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.
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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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CG | BCMR | OER and or Failure of Selection | 2011-064
The applicant alleged that the OER was prepared extremely late; that his first Supervisor during the evaluation period failed to provide a draft OER to his new Supervisor, who completed the OER; that the marks he received were caused by a poor command climate created by the commanding officer (CO) of the Sector; that the OER fails to show that he received a Commen- dation Medal; that the marks and comments in the disputed OER are inconsistent and inaccurate; and that the OER unjustly caused...
CG | BCMR | OER and or Failure of Selection | 2010-038
The applicant argued that under Article 10.A.2.g.b of the Personnel Manual the reporting officers were disqualified from his rating chain because they could not objectively and fairly evaluate him.1 First Disputed OER The applicant alleged that the reporting officer for the first disputed OER was biased, prejudiced, and hostile towards him, which led the reporting officer to write unfair and damaging comments in the OER. * * * [The applicant] states . The Coast Guard found, and the Board...
CG | BCMR | OER and or Failure of Selection | 2004-179
The applicant alleged that in March 2003, she received an email from the Coast Guard Personnel Command stating that an OER was due for her for the period ending May 31, 2003. Moreover, she alleged, during those four months, LCDR X, who assumed LCDR K’s billet on July 1, 2003, acted as her supervisor on several occasions instead of CDR S. The applicant further argued that if the alteration of her rating chain was legiti- mate due to LCDR K’s alleged unavailability, then the end date of her...
CG | BCMR | OER and or Failure of Selection | 2005-075
that the Supervisor was responsible for assigning, as well as the recommended marks and comments that [the Supervisor] provided for the Reporting Officer sections . [The Supervisor] further states that he felt at the time that the marks assigned by the [Reporting Officer] were low based on his own observations, and although he felt [the Reporting Officer] actions were overly harsh, as his direct Supervisor and [the Applicant's] Reporting Officer he had every right to change the marks. [The...
CG | BCMR | OER and or Failure of Selection | 2006-036
The applicant alleged that the prior Chief of Staff, her properly designated RO, left the command on December 1, 2000, without pre- paring an OER, which she alleged was required by regulation.1 She argued that if he had done so, the disputed OER would probably not have been prepared.2 The applicant further alleged that she was unaware during the evaluation period that CAPT X would serve as her RO. of the Personnel Manual, which states that “[i]f the Reporting Officer changes and a complete...