”  The remainder of the Reporting 
Officer’s comments are very positive, and he “highly recommended [the applicant] for promotion 
and most challenging assignment.”  The Reporting Officer assigned the applicant a mark of 4 for 
“Health and Well-Being”; a mark of 5 for “Judgment”; marks of 6 for “Initiative,” “Responsibil-
ity,” and “Professional Presence”; and a mark in the fifth spot on the comparison scale.  
                                                 
6 When the BCMR staff asked about the conflicting LT dates of rank shown on the applicant’s OERs, the JAG stated 
that the date of rank on this OER was erroneous and that the administrative error would be fixed by CGPC. 
7 A mark in the middle, or fourth, spot on a comparison scale means that in comparison with all the other lieutenants 
whom the reporting officer had known, the applicant was deemed to be a “Good performer; give tough challenging 
assignments.” 
8 See footnote 2 above.  A mark in the fifth spot on the OER comparison scale meant that in comparison with all the 
other lieutenants whom the reporting officer had known, the applicant was an “Excellent performer; give toughest, 
most challenging leadership assignments.” 

 
The disputed OER was entered in the applicant’s record on August 2, 2006.  Thereafter, 

the PY07 IDPL LCDR selection board did not select him for promotion to LCDR. 

 
On February 13, 2007, the applicant submitted an OER Reply to the disputed OER.9  The 

Reply states the following in pertinent part: 

 
3.  This OER does not reflect my reserve participation during the evaluation period, as is standard 
per [the Personnel Manual] on all Reserve OERs.  During this period, I performed 153 days of 
Title 10 and 20 IDT drills.  Absence of this information prevents a board from determining the 
type or amount of participation during the time period, including whether I met even the minimum 
standards.    Though  I  provided  this  information  in  my  draft  OER  “Description  of Duties” input, 
submitted on 04 JUN 06, it was omitted from the validated version of my OER. 
 
4.    Comments  in  Section  5  state:  “ROO  did  not  provide  Supervisor  with  requested  informa-
tion/clarification for own OER.  ROO then bypassed Supervisor to complain about that request.”  
These comments are without merit for the following reasons: 
 

a)    Background  information:    On  22  MAY  06,  I  sought  guidance  from  my  supervisor 
regarding OER expectations but received no response.  On 04 JUN 06, with no previous guidance 
from my supervisor, I submitted my draft IER test to my entire rating chain.  On 07 JUN 06, my 
supervisor encouraged me via e-mail to submit bullets but stated he would work with what I had 
provided to date if not. 
 

b)  On 12 JUN 06, my supervisor demanded, via e-mail copies to the entire rating chain, 
that I provide OER bullets within 24 hours or face implied consequences.  My “complaint” was a 
Reply-All message stating that due to various circumstances I would not be able to meet the 24-
hour deadline.  As a result, the Reviewing Officer intervened and instead of the 24-hour deadline 
set by the supervisor, requested I submit bullets “in a reasonable time” when able. 
 
   
information on 20 JUN 06, two weeks before my supervisor signed my OER on 03 JUL 06. 
 

c)    The  claim  that  I did not provide the requested information is false:  I provided the 

d)    My  supervisor  delegated  his  OES  responsibilities  to  a  YNC  from  another  division, 
who completed my OER.  My final OER supervisor section is nearly verbatim to the draft I sub-
mitted  on  04  JUN  06.    Aside  from  the  negative  comments  addressed  herein,  the  content  was 
trimmed or removed only in order to delete or expand generally accepted abbreviations. 
 
5.  Further comments in Section 5 state:  “ROO was asked to attend a scheduled meeting with the 
unit Commanding Officer and was reminded of the meeting time.  Member was late for the meet-
ing and publicly derided superiors for failing to notify them (sic).”  These comments are false for 
the following reasons: 
 

a)  The “meeting” referred to was my CG Achievement Award presentation/ceremony on 
31 OCT 2005.  The description of this event as a “meeting with the unit Commanding Officer” or a 
“meeting” is objectively misleading. 
 

b)  I never “publicly derided superiors.”  None of my comments to my supervisor were 
inappropriate  and  few  overhead  our  discussion.    No  other  personnel  were  involved:    the  use  of 
“superiors” (plural) is a misrepresentation of fact and is objectively misleading. 

                                                 
9 The applicant submitted a delivery confirmation from the U.S. Post Office indicating that he first submitted his 
OER Reply on October 25, 2006.  When submitted in accordance with Article 10.A.4.g. of the Personnel Manual, an 
OER  Reply  and  the  endorsements  of  the  rating  chain  become  a  permanent  part  of  the  OER  filed  in  the  officer’s 
personal data record. 

 

c)    My  award  presentation  was  hastily  scheduled  on  the  same  day  it  occurred, and not 
confirmed until 24 minutes before, when my supervisor sent a time correction e-mail to a distribu-
tion list that did not include me.  My supervisor never personally notified me about any meeting or 
presentation, nor reminded me of the time.  He claimed to have delegated those tasks to others, one 
of whom specifically informed me that this was untrue.  When I specifically asked my supervisor 
why he didn’t notify me, he stated he “was in the middle of 6 or 7 other things.” 
 

d)  I was not late to my own CG Achievement Award ceremony.  I arrived at the presen-

tation site within minutes of the last-minute confirmed start time. 
 
6.  On 03 DEC 05, I met with the xxxxxxxxxxx Deputy Commander and put my supervisor on 
report for his conduct during 31 OCT 05 and the previous two months. 
 
On April 11, 2007, the applicant’s Supervisor submitted his “First Endorsement” to the 

OER Reply with the following comments in pertinent part: 

 
2.    In  regards  to  paragraph  3  [of  the  OER  Reply],  ROO  was  on  Title  10  Active  Duty  for  an 
extended period, 153 days of the period.  His IDT drills were erroneously not stated on his OER. 
 
3.  According to paragraph 4(a), ROO admitted that he did not approach his supervisor until nine 
days before the end of the reporting period, well after the 21 days required by [the Personnel Man-
ual, Article] 10.A.2.f.  This alone justifies the 3 in Evaluations.  In regards to paragraph 4(d), this 
statement is untrue.  The Command desires that all OERs be administratively reviewed and proof-
read prior to submission.  ROO’s OER was directed to the Chief, Logistics and then Chief, Per-
sonnel Support Branch for processing (dates, spelling and format accuracies).  I had a YNC who is 
well versed with OER process check the OER for spelling and grammatical errors. 
 
4.  In regards to paragraph 5, there was a meeting scheduled with the Sector Commander on 31 
OCT  05  in  the  command  conference  room.    This  meeting  was  delayed  due  to  the  Sector  Com-
mander’s  schedule.    I  asked  my  Assistant  Chief,  Planning  Staff  to  locate  ROO  and  remind  him 
about the meeting.  Initially, ROO could not be found, two secondary searches were conducted by 
an Ensign and Senior Chief in which ROO was found conversing with shipmates.  He was told that 
his presence was required in the command conference room.  The Sector Commander arrived an 
ROO was not in the room, which reflects his tardiness.  Because ROO was not at the meeting on 
time the Commander stepped back into his office and said “call me when everyone is assembled.”  
I intercepted him [presumably, the applicant] prior to entering the conference room and told him 
that  it  was  inappropriate  to  keep  the  Sector  Commander  waiting.    ROO  entered  the  conference 
room where three senior officers, two junior officers, and a variety of Senior/Junior enlisted per-
sonnel were waiting.  When I entered the conference room, ROO was voicing his dissatisfaction to 
an O4 about how he was being singled out for being late.  He was speaking in a loud enough voice 
that everyone in the conference room heard his comments.  I told ROO to stop.  He ignored me and 
continued his conversation with the 04.  I then walked directly in front of ROO and told him to 
stop again.  ROO replied, “I don’t know what this is about, I am being unfairly singled out.”  I 
replied  that  his  comments  were  inappropriate  and  that  we  would  finish  this  conversation  in  my 
office after the ceremony. 
 
5.    I  was  not  aware  that  ROO  had  met with anyone about the incident on 31 OCT; therefore it 
could not have caused bias on my part. 
 
The Reporting Officer endorsed the OER Reply with the following comments: 
 
a.    As  the  senior  reserve  officer  in  this  reserve  officer’s  OER  chain,  I  received  the  active  duty 
Supervisor’s (SUPV) draft of the OER after the Reviewer (REVW) (the active duty Deputy Com-
mander) had already seen it, and the REVW expressed concern about its content at that time.  My 

recollection is that the original draft contained three marks of “3” in Sect. 8, in the categories of 
“Judgment,”  “Responsibility,”  and  “Professional  Presence.”    There  were  several  negative  com-
ments drafted by the SUOV to explain that I, as the Reporting Officer (RO), was responsible for 
the marks on page 3 and all the text in Section 7, 8, and 10.  Regardless, I explained that I “did not 
concur” with his marks and negative comments.  In that meeting, he verbally described the events 
surrounding the award presentation which occurred on 31 OCT 05 … .  I was not at xxxxxxxxx on 
31 OCT 05, and I did not have any knowledge of the award or the ceremony.  The details verbally 
provided by the SUPV seem to support the draft negative comments, at the time of our discussion.  
After a second meeting with the SUPV to discuss the OER, I received what the SUPV stated was 
his final draft.  His final version was significantly different than his first submission and addressed 
most of my concerns.  After I had expended significant effort to get the SUPV to reflect on his 
portion of the evaluation and the need for totality of balanced assessment, I “concurred” with the 
SUPV’s evaluation.  However, I did decide to specifically state … it was likely an “isolated inci-
dent.”  I strongly believed that it was not representative of ROO’s overall performance or behavior 
during the marking period.  I also stated in Sect. 7 that ROO’s “ability to work with others was 
above average.”  Now, after revisiting this OER as RO due to this OER reply, I feel I was in error 
to change my original assessment of “do not concur” to “concur.”  Because it took a good deal of 
“leadership and counsel” to try to get the SUPV to address the entire evaluation in a balanced per-
spective, I believed at that time that the OER reflected such balance when I finally submitted it to 
the REVW.  Since then I have learned of other perceptions of the events leading up to, during, and 
after the awards ceremony of 31 OCT 05, from other individuals directly involved in those events.  
I seriously question whether the ROO’s actions were so egregious and whether they should have 
been  singled  out  as  a  serious  measure  of  [his]  performance  assessment  over  the  entire  marking 
period (153 days of Title X and 20 IDT drills in a 365 day period).  It is worth noting that the 
ROO earned a CG Achievement Medal during the Period of Report.  If I was asked today to con-
cur with the Supervisor’s marks and comments in Section 5 of the OER, I would not do so, even 
after the SUPV revised the narrative. 
 
b.  [Regarding the timing of the applicant’s OER input], I do not have any first hand knowledge 
regarding what OER input was submitted by [the applicant], and the timing of such submission(s).  
I was a drilling reservist, normally performing IDT drills on nights and weekends.  The first time I 
saw any OER text was when I was given the draft [OER form] sometime in June or July 2006. 
 
On April 18, 2007, the Reviewer endorsed the OER Reply with the following comments 

in pertinent part: 

 
a.  As noted by the SUPV, the OER in question should be corrected to reflect the categorization of 
service for the period encompassing the evaluation (Title 10, IDT, ADT, etc.). 
 
b.  In regards to the Section 5.f. of the evaluation, the assignment of “3” is justified, as the ROO 
did not meet own OES responsibilities as the ROO.  The “burden of responsibility” is clear [with 
respect to] the OES, and an experienced member should be intimately familiar with the require-
ments  and  the  importance  to  the  evaluation  system  to  have  timely  and  substantial  supporting 
information. 
 
c.  As the RO discussed in his endorsement …, significant care, time and attention was brought to 
bear on this OER.  As REVW I exercised my leadership role in the system to encourage the other 
members  of  the  rating  chain  to  serve  the  process  well  and  ensure  a  balance  and  representative 
evaluation of the ROO’s performance for the entire period.  I had initial concern because I saw the 
initial draft before the RO did, since the RO was a reserve officer and I wanted to make sure he 
properly received it and addressed it in a timely fashion.  As the RO states, I wanted him to work 
with the SUPV on the content of the draft OER as I felt it was not the standard of quality and bal-
ance that would allow me to sign as REVW.  I had knowledge after the fact [with respect to] the 
reported “clash” between the SUPV and ROO [with respect to] the award presentation, and various 
reports on how that was observed and perceived have been passed to me afterwards.  I was not able 
to attend the award presentation, and the CO at the time … (retired) did not relate any issues or dif-

ficulties about that presentation.  It was only through the read of the SUPV’s draft of the OER that 
I became initially aware of the negative impact of that event and relative interaction.  Nevertheless, 
the RO has stated that he did not concur initially with the draft OER (which was shared with me at 
that time).  Now upon further reflection, the RO states that he still does not concur, and should 
have maintained that position in hindsight, even though he “concurred” after the second revision.  
Considering such a critical statement and impact to the process, I recommend that the OER be cor-
rected by the RO accordingly, and re-signed by the RO and REVW.  If this is not allowable or pos-
sible, then the ROO should pursue a review board correction. 
 
d.  I do not agree or confirm the ROO’s statement [about putting the Supervisor on report].  He did 
not put his Supervisor on report (I never received a CG-4910, or specific written or oral complaint 
of misconduct).  The ROO did make strong statements about his dissatisfaction relating to his time 
as the SUPV’s subordinate, but he did not charge him with anything that was in violation of the 
UCMJ, core values or good order and discipline.  The ROO never expressed dissatisfaction to me 
about receiving a CG Achievement Medal for his performance, however, even if so, I would not 
have changed my award recommendation endorsement. 
 
On September 1, 2006, the applicant reported to an Integrated Support Command to serve 
as a Readiness Liaison Officer.  On his OER for the period June 1, 2006, through May 31, 2007, 
the applicant received marks of 6 and 7 in the performance categories; a mark in the sixth spot on 
the comparison scale, meaning that he was “strongly recommended for accelerated promotion”; 
and the Reporting Officer’s written comment, “Promote this Officer to O4.”   

 
On August 2, 2007, the applicant was selected for promotion by the PY08 IDPL LCDR 
selection  board.    On  February  22,  2008,  the  Commandant  issued  ALCGPERSCOM  014/08, 
which authorized the applicant’s promotion to LCDR as of March 1, 2008. 
 

APPLICANT’S ALLEGATIONS 

 
Allegations and Evidence About the Award Ceremony 
 
 
The applicant alleged that the mediocre mark of 4 he received for “Workplace Climate” 
in the disputed OER is erroneous and unjustly based on a single incident—his own award cere-
mony—that was not his fault.  He alleged that the OER unjustly characterizes the award cere-
mony, during which only he was to receive an award, as a “meeting” with the commanding offi-
cer (CO).  He alleged that the ceremony was “scheduled less than half an hour before it occurred 
and [the applicant himself] was not informed—either in person or via e-mail—of the time of the 
ceremony. … In fact, his name had been left off the e-mail distribution list of the message sent 
out at 1306 hours by [the Supervisor] advising other members of the command of the 1330 hours 
time of the ceremony.”  The applicant stated that he learned of the timing of the ceremony just 
minutes before 1330 and completely by chance when LCDR P, to whom he was speaking, told 
him about it.  The applicant stated that upon hearing of it from LCDR P, he immediately went to 
the conference room and found “some of his colleagues already assembled and others still filing 
into  the  room.”    The  CO  had  not  yet  arrived.    However,  the  Supervisor  came  up  to  him  and 
scolded  him  for  being  late.    When  the  applicant  respectfully  defended  himself  by  telling  the 
Supervisor that he “had never been informed of the ceremony in the first place,”  the Supervisor 
began scolding him again, telling him “to ‘stop it’ or ‘drop it,’ to which [the applicant] repeatedly 
stated that he did not understand” what the Supervisor wanted him to stop or drop.  The applicant 
stated that his conversation with the Supervisor was “frustrated” but he was not disrespectful in 
any way although the Supervisor raised his voice and became “inappropriately loud in his public 

censure” of the applicant.  The applicant alleged that no superior officers were involved in or 
overheard their conversation, and he never “derided his superiors” or anyone else.  Then the CO 
arrived and said, “Good, [the applicant] is here so we can get started” and began the ceremony.  
After the ceremony, the Supervisor ordered the applicant to his office and “they had a loud con-
versation behind closed doors.” 
 
 
In support of these allegations, the applicant submitted a copy of an email message that 
his Supervisor addressed twice to “xxxxx – Officers; xxxxx - Officers” on October 31, 2005, at 
1:06 p.m.  The subject line of the email is “Time correction to AWARD presentation.”  The text 
announces that the applicant is completing his Title 10 service that day and “will be receiving 
recognition today @ 1330 in the CO’s conference room. … If attending, please be in the CO’s 
conference room at 1325 hrs.” 
 
 
 
The applicant also submitted a copy of two email messages from a Reserve officer, LT C, 
who wrote that after returning from lunch on October 31, 2005, he received the above email from 
the Supervisor, which corrected the time of the award ceremony provided in a prior email.  He 
saw the applicant talking to LCDR P a few minutes later, and the applicant began talking to LT C 
about reserve billets and movement of personnel.  At the end of their discussion, LT C told the 
applicant he would see him downstairs in a few minutes, and the applicant asked him what he 
was talking about.  LT C was not sure he should respond in case the award was supposed to be a 
surprise, but since it was almost time for the ceremony, LT C told him about the email.  LT C 
went directly downstairs to the conference room, and the applicant took a different staircase so 
that he could pass by his office to “find out more about the ceremony.”  When LT C got into the 
conference room, he stopped near the door and began talking to another officer. Therefore, he 
partially overheard a discussion between the applicant and the Supervisor a few minutes later.  
As soon as the applicant came in, the Supervisor approached him and asked where he had been 
as he was supposed to have been there earlier.  The applicant told the Supervisor that he had not 
known about the ceremony.  “[A]fter several exchanges [the Supervisor] began saying, ‘Drop it, 
not now, this is not the time or the place,’ or words to that effect.  [The applicant] was saying, 
‘Drop what, Sir?  I don’t understand, drop what?’  [The Supervisor] was holding out his hand, 
palm forward in a ‘stop’ gesture, saying ‘Just drop it” and he was shaking his head right and left 
as if to indicate ‘no.’  I was only able to observe this because of my position.  The discussion was 
in quiet tones and to my knowledge there was no disturbance that involved or came to the atten-
tion of others in the room.”  
 
 
The applicant also submitted a statement signed by LTJG H, who worked in the Planning 
Department with the applicant.  LTJG H stated that a day or two before October 31, 2005, the 
applicant told him that he might be receiving an award at the 8:00 morning briefing.  On October 
31, 2005, the Supervisor approached LTJG H prior to 8:00 a.m. and asked if he had seen the 
applicant.  When LTJG H denied having seen the applicant, the Supervisor walked toward the 
CO’s office, presumably for the morning briefing.  A few seconds later, LTJG H saw the appli-
cant in his own office, which was directly beside the Supervisor’s office.  LTJG H asked him if 
he was going to the morning briefing to get his award, and the applicant said that “no one had 
called him or stopped in to tell him to be at the meeting, so he wasn’t going.  This seemed a rea-
sonable assumption given that the award being given at the morning briefing had, to my knowl-
edge,  not  been  confirmed,  and  the  morning  briefing  was  only  for  the  [CO]  and  Department 
Heads, so it would have been inappropriate for him or anyone else to go the briefing without 

having been told to do so.  Both of us assumed at that point that the award would be given at a 
different time.”  After lunch that day, a senior chief told LTJG H that there would be a ceremony 
for the applicant later that afternoon.  The senior chief showed him the email from the Supervisor 
announcing that the ceremony would occur, but LTJG H never got that email, “which was odd 
since  I  worked  the  most  closely  with  [the  applicant]  and  [was]  the  only  one  directly  in  his 
department.  [The applicant] was not on the email list and there was no mention in the email that 
anyone should tell him to be at the ceremony.”  LTJG H asked the senior chief if the applicant 
knew about the ceremony and was told that the senior chief did not know.  Therefore, LTJG H 
went looking for the applicant to see if he knew about the ceremony, which was supposed to start 
in about 15 minutes.  By the time he found the applicant, someone had already told him about the 
ceremony and he and other officers were headed downstairs to the conference room.  LTJG H 
walked down to the conference room with the applicant and several other officers.  When they 
got there, the CO was not present and people were still arriving.  The applicant met the Supervi-
sor in the hallway and they entered the conference room together with other officers coming in 
behind them.  The applicant and the Supervisor began talking and “appeared to be agitated.”  The 
Supervisor approached LTJG H and asked him if he had told the applicant about the ceremony.  
LTJG H told him that he had only just learned about the ceremony himself and had not informed 
the applicant.  A few seconds later, the CO walked in “right on time” and the ceremony began.  
The CO was jovial and did not appear to be agitated.  LTJG H stated, “At no time after the cere-
mony did I hear that the CO believed anyone was late to the ceremony or that he had been kept 
waiting.”  After the ceremony, the applicant told LTJG H that the Supervisor claimed to have 
told LTJG H to inform the applicant about the time and place of the ceremony.  “This was com-
pletely untrue, as I did not receive the email and was never told anything by [the Supervisor], or 
anyone  else,  regarding  the  ceremony  [in  advance].  …    The  Supervisor  never  approached  me 
again on this topic.” 
 
 
The applicant also submitted an email from LCDR P, who stated that on the afternoon of 
October 31, 2005, the applicant was in LCDR P’s office when he received a telephone call from 
the  CO’s  yeoman,  who  informed  him  that  his  presence  was  expected  in  the  conference  room 
immediately to witness an award ceremony for the applicant.  LCDR P asked the applicant if he 
knew he was supposed to be down in the command conference room getting an award.  “From 
the look on [the applicant’s] face, it was evident to me that he didn’t know he was supposed to be 
downstairs receiving his award at that time.  We both then went directly to the command confer-
ence room. …  I did not witness nor hear any verbal confrontation or harsh words exchanged 
between [the applicant and the Supervisor].  Nor did I witness or hear [the applicant] being disre-
spectful to anyone.  The phone call from the yeoman was the first notice I received of the fact 
that [the applicant] was receiving an award and the time of its presentation.” 
 
 
CDR  T,  who  worked  at  xxxxxxxxxx  and  knew  both  the  applicant  and  his  Supervisor, 
stated that a couple of minutes before the ceremony was to begin, the applicant stopped by her 
office to say goodbye since it was his last day on active duty.  Since she had recently received an 
email  about  the  award  ceremony,  she  told  him  he  should  probably  be  downstairs  in  the  con-
ference room, but he did not seem to understand her and she did not explain because she thought 
the award might be a surprise.  Nevertheless, the applicant arrived in the conference room just a 
few minutes after she did.  CDR T further stated,  
 

[a]lthough he may have technically been a few minutes late to the ceremony, it was not noticeable 
as others were still arriving and we were all still awaiting the Captain. … I noticed that after [the 
applicant] entered the room, he began talking with [the Supervisor].  I did not see [the applicant] 
speak  to  anyone  else.    All  I  could  hear  was  [the  Supervisor]  saying  something  to  the  effect  of, 
“You just have to stop,” and [the applicant] replying repeatedly, “I don’t understand, Sir, what do I 
have to stop?”  This exchange ended when [the Supervisor] left the room, saying loudly over his 
shoulder, “You just have to stop.”  I did not see or hear [the applicant] act or speak in any way dis-
respectfully to [the Supervisor] at that or any other time, nor did I later hear of any disrespectful 
act or words by [the applicant].  It seemed to me that [the Supervisor] was making a loud fuss over 
nothing and [the applicant] did not understand what was going on. 

 
 
The CO, who presented the award to the applicant and has since retired signed, a state-
ment saying that he “do[es] not recall that [the applicant] was late for that event or that there was 
any commotion in my presence at the ceremony. … Had there been any egregious episode in that 
context, I believe I would remember it, or at least, I would have made note of it in my logbook,” 
which he did not do. 
 
Applicant’s Allegations About Complaints Against the Supervisor 
 
 
The applicant stated that because his Supervisor’s treatment of him regarding the cere-
mony and several other, unrelated incidents caused him concerned, the applicant met with the 
Sector Deputy in December 2005 to voice his concerns, especially his concern that his Supervi-
sor would not accurately evaluate him on his next OER.  The Sector Deputy assured him that the 
OER  would  be  properly  reviewed  and  processed.    The  applicant  stated  that  he  was  also  con-
cerned about the Supervisor’s treatment of other officers and his tendency to try to get other peo-
ple to do his work for him. 
 
In support of this allegation, the applicant submitted a copy of an email he sent to the 
 
Sector Deputy on the evening of October 31, 2005, in which he asked to meet with him, when 
convenient,  because  the  applicant  was  “concerned  and  bothered  by  some  very  unprofessional 
behavior that was directed at [LCDR G, LTJG H,] and me over the past few months.”  The Sec-
tor Deputy replied that he would meet with the applicant.  Other emails indicate that the applicant 
tried to schedule a meeting with the Sector Deputy to discuss his concerns about the Supervisor 
in November and ultimately met with him on December 3, 2005.  In addition, in January 2006, 
the  applicant  sent  the  Reporting  Officer  an  email,  stating  that  he  had  discussed  his  concerns 
about  how  the  Supervisor  was  treating  himself  and  others  with  the  Sector  Deputy  and  had 
“expressed serious concern about proper treatment for my next OER.”  The Reporting Officer 
replied that he and the Reviewer would ensure that the applicant got a fair evaluation.  However, 
in March 2006, the applicant again emailed the Reporting Officer, stating that he was “passively 
being pushed out” of the Planning Department and asked to be transferred to another unit. 
 
Allegations and Evidence About the OER Input 
 

Regarding  his  OER  input,  the  applicant  alleged  that  on  May  22,  2006,  he  asked  the 
Supervisor for guidance on what format he should use in submitting his OER input.  However, 
the Supervisor did not respond.  Therefore, on June 4, 2006, since the deadline for OER input 
had passed, the applicant submitted his input in the format of a draft OER, which is how Reserve 
officers commonly submit their input, and emailed it to his chain of command.  On June 7, 2006, 
the Supervisor sent him an email saying that he wanted the OER input in bulleted format, instead 

of  draft OER format.  Therefore, the applicant sent him his notes, and the Supervisor said he 
would work with them.  The applicant alleged that this was the Supervisor’s “FIRST communi-
cation … to me regarding my OER.”  However, on June 12, 2006, the Supervisor sent another 
email  saying  that  he  needed  the  applicant’s  OER  input  in  bulleted  format  within  24  hours.  
Because the applicant’s wife had recently given birth and because of the demands of his civilian 
job, the applicant replied that the 24-hour deadline was impossible.  He cc’ed this email to the 
Sector Deputy because of “his ongoing concerns about his treatment” by the Supervisor.  The 
applicant argued that cc’ing an email cannot be considered “bypassing” his Supervisor as stated 
in the disputed OER.  In addition, he argued that his email about the 24-hour deadline could not 
be considered a “complaint.”  In response to his email, however, the Sector Deputy scolded them 
both and told the applicant to submit his bulleted input within a “reasonable” amount of time.  
The applicant submitted his input in the requested format eight days later on June 20, 2006. 
 
 
When the Sector Deputy received the Supervisor’s first draft of the applicant’s OER, it 
contained three low marks of 3 and many derogatory comments.  The Sector Deputy therefore 
asked the Senior Reserve Officer, who would serve as the applicant’s Reporting Officer, to dis-
cuss the OER with the Supervisor.  The Reporting Officer told the Supervisor to review the OER 
again  and  considered  whether  it  was  inaccurately  negative.    After  the  Supervisor  revised  the 
OER,  the  Reporting  Officer  and  Sector  Deputy  (who  served  as  the  Reviewer)  concurred  and 
signed it.  The OER was then expedited and put in the applicant’s record before the IDPL LCDR 
selection board convened in August 2006.  As a result, the applicant was not promoted. 
 
 
In support of these allegations, the applicant submitted a copy of the June 4, 2006, email 
by which he emailed his original OER input, in the form of a draft OER, to his rating chain.  On 
June 7, 2006, the Supervisor replied by email, “Where are your bullets?  And send them directly 
to me, I will review and forward to all in the chain.”  The applicant replied the same day that he 
did “not have a bullet list:  I converted my bullets into the text for the OER.  I was not sure what 
format you wanted my OER in.  In the past, I’ve submitted written version many more times than 
I’ve submitted bullet lists.”  The Supervisor replied that “along with a draft OER, all of our offi-
cers provide supporting bullets per the OER criteria.”  On June 12, 2006, the Supervisor emailed 
the applicant again saying that he had reviewed the applicant’s OER input, and consulted with 
other OER administrators, and “strongly suggest that you take the time to provide bullets that 
document specific instances with resulting cause and effect.  As per Command guidance, officers 
will not write their own OER. …  This is the second time that I am formally asking for your OER 
support information.  If you choose not to provide the requested bullets in 24 hrs, I will complete 
and forward as I see fit upon what was presented.”  The applicant replied, cc’ing his email to the 
rating chain and the CO, that since he had a civilian job, an 11-day-old baby, two other small 
children, and a wife recovering from a C-section, “there is absolutely no way that I will have this 
to you within 24 hours.  Therefore, I have no choice but to let you proceed as you plan.”  The 
Reviewer replied to both, “Cease and desist with whatever the tensions here on this issue.  Do the 
right thing, the right way, for the right reasons.  [Applicant] provide the supporting bullets when 
you are able to submit in a reasonable time.  If you choose not to do so, please let us know.” 
 

The applicant also submitted a statement from his CO, who wrote that he had no direct 
knowledge of the matter but that he “recall[ed] in general [that the Supervisor] sometimes had 
trouble getting things done in a timely manner which came to my attention on more than one 

occasion.”  The CO further stated that the 3 that the Supervisor had assigned the applicant “is the 
‘kiss of death’ for promotion purposes.” 
 
 
The applicant’s Reporting Officer submitted a statement in which he said that the emails 
he was cc’ed regarding the applicant’s OER input was his first indication that there was friction 
between the applicant and his Supervisor.  He stated that it was standard practice for Reserve 
officers to submit their OER input in the form of a draft OER but that the applicant could have 
responded  to  the  Supervisor’s  emails  more  diplomatically.    The  Reporting  Officer  stated  that 
when the Reviewer handed him the Supervisor’s first draft of the applicant’s OER, the Reviewer 
said he was very concerned about the content and asked the Reporting Officer to discuss it with 
the Supervisor.  On the draft OER, the Supervisor had assigned the applicant low marks of 3 in 
the categories “Judgment,” “Responsibility,” and “Professional Presence,” which marks are the 
purview of the Reporting Officer, not the Supervisor, and the Supervisor had included negative 
comments which concerned the applicant’s alleged behavior at the time of the award ceremony.  
The Reporting Officer’s own interactions with the applicant led him to believe that the draft OER 
was  not  objective.    When  the  Reporting  Officer  discussed  the  OER  with  the  Supervisor  and 
pointed out that the Supervisor had completed the Reporting Officer’s part of the OER as well as 
his own, the Supervisor justified the low marks and negative comments with passionate allega-
tions about the applicant’s behavior before and after the award ceremony.  Since the Reporting 
Officer had heard nothing about the award ceremony, he gave the Supervisor the benefit of the 
doubt about his allegations but still told him that he did not concur with the marks and asked him 
to  reconsider  whether  the  OER  was  excessively  negative  given  the  applicant’s  performance 
throughout  the  whole  evaluation  period.    The  Supervisor’s  second  and  final  draft of the OER 
“appeared to be more balanced,” and he concurred because he relied on the Supervisor’s descrip-
tion of the applicant’s behavior; because he thought he could minimize the impact of the low 
marks  and  negative  comments  with  his  own  comments;  and  because  of  pressure  from  the 
Reviewer to get the OER completed.   
 

 
The applicant also submitted statements from LCDR G, LCDR D, and CDR T who each 
described two or three interactions with the Supervisor which led them to discount the Supervi-
sor’s responsibility and/or honesty. 

The Reporting Officer also wrote that he now regrets having concurred with the revised 
version of the OER and does not believe it is fair or balanced.  He noted that in the Supervisor’s 
first draft of the OER, he assigned the applicant a mark of 4 for “Evaluations” and only lowered 
it  to  a  mark  of  3  in  the  final  draft  after  the  Reporting  Officer  refused  to  assign  the  applicant 
marks of 3 in his own part of the OER.  The Reporting Officer also wrote that he has received 
information from other officers contradicting the Supervisor’s characterization of the applicant’s 
behavior before the award ceremony.  Contrary to what the Supervisor had told him, the cere-
mony was not a pre-scheduled meeting; the date and time were changed on very short notice; the 
applicant was not notified of the time of the ceremony in advance; and the CO did not think that 
the applicant arrived late.   

 
The Reporting Officer concluded that the Supervisor’s four negative sentences should be 
removed  from  the  OER  and  replaced  with  more  accurate  comments;  that  the  mark  of  3  for 
“Evaluations” should be upgraded to a 4; and that the mark of 4 for “Workplace Climate” should 
be upgraded to a 5.  

 
Allegations About the OER Reply 
 

 
was not in the room, which reflects his tardiness.  Because [the applicant] was not at the meeting 
on time the Commander stepped back into his office and said “call me when everyone is ready.”  

The applicant stated that he submitted an OER Reply on October 25, 2006, by U.S.P.S. 
Express  Mail,  and  received  confirmation  of  delivery.    However,  when  he  inquired  about  the 
status of his OER Reply in late December 2006, CGPC told him that the Supervisor denied hav-
ing received it.  Later, CGPC advised him to resubmit it, and he did so on February 13, 2007, by 
email, to the Supervisor, the other members of his rating chain, and CGPC.  The Supervisor’s 
first endorsement was rejected by CGPC.  The applicant alleged that the first endorsement con-
tained many false statements about his alleged behavior outside of the evaluation period and was 
rejected by CGPC.  When the applicant saw the Supervisor’s revised endorsement, which was 
accepted by CGPC, it still contained false statements, but he cannot disprove them easily because 
the Supervisor did not name any of the allegedly numerous witnesses to the applicant’s alleged 
misbehavior.    In  addition,  the  Supervisor  persisted  in  characterizing  the  incident  at  issue  as  a 
“meeting” and falsely indicated that the applicant was informed of the time in advance. 
 
 
In support of these allegations, the applicant submitted copies of emails indicating that 
the  Supervisor  denied  having  received  the  applicant’s  first  OER  Reply.    He  also  submitted  a 
delivery  confirmation  from  the  U.S.  Post  Office  showing  that  his  Express  Mail  package  was 
delivered on October 25, 2006, to the Sector office and signed for by a yeoman and an email 
from the yeoman dated January 8, 2006, saying that she believes she gave the Express Mail pack-
age to the Supervisor. 
 
 
The applicant also submitted a copy of the Supervisor’s first draft of his endorsement, 
which was rejected by CGPC.  The Supervisor stated that the Personnel Manual requires an offi-
cer to submit his OER input 21 days before the end of the evaluation period, but the applicant did 
not contact him about the OER input until 9 days before the end of the evaluation period.  He 
stated that he does not remember receiving any request for guidance from the applicant about his 
OER input.  The notes that the applicant sent him when he first requested bulleted information 
were  “inadequate  to  judge  his  performance”  and  some  concerned  work  the  applicant  had  per-
formed during a prior evaluation period.  When the Supervisor asked for improved input within 
24 hours, and the applicant objected to the deadline in an open email, the Reviewer “found it 
unprofessional and inappropriate of the [applicant] to deal with this issue in an open email com-
munication.”  The Supervisor also stated that the applicant’s submission of the bullets eight days 
later was “well past the time required” by the Reviewer’s extension.   
 

Regarding the events of October 31, 2005, the Supervisor wrote in his first draft of the 
endorsement,  that  it  was  a  “meeting  scheduled  with  the  Sector  Commander”  that  was  first 
expected to occur mid morning but was delayed because of the Sector Commander’s schedule.  
Prior to the ceremony, he asked his Assistant Chief to find the applicant, who could not be found.  
He then asked LTJG H and a senior chief to find him, and the applicant was found “conversing 
with his shipmates” and told that he was needed in the conference room.  “The person who found 
[the applicant] reported back to me that he continued conversing despite this.”  When the CO 
first arrived, the applicant  

The applicant came walking down the passageway approximately one minute later.  I intercepted 
him prior to entering the Commander’s front office and told him that it was inappropriate to make 
the  Sector  Commander  wait,  as  well  as  be  late  for  a  meeting  and  his  own  award  ceremony.  … 
When I entered the conference room [after informing the Sector Commander that the applicant had 
arrived, the applicant] was voicing his dissatisfaction to [an unnamed LCDR] about how he felt 
that he was being singled out for being late.  He was speaking in a loud enough voice that I and 
many others overheard his conversation.  The Senior Chief was just about to remove his junior per-
sonnel from the Conference Room because of the inappropriateness of the conversation.  I told [the 
applicant] to stop.  He ignored me and continued his conversation with the O4, who looked at me.  
I  then  walked  directly  in  front  of  [the  applicant]  and  told  him  to  stop  again.    [The  applicant] 
replied, “I don’t know what this is about.  I am being unfairly singled out.”  I replied that his com-
ments were inappropriate and that we would finish this conversation in my office after the cere-
mony. … 
 
Throughout  the  writing  of  his  OER  and  during  this  Reply  process,  [the  applicant]  has  shown  a 
blatant disregard for the chain of command.  He was counseled several times by the Sector Deputy 
on his chain of command and how to use it.  The Deputy counseled him twice to use the Personnel 
Manual  process.    He  contacted  several  personnel,  including  a  Senior  Chief  Petty  Officer  and  a 
junior  officer  to  try  to  get  them  to  write statements regarding this process.  Again, it shows his 
complete disregard for the chain of command and this process. 
 

Allegations About Interference with Witnesses 
 

Finally, the applicant alleged that when he tried to get statements from those present at 
the award ceremony and other potential witnesses, many of them refused, saying that they were 
not allowed to provide statements because they were not on the applicant’s rating chain.  Con-
trarily, Sector Deputy refused to provide a statement on the basis that he was a member of the 
applicant’s rating chain.  The applicant alleged that his attorneys complained about this problem 
to the Office of the Judge Advocate General (JAG) and that an officer was assigned to investi-
gate, but the applicant was never informed of the outcome of the investigation. 
 
 
In support of these allegations, the applicant submitted copies of email messages dated 
September 25 and 26, 2006.  In the first, the applicant informed the Reviewer that he was going 
to file an OER Reply and then contest the OER through the BCMR.  He stated that the negative 
comments in the OER are “not gross exaggerations” but “blatant misrepresentations of facts.”  
He asked the Reviewer if he would submit a written statement on the applicant’s behalf.  The 
Reviewer replied that the applicant should “follow the established process.  I was the Reviewing 
Official  so  I  should  not  comment  at  this  point  in  the  process.”    The  applicant  then  asked  the 
Reviewer in reply whether he would be willing to provide a statement after the OER Reply pro-
cedures  were  complete.    The  Reviewer  replied,  “again, as stated, it is inappropriate for me to 
comment due to my role in the process.” 
 
 
In her statement for the applicant, CDR T stated that she was submitting it several months 
after she had intended to do so because, when she first mentioned it to her own supervisor, he 
“told me in no uncertain terms not to submit the statement or to have any further contact with 
[the applicant or his attorney].  Now that I no longer work for [that supervisor] I feel I can submit 
a statement without repercussions for doing so.” 
 
 
The  applicant  also  submitted  email  correspondence  between  his  attorney  and  CDR  M 
dated November 21, 2006.  In response to a request that he call the attorney, CDR M provided 
his own telephone number and wrote, “As I warned [the applicant], I have very little of substance 

to offer; but I’ll certainly tell you what I can within the proper constraints.”  When the attorney 
replied that she would call him at a certain time, CDR M wrote back that he “ran this by my 
chain of command to ensure I wasn’t going where I shouldn’t & was advised that any communi-
cations regarding [the applicant’s] evaluation or circumstances that led to a particular mark on an 
evaluation  must  go  through  the  BCMR  process.    I’m  afraid  I’m  going  to  have  to  decline  any 
interviews.  Sorry.” 
 
The  applicant  submitted  an  email  from  LCDR  H  to  his  attorney  dated  November  30, 
 
2006, in which LCDR H stated that she had “been advised that since I was not in [the appli-
cant’s] chain of command or OER rating chain that I should not have provided you a statement or 
speak to you.  I was told that I should have referred your call to [CGPC] for any information 
regarding  this  issue  which  is  outlined  in  the  Personnel  Manual  for  BCMR/PRRB  require-
ments/deadlines.  My phone conversations and emails to you have now placed myself in a com-
promising position where I may be officially counseled for my actions.  I ask that my emails to 
you as well as any statements made to you not be used.  I am sorry but I must follow the proto-
cols which have been put in place.” 
 
 
The applicant also submitted an email from a chief yeoman dated November 22, 2006, 
who stated, in response to the attorney’s request that she call her, “I am not in [the applicant’s] 
chain of command.  Please follow the appropriate BCMR process.” 
 
 
On December 11, 2006, the Deputy JAG of the Coast Guard responded to the applicant’s 
attorney that the Coast Guard did not require members to route statements through their com-
mands, legal officers, or CGPC.  “The CG’s position is one of neutrality – we neither encourage 
nor discourage people from submitting statements on behalf of BCMR applicants.  I’m told that 
the CGPC personnel who handle BCMR’s do not discuss cases with the field although they take 
calls from time to time regarding the process.  Anecdotally, I’m told that when advice is sought, 
CGPC  recommends  that  people  be  accurate  about  what  they’re  saying  and  one  way  to  ensure 
accuracy is to coordinate within their command.”   On December 15, 2006, the attorney emailed 
CDR B, offering to provide any information he needed to inquire into their complaint about the 
command’s interference with the applicant’s attempt to get witnesses’ statements.  On January 8, 
2007,  CDR  B  replied  that  he  did  not  want  to  name  names  to  the  command  in  order  to avoid 
“salting the earth” but that if the attorney called him “we can deconflict this and get you appro-
priate access” to the witnesses. 
 

The applicant concluded that the OER should be corrected because he has submitted evi-
dence that directly refutes the derogatory comments and because his Reporting Officer has admit-
ted that he should not have concurred in the Supervisor’s comments and marks.  The Reporting 
Officer’s  statements  show  that  if  he had known in June 2006 what he knows now, “the OER 
would not have been validated as written.”  He argued that the unfair mark of 3 he received in the 
“Evaluations” category “is the ‘kiss of death’ for promotion purposes.” 
 
 
The  applicant  alleged  that  the  Board  should  find  the  Supervisor’s  statements  untrust-
worthy because he falsely depicted the award ceremony as a meeting; “irresponsibly mischarac-
terized  his  own  mismanagement  of  [the  applicant’s]  OER  input”;  and  falsely  denied  having 
received  the  applicant’s  OER  Reply  in  October  2006.    In  addition,  the  Supervisor  wrongly 

attempted to use his endorsement to the OER Reply as an opportunity to make even more false 
allegations about the applicant’s performance. 
 

VIEWS OF THE COAST GUARD 

 
 
On  October  18,  2007,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard  recom-
mended that the Board grant partial relief in this case.  The JAG stated that the Board should cor-
rect the disputed OER as follows: 
 

•  Correct  the  block  2,  the  “Description  of  Duties,”  on  the  disputed  OER  to  include  the 

number of drills attended by the applicant. 

•  Remove  “the  last  four  [sic]  sentences”  in  block  5  of  the  OER:  “ROO  then  bypassed 
Supervisor to complain about that request.  ROO was asked to attend a scheduled meeting 
with the unit Commanding Officer and was reminded of the meeting time.  Member was 
late for the meeting and publicly derided superiors for failing to notify them.” 

•  Revise the sentence “ROO did not provide Supervisor with requested information/clari-
fication for own OER” to read, instead, “ROO failed to submit requested OER input on 
time,” or words to that effect. 

•  Upgrade the mark of 3 for “Evaluations” to a mark of 4. 

•  Remove  the  following  sentence  from  block  7:    “Supervisor’s  comments  in  Section  5 

regarding ROO’s behavior surrounding a meeting reflect an isolated incident.” 

 

 

 

 

 

 

•  Remove the applicant’s OER Reply and the rating chain’s endorsements thereto. 

 
The  JAG  did  not  recommend  backdating  the  applicant’s  date  of  rank  as  a  LCDR  or 
granting  any  further  relief.    To  support  his  recommendation,  the  JAG  submitted  three  signed 
declarations from the applicant’s rating chain (summarized below). 

Declaration of the Supervisor 
 
 
The Supervisor stated that the applicant “let his emotions get the best of him when he 
inappropriately made statements towards [the Supervisor] and was held accountable for the con-
sequences of his actions, as well as failure to submit timely OER input.”  The Supervisor alleged 
that the applicant was upset about not being retained on active duty and about the level of the 
award  he  received  and  that  the  Supervisor  “became  the  primary  focus  of  his  frustrations  and 
negative  feelings  toward  the  Coast  Guard.    Instead  of  demonstrating  mature  communication, 
leadership, and judgment skills, he chose to bypass me multiple times and inappropriately com-
plain [to the Reviewer] about me as a supervisor.”  The Supervisor further stated that 
 

[e]vents  finally  culminated  at  the  presentation  of  his  departure  award  where  he  was  late  to  the 
presentation.  I counseled him on his behavior and he did not like being held accountable for his 
actions.    Subsequently  he  sought  out  peers,  reservists  who  were  not  there,  and  long-time  social 
acquaintances in his reserve chain of command and one disgruntled active duty officer to attempt 

to build a case that he was unfairly singled out.  [The applicant] is a smart officer who let his emo-
tions cloud his judgment.  Thus he did not have the support of the active duty chain of command 
due to the immature way he handled himself during the period. 
 
Throughout this BCMR process, [the applicant] continued to demonstrate his immaturity by defy-
ing the Deputy Sector Commander … .  On more than one occasion, he was counseled about con-
tacting individuals at xxxxxxxxxxxxx, instead of following the BCMR process as per the Personnel 
Manual. … 

 

The Supervisor also stated that he had asked LTJG H to find the applicant and tell him 
about  the  ceremony;  that  he  properly  told  the  applicant  to  stop  when  the  applicant  “verbally 
lash[ed] back” at him prior to the award ceremony; and that a senior chief petty officer “removed 
his junior enlisted personnel from the command conference room because he thought the situa-
tion with [the applicant] was uncomfortable.”  Regarding the applicant’s submissions, the Super-
visor stated that CDR T was motivated to attack his character and performance because she had 
failed of selection for promotion and because he himself received two significant assignments 
that she had wanted to improve her “promotability.”  In addition, he denied that LCDR D’s OER 
was not completed on time.   
 
Declaration of the Reporting Officer 
 
 
The Reporting Officer stated that he regretted having concurred in the OER as the result 
of “an intense and time consuming personal investigation conducted after I received post-OER 
information  from  first-hand  sources  that  the  Supervisor’s  OER  marks  and  negative  comments 
were not justified.”  The Reporting Officer also stated that after reviewing the applicant’s per-
formance record, he believes that the negative marks and comments in the disputed OER caused 
the applicant to fail of selection in 2006. 
 
Declaration of the Reviewer 
 
 
The Reviewer stated that the mark of 3 for “Evaluations” could be justified based on the 
applicant’s late submission of OER input alone.  He noted that the applicant’s inquiry about OER 
input on May 22, 2006, was made after the deadline for OER input.  He stated that since the 
applicant was being considered for promotion that summer, he should have submitted very thor-
ough supporting information for his OER input prior to the deadline provided in the Personnel 
Manual in addition to the draft OER.  The Reviewer strongly denied that the Supervisor had any 
sort of “track record” for pushing his work onto others or for being dishonest. 
 
 
The Reviewer denied having exercised improper influence to deter members from signing 
statements for the applicant.  He stated that when he heard that the applicant and his attorney 
were contacting other members of the command, he stressed “that they need to understand their 
role  in  the  process  and  exactly  what  they  were  providing  information  for,  and  not  to  confuse 
content  issues  (especially  commenting  on  his  OER)  to  ensure  ‘administrative  process  disci-
pline.’”  He alleged that he never told anyone that they could not make a statement for the appli-
cant and is unaware of anyone else in the command having done so.  He stated that he felt it was 
very important to remain neutral due to his position of authority and that he is “extremely glad 
that [the applicant] has pursued this BCMR action, as I recommended.” 
 

 
Based  on  these  declarations,  the  OER  Reply  and  endorsements  thereto,  and  the  appli-
cant’s other submissions, the JAG stated that there was clearly significant tension between the 
applicant and the Supervisor.  The JAG stated that the record shows that the Supervisor initially 
assigned  the  applicant  a  mark  of  4  for  “Evaluations”  but  lowered  the  mark  to  a  3  after  the 
Reporting Officer returned the OER to the Supervisor and pointed out the “Section error” (the 
Supervisor had completed the Reporting Officer’s section of the OER by filling in low marks of 
3 in three categories).  Therefore, although the mark of 3 could be justified on the basis of the 
applicant’s late submission of his OER input, the JAG recommended that the mark of 3 be raised 
to a 4 based on the preponderance of the evidence in the record.  The JAG argued, however, that 
the applicant has not proved that the mark of 4 for “Workplace Climate” is erroneous or unjust. 
 
 
The JAG further argued that, whereas the first disputed sentence in block 5 of the OER 
states  that  “ROO  did  not  provide  Supervisor  with  requested  information/clarification  for  own 
OER,” the record shows that the applicant did in fact submit the requested information to the 
Supervisor,  albeit  late.    Therefore,  the  JAG  recommended  that  the  Board  correct  the  disputed 
sentence to state simply that the applicant’s OER input was submitted late. 
 
 
The JAG attached to his advisory opinion a memorandum on the case prepared by CGPC.  
CGPC stated that block 2 of the disputed OER should be corrected to reflect the applicant’s par-
ticipation during the evaluation period since he is a reservist. 
 
 
CGPC  stated  that  the  last  three  sentences  in  block  5  of  the  OER  should  be  removed 
because they “do not coincide with any Leadership Skills factors and are not sufficiently sup-
ported by statements provided.”  CGPC stated that the Reporting Officer’s comment in block 7 
about the Supervisor’s comments being based on a single incident should be removed because 
the last three sentences of block 5 are being removed. 
 
 
 
CGPC objected to the applicant’s request that a new OER be prepared by an alternative 
rating chain because it would be contrary to Coast Guard policy.  CGPC argued that the desig-
nated members of the rating chain were in the best position to observe and evaluate the appli-
cant’s performance.  CGPC also did not recommend upgrading either the mark of 3 for “Evalua-
tions” or the mark of 4 for “Workplace Climate.”10  Regarding the applicant’s request to back-
date his promotion, CGPC stated that “there is insufficient evidence to support that the applicant 
was unduly disadvantaged by the PY07 LCDR selection board.  As the criteria and deliberations 
of promotion board are not disclosed, … it cannot be determined how or if the marks and com-
ments  in  the  disputed  OER  made  a  difference  in  the  [selection]  board’s  final  determination.  
However, the applicant was selected by the PY08 LCDR selection board … with the same OER 
intact in his record, which supports that the applicant’s disputed OER may not have been a factor 
contributing to his original non selection.” 
 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

 
 
On November 5, 2007, the Chair received the applicant’s response to the views of the 
Coast Guard.  The applicant stated that “because the Coast Guard has conceded significant relief, 
                                                 
10  The  JAG  did  not  agree  with  or  adopt  the  part  of  CGPC’s  memorandum  that  dealt  with  the  mark  of  3  for 
“Evaluations” in the disputed OER. 

the Board need not resolve every factual dispute (although we do think it should direct that the 
mark in block 5e (Workplace Climate) also be increased to a 5 based on the evidence present-
ed).”  However, the applicant objects to CGPC’s recommendation against backdating his date of 
rank.  The applicant argued that under Engels v. United States, 678 F.2d 173 (Ct. Cl. 1982), and 
Frizelle v. Slater, 111 F.3d 172 (D.C. Cir. 1997), the law entitles him to the backdating of his 
date  of  rank because his record was clearly prejudiced by the errors in the disputed OER and 
because the Coast Guard has not shown that the applicant would not have been promoted in any 
event.  The applicant argued that the Coast Guard has pointed to nothing in his record that would 
have precluded his selection for promotion by the PY07 LCDR selection board.   
 

APPLICABLE REGULATIONS 

 

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 command.” 
 
 
Article 10.A.3.a.1. provides that Reserve lieutenants on the IDPL will receive OERs on 
the last day of May biennially (every other year), except that if they are in or above a promotion 
zone, they must receive an OER on the last day of May unless they have received an OER within 
the previous six months. 
 

Under Articles 10.A.4.c.2. and 10.A.4.c.1.c., block 2 of each OER, which contains the 
“Description  of  Duties,”  should  also  contain  the  following  information  for  a  Reserve  officer: 
“IDT Drills Scheduled/Attended: XX/XX; ADT: XX Days; ADSW: XX Days. Enter number of 
drills  and  days  even  if  zero.  The  drills/days  should  reflect  the  number  completed  within  the 
period of report, NOT the number completed during the anniversary year.” 

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

his own performance and performance evaluations: 

 
d. Prepares OER Section 1, Administrative Data, and Section 13, Return Address (found on page 4 
of the OER form), and forwards the OER with proposed OER attachments to the Supervisor not 
later than 21 days before the end of the reporting period. 
e. May submit to the Supervisor not later than 21 days before the end of the reporting period a 
listing  of  significant  achievements  or  aspects  of  performance  which  occurred  during  the  period. 
Submission is at the discretion of the Reported-on Officer, unless directed by the Supervisor. … 
j.  Reviews  COMDTINST  1401.4  (series),  COMDTINST  1401.5  (series)  and  COMDTINST 
M1500.10 (series) and manages performance to ensure that OERs are not delayed when eligible 
for promotion or applying for advanced training. 
k. Assumes ultimate responsibility for managing own performance, notwithstanding the responsi-
bilities  assigned  to  others  in  the  rating  chain.    This  includes  ensuring  performance  feedback  is 
thorough, and that OERs and associated documentation are timely and accurate. 
 
Article  10.A.4.c.4.  provides  the  following  instructions  for  Supervisors  completing  the 
first 13 numerical marks on an OER form (similar instructions are provided for Reporting Offi-
cers, who are responsible for the last 5 numerical marks, 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. 

 
The written standards for numerical marks in the categories “Evaluations” and “Work-

place Climate” on an OER form appear as follows: 
 
Workplace Climate 
Ability to value 
individual 
differences and 
promote an 
environment of 
involvement, 
innovation, open 
communication, 
and respect. 

Intolerant of individual 
differences, exhibited 
discriminatory tendencies 
toward others.  Tolerated or 
contributed to an 
uncomfortable or degrading 
environment.  Failed to take 
responsibility for own words 
and actions and their impact 
on others.  Failed to support 
or enforce Coast Guard 
human resources policies. 

1 
 
 
 
 
 

3 
 
 
 
 
 
○ 

○ 

○ 

 

Sensitive to individual 
differences.  Encouraged 
open communication and 
respect.  Promoted an 
environment which values 
fairness, dignity, creativity, 
and diverse perspectives.  
Took responsibility for own 
words and actions and their 
impact on others.  Fully 
supported and enforced 
Coast Guard human 
resources policies. 

● 

5 
 
 
 
 
 
○ 

Excelled at creating an 
environment of fairness, 
candor, and respect among 
individuals of diverse 
backgrounds and positions.  
Optimized use of different 
perspectives and opinions.  
Quickly took action against 
behavior inconsistent with 
Coast Guard human 
resources policies, or which 
detracted from mission 
accomplishment. 
○ 

7 
 
 
 
 
 
○ 

Evaluations 
The extent to which 
an officer, as 
Reported-on Officer 
and rater, 
conducted or 
required others to 
conduct accurate, 
timely evaluations 
for enlisted, civilian 
and officer 
personnel. 

1 
 
 
 
 
 
○ 

Reports were frequently 
late.  Narratives inaccurate 
or of poor quality.  Failed to 
uphold service performance 
standards by assigning 
accurate marks.  Reports 
required revision or 
intervention by others.  
Failed to meet own OES 
responsibilities as Reported-
on Officer. 

○ 

3 
 
 
 
 
 
● 

Reports consistently sub-
mitted on time.  Narratives 
were fair, concise, and 
contained specific 
observations of action and 
impact.  Assigned marks 
against standards.  Few 
reports, if any, returned for 
revision.  Met own OES 
responsibilities as Reported-
on Officer. 

○ 

5 
 
 
 
 
 
○ 

No reports submitted late.  
Narratives were insightful, of 
the highest quality, and 
always supported assigned 
marks.  Subordinates’ 
material reflected same high 
standards.  No reports 
returned for revision.  
Returned reports to 
subordinates when 
appropriate. 

○ 

7 
 
 
 
 
 
○ 

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: 
 

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

 
 

1. 

2. 

The application was timely. 
 

3. 

The  applicant  requested  an  oral  hearing  before  the  Board.    The  Chair,  acting 
pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case with-
out a hearing.  The Board concurs in that recommendation. 
 
 
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.”11  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.12  Absent evidence to the contrary, the Board 
presumes that the applicant’s rating chain prepared the disputed OER “correctly, lawfully, and in 
good faith.”13 
 
 
The applicant alleged that block 2 of his OER for the period June 1, 2005, through 
May 31, 2006, fails to conform to Articles 10.A.4.c.2. and 10.A.4.c.1.c. of the Personnel Manual 
by providing information about his drill time and active duty time.  No such information appears 
in block 2 of the disputed OER, and the Coast Guard has conceded that it should under the regu-
lations.  Therefore, the OER should be corrected to include the required information about the 
applicant’s drill time and active duty time during the evaluation period. 
 
The applicant alleged that the mark of 3 he received for “Evaluations” on the dis-
 
puted OER and the following supporting comments for the low mark are erroneous and unjust:  
                                                 
11 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. 
12 33 C.F.R. § 52.24(b). 
13 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

  
5. 

4. 

6. 

“ROO did not provide Supervisor with requested information/clarification for own OER.  ROO 
then  bypassed  Supervisor  to  complain  about  that  request.”    He  alleged  that  he  did  supply  the 
OER input, albeit after the deadline provided in the Personnel Manual, and that his decision to 
send his emails about his OER input to all the members of his rating chain cannot be considered 
a “complain[t] about that request.”  The Coast Guard has conceded that the latter of the two sen-
tences is erroneous or misleading and recommends that the Board remove it.  The Board agrees 
that the sentence is misleading given the apparent initial confusion about what kind of OER input 
the Supervisor wanted from the applicant; the tone and content of the Supervisor’s email dated 
June 12, 2006; and the tone and content of the applicant’s own emails regarding his OER input. 
 
 
Since the applicant has admitted that his initial OER submission was made after 
the deadline provided by Article 10.A.2.c.2. of the Personnel Manual, the Coast Guard recom-
mended  that  the  comment “ROO did not provide Supervisor with requested information/clari-
fication for own OER” be removed and substituted with a comment saying, “ROO failed to sub-
mit requested OER input on time,” or words to that effect.  The applicant asked that the sentence 
be removed from the OER.  Under Article 10.A.2.c.2.d., the applicant was required to initiate the 
evaluation by submitting an OER form with block 1, “Administrative Data,” completed to his 
Supervisor no less than 21 days before the end of the reporting period, May 31, 2006.  He clearly 
failed to do so.  Under Article 10.A.2.c.2.e., an officer “may submit to the Supervisor not later 
than  21  days  before  the  end  of  the  reporting  period  a  listing  of  significant  achievements  or 
aspects of performance.”  (Emphasis added.)  The record does not show that the applicant was 
asked to submit such a listing prior to the 21-day deadline, but it is standard practice for officers 
to  do  so.    The  record  indicates  that  the  Supervisor  first  asked  the  applicant  for  bulleted  OER 
input in an email dated June 7, 2006.  Then on June 12, 2006, the Supervisor asked for bulleted 
OER input within 24 hours and noted that it was his second request for the input.  When the 
applicant explained why he could not meet a 24-hour deadline, the Reviewer granted the appli-
cant a “reasonable” amount of time given his civilian work and family’s circumstances, and the 
applicant submitted the bulleted information on June 20, 2006.  Therefore, the preponderance of 
the evidence does not show that the applicant failed to submit any requested OER input on time, 
and under Article 10.A.2.c.2.e., the bulleted input was optional until his rating chain requested it.  
Because the applicant failed to meet the deadline under Article 10.A.2.c.2.d., rather than Article 
10.A.2.c.2.e, the Board finds that the comment “ROO did not provide Supervisor with requested 
information/clarification for own OER” should be corrected to say “ROO failed to initiate own 
OER on time.” 
 
 
The Supervisor and Reviewer argued that the mark of 3 for “Evaluations” can be 
justified based upon the lateness of the applicant’s OER input alone.  The JAG, however, has 
recommended  that  the  Board  upgrade  the  mark  of  3  to  a  4  based  on  the  evidence  of  tension 
between the applicant and the Supervisor and based on the Reporting Officer’s statement that the 
Supervisor lowered the mark from a 4 to a 3 after the Reporting Officer discussed a “Section 
error” with the Supervisor and asked him to reconsider the negative marks and comments in his 
first draft of the OER.  In his statement on behalf of the applicant, the Reporting Officer wrote 
that in that first draft, the Supervisor assigned the applicant a mark of 4 for “Evaluations” but 
marks of 3 for “Judgment,” “Responsibility,” and Professional Presence,” which three categories 
are supposed to be completed by the Reporting Officer, not the Supervisor.  The Reporting Offi-
cer  indicated  that  after  he  told  the  Supervisor  that  he  disagreed  with  those  low  marks  in  the 
Reporting Officer’s section of the OER, the Supervisor lowered the mark for “Evaluations” in his 

7. 

8. 

9. 

own section from 4 to 3.  In light of this allegation and findings 5 and 6, above, the Board finds 
that the mark for “Evaluations” in the disputed OER should be raised from 3 to 4. 
 
 
The applicant alleged that the following comments should be removed from block 
5 of the disputed OER because they are erroneous and misleading:  “ROO was asked to attend a 
scheduled meeting with the unit Commanding Officer and was reminded of the meeting time.  
Member was late for the meeting and publicly derided superiors for failing to notify them.”  He 
alleged that the “meeting” was actually an award ceremony for himself; that saying it was “sche-
duled,” that he was reminded of it, and that he was late is erroneous and misleading since he was 
not notified of the ceremony until someone who got an email about it happened to mention it to 
him a few minutes before the ceremony.  He also alleged that he never “publicly derided superi-
ors for failing to notify them [him].”  The JAG has recommended that these two sentences be 
removed from the OER based upon CGPC’s finding that they “do not coincide with any Leader-
ship Skills factors and are not sufficiently supported by statements provided.”   
 
 
The Supervisor’s several statements in the record indicate that the two sentences 
about the applicant being late for a meeting and deriding superior officers are based upon the 
applicant’s behavior prior to the award ceremony on October 31, 2005.  The Supervisor persists 
in  calling  the  ceremony  a  scheduled  meeting.    An  award  ceremony  can  certainly  be  called  a 
“meeting”  in  that  word’s  broadest  possible  sense,  but  the  Board  finds  that  the  applicant  has 
proved by a preponderance of the evidence that the Supervisor’s comments calling it a scheduled 
meeting and claiming that the applicant arrived late despite a reminder are misleading and erro-
neous.  The applicant submitted many statements from other officers indicating that, while he 
knew he had been authorized an Achievement Award, he had been told it would be presented at 
the morning brief (though it was not) and was visibly surprised to learn just a few minutes before 
1:30 p.m. on October 31, 2005, that a ceremony was about to begin in the conference room to 
present him with the award.  The witnesses also indicate that the applicant left the floor above to 
go downstairs to the conference room for the ceremony as soon as he learned of it and arrived in 
the conference quickly, entering in the midst of a stream of attendees.  The CO has no recollec-
tion or record of the applicant being late to the ceremony. 
 
 
To disprove his Supervisor’s allegation that he “publicly derided” superior offi-
cers  for  failing  to  notify  him  of  the  meeting,  the  applicant  submitted  several  statements  from 
officers  who  were  in  the  conference room and who observed his entrance and  behavior there.  
The witnesses’ statements show that the Supervisor approached the applicant when he entered 
the conference room and held a tense conversation with him.  Their conversation ended with the 
Supervisor raising his voice and repeatedly saying “Stop it” or “Drop it” as he walked away from 
the applicant and the applicant repeatedly responding that he did not understand what the Super-
visor wanted him to stop or drop.  The Supervisor alleged that he confronted the applicant only 
because, after the applicant entered the conference room, he began loudly complaining about not 
having been notified of the ceremony and about having been “singled out” for being late.14  The 
Supervisor  further  alleged  that  the  applicant’s  behavior  was  so  poor  that  one  unnamed  senior 
chief  petty  officer  either  considered  removing  his  subordinates  from  the  room  or  actually  did 

10. 

                                                 
14 As the Supervisor was apparently the only one who criticized the applicant for being late to the ceremony, it is not 
clear why the applicant would have been complaining about being “singled out” before the Supervisor approached 
him. 

so.15  However, none of several witnesses who were in the conference room at the time support 
the Supervisor’s characterization of the applicant’s behavior as publicly derisive.  None of them 
report hearing any loud complaints about not being notified or any other disturbance created by 
the applicant.  The CO has no memory or record of the applicant being late or of any problem 
regarding the ceremony.  Therefore, while the applicant’s time of arrival and discussion with the 
Supervisor  clearly  aggravated  the  Supervisor  for  reasons  unapparent  in  the  record,  the  Board 
agrees with the JAG that the last two sentences in block 5 should be removed from the OER as 
misstatements of fact. 

The applicant asked the Board to raise his mark for “Workplace Climate” from a 4 
to a 5.  Article 10.A.4.c.4.g. of the Personnel Manual states that “[a] mark of four represents the 
expected  standard  of  performance.  Additional  specific  performance  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.”  Article 10.A.4.c.4.d. states that “[i]n the ‘comments’ block follow-
ing  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 
negative  comments  that  the  Board  is  removing  from  the  OER  pursuant  to  finding  10,  above, 
could have been used by the Supervisor to justify a low mark of 3 for “Workplace Climate” since 
they suggest that the applicant did not meet the written standard for a mark of 4:  “Sensitive to 
individual differences.  Encouraged open communication and respect.  Promoted an environment 
which values fairness, dignity, creativity, and diverse perspectives.  Took responsibility for own 
words and actions and their impact on others.  Fully supported and enforced Coast Guard human 
resources  policies.”    However,  the  removal  of  the  negative  comments  does  not  persuade  the 
Board that the applicant earned or is entitled to a higher mark for “Workplace Climate.”  To earn 
a mark of 5 in this category, a Supervisor must be persuaded that a reported-on officer’s perform-
ance fully met the written standard for a mark of 4 and also met some of the requirements for a 
mark of 6:  “Excelled at creating an environment of fairness, candor, and respect among indi-
viduals of diverse backgrounds and positions.  Optimized use of different perspectives and opin-
ions.  Quickly took action against behavior inconsistent with Coast Guard human resources poli-
cies, or which detracted from mission accomplishment.”  The Board cannot find, based on the 
evidence  of  record  regarding  the  applicant’s  interactions  with  his  Supervisor  and  the  written 
standards  on  the  OER  form,  that  the  applicant  has  proved  that  the  mark  of  4  he  received  for 
“Workplace Climate” is erroneous or unjust. 

In  light  of  the  findings  above,  the  Board  agrees  with  the  Coast  Guard  that  the 
Reporting Officer’s comment in block 7 (“Supervisor’s comments in Section 5 regarding ROO’s 
behavior surrounding a meeting reflect an isolated incident”) and the OER Reply, along with the 
rating chain’s endorsements thereto, should be removed from the disputed OER as they are based 
on and refer to negative comments that are being removed from the OER. 

 
11. 

 
12. 

 
13. 

The  applicant  asked  the  Board  to  backdate  his  LCDR  date  of  rank  to  what  it 
 
would have been had he been selected for promotion in August 2006 by the PY07 IDPL LCDR 
selection board.  He argued that given the absence of other negative information in his record, he 

                                                 
15  In the Supervisor’s first draft of his endorsement to the OER Reply, he wrote that an unnamed senior chief petty 
officer “was just about to remove his junior personnel” from the room, but in his statement for the advisory opinion, 
the Supervisor wrote that the senior chief petty office did remove them from the room. 

would  have  been  selected  for  promotion  by  that  board  if  the  Supervisor’s  negative  mark  and 
comments had not been in the disputed OER.  CGPC16 argued that it should be denied because 
“there  is  insufficient  evidence  to  support  that  the  applicant  was  unduly  disadvantaged  by  the 
PY07 LCDR selection board. … [I]t cannot be determined how or if the marks and comments in 
the disputed OER made a difference in the [selection] board’s final determination.  However, the 
applicant was selected by the PY08 LCDR selection board … with the same OER intact in his 
record, which supports that the applicant’s disputed OER may not have been a factor contributing 
to his original non selection.” 
 
 
14.  When the PY07 selection board met in August 2006, the disputed OER was the 
most recent in his record and the OER Reply with its endorsements was not yet attached.  The 
fact that the applicant was selected for promotion the following year, after the OER Reply and 
endorsements had been attached and after the applicant had received another excellent OER does 
not persuade the Board that the negative mark and comments in the disputed OER were not criti-
cal to his non-selection for promotion in August 2006.  Moreover, under Engels v. United States, 
678 F.2d 173, 176 (Ct. Cl. 1982), when an officer proves that his record contained an error when 
it  was  reviewed  by  a  selection  board  that  did  not  select  him  for  promotion,  this  Board  must 
answer the following two questions to determine if the applicant is entitled to the removal of his 
failure of selection:  “First, was the [applicant’s] record prejudiced by the errors in the sense that 
the record appears worse than it would in the absence of the errors?  Second, even if there was 
some such prejudice, is it unlikely that [he] would have been [selected for promotion in 2006] in 
any  event?”    Furthermore,  in  considering  the  second  question,  “the  end-burden  of  persuasion 
falls to the Government to show harmlessness—that … there was no substantial nexus or con-
nection” between the prejudicial error and the failure of selection.17 
 
The low mark of 3 and the negative comments that the Board is correcting and/or 
 
removing from the disputed OER clearly prejudiced the applicant’s record before the PY07 IDPL 
LCDR  selection  board  because  they  made  his  record  “appear[]  worse  than  it  would  in  the 
absence of the errors.”18  An accusation of having publicly derided superior officers would be 
very damaging to any officer’s record.19  The fact that the applicant was selected for promotion 
by the PY08 selection board with the disputed OER in his record does not alter this conclusion 
because by that time his explanation of events in the OER Reply and the rating chain’s endorse-
ments had been added to the disputed OER. 
 
 
 16.  Moreover,  the  Board  finds  that  is  it  not  unlikely  that  the  applicant  would  have 
 
been selected for promotion in 2006 had the erroneous mark and comments not been in the dis-
puted OER because there is no negative information in the remainder of his performance record 
that would have precluded his selection for promotion in any event.  The Coast Guard has not 

15. 

                                                 
16 Because the JAG acknowledged but did not comment on this part of the applicant’s request for relief and adopted 
CGPC’s recommendations “in part,” the Board assumes that the JAG agreed with CGPC’s recommendation against 
removing the applicant’s failure of selection and backdating his date of rank. 
17 Quinton v. United States, 64 Fed. Cl. 118, 125 (2005), citing Engels v. United States, 678 F.2d 173, 175 (Ct. Cl. 
1982). 
18 Engels, at 176. 
19 See Frizelle v. Slater, 111 F.3d 172, 179 (D.C. Cir. 1997) (finding that the BCMR’s decision not to remove the 
appellant’s failures of selection for promotion was arbitrary in part because the Board “failed to take into account the 
particularly damaging effect that disparaging written comments have on an evaluation”). 

17. 

carried “the end-burden of persuasion” by proving that, in the absence of the erroneous mark and 
comments, it is unlikely that the applicant would have been selected for promotion in 2006.20  
Therefore, the Board finds that under Engels, the applicant is entitled to the removal of his failure 
of selection in 2006 by the PY07 IDPL LCDR selection board, to the backdating of his date of 
rank to what it would have been had he been selected for promotion by that board, and to corre-
sponding back pay and allowances. 
 
The  Board  notes  that  the  applicant  has  submitted  substantial  evidence  showing 
 
that  his  command  actively  discouraged  other  members  from  communicating with him and his 
attorney about the underlying facts of his application.  It is unclear from the record whether the 
witnesses and command thought that the statements were being sought for his BCMR applica-
tion, for the OER Reply, or for some other purpose.  According to the JAG, the Coast Guard’s 
policy regarding BCMR applications is neutral, so no member should ever be discouraged from 
providing,  or  be  required  to  provide,  a  statement  to  an  applicant  or  attorney  in  support  of  a 
BCMR application.  BCMR applicants should be able to request such statements from individual 
members  without  interference  by  their  commands,  and  every  member—even  a  member  of  an 
applicant’s  rating  chain—should  be  allowed  to  decide,  without  any  threat  or  interference, 
whether he or she will communicate with and provide a written statement to a BCMR applicant 
or  the  applicant’s  attorney.    As  allegations  of  command  interference  have  appeared  in several 
recent applications, the Board strongly recommends that the JAG ensure that all commands are 
periodically reminded of this neutral policy. 
 
 
Accordingly, partial relief should be granted by correcting the disputed OER by 
adding information about his drills and active duty time in block 2 in accordance with Articles 
10.A.4.c.2. and 10.A.4.c.1.c of the Personnel Manual; (b) raising the mark of 3 for “Evaluations” 
to a 4; (c) removing the last four sentences in block 5; (d) adding the following sentence to the 
comments in block 5:  “ROO failed to initiate own OER on time”; (e) removing the following 
sentence  from  block  7:  “Supervisor’s  comments  in  Section  5  regarding  ROO’s  behavior  sur-
rounding a meeting reflect an isolated incident”; and (f) removing the OER Reply along with the 
rating chain’s endorsements thereto.  In addition, relief should be granted by removing his failure 
of selection by the PY07 IDPL LCDR selection board; by backdating his LCDR date of rank to 
what it would have been had he been selected for promotion by that board; and by awarding him 
corresponding back pay and allowances. 

18. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 
 

                                                 
20 Quinton, at 125. 

The  application  of  LCDR  xxxxxxxxxxxxxxxxxxxxxxx,  USCGR,  for  correction  of  his 

military record is granted as follows:   

 
The Coast Guard shall correct his officer evaluation report (OER) for the period June 1, 

2005, through May 31, 2006, by  

 
(a)    adding  to  block  2  of  the  OER,  “Description  of  Duties,”  information  about  his 
participation in drills and active duty time as required by Articles 10.A.4.c.2. and 10.A.4.c.1.c. of 
the Personnel Manual; 

(b)  removing the mark of 3 for the performance dimension “Evaluations” in block 5.f. 

and replacing it with a mark of 4; 

(c)    removing  the  following  last  four  sentences  from  block  5:    “ROO  did  not  provide 
Supervisor  with  requested  information/clarification  for  own  OER.    ROO  then  bypassed 
Supervisor to complain about that request.  ROO was asked to attend a scheduled meeting with 
the unit Commanding Officer and was reminded of the meeting time.  Member was late for the 
meeting and publicly derided superiors for failing to notify them.”; 

(d) adding the following sentence to the comments in block 5:  “ROO failed to initiate 

ORDER 

 

own OER on time.”;  

(e) removing the following sentence from block 7: “Supervisor’s comments in Section 5 

regarding ROO’s behavior surrounding a meeting reflect an isolated incident.”; and  

(f) removing the OER Reply along with the rating chain’s endorsements thereto.   
 
In addition, the Coast Guard shall remove from his record his failure of selection by the 
PY07 IDPL LCDR selection board; backdate his LCDR date of rank to what it would have been 
had  he  been  selected  for  promotion  by  that  board;  and  pay  him  corresponding  back  pay  and 
allowances. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 Charles P. Kielkopf 

 
 Kenneth Walton 

 
 
 Eric J. Young  

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 

 

 

 

 

 

 

 

 

 
 

 

 

 

 
 

 

 

 

 
 

 
 

 

 
 



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