DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2008-091 
 
xxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxx   

 

 
 

FINAL DECISION 

 
 
The proceeding was conducted according to the provisions of section 1552 of title 10 and 
section 425 of title 14 of the United States Code.  The Chair docketed the application on April 
13, 2008, upon receipt of the application, and subsequently prepared 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 the case. 
 

The  final  decision,  dated  January  8,  2009,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The  applicant  asked  the  Board  to  correct  her  military  record  by  removing  two  officer 
evaluation reports (OERs) for the periods from May 13, 2003 to April 30, 2004 (first disputed 
OER) and from May 1, 2004 to May 31, 2005 (second disputed OER) and by replacing them 
with reports for continuity purposes only.  The applicant twice failed of selection for promotion 
to LCDR before the promotion year (PY) 2005 and 2006 selection boards, but was selected for 
promotion  to  this  grade  by  the  PY  2007  selection  board.    She  requested  that  if  her  record  is 
corrected that it be evaluated by a special selection board to determine whether she should have 
been  promoted  by  one  of  the  earlier  two  LCDR  selection  boards  that  did  not  select  her  for 
promotion.1   
 
 
 

The applicant provided the following summary of her allegations in this case: 

Some cases involving gender or race bias are incredibly complex.  This is not that 
case.   To  the  contrary,  the  issue  here  is  stark  and  simple—did  [the  applicant’s] 
superiors treat [the applicant] unfairly when they arbitrarily assigned her a non-
competitive position because she had become a mother?  She was a fast burner, 

                                                 
1      The  Coast  Guard  does  not  have  authority  to  hold  special  selection  boards.    Therefore,  applications 
requesting such relief are treated as requests for removal of failures of selection for promotion.   

destined for likely advancement with her peers.  Now, she was transferred to a job 
carrying little chance of promotion.   
 
When she returned to duty after maternity leave, she was ready to accept whatever 
challenges  the  Coast  Guard  presented.    Management  then  made  an  arbitrary 
decision—she  was  downgraded  to  a  pedestrian  position  with  little  chance  of 
recognition or promotion.  Her complaint echoes that of Sylvester Stallone in the 
“rocky”  movie  series—she  “coulda  been  a  contender.”  [sic]   This  is  the  matter 
upon which [the applicant] grieves.   

 
 
The applicant stated that prior to leaving on maternity leave in 2003 she was a  young 
officer with an extremely competitive record, particularly after September 11, 2001.  Some of the 
highlights of her career included: 
 

•  As a proven leader, she led Activities New York Command Center to an above average 

score on HQ Stan Team Visit; prior to her arrival, they had failed a District visit.   

 

 

 

 

 

•  She  successfully  led  the  Engineering  Logistics  Center,  with  over  300  documented 

processes, through a successful ISO 9000 recertification. 

•  She  facilitated  the  rescue  of  hundreds  of  boaters,  swimmers,  and  people  otherwise 

imperiled while Assistant Operations Boss at Group Galveston. 

•  She ably served as representative of the COTP for New York while standing the Sector 
Duty Officer of the watch, functioning as the first contact for marine casualties, search 
and rescue, and waterways issues.  

•  She inspired 50+ military and 20+ civilian employees to begin a degree program.    

The applicant is complaining about her assignment to the Preparedness Staff where she was 
the Area Maritime Security (AMS) Committee Infrastructure Sub-Committee Coordinator.2  The 
evaluation  of  her  performance  in  this  job  is  covered  by  the  first  disputed  OER.      Her  next 
assignment was as Sector Command Center (SCC) Duty Officer (SDO).  Her assignment in this 
job is covered by the second disputed OER.   Prior to her assignment to the Preparedness Staff, 
the  applicant  was  assigned  to  duty  as  the  “Assistant  Surface  Forces  Management  Branch 
Chief/Command Control & Communication” officer.   
 

 The  applicant  alleged that after her return from maternity leave she was downgraded  and 
reassigned  away  from  a  highly-visible  slot  with  supervisory  and  operational  impact  to  an 
administrative job on the preparedness staff planning for the prevention of and recovery from 
terrorist attacks to the area’s ports.  The assignment was not at her request and was not due to 
unsatisfactory performance. She stated that she complained about the assignment but was told by 
her leadership that it was not a downgrading but simply an opportunity  for her to  “adjust” to 
                                                 
2      The  applicant’s  assignment  to  the  Preparedness  Staff  is  may  be  referred  to  in  this  decision  as  an  
assignment  to “planning” or  the “Preparedness Staff’s AMS Committee”  

being a new mother.  She argued that although she was successful in the planning assignment, 
her accomplishments in that job paled in comparison to her previous assignment in which she 
supervised  seven  search  and  rescue  controllers  and  20  communications  watchstanders    in 
facilitating  emergency rescues of the boating public.   

 
The applicant also alleged that when she returned from maternity leave she was primed to 
give 100% percent to her [operations] job.  Her superiors, however well intentioned, elected to 
“take her out of the rat race” and reassign her to a far less-stressful position.  She stated that no 
matter how well intentioned, these seniors denied her the honest chance to perform and compete 
for advancement.  She argued that her record was not competitive when compared against those 
officers  who  had  performed  in  the  more  challenging  positions.    “It’s  as  if  I  moved  from 
managing a large fitness center to handing out towels in the shower room”   She contended that 
the reassignment stripped her of her chance to compete for promotion to LCDR and were the 
cause of her failures before the PY 2005 and 2006 LCDR selection boards.  
 
 
The applicant alleged that she was denied equal protection under the Fifth Amendment 
and under traditional concepts of fairness and equity when her superiors reassigned her to the 
planning job upon her return from maternity leave.  The applicant stated that when her superiors 
employed alleged unlawful gender considerations – “she’s a new mom” – it wrongly denied her a 
fair  chance  to  succeed  in  the  Coast  Guard.    She  further  alleged  that  she  “was  denied  a 
competitive position because: [a] she had become a parent, and [b] they were not sure she could 
handle the fast pace.  Denying [the applicant] a chance was an improper, gender-based decision.  
It was unlawful under current law.” The applicant argued that the BCMR should apply the strict 
scrutiny  standard  in  determining  whether  the  action  by  her  leadership  was  permissible  or 
unconstitutional discrimination.  In support of her application, the applicant stated the following: 
 

When I returned from the birth of my first son, my bosses decided that I should 
move to a planning job to allow me time to adjust to being a new mother.  I was 
specifically told that the move had nothing to do with my performance and that 
my  evaluation  would  reflect  being  “hand  selected”  for  the  new  position.  
However,  the  truth  of  the  matter  is  they  didn’t  like  to  wait  10  minutes  in  the 
middle of the day while I pumped breast milk for my infant son.   
 
And then I got pregnant again.  My second pregnancy came with complications 
during the second trimester.  I was put on bed rest six weeks prior to my due date 
as a precaution to save my life and the life of my baby.   
 
For the longest time I couldn’t figure out why my supervisors had graded me so 
harshly on my evaluations during this period, especially with no counseling.  Or 
why  they  thought  it  necessary  to  take  my  [assistant  operations]  boss  job  away 
from me.  My work still far surpassed that of most of my peers.  Then I realized 
they were not grading me on my performance; they were penalizing me for the 
time  I  wasn’t  there.    They  were  discriminating  against  me  because  of  getting 
pregnant.  It was causing them more work, whether in rescheduling or just having 
to do more with less.   
 

Some  in  senior  leadership  seemed  to  think  I  must  choose  between  my  two 
beautiful, healthy and intelligent boys or my military promotion.  The question is 
pointless—I shouldn’t have to.   

 
First Disputed OER  
 

The  OERs  contain  a  description  of  the  applicant’s  duties  and  an  evaluation  of  her 
performance,  which  consists  of  three  parts:    the  supervisor’s  portion,  the  reporting  officer’s 
portion, and the reviewing officer’s portion.    
 
 
The  first  disputed  OER  covers  a  period  when  the  applicant  was  assigned  to  the 
Preparedness staff of Activities New York.  Her job description, in pertinent part, was as follows:  
“Area  Maritime  Security  (AMS)  Committee  Infrastructure  Sub-Committee  Coordinator:    Led 
Infrastructure Sub-Committee in managing Maritime Security Planning for all of Greater New 
York  Harbor  &  connecting  waterways  serving  New  Jersey,  in  order  to  prevent,  prepare  for, 
respond to and recover form terrorist attacks, major disaster, and other waterborne emergencies.”   
 

Under  performance  of  duties  in  the  supervisor’s  portion  of  the  OER,  the  applicant 
received marks of 6 in planning and preparedness and results/effectiveness, marks of 5 for using 
resources and adaptability, and a mark of 4 for professional competence.3   
 

In the communication skills section of the OER, the supervisor gave the applicant a mark 

of 6 in speaking and listening and a mark of 5 in writing.  
 

In the leadership skills section of the OER, the supervisor gave the applicant a mark of  6 
for  developing  others,  a  mark  of  5    for  directing  others,    and  marks  of  4  for  looking  out  for 
others, teamwork, workplace climate, and evaluations. The comments supporting the marks in 
each section were very complimentary of the applicant and the section 5 comments noted that the 
applicant “[l]ed 25+ Infrastructure Sub-committee [members] for 8 month period.” 
 
 
The reporting officer wrote in block 7 of the OER that he concurred with the remarks of 
the supervisor and he added that the applicant was an exceptional resource to the Commandant’s 
Performance Challenge.  He further stated that the applicant volunteered to facilitate the unit’s 
first strategic planning effort.   
 

In the personal and professional qualities section of the OER, the reporting officer gave 
the applicant a mark of 6 for initiative, and marks of 5 for judgment, responsibility, professional 
presence, and health and well-being.   
 
 
On block 9 of the comparison scale where the reporting officer compared the applicant 
with  all  other  LTs  he  has  known  throughout  his  career,  the  reporting  officer  evaluated    the 
applicant as an “excellent performer; give toughest, most challenging leadership assignments,”  
which is the equivalent of a mark of  5 on a scale of 1 to a high of 7.   
 

                                                 
3   Marks on an OER are from a low of 1 to a high of 7.  A 4 is considered to be an average mark.   

record, the applicant did not submit a reply to the OER. 
 
Second Disputed OER 

 
During the period covered by the second disputed OER, the applicant  was assigned to 
duty as Sector Command Center (SCC) Duty Officer (SDO).  The description of duties indicates 
that the applicant supervised sector command center watches that included 18 junior officers, 2 
E8s, 5 E7s, 22 enlisted members, 12 civilians, and active and reserve members.  The applicant 
was  also  assigned  to  collateral  duty  as  the  information  management  officer  and  continuity  of 
operations planner.   The second disputed OER noted that the applicant was awarded the Coast 
Guard Achievement Medal for her superior performance of duty from May 2002 to June 2005.   

 
Under  performance  of  duties  in  the  supervisor’s  portion  of  the  OER,  the  applicant 
received  a  mark  of  6  in  adaptability  and  marks  of  5  in  planning  and  preparedness, 
results/effectiveness, using resources, and professional competence.   
 

In the communication skills section of the OER, the supervisor gave the applicant marks 

 
In potential section in block 10, the reporting officer wrote that the applicant was hand 
selected to be a part of the AMS Plan Development Team, which produced a plan touted as best 
in LANT. He recommended her selection for advanced education in leadership, human resources 
or  public  administration.    He  stated  that  she  was  a  top  choice  for  strategic  planning  or  CPC 
position in a command cadre.  He recommended her for promotion with her peers.   
 

 The  reviewer  authenticated  the  OER  without  comment.    According  to  the  military 

of 5 in speaking and listening and writing.  
 

In the leadership skills section of the OER, the supervisor gave the applicant  marks of  5 
in looking out for others, developing others, directing others, workplace climate, and evaluations. 
The applicant received a mark of 6 in teamwork.  The comments supporting the marks in each 
section were very complimentary of the applicant.   

 
The reporting officer wrote in block 7 of the OER that he concurred with the remarks of 
the supervisor, and he added that the applicant embraced the challenge of a new SDO program 
with an exemplary positive attitude and that she exhibited sound judgment and contributed to the 
overall readiness of the command.   
 

In the personal and professional qualities section of the OER, the reporting officer gave 
the applicant marks of 5 for initiative, judgment, responsibility, and professional presence, and a 
mark of 6 in health and well-being.   
 
 
On the block 9 comparison scale  where the reporting officer compared the applicant with 
all other LTs he has known throughout his career, the reporting officer evaluated  the applicant as 
a “good performer;  give tough, tough challenging assignments,”  which  is the equivalent of a 
mark of  4 on a scale of 1 to a high of 7.   
 

 
In  describing  the  applicant’s  potential  in  block  10,  the  reporting  officer  wrote  that  the 
applicant will excel in the Field Intelligence Support Team Environment.  He recommended her 
for  follow-on  tours  in  Sector  Response  and  Sector  Planning.    He  recommended  her  for 
promotion with her peers.    
 

 The  reviewer  authenticated  the  OER  without  comment.    According  to  the  military 

record, the applicant did not submit a reply to the disputed OER. 
 
Applicant’s Other LT OERs 
 

•  The applicant’s first OER in the rank of LT shows that she was assigned to duty as the 
Productivity Program Manager/Training Officer, where she mainly “develops/implements 
plans, policies, procedures for the command’s quality management system & command 
training programs.”  The applicant supervised one E-4.  The marks on this OER were 5s, 
6s, and some 7s.  She was marked in the sixth highest block (strongly recommended for 
accelerated promotion) in block 9.   

•  The applicant’s second LT OER shows that she was the Training & Quality Team Leader, 
where she “develops/implements plans, policies, procedures, [and] provides oversight.”  
The applicant also “serves as command facilitator for strategic planning and manages 22 
facilitators.  She supervised one E-4.  Her marks on this OER were 5s, 6s, and some 7s, 
and  she  was  marked  in  the  seventh  and  highest  block  on  the  comparison  scale,  which 
described her as the best officer of that grade.  The reviewer attached comments where he 
indicated that he would have placed her in the sixth block on the comparison scale.   

•  On the applicant’s third LT OER and the one immediately prior to the first disputed OER, 
the applicant was assigned to duty as the “Assistant Surface Forces Management Branch 
Chief/Command Control & Communication Officer.”  She directly supervised 1 E-8, 1 E-
7, and 20 enlisted watchstanders including the Group’s search and rescue controllers.  In 
this duty, the applicant was responsible for coordinating all operations center training and 
scheduling  of  watches  and  reserve  drills,  and  for  ensuring  SAR  response  and  record 
keeping by the operations center and small boat stations.  Her marks were mostly 5s, with 
occasional 4s and one 6.  On the block 9 comparison scale, the applicant was rated in the 
fourth block as a “good performer, give tough, challenging assignments.”  The reviewer 
attached  comments  stating  that  he  would  have  raised  her  one  mark  in  the  evaluation 
category from 5 to 6, and that he would have raised her block 9 comparison scale mark 
from the fourth block to the fifth block, which would have described the applicant as an 
“excellent  performer;  give  toughest,  most  challenging  leadership  assignments.”    Block 
1.h. showed 18 leave days and 76 other days as non-observed.   

•  The  applicant’s  fourth  and  fifth  LT  OERs  are  the  first  and  second  disputed  OERs 
discussed above.  The fourth/first disputed OER showed 15 leave days and 22 other days 
as  non-observed.    The  fifth/second  disputed  OER  showed  52  leave  days  and  45  other 
days as non-observed. 

 

 

 

 

•  The applicant’s sixth OER and the one immediately after the second disputed OER shows 
her  duty  as  the  “Field  Intelligence  Support  Team  Norfolk  Team  Leader.”    In  this 
assignment  the  applicant  was  mainly  responsible  for  collecting,  researching,  and 
disseminating  tactical  and  actionable  national  intelligence  for  Coast  Guard  operations.    
Her marks were all 6s, except for three 7s.  On the block 9 comparison scale she was 
marked  as  an  “excellent  performer  give 
leadership 
assignments” which is the fifth highest block.   

toughest  most  challenging 

 

VIEWS OF THE COAST GUARD 

On August 26, 2008, the Judge Advocate General (JAG) of the Coast Guard submitted an 

 
 
advisory opinion recommending that the Board deny the applicant’s request.    
 
 
The  JAG  stated  that  the  applicant  was  assigned  to  the Area  Maritime  Security  (AMS) 
Committee Infrastructure Sub-Committee because of her knowledge and valuable management 
experience,  not  because  she  was  a  new  mother.  The  JAG  stated  that  in  proving  her  case,  the 
applicant must overcome the presumption that her rating chain officials acted correctly, lawfully, 
and  in  good  faith  in  marking  their  evaluations  under  the  officer  evaluation  system.    Arens  v. 
United States, 969 F.2d 1034, 1037 (1992.  
 

On the issue of removal of the applicant’s failures of selection for promotion to CDR, the 
Coast Guard relied on 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 pass 
over, 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,  which  is  proving  the 
 
existence  of  an  error,  the  applicant  has  not  shown  that  her  assignment  to  the  planning  team 
resulted from gender discrimination.  In this regard, the JAG stated that the applicant provided as 
evidence a “brief”, family picture, and the two OERs in question.  According to the JAG, this 
evidence taken as a whole fails to satisfy her burden of proving her claim and certainly falls short 
in  establishing  that  her  rating  chain  and  chain  of  command  did  not  carry  out  their  duties 
correctly,  lawfully,  and  in  good  faith.    The  JAG  stated  that  the  rating  chain  provided  viable 
answers to the applicant’s allegation of  gender  discrimination.  They noted that following the 
Maritime Security Act of 2002, significant security enhancements were being mandated within 
the  industry  and  to  achieve  compliance  by  July  1,  2004.    This  legislative  action  necessitated 
Sector New York to reorganize the staff in order to achieve the required outcomes.  One of the 
staff  elements  was  to  develop  the  first  ever  area  Maritime  Security  Plan.    The  lieutenants 
assigned to the staff were hand-selected by the CO based on their talents and skills.  From the 
statements of the rating chain and others, it is clear that the applicant was selected as part of the 
planning team because of her talents and skills and not because she was a new mother.  The JAG 
stated that mere conjecture and theory, without more, does not rise to the level of strong proof 
required to rebut the presumption of regularity.   

 
 
The  JAG  stated,  however,  that  the  applicant’s  superiors  committed  an  error  by 
reassigning the applicant.  The JAG stated that the CO lacked the authority to internally reassign 
the  applicant  to  another  position  within  the  command  without  CGPC  concurrence.    The  JAG 
stated that under Article 4.A. of the Personnel Manual the authority to make officer assignments 
is specifically reserved for CGPC.   
 
With respect to step two under Engels, the JAG stated that the applicant has not made a 
 
prima  facie  showing  of  a  substantial  connection  between  the  improper  reassignment  and  her 
failure  to  be  selected  by  the  promotion  year  PY  2005  and  2006  LCDR  selection  boards.    In 
support of this conclusion, the JAG offered the following analysis: 
 

[The] applicant fails to make a prima facie showing of a substantial connection 
between the error and the passovers.  There is no identifiable nexus between her 
position and failing to promote.  Again, speculation does not equate to evidence.  
In  fact,  as  the  [applicant’s]  supervisor  declared  in  written  statement  (discussed 
later)]  “along  with  [the  applicant]  two  other  female  LTs  were  assigned.    They 
were both exceptional officers.  Both have been promoted to [LCDR] and one of 
the two was selected for graduate school and attended Princeton University where 
she received her MPA.  The court in Engels placed the burden of establishing a  
prima facie case of showing a substantial connection between the error and the 
passover  on  the  applicant.    The  court  explained  this  step  of  the  analysis  by 
breaking  it  down  into  “two  separate  but  interrelated  standards:    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  errors?  Second, even if there was some 
prejudice, is it unlikely that [she] would have been promoted in any event?  Id at 
176.    The  applicant’s  record  was  not  prejudiced  by  the  reassignment  error,  but 
assuming,  arguendo,  that  it  was,  the  applicant  has  not  shown  that  the  alleged 
worsening  of  her  record  contributed  substantially  to  her  non-selection.    On  the 
contrary and in support of the government’s ultimate burden of harmlessness, the 
applicant was selected by the PY 2007 selection board, with no change in [her] 
record from the previous years.   

The Coast Guard obtained declarations under penalty of perjury from some members of 

 
  
the applicant’s rating chain for each of the disputed OERs. 
 
Statements from Rating Chain for First Disputed OER 
 
 
1.    The  supervisor  for  the  first  disputed  OER  wrote  that  it  was  the  development  and 
finalization of the Area Maritime Security Plan that led the Command to create the Preparedness 
Staff for an 8 month timeframe.  She stated that she was the leader of the special project and that 
the LTs assigned to the staff were hand selected by the CO based on their talents and skills.  The 
supervisor stated that the applicant brought the talents and skills needed to make the project a 
success.  She met all deadlines and her speaking skills were very polished.  The supervisor stated 
that  she  does  not  recall  the  applicant  ever  complaining  about  being  a  member  of  the 

Preparedness  staff;  but  she  does  remember  the  applicant  being  excited  about  working  on  the 
project.   
 
 
2.  With respect to the first disputed OER, the reporting officer, who was also the Deputy 
Commander, stated that he had direct observation of the applicant during the period in question 
and recalled that he had several conversations with her before and after the birth of her child.  
The  reporting  officer  stated  that  following  the  passage  of  the  Marine  Safety  Act,  the  Sector 
reorganized the staff to develop a first-ever Area Marine Security Plan.  The Plan required the 
organization of four sub-committees, one led by him, two by senior commanders and one by an 
industry leader.  The plan developed by the committee members changed the manner in which 
the port community detected, prevented and responded to man-made or natural disasters.  The 
use  of  the  plan  continues  to  this  day.  The  reporting  officer  stated  that  he  could  not  think  of 
anything more important to the Coast Guard than doing everything reasonably possible to protect 
our nation’s ports.   
 

With respect to the applicant’s contention that the LCDR selection board did not place 
sufficient  value  on  her  service  because  of  her  assignment  to  the  planning  committee,  the 
reporting  officer  wrote  that  this  claim  is  usually  made  after  an  officer  is  not  selected  for 
promotion. On this issue he stated the following:  “I know the Coast Guard must continue to 
select the best for what they need to meet future operational requirements, [and that officers are] 
not chosen or selected based solely on an officer’s past performance.  I often used the analogy 
while in the service, that if the Coast Guard needed to select a new General Counsel for flag, 
then the Coast Guard was going to consider only captains with JD degrees, even if that meant 
leaving a high performing captain sailor in the “non-select” group.”  In summary, the reporting 
officer wrote the following: 
 

[O]ne  thing  is  certain  I  would  not  have  tolerated  any  adverse  conduct  or 
assignment  solely  due  to  her  pregnancy.    She  was  one  of  several,  men  and 
women,  for  a  variety  of  reasons  ranging  from  family  considerations  to  serious 
medical conditions which we had to balance with work assignments.  So for her to 
claim she was penalized for her  absence is not  accurate.   I  would add that one 
clear advantage of a large command was the opportunity to work on demanding 
assignments  in  a  variety  of  specialties.    You  might  even  make  a  case  that  her 
change  in  assignments  was  complimentary  to  her  career  development  vice 
detrimental.  [The applicant] was one of many high performing officers I had the 
pleasure to serve with during my assignment to New York . . .   
 

  

Statements from Rating Chain for Second Disputed OER 
 
 
 
1.  The supervisor for the applicant’s second disputed OER stated that he was the senior 
watch  officer  and  was  the  applicant’s  direct  supervisor  for  the  period  covered  by  the  second 
disputed OER.  He stated that the sector duty officer (SDO) to which the applicant was assigned, 
and a duty he had performed previously, was and still is a very competitive position.   He noted 
that he was promoted to LCDR at his first opportunity.  He also noted that he had medical issues 
within his family that required him to be away from the command.  He stated that the command 

was fully supportive of his need and it was never suggested that he should be moved from his 
position because of his absences from the command to care for his family.   
 

2. The  reviewer  stated  that  his  review  of  the  second  disputed  OER  remains  firm.    He 
wrote he had or have no knowledge of any command or “management” decision to “downgrade” 
the applicant by placing her in a Planning Section position.  He stated that if he were aware of 
such a thing he would have immediately objected.  He stated that throughout his career he has 
vigorously  reinforced  the  Coast  Guard’s  diversity  management  and  civil  rights  policies.    He 
stated that the applicant never voiced any concerns to him about the commands downgrading her.  
He further stated:  
 

 [The applicant] was not denied the chance for development and promotion based 
on  unfair  treatment  because  of  her  status  with  a  new  baby.   Actually  quite  the 
opposite, and that development and promotion opportunity was quite abundant at 
Sector New York . . .  She was definitely not reassigned to Planning based on a 
mediocre  past  record  or  inferior  performance            .  .  .  I  place  the  highest  of 
premiums on our Planning Workforce since “planning drive operations” and we 
exist  to  “operate  effectively  and  efficiently  for  the  American  Public.    Without 
exemplary Planners we just tread water as an organization and we don’t move out 
with  strategic  intent  and  purpose.    Thereafter,  if  she  was  not  valued  as  a  solid 
junior officer in Planning with promotion potential, why would we also place her 
in  the  most  critical  operation  billet  at  the  command,  as  a  SDO  in  the  Sector 
Command  Center.    [The  applicant]  had  nothing  but  ample  opportunity  at  this 
command to excel and demonstrate performance warranting recommendation for 
selection for LCDR.   

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On October 24, 2008, the Board received the applicant’s reply to the views of the Coast 
Guard.  She stated that the statements obtained by the Coast Guard were hearsay.  She stated that 
the officers offer their opinion but no proof.  She stated that the supervisor for the first disputed 
OER was herself passed over twice for CDR due to her back to back planning assignments but 
was selected on her third try after she was moved into a new assignment.  The applicant stated 
that the Coast Guard did not obtain statements from the officer who devised the plan to move her 
(LCDR P) or the officer (CDR M) who told her she was being moved to allow her to more easily 
adjust to being a new mother.   In addition, she noted that a CAPT M who told her it was a good 
time to have a baby did not provide a statement.  The applicant further stated the following: 
 

None of the responses addresses the Coast Guard’s lack of policy to backfill for 
women  who  become  pregnant  and  must  temporarily  leave  the  workplace.    No 
mechanism  is  in  place  to  protect  women  facing  promotion  boards  when  their 
maternity leave shows up as “unobserved time” on their OERs.  The Coast Guard 
has implemented safeguards for those officers who complete advanced education 
programs  and  end  up  with  “unobserved  time”  on  their  OERs  –  but  not  for 
pregnant females.   
 

  * 

 

* 

* 

 
I  seek  removal  of  the  2nd  OER  based  on  substantive  and  procedural  grounds.  
Substantively, [the reviewer] commented about my assignment to the position of 
[SDO]; during that meeting, he also assured me that [the supervisor of that OER] 
would not be my supervisor for OER purposes since I out-ranked [him].  Based 
on that meeting, at no time during the reporting period was I under the impression 
that[the supervisor] would be writing my OER.  Procedurally, Sector New York 
did not publish a unit rating chain instruction, as directed by Coast Guard policy.  
The  unit  was  cited  for  the  oversight  in  a  MLC  compliance  inspection.  
Additionally,  [the  supervisor]  and  I  competed  for  the  assignment  of  the  Team 
Leader  for  Field  Intelligence  Support  Team  Philadelphia.    I  received  the 
assignment.      His  lack  of  objectivity  is  proven  by  his  very  vocal  negative 
comments  about  me  in  front  of  enlisted  personnel  as  his  view  of  my  ability  to 
handle the position.    

 

FINDINGS AND CONCLUSIONS 

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

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

1. 

The Board has jurisdiction over this matter under 10 U.S.C. § 1552(a) because the 
applicant  is  requesting  correction  of  an  alleged  error  or  injustice  in  her  Coast  Guard  military 
record.    The  Board  finds  that  the  applicant  has  exhausted  her  administrative  remedies,  as 
required by 33 C.F.R. § 52.13(b), because there is no other currently available forum or proce-
dure provided by the Coast Guard for correcting the alleged error or injustice that the applicant 
has not already pursued. 
 

2.  Although the application was not filed within three years of when the alleged error or 
injustice was or should have been discovered, it is considered timely under Detweiler v. Pena, 38 
F.3d  591,  598  (D.C.  Cir.  1994)  (holding  that,  under  §  205  of  the  Soldiers’  and  Sailors’  Civil 
Relief  Act  of  1940,  the  BCMR’s  three-year  limitations  period  under  10  U.S.C.  §  1552(b)  is 
tolled during a member’s active duty service). 
 
 
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  without  a 
hearing.  The Board concurs in that recommendation.  See Steen v. United States, No. 436-74, 
1977  U.S.  Ct.  Cl.  LEXIS  585,  at  *21  (Dec.  7,  1977)  (holding  that  “whether  to  grant  such  a 
hearing is a decision entirely within the discretion of the Board”).   
  
 
4.    The  Board  begins  its  analysis  by  presuming  that  the  disputed  OER  is  correct  as  it 
appears in the record, and the applicant bears the burden of proving by a preponderance of the 
evidence that it is erroneous or unjust.4    For the reasons discussed below, the Board finds the 
applicant has failed to meet her burden of proof.   

                                                 
4 33 C.F.R. § 52.24(b). 

5.    Chapter  3  of  the  Coast  Guard  Equal  Opportunity  Manual  prohibits  discrimination 
which is any action prohibited by law, executive order, regulation or policy in which members of 
a category or group of individuals are treated differently from members of another category or 
group.   This Chapter also makes it clear that it is the policy of the Coast Guard to provide its 
military  members  equal  opportunity  during  their  military  service  and  access  to  the  rights, 
responsibilities,  and  privileges  of  such  service,  regardless  of  their  sex,  race,  color  religion, 
national origin, or participation in equal opportunity related activities. 

 
6.   The  applicant  alleged  that  the  Coast  Guard  discriminated  against  her  based  on  her 
gender upon her return from maternity leave by assigning her to the Preparedness staff for work 
on  the  Area  Maintenance  Security  Committee  because  she  was  a  new  mother,  rather  than 
returning her to her previous assignment.   She also alleged that the first and second disputed 
OERs are the product of that discrimination and should be removed from her record.  She also 
asserted that the discriminatory assignment resulting in the first and second disputed OERs was 
the reason her failure to be selected for promotion to LCDR in PY 2005 and 2006.  In this regard, 
she  argued  that  the  planning  staff  assignment  was  not  as  challenging,  as  high  tempo,  or  as 
important as  the one she held prior to maternity leave  and that the planning assignment paled in 
comparison with the assignments of her peers. The applicant claimed that her superiors graded 
her harshly on the disputed OERs, but she did not challenge  any of the  individual marks and 
comments of either disputed OER.  In addition, the applicant was not assigned to the planning 
staff for the second disputed OER; instead, she was assigned as a sector command duty officer.    
In order to prevail on her gender discrimination claim, the applicant must show (1) that she was a 
member of a protected class; (2) that she performed her job satisfactorily; (3) that she suffered an 
adverse  employment  action;  and  (4)  that  her  command  treated  similarly  situated  males  more 
favorably.    See Clegg v. Arkansas Department of Correction et al, 496 F.3d 922, 926 (8th Cir. 
2007); citing McDonnell Douglas Corp v. Green, 411 U.S. 792, 805-806 (1973).    

 

 
7.   It is clear from the record that the applicant, a female, is a member  of a protected 
class, and that she performed her jobs in a satisfactory manner.  However, the applicant has not 
proven  that  her  assignment  to  the  Preparedness  staff’s  AMS  committee  was  an  adverse 
employment action.  An adverse employment action “is a tangible change in working conditions 
that  produces  a  material  employment  disadvantage.”    See  Clegg  at  926.      An  adverse 
employment  action  requires  a  “materially  adverse  change”  in  the  terms  and  conditions  of 
employment such as firing, hiring, failing to promote, reassignment, or a significant change in 
benefits.  Adverse actions usually inflict direct economic harm.  Novotny v. Reed Elsevier, et al., 
No. C-3-05-424, 2007 U.S. Dist. Lexis 66608, at * 46 (Sept. 10, 1007), affirmed 2008 U.S. App. 
LEXIS 18777 (6th Cir. 2008).   Even if there was reassignment as in this case, a reassignment that 
“involves no corresponding reduction in salary, benefits, or prestige is insufficient to establish an 
adverse employment action. Clegg at 927-928.   The applicant has not shown in this case that her 
assignment to the Preparedness staff resulted in a materially adverse change in her employment.  
While she argued that it was a less competitive position for promotion than the position she held 
previously and that it was a less competitive assignment than that of her peers, she offered only 
her opinion in this regard.  She offered no evidence that an assignment to the Preparedness Staff 
was one that should not have been assigned to an officer of her rank or that the functions she 
performed  in  that  assignment  were  any  less  important  than  the  functions  she  previously 

performed.    She  complained  that  the  Preparedness  Staff  assignment  had  no  supervisory 
responsibilities but a review of the section 5 comments for the first disputed OER note that the 
applicant led “25+ Infrastructure Sub-committee [members] for 8 month period.”   She has not 
put forth any evidence of a causal connection between the planning assignment and her failure to 
be selected for LCDR by the PY 2005 and 2006 selection boards, except for her conjecture that 
the assignment was the reason for her non-selections.  The fact that the other two LTs assigned to 
the same Preparedness Staff were selected for promotion to LCDR is proof that the assignment 
did not per se cause the applicant’s failures of selection.   

 
8.    Nor  has  the  applicant  shown  that  she  was  treated  differently  from  male  officers 
similarly situated.  In this regard, she did not put forth the names of males, or females for that 
matter,  who  upon  becoming  new  parents  and  returning  from  maternity  leave  were  allowed  to 
remain in their original assignments.   In addition to the applicant, two other female LTs were 
assigned to the Preparedness Staff.  There is no evidence that they were assigned because they 
were  new  mothers.    Nor  has  any  evidence  been  presented  on  how  many  males,  if  any,  were 
assigned to the Preparedness Staff, and if no males were assigned, whether that was by design of 
the  CO  or  simply  due  to  the  fact  that  the  applicant  had  the  necessary  skills  for  the  job.   The 
applicant’s earlier OERs show that she had a background in planning.  Therefore, the applicant 
has not presented sufficient evidence for the Board to conclude that similarly situated males were 
treated  more  favorably  than  she  was.      She  has  failed  to  prove  by  a  preponderance  of  the 
evidence that she was assigned to the Preparedness Staff’s AMS sub-committee upon her return 
from maternity leave because she was a new mother.   
 

9.  Even if the applicant had made a prima facie case of gender discrimination, the burden 
would shift to the Coast Guard to show that it had a legitimate business need for assigning the 
applicant to the Preparedness Staff’s AMS sub-committee.  McDonnell Douglas Corp. v. Green, 
93 S. Ct. 1817, 1824 (1973).   The applicant’s chain of command denied that she was assigned to 
the AMS committee because of her new mother status.  They stated she was assigned to that staff 
to  meet  the  Coast  Guard’s  congressional  mandate  for  significant  security  mandates  by 
developing  the  first  ever  Maritime  Security  Plan.    The  supervisor  for  the  first  disputed  OER 
stated that the applicant was hand chosen for the AMS assignment due to her talents and skills.  
The reviewer for the second disputed OER stated that he would not have tolerated any command 
or management decision to “downgrade” the applicant because she was a new mother.  He stated 
that if the applicant had not been a solid junior officer in planning with promotion potential, she 
would  not  have  been  assigned  to  what  he  considered  a  critical  position.      In  rebutting  the 
statements  from  her  rating  chain,  the  applicant  argues  that  their  statements  are  hearsay  and 
constitutes only their opinions but no proof.  She further argued that the Coast Guard did not 
obtain  a  statement  from  the  officer  who  told  her  a  plan  was  devised  to  move  her  to  the 
Preparedness staff, from the officer who told her that she was reassigned to allow her to adjust to 
being a new mother, or from the officer who told her it was a good time to have a baby.  First, 
with respect to her contention about hearsay statements, the Board notes that it is not bound by 
the  rules  of  evidence  and  that  each  statement  from  the  rating  chain  members  is  signed  under 
penalty of perjury and are therefore deemed credible and reliable.  Second, the statements from 
the rating chain corroborate each other with regard to the need of the Coast Guard to establish 
the AMS committee to carry out a congressional mandate.  Third, the reporting officer for the 
first disputed OER and the reviewer for the second disputed OER are corroborative of each other 

 

that the applicant was assigned to the AMS committee because of her skills and talents matched 
those needed by the Coast Guard for the AMS project.  Fourth, the applicant has the burden of 
proof and it is her responsibility to obtain the evidence she deems necessary to prove her case. 
She provided no corroboration for her contentions that she was told by other officers that a plan 
was devised to move her to the Preparedness staff, that such an assignment would allow her to 
adjust to becoming a new mother, or that it was a good time to have a baby.   In light of the 
evidence on this issue, the applicant has failed to persuade the Board by a preponderance of the 
evidence that she was assigned to the Preparedness staff for reasons other than those based on the 
legitimate needs of the Service.   
 

 
10.   The  applicant’s  claim  that  she  was  denied  equal  protection,  as  well  as  traditional 
concepts of fairness and equity, is likewise without merit.  In order to prove a denial of equal 
protection, the applicant must show (1) that she was a member of a protected class; (2) that she 
was similarly situated to members of the unprotected class; (3) that she was treated differently 
from members of the unprotected class; and (4) that her rating chain acted with discriminatory 
intent in assigning her to the preparedness staff.  See Atteberyy v. Department of State Police, et 
al, 224 F. Supp. 2d 1208 (IL DC 2002).   The applicant has failed to prove that she was treated 
differently  from  similarly  situated  male  officers.      She  has  put  forth  no  evidence  that  male 
officers  at  her  command  who  returned  from  extended  leave  periods,  whether  for  paternity 
purposes or otherwise, were always placed back into the jobs they held prior to executing that 
leave.    Nor  has  she  shown  that  her  assignment  to  the  preparedness  staff  was  due  to 
discriminatory intent.  As discussed earlier, she was assigned to the Preparedness staff based on 
service  need  and  because  her  skills  and  talents  matched  those  necessary  for  the  successful 
completion of that project.   

 
11.  In her response to the advisory opinion, the applicant alleged that the Coast Guard 
lacks a policy with respect to backfilling for women who become pregnant and must temporarily 
leave the work place.  The applicant appears to be particularly concerned about accounting for 
maternity leave as non-observed time and the negative impact that that non-observed time may 
have  before  a  selection  board.    She  noted  that  the  Coast  Guard  has  safeguards  for  members 
assigned to duty under instruction who receive non-observed OERs.  However, in making this 
comparison,  the  applicant  misses  an  important  point,  which  is  that  members  assigned  to  duty 
under instruction are under permanent change of duty orders assigned to a particular school as 
full-time students. A member who is allotted maternity leave or some other type authorized leave 
still occupies a specific command billet.  The Board is not aware of any regulation that permits 
double  billeting  of  a  position  due  to  a  short-term  temporary  leave  status.      Therefore,  the 
accounting for such leave is appropriate in block 1.h. (days not observed or other) of an OER.  
Additionally, the applicant has not presented any evidence, except for her own allegation, that 
accounting for maternity leave as non-observed time on an OER is prejudicial before a selection 
board. 

 
12.  The applicant raised a new issue in her reply to the advisory opinion, which is the 
supervisor for the second disputed OER should not have been in her rating chain because she 
outranked him by two  years.  While Article 10.A.2.d. of the Personnel  Manual states that the 
supervisor  will  normally  be  senior  to  the  reported-on  officer,  it  provides  that  in  appropriate 
situations,  the  supervisor  may  be  designated,  regardless  of  grade  relative  to  the  reported-on 

officer.  There is no evidence in the record that the CO did not designate the supervisor as the 
applicant’s supervisor.  The applicant stated that she was told by the CO that the supervisor for 
the  second  disputed  OER  would  not  serve  as  her  supervisor.    However,  she  provided  no 
additional  proof  or  corroboration  that  the  supervisor  should  not  have  been  her  supervisor.  
Insufficient evidence has been submitted to prove an error or injustice in this regard.   

 
 
13.  The Coast Guard noted that under the Personnel Manual the applicant’s CO lacked 
the  authority  to  internally  reassign  the  applicant  from  her  duty  as  “Assistant  Surface  Forces 
Management Branch Chief/Command Control & Communications” officer to the Preparedness 
Staff.  While  admitting  this  administrative  error,  the  JAG  argued  that  there  is  no  evidence  to 
suggest that this “reassignment” had any direct negative impact on the Applicant’s OERs or was 
detrimental from a career management perspective.   The applicant did not raise this issue in her 
basic brief, nor did she provide comment or argument on it in her reply to the advisory opinion.  
Her silence on this point can be taken as her agreement with the JAG that the error in this regard 
was harmless.   
 
 
14.  Regardless of the applicant’s failure to submit argument and evidence on the issue of 
the connection between her CO’s administrative error in reassigning her to the Preparedness Staff 
and her PY 2005 and 2006 failures 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?”  
 
 
15.    The  Board  agrees  with  the  Coast  Guard  that  the  CO’s  administrative  error  that 
internally reassigned the applicant did not make her record appear worse than it would have in 
the  absence  of  the  error.    There  is  nothing  in  the  OERs  to  suggest  that  the  applicant’s 
Preparedness  Staff’s  AMS  committee  assignment  or  her  subsequent  assignment  as  SDO  were 
adverse or negative assignments, or that they were assignments of a level beneath that of a LT.  
The marks and comments on the disputed OERs are not below average and are similar to other 
marks and comments in the applicant’s record.  For that matter, as reasoned by one member of 
the  applicant’s  rating  chain,  the  change  in  assignments  could  be  read  as  enhancing  the 
applicant’s career.  It occurred immediately after September 11, 2001, based on a congressional 
mandate to devise a plan to secure the area’s ports.  As that member of the rating chain stated, 
what  could  be  more  important  than  securing  the  nation’s  ports  from  a  terrorist  attacks.    The 
applicant offered only her own statement that the selection boards considered the assignment to 
the Preparedness Staff and as SDO  to be less  challenging  and competitive when  compared to 
those of her peers.  The applicant’s conclusion in this regard is contradicted by the supervisor for 
the first disputed OER, who stated that the other two LTs assigned to the Preparedness Staff have 
been promoted to LCDR and one of them was selected for the graduate school program.  The 
supervisor for the second disputed OER stated that he was an SDO and that he was selected to 
LCDR  with  the  SDO  assignment  in  his  record.    Also,  as  noted  earlier,  the  block  5  comment 
section of the first disputed OER noted that the applicant led “25+ Infrastructure Sub-committee 

[members] for 8 month period” and in the SDO assignment she supervised a number of officers, 
enlisted members and civilians.   
 

16.    Since  the  applicant  has  failed  to  demonstrate  any  prejudice  to  her  record  by  the 
unauthorized internal assignment to the Preparedness Staff’s AMS committee or her assignment 
as SDO, under Engels the burden has not shifted to the Coast Guard to show that it is unlikely 
that she would have been promoted in any event.   
 

17.   The applicant has failed to prove an error or injustice in her record that requires any 

corrective action by the Board.   

 
18.  In light of the above, the applicant’s request for relief should be denied. 
 
 
 
 
 
 
 
 
 
 
 

[ORDER AND SIGNATURES ON NEXT PAGE] 

 
  

military record is denied. 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Philip B. Busch 

       

 

 
 
 Diane Donley 

 

 
 Jeff M. Neurauter 

 

 

 

 

 

 

 

 

 

 

 

 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  her 

ORDER