DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-161 
 
XXXXXXXXXXXXX 
XXXXXXXXXXXXX 
   

 

 
 

FINAL DECISION 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section 425 of title 14 of the United States Code.  The Chair docketed the case on July 27, 2007, 
upon  receipt  of  the  applicant’s  completed  application  and  military  records,  and  subsequently 
prepared the final decision for the Board as required by 33 C.F.R. § 52.61(c).          
 
 
who were designated to serve as the Board in this case. 
 

This final decision, dated March 27, 2008, is signed by the three duly appointed members 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  by  removing  an  Officer 
Evaluation Report (OER) for the period August 1, 2001, to June 1, 2002 (disputed OER) and by 
replacing  it  with  the  draft  OER  he  submitted  as  an  enclosure  to  his  application.    He  further 
requested that if the disputed OER was “the determining factor for [his] non-selection to [LCDR] 
in PY (promotion year) [2007], then [he] requested immediate reconsideration for [LCDR], any 
[back pay], and correction to time in rank.” 
 

APPLICANT’S ALLEGATIONS 

 
The applicant alleged that the OER for the period under review was written on the wrong 
 
OER form for evaluating lieutenants (LTs), which he was at the time.  He stated that although he 
was and is a LT, the disputed OER is written on the form for evaluating warrant officers (W2s 
and lieutenants junior grade (O2s).  He argued that as a consequence of this error, his mark of 5 
in section 91 on the disputed OER is rendered less significant than a mark of 5 would be on the 
correct form. He also complained about the amount of white space left unused in the comment 
sections of the disputed OER. 
                                                 
1   Section 9 of an OER is the comparison scale where a reporting officer rates officers in grade W2-O5 with others 
of  the  same  grade  that  the  reporting  officer  has  known  through  out  his  career.    The  section  9  blocks  and 
corresponding description is somewhat different on the forms for W2s-O2s than the form for O3s-O5s.   

 
The applicant provided the draft OER that he submitted to the rating chain in 2002 and 
asked the Board to direct that it replace the disputed OER.  This draft OER was never signed or 
adopted by the rating chain.  Apparently, the applicant has encountered some difficulty in getting 
an acceptable OER for the period under review placed into his record.  The first OER that was 
prepared by the rating chain and presented to the applicant had significant spelling errors.  The 
rating  chain  corrected  the  spelling  errors  but  in  doing  so,  placed  the  applicant’s  evaluated 
performance on the wrong OER form which is the subject of this BCMR application.   
 
 
The  applicant  stated  that  he  discovered  the  error  on  March  1,  2003,  and  attempted  to 
correct it as late as March/April 2005.  He stated that he did not become aware that he could 
request correction through the BCMR until February 2007. 
 
Applicant’s LT OERs 
 
The disputed OER is the applicant’s first after his promotion to LT.  The marks on this 
 
OER are two 4s, eleven 5s, and five 6s.  The applicant was given a mark in the fifth of seven 
blocks on the comparison scale in section 9 as “one of the many competent professionals who 
form the majority of this grade.”     
 
 
The  OER  for  the  period  June  1,  2002  to  May  31,  2004  evaluates  the  applicant’s 
performance as a command center duty officer for the Ninth Coast Guard District.  The marks 
are four 4s, twelve 5s, and two 6s.  In section 9, the applicant was rated as a “good performer; 
give tough, challenging leadership assignments,” which is a mark in the fourth block of 7.   
 
 
The  OER  for  the  period  June  1,  2004,  to  May  31,  2005,  evaluated  the  applicant’s 
performance as a command center duty officer for the Ninth Coast Guard District.  His marks are 
three 4s, twelve 5s, and three 6s.  In section 9, the applicant was rated in the fourth block as a 
“good performer; give tough, challenging leadership assignments.”  
 
 
The OER for the period June 1, 2005, to May 31, 2006, lists the applicant’s major duty 
was as command center duty officer and SAR controller.  His marks are three 4s, ten 5s, and five 
6s.  His comparison scale mark in section 9 was in the fourth block, which describes a “good 
performer; give tough, challenging leadership assignments.”   
 
 
The OER for the period June 1, 2006, to May 31, 2007, lists the applicant’s major duty 
was as command center duty officer and SAR controller.  His marks are four 4s, ten 5s, and four 
6s.  His comparison scale mark in section 9 was in the fourth block, which describes a “good 
performer; give tough, challenging leadership assignments.”      
 
Difference between Incorrect and Correct OER Forms  
 
 
The only significant difference between the W2 OER form and the LT OER form is the 
variation  in  the  wording  for  the  comparison  scale  in  section  9.    The  incorrect  form  states  in 
section 9 that it is for W2s –O2s and it lists the following rating categories:  unsatisfactory (block 
1), a qualified officer (block 2), one of the many  professionals who form the majority of this 

VIEWS OF THE COAST GUARD 

 

grade (covers blocks 3, 4, and 5), an exceptional officer (block 6), and a distinguished officer 
(block 7).  On this form, the applicant, a LT, received a mark in block 5.  
 
 
The correct OER form states in section 9 that it is to be used for grades LT- CDR.  It lists 
the  following  rating  categories:    Performance  unsatisfactory  for  grade  or  billet  (block  1), 
marginal performer (block 2), fair performer; recommended for increase responsibility (block 3), 
excellent  performer;  give  tough,  challenging  assignments  (block  4);  excellent  performer;  give 
toughest,  most  challenging  leadership  assignments  (block  5),  strongly  recommended  for 
accelerated promotion (block 6), and best officer of this grade (block 7).  If the correct form had 
been used for the disputed OER, the applicant’s mark of 5 in block 9 would have identified him 
as  an  excellent  performer  who  should  be  given  the  toughest  and  most  challenging  leadership 
positions.    

 
 
On December 18, 2007, the Judge Advocate General of the Coast Guard submitted an 
advisory opinion recommending that the Board grant the following partial relief to the applicant:  
“[T]hat the current OER form (W2-O2) found in his service record for the period August 1, 2001 
through May 31, 2002 be replaced with the correct OER form (O3-O5), utilizing all information 
and  marks  from  the  current  OER  and  submitted  signatures  by  the  original  rating  chain  using 
original dates.  Upon receipt, this corrected OER should be validated by CGPC-rpm and replace 
the current validated OER in the member’s permanent record.” 
 
 
The JAG admitted that the rating chain used the wrong form in evaluating the applicant’s 
performance for the period under review.  However, the JAG argued that the applicant has not 
carried his burden of proving that the Coast Guard committed legal error when it provided the 
disputed  OER  with  unused  white  space  to  the  PY  2007  selection  board.    In  reaching  this 
conclusion, the Coast Guard applied the analytical framework in Engels v. United States, 678 F. 
2d. 173 (Ct. Cl. 1982), which states that before addressing a failure of selection, “an applicant 
must  first  show  that  the  service  committed  a  legal  error.”    After  which,  the  next  question  is 
whether the error is causally linked with the passover, i.e. whether it is harmless or prejudicial.  
According to Engels, if the applicant meets his burden of proving a causal connection between 
the alleged error and the failure of selection for promotion, the “end-burden of persuasion falls to 
the government to show harmlessness – despite the applicant’s prima facie case, there was no 
substantial nexus or connection.” Id.    
 
The  JAG  stated  that  with  respect  to  the  first  step  under  Engels,  the  mere  fact  that  an 
 
officer submits OER input to the rating chain, or even turns in a completed draft OER, does not 
compel the rating chain to submit, use, or even agree with that input.    Moreover, the JAG stated 
that there is no requirement to fill all white space in the comment blocks of an OER.  The JAG 
admitted that the applicant has proved that the incorrect OER form was used, but he failed to 
prove  that  the  error  resulted  in  his  failure  of  selection.    Therefore,  the  JAG  argued  that  the 
applicant has not met his burden of proving legal error.  In this regard, the JAG argued that under 
Engels, there is a distinction between form and substance and that according to the applicant’s 
own admission, the form is at issue  here  and not the marks  and comments.  Although on the 
incorrect form, the applicant’s evaluated performance for the period under review was available 

to the selection board and therefore the applicant had a substantially complete and fair record 
before the PY 2007 LCDR selection board. 
 
The  JAG  argued  with  respect  to  step  two  under  Engels,  the  applicant  has  not  made  a 
 
prima  facie  case  establishing  a  substantial  connection  between  the  wrong  OER  form  and  his 
failure  to  selection  before  the  PY  2007  selection  board,  even  if  legal  error  were  proven  with 
respect to the first step.  The JAG stated that in determining whether a nexus exists between the 
alleged error and the failure of selection, Engels applies a two part test:  “First, was [the appli-
cant’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 [the 
applicant] would have been promoted in any event?”  Id. at 176.   The JAG stated that the wrong 
OER form made the applicant’s record appear worse before the selection board.  However, the 
JAG stated that the applicant had failed to prove that the error contributed substantially to his 
failure of selection.  In this regard, the JAG argued that the applicant was selected by the 2007 
selection board with the disputed OER in his record.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On December 21, 2007, a copy of the views of the Coast Guard was sent to the applicant 

 
 
for a reply.  The Board did not receive a response from the applicant.    
 

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant's 

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

1.  The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

of the United States Code.  The application was timely. 

 
2.  The JAG admitted, and the Board finds that the applicant’s rating chain prepared and 
submitted the evaluation of his performance for  the disputed period on the wrong OER form.  
The rating chain used the form for W2s-O2s, when it should have used the OER form for O3s-
O5s.  There is evidence in the record that the applicant received a 5 in block 9 on the first OER 
prepared for this period that he returned to the rating chain for correction of typographical errors.  
However in the process of correcting these typographical errors, the rating chain used the wrong 
form.  Therefore, the Board agrees with the Coast Guard that the applicant’s record should be 
corrected  to  replace  the  disputed  OER  with  one  prepared  on  the  correct  OER  form  with  no 
modifications  to  the  marks  and  comments.    The  Board  will  not  direct  the  disputed  OER  be 
replaced by the draft OER prepared and submitted by the applicant, since it was never signed or 
adopted by the rating chain as their evaluation of the applicant’s performance.   

 
3.  The applicant asked for an adjustment of his date of rank and back pay and allowances 
if the error was the causative factor in failure of selection.  The Board notes that the applicant 
failed to make any arguments or present any evidence to show a connection between the error 
and his failure of selection for promotion.  It is the applicant’s responsibility to prove his case by 
a preponderance of the evidence and a mere request for relief or an allegation is not sufficient 

proof of a connection between the error and his PY 2007 failure of selection for promotion to 
LCDR.    

 
 
4.  Regardless of the applicant’s failure to submit argument and evidence on the issue of 
the connection between the error and his PY 2007 failure of selection, the Board will address it.  
In deciding this issue, the Board applies the standard in Engels v. United States, 678 F.2d 173, 
175-76  (Ct. Cl.  1982).    In  Engels,  the  Court  of  Claims  held  that,  if  the  Board  finds  that  an 
officer’s record contained an error when it was reviewed by a selection board, the Board should 
decide whether the officer’s failure of selection for promotion should be removed by answering 
two questions:  “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 [the applicant] would have been promoted in any event?”  
 
 
5.  With respect to the first prong, the Board agrees with the Coast Guard that the error 
made  the  applicant's  record  appear  somewhat  worse  than  it  would  have  in  the  absence  of  the 
error.  In this regard, the Board notes that section 9 on the disputed OER clearly states that the 
reporting  officer  is  to  rate  and  compare  W2s  through  LTJGs,  when  the  applicant  was  a  LT.  
Therefore, some confusion could have been created in the minds of the members of the selection 
board as to the applicant’s rank.  Also, if he had been rated on the correct form, his record would 
have appeared better because his section 9 rating on that form would have described him as “an 
excellent  performer;  give  toughest,  most  challenging  leadership  assignments,”  rather  than  as 
“one of the many professionals who form the majority of this grade” that was on the incorrect 
form.  The former is a stronger endorsement of the applicant’s abilities than the latter.      
 
6.  With respect to the second prong of the Engels test, the Board finds that even with the 
 
minimal prejudice described above, it is unlikely that the applicant would have been selected for 
promotion  in  any  event  with  a  corrected  record.    The  applicant’s  record  before  the  PY  2007 
selection  board  was  substantially  complete  and  fair  portrayal  of  the  applicant’s  career.  In  this 
regard, none of the marks and comments on the disputed OER was shown to be in error, and the 
applicant did not challenge them as such. Even, the comparison scale mark in section 9 would 
have been the same (a 5) if the correct form had been used, albeit the description for the mark 
would  have  been  somewhat  different.    The  Board  further  finds  that  the  applicant’s  record 
contained all other of his OERs and awards and medals when it was considered by the selection 
board, as nothing indicates otherwise. Finally, the applicant was selected for LCDR in PY 2008 
with the incorrect OER in his record, which persuades the Board that the disputed OER was not a 
significant factor in the applicant not being selected for promotion in PY 2007.   
 
 
7.  Also, page one of the disputed OER lists the applicant as a LT and states the date on 
which he was promoted to that grade.  Any confusion that might have been existed in the minds 
of selection board members was resolved easily by referring to page one of the disputed OER.  In 
addition, the Board is satisfied that the selection board was aware of the applicant’s rank since 
his record was before the LCDR selection board.   In light of the above, the Board finds that it is 
unlikely that the applicant would have been promoted in any event with a corrected record. 
 
 
8.  The applicant’s argument that the disputed OER had too much white space left in the 
comment  blocks  is  without  merit.    The  Board  having  reviewed  the  OER  finds  that  very  little 

white space is left in any of the comment blocks on the disputed OER.  Even if significant white 
space had been left unused, the Personnel Manual does not require that all available space be 
used.  More importantly, the applicant does not argue that any significant accomplishments were 
omitted from the comment blocks.   
 
 
Coast Guard.    
 
 
 

Accordingly, the applicant should be granted partial relief as recommended by the 

[ORDER AND SIGNATURES APPEAR ON FOLLOWING PAGE] 

 9. 

 
 
 
 

The  application  of  XXXXXXXXXXX,  USCG,  for  correction  of  his  military  record  is 

ORDER 

 

granted in part as follows:   

 
The OER currently in his service record for the period August 1, 2001, through May 31, 
2002, shall be replaced with an OER for lieutenants, using only the marks and comments from 
the OER currently in his record covering the period under review, with the original dates and 
rating chain signatures.   The action directed by this Order shall be completed within 180 days 
from the date of this final decision. 

 
No other relief is granted.   

 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

 
 

 
 

 

 
 

 
 

 

 
 

 
 

 

 
 

 
 

 

 
 

 
 

 

 
 
 Philip B. Busch 

 

 
 Dorothy J. Ulmer 

 

 

 
 George A. Weller