DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2008-106 
 
xxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxx   

FINAL DECISION 

 

 
 

 

This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.  The Chair docketed the case on April 18, 2008, upon receipt 
of  the  applicant’s  completed  application,  and  assigned  it  to  staff  member  J.  Andrews  to  pre-
pare 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 February 12, 2009, is approved and signed by the three duly 

PAST BCMR DECISION AND TECHNICAL AMENDMENT 

 
 
In  BCMR  Docket  No.  2006-085,  this  applicant  asked  the  Board  to  remove  his  officer 
evaluation report (OER) for the period April 1, 2002, to March 31, 2003 (hereinafter 2003 OER), 
when he was serving as the School Chief of the Coast Guard’s xxxxxxxxxxxxxx (xxxxx) School 
at the Training Center in Yorktown.  The OER contained five low marks of 3, ten marks of 4, 
and three marks of 5 in the various performance categories and a mark in the fourth spot on the 
comparison scale.1  While serving in the same billet, the applicant had previously received OERs 
with marks of 4, 5, and 6 from a prior supervisor and reporting officer.  The 2003 OER contained 
several very negative comments about the applicant’s performance, such as “[w]ith O-5 filling O-
4  billet  for  entire  marking  period,  performance/growth  of  school  and  its  stature  in  XXXX 
community less than expected”; “[i]nability to think/act beyond scope of school sometimes limits 
effectiveness”;  “[w]hen  motivated,  produces  good  product”;  “[t]eamwork  not  usually  visible”; 
and “produced mostly acceptable results but not what the CG expects from an O-5 filling an O-4 
billet.”   Moreover, instead of recommending the applicant for promotion from commander (O-5) 
to  captain  (O-6),  the  reporting  officer  wrote  that  the  applicant  was  not  working  up  to  his 
potential; “[p]roduces good work but appears content with O-4 level of responsibilities”; and was 
                                                 
1  In  OERs,  officers  are  evaluated  in  a  variety  of  performance  categories,  such  as  “Professional  Competence,” 
“Teamwork,” and “Judgment,” on a scale of 1 to 7, with 7 being best.  In addition, the reporting officer completes a 
“comparison scale” on which he compares the reported-on officer to all other officers of the same grade whom the 
reporting officer has known throughout his career.  The 7 possible marks on the comparison scale range from a low 
of “[p]erformance unsatisfactory for grade or billet” to a high of “BEST OFFICER of this grade.”  A mark in the 
fourth, or middle, spot denotes a “[g]ood performer; give tough, challenging assignments.” 

recommended only “for positions of responsibility within the XXXX program such as District, 
Area,  or  Headquarters  XXXX  staff.”    The  applicant  alleged  that  the  low  marks  and  negative 
comments in the 2003 OER were inaccurate, and he attributed the inaccuracy to the fact that the 
disputed OER was completed by a new supervisor and reporting officer, who did not know or 
appreciate how much work he had accomplished during the evaluation period.  He alleged that 
the OER would have been much better had it been completed by his properly designated rating 
chain for the evaluation period.  In support of this allegation, he submitted a statement from the 
commanding officer (CO) of the Training Center, who signed the 2003 OER as the Reporting 
Officer, even though he was not a designated member of the applicant’s rating chain: 
 

After reviewing the statements of personnel directly involved with [the applicant’s] performance 
during the marking period, I do not feel that the marks and comments in [his] OER for the above 
period accurately reflect his accomplishments during the period.  The statements provide a sub-
stantially different picture than the information I was provided by [his] supervisor. 
 
During the period, I do not believe [the applicant’s] supervisor adequately conveyed the program-
matic  issues  that  [the  applicant]  was  actively  working  to  resolve.    As  a  result,  I  was  not  made 
aware  of  [his]  efforts  to  successfully  resolve  many  of  these  issues.    In  addition,  the  supervisor 
failed to inform me of [the applicant’s] efforts to standardize curriculum development within the 
Training Division. 
 
Likewise, I do not believe the supervisor provided an accurate portrayal of [the applicant’s] effort 
to  support  the  [xxxxx]  staff.    The  statements  provided  by  the  personnel  who  worked  for  [him] 
show that he encouraged and supported their professional growth and their personal needs.  This 
again is inconsistent with the information provided in the OER. 
 
 
In  response  to  the  application  in  Docket  No.  2006-085,  the  Judge  Advocate  General 
(JAG) of the Coast Guard admitted, and the Board found, that the applicant’s command had vio-
lated Article 10.A.3.a.2.b. of the Personnel Manual by failing to have the 2003 OER prepared by 
the applicant’s designated Reporting Officer.  In the Final Decision for the case, dated December 
14, 2006, the Board noted that in BCMR Docket No. 151-87, it was held that “an OER will not 
be ordered expunged unless the Board finds that the entire report is infected with the errors or 
injustices alleged; unless the Board finds that every significant comment in the report is incorrect 
or  unjust;  or  unless  the  Board  finds  it  impossible  or  impractical  to  sever  the  incorrect/unjust 
material from the appropriate material.”  In light of statements submitted by the applicant’s rating 
officials, the Board found that the error in the rating chain was prejudicial to the 2003 OER and 
that “the entire OER appears to have been ‘infected’ by the error and it is ‘impossible or imprac-
tical to sever the incorrect/unjust material from the appropriate material.’”  Therefore, the Board 
ordered the Coast Guard to remove the applicant’s OER for the period April 1, 2002, to March 
31, 2003, from his record. 
 

Subsequent  to  the  issuance  of  the  Final  Decision  for  Docket  No.  2006-085,  the  JAG 
requested a technical amendment to the Board’s order pursuant to 33 C.F.R. § 52.73.  The JAG 
stated that the applicant had failed of selection for promotion from CDR to CAPT in 2006 while 
the  application  was  pending  and  asked  the  Board  to  amend  its  order  to  include  removing  the 
applicant’s failure of selection.  The JAG noted that after the applicant’s record was corrected in 
accordance with the Board’s order, he had failed of selection again in 2007.  However, since the 
2003 OER had already been expunged when the applicant’s record was reviewed by the selection 
board  in  2007,  the  JAG recommended removing only his failure of selection in 2006.  Citing 
Quinton v. United States, 64 Fed. Cl. 118, 125 (2005), and Engels v. United States, 678 F.2d 173, 

175 (Ct. Cl. 1982), the Board noted that “when an officer shows that his record was prejudiced 
before a selection board by error, ‘the end-burden of persuasion falls to the Government to show 
harmlessness—that  …  there  was  no  substantial  nexus  or  connection’  between  the  prejudicial 
error and the failure of selection.”  The JAG’s request for an amended order included copies of 
emails from the applicant and CGPC officials regarding his failures of selection.  After meeting 
in person with the applicant about his failures of selection, the chief of the Officer Career Man-
agement Branch wrote in an email dated August 14, 2007, that the applicant “believes the PY08 
[calendar  year  2007]  board  should  count  as  his  first  look  for  O-6.”    The  Board  accepted  the 
JAG’s request  as an admission of a substantial causal connection between the erroneous 2003 
OER and the applicant’s failure of selection in 2006.  Therefore, the Board issued a Technical 
Amendment  to  the  Final  Decision  in  Docket  No.  2006-085  by  ordering  the  Coast  Guard  to 
remove the applicant’s 2006 failure of selection for promotion to CAPT. 
 

APPLICANT’S NEW REQUEST AND ALLEGATIONS 

                                                 
2  The  PY09  captain  selection  board  had  not  yet  met  when  the  applicant  submitted  his  application  in April 2008.  
However, he requested this relief prospectively in case he again failed of selection.  The applicant was not selected 
for promotion by the PY09 selection board, which convened on July 14, 2008. 

 
 
In his new application, the applicant asked the Board to correct his record by removing 
his OER for the period April 1, 2003, through February 29, 2004 (hereinafter 2004 OER); by 
removing his failures of selection for promotion to captain in calendar years 2007 and 2008 by 
the promotion year (PY) 2008 and 2009 captain selection boards;2 by backdating his date of rank 
if he is selected for promotion to captain after his record has been corrected by removal of the 
2004 OER to the date of rank he would have had if  he had been selected for promotion in 2006 
by  the  PY  2007  captain  selection  board;  by  awarding  him  back  pay  and  allowances;  and  by 
taking any additional actions that would alleviate any negative perceptions that a selection board 
might draw from the two consecutive continuity OERs he would have in his record.   
 

The applicant alleged that because of the unfair 2003 OER, which was removed from his 
record pursuant to the Board’s order in Docket No. 2006-085, the commanding officer (CO) of 
the Training Center in Yorktown reassigned him in May 2003 from his position as the xxxxx 
School Chief to a lesser position at the Training Center that “did not afford the opportunity to 
perform at a level appropriate for [his] pay grade, resulting in [a] substandard OER for the period 
ending [February 29, 2004].”  The applicant alleged that his “reassignment was not within the 
authority of the Commanding Officer [CO] of Training Center Yorktown and was based on inac-
curate information on [his] performance.”  He argued that under Article 4 of the Personnel Man-
ual,  only  the  Officer  Personnel  Management  Division  (OPM)  of  the  Coast  Guard  Personnel 
Command (CGPC) may issue transfer orders, and so the CO of the Training Center did not have 
authority to place him in a billet other than that to which he had been assigned by CGPC.  The 
applicant explained the difference in his assignments as follows: 
 

As  the  School  Chief  of  the  xxxxxxxxxxxxx  (xxxxx),  I  was  responsible  for  providing xxxxxxxx 
training, including personnel and operational safety, minor and major aid maintenance, operational 
procedures  and  documentation,  xxxxxxxx  positioning,  xxxxxxx  training,  and  small  boat 
standardization.    I  was  the  supervisor  for  three  officers  and  fourteen  enlisted  personnel  and 
managed  an  annual  budget  of  $250,000.    As  School  Chief,  I  managed  the  preparation  of 
instructors,  classrooms,  and  curricula  for  approximately  forty  resident  course  convenings,  eight 
exportable  courses,  and  twelve  training  team  and  standardization  team  visits  per  year  with  an 

annual  student  throughput  of  five  hundred  students.    In  addition,  the  xxxxx  staff  and  I  were 
actively  involved  in  the  development  of  the  Integrated  Xxxxxxxx  Information  System  and  the 
xxxxxxx Interactive Courseware serving as subject matter experts and developing and reviewing 
curricula for distribution to field units. 
 
Based upon the opinions presented by my supervisor in the OER for the period ending 31 March 
2003,  I  was  removed  from  my  primary  duties  and  reassigned  by  the  Training  Center  Yorktown 
Commanding Officer as the Training Center Force Protection Officer.  The Force Protection Offi-
cer  position  to  which  I  was  reassigned  was  not  an  authorized  personnel  allowance  billet.    The 
position was created by the Command as a special assistant to the Executive Officer with no per-
sonnel assigned and no budget.  As such, the position lacked regular opportunities to display lead-
ership, management, and professional skills at the O-5 level. … 
 
Prior to my reassignment, I had no force protection or physical security experience.  Much of my 
initial  tenure  as  the  Force  Protection  Officer  was  spent  developing  some  personal  expertise  by 
attending  Incident  Command  System  training;  working  with  the  Port  Security  School,  Maritime 
Law Enforcement School, meeting with the Training Center security contractor, working with the 
command’s Armed Response Team, and through outreach to other Coast Guard and Department of 
Defense units in the local area.  The contacts were initiated by me to better carry out my newly 
assigned duties.  In my capacity as the Force Protection Officer, I organized several ad hoc work-
ing groups made up of diversified cross sections of Training Center personnel to review existing 
Training Center instructions and to develop new instructions to implement Coast Guard force pro-
tection requirements in the wake of the attacks of September 11, 2001. 
 
When I was assigned as the Force Protection Officer, it was expected that I would be in the posi-
tion until my projected rotation date in June of 2004.  During this time, I was tasked to review and 
update  the  Training  Center’s  security  plans,  including  the  Physical  Security  Plan,  Emergency 
Operations Plan, Emergency Communications Plan, and the Intrusion Detection Plan.  I was also 
tasked to conduct a study of all military watch standing positions, develop security performance 
watch standards for each watch station, and create an integrated Watch, Quarter, and Station Bill 
for  the  Command.    Although  it  was  expected  that  I  would  have  just  over  one  year  to  complete 
these  tasks,  I  received  orders  to  the  Department  of  Homeland  Security  in  January  2004  and 
detached from the Training Center on February 29, 2004.  Despite departing nearly four months 
earlier  than  anticipated,  I  successfully  completed  all  of  the  assigned  tasks.    In  addition  to  these 
assigned tasks, I led an effort to develop security training for the Armed Response Team, devel-
oped  a  Civilian  Position  Description  (PD)  for  a  full  time  Force  Protection  Officer  (the  PD  was 
approved and a person was hired after I departed), and coordinated with the local sheriff’s depart-
ment to provide additional patrols outside the entrance to the Training Center.  These initiatives 
were completed as a result of the development of the ad hoc working groups that I organized and 
implemented. 
 
While the OER for this period, April 1 2003, to February 29, 2004, acknowledges many of these 
accomplishments, it also reflects the decreased leadership and management responsibilities result-
ing from my being in appropriately reassigned from my primary duties as School Chief.  As such, I 
feel that this OER is a direct result of the inaccuracies contained in the previous OER and is preju-
dicial to my opportunity for selection to O-6. 

 

The applicant stated that in selecting commanders for promotion captain, selection boards 
weigh heavily an officer’s past performance in leadership, management, and professional skills 
as a commander in O-5 billets.  He stated that his failure to be selected for promotion to captain 
in  2007  and  2008  was  caused  by  the  2004  OER’s  documentation  of  the  lesser  duties  he  was 
unfairly assigned to perform as the Training Center Force Protection Officer (FPO) from May 
2003 through February 2004. 
 

In support of his allegations, the applicant submitted another statement from the CO of 

 
the Training Center, dated February 29, 2008:3 
 

During the period 01 April 2002 through 22 June 2003, I was the Commanding Officer of Coast 
Guard Training Center Yorktown.  During a portion of this period, [the applicant] served as the 
Chief of the [xxxxx School].  In May 2003 [he] was reassigned as the Force Protection Officer. 
 
As a result of the information provided to me in the OER for the period 01 April 2002 through 31 
March 2003, I relieved [the applicant] of his duties as the Chief of the [xxxxx School] and placed 
him into a position of lesser responsibility and opportunity for leadership.  The Force Protection 
Officer position was created as a stand alone position with no assigned personnel or funding.  As 
such, [he] was removed from any personnel or fiduciary responsibilities, duties normally entrusted 
to officers of his rank. 
 
As I previously commented in my statement of 14 October 2005, I do not believe that the informa-
tion given to me by [the applicant’s] supervisor in the OER for the period 01 April 2002 through 
31  March  2003  provided  a  factual  portrayal  of  [his]  performance  during  the  period  …    Had  I 
received  a  proper  evaluation  from  the  supervisor  for  this  evaluation  period,  I  would  not  have 
removed [the applicant] from his assignment as School Chief. 
 
[The applicant’s] assignment as the Force Protection Officer had a significant and a diminishing 
impact on his opportunities for leadership and management at the Training Center.  I believe it is a 
tribute to his self determination and loyalty to the Coast Guard that he zealously engaged these new 
duties  without  any  negativity.    In  reviewing  [his]  OER  for  the  period  ending  29  February 2004 
(after I had left Training Center Yorktown), I was highly impressed with his accomplishments as 
Force Protection Officer as noted in this evaluation.  However, without the appropriate leadership 
opportunities available in previous position [sic], I do not believe it can accurately portray [his] 
leadership, management, and professional potential.  Had [the applicant] remained in his position 
as School Chief, I believe he would have successfully demonstrated the leadership, management, 
and professional capabilities required to serve as a Coast Guard Captain. 
 
I was pleased to receive word that the [BCMR] had expunged [the applicant’s] OER for the period 
01 April 2002 through 31 March 2003.  As my decision to relieve [him] of his duties was based on 
the  inaccuracies  of  that  OER,  I  believe  his  assignment  as  the  Force  Protection  Officer  unfairly 
prejudiced his opportunity for selection to higher ranks.  I highly recommend that [his OER] for 
the period 01 April 2003 through 29 February 2004 be likewise expunged from his record. 

 

The  applicant  also  submitted  two bulletins issued by the Coast Guard Personnel Com-
mand  (CGPC)  concerning  the  unofficial  reassignment  of  officers  within  their  commands.    In 
ALCGOFF  017/06,  which  was  issued  on  March  9,  2006,  and concerned “Reassigning Officer 
within Units and Aligning Officer Evaluation Reports with Primary Duties,” CGPC stated that a 
review of OERs and officer “assignment shopping list errors” had revealed that many officers 
were not working in the position to which they had been assigned by CGPC.  CGPC stated that 
new procedures were needed to improve the alignment between officers’ actual duties and their 
duties in the Direct Access database because CGPC uses the database to manage the officer corps 
and make new assignments.  CGPC noted that it is the official order issuing authority under Arti-
cles 4.A.2. and 4.A.3. of the Personnel Manual, but that “[u]nit commanders, particularly at large 
units and sectors, often move officers within their unit to optimize operational readiness, match 
skill-sets  to  positions,  and  provide  valuable  cross-training  opportunities  to  junior  officers.”  
CGPC also noted that “[b]oards and panels often have difficulty assessing an officer’s experience 
                                                 
3 Because this CO left the Training Center on June 22, 2003, he was not a member of the rating chain that prepared 
the OER at issue in this case, which was prepared in March 2004. 

and performance relative to their peers when the description of duties in inconsistent with the 
assignment  or  other  service  norms.”    Therefore,  CGPC  announced a new procedure by which 
commanding officers could request CGPC’s approval of intra-unit reassignments.  CGPC sug-
gested that these requests be made “immediately prior to the assignment season” so that CGPC 
would not assign an officer to a duty billet that was already being filled by a reassigned officer at 
the command.  CGPC noted that it would approve “the vast majority of proposals” for reassign-
ments and discuss any concerns about a reassignment with the command.  CGPC further noted 
that under Article 10.A.4.c.2.b. of the Personnel Manual, an officer’s primary duty title should be 
shown in block 2 of an OER, and that the primary duty title shown in block 2 should be consis-
tent with the Direct Access database. 
 
 
On March 25, 2008, CGPC issued ALCGOFF 037/08, concerning “Reassigning Officers 
within Units and Aligning Officer Evaluation Reports with Primary Duties,” which superseded 
ALCGOFF 017/06 and stated that another review of OERs and “assignment shopping list errors” 
revealed that many officers were still not working in the positions originally assigned to them by 
CGPC.  CGPC noted that it makes assignments “based on a balance of Service, unit, and officer 
needs with a focus on career development” and that “[o]fficers also have a reasonable expecta-
tion that they will perform the duties of the billet into which they are assigned.”  CGPC further 
noted  that  when  a  command  reassigned  an  officer  to  different  duties  without  updating  Direct 
Access, the Assignment Officer would not be able to accurately assess the unit’s needs and could 
not create an accurate “shopping list” of available officer billets.  However, CGPC noted that 
reassignments  are  sometimes  necessary  “to  optimize  operational  readiness,  match  skill-sets  to 
positions, or provide valuable cross-training opportunities.”  Therefore, CGPC revised the proce-
dures by instructing commands to inform the Assignment Officer of any proposed reassignment 
of at least six months’ duration.  CGPC noted that “[o]fficers performing primary duties other 
than those assigned by CGPC-opm also puts the Service at risk for unnecessary OER challenges 
or appeals (e.g., Board for Correction of Military Records, Personnel Records Review Board).  
Therefore, CGPC-opm will return OERs that do not properly identify primary duties.” 
 
In  addition,  the  applicant  submitted  a  copy  of  the  “Commandant’s  Guidance  to  PY08 
 
Officer Selection Boards and Panels.”  The guidance emphasizes the need for officers who “con-
tinually  reinforce  core  values”;  “carry  out the Commandant’s Strategic Intent” with “technical 
expertise, management, and leadership skills”; “think innovatively and act with conviction” when 
confronted with a crisis; are “capable of operating in a dynamic environment” as first responders 
to hazards and threats; “embrace partnerships and unity of effort” with federal, state, and local 
agencies; are “culturally attuned to the world in which we operate”; and “teach and mentor their 
people.”  The guidance also advises selection boards to ensure that they understand the full scope 
of an officer’s assignments by carefully reviewing the “Description of Duties” block (block 2) in 
the officer’s OERs and to “pay close attention to the overall scope of authority and responsibili-
ties for all positions, command and non-command, operations and support.”  However, the guid-
ance notes, selection boards should remember that “while officers have input to their assignment 
process, ultimately, they are issued orders based on the needs of the Service.  Boards and panels 
should not base decisions on speculation as to why an officer was assigned to a certain billet or 
duty status. … Boards and panels should not unduly emphasize operational or command assign-
ments over key staff experiences.”  For candidates for promotion to commander and captain, the 
guidance notes the following: 
 

By the time officers compete for promotion to these ranks, they are generally top performers in 
specialty.    In  addition  to  performing  technical  or  specialized  aspects  of  their  assignments  well, 
officers in the O-5 and O-6 grades must demonstrate that they possess the leadership, management, 
and professional skills necessary to obtain optimal performance from people.  To meet current and 
emerging  Service  demands,  the  Coast  Guard  is  requiring  more  officers  to  remain  within  their 
respective specialty areas.  As officers move into senior ranks, they must have an understanding of 
the major issues facing the Coast Guard as a whole in order to best contribute, through their par-
ticular expertise, to the overall needs of the Service.  This understanding of macro Service issues 
can be acquired in many ways even within specialty, through assignment diversity (different type 
of  unit/different  type  of  billet/different  geographic  location),  participation  in  studies  and  task 
forces,  and  special  assignments  which  provide  a  more  comprehensive  understanding  of  issues 
important to our Service. 
 
Because of the dramatically increased scope of authority and responsibility for O-5 and O-6 posi-
tions,  officers  you  select  to  serve  in  these  grades  must  be  able  to make the leap from hands-on 
management  of  the  day-to-day  details  to  empowering  their  people  to  perform  those  functions, 
while they take a strategic view, including a broad understanding of the joint, interagency and even 
inter-governmental arenas.  They must have the ability to maintain our multi-mission effectiveness 
and functionality with the capability to make risk-based decisions under stressful circumstances.  
They must demonstrate the public acumen and capability to work cohesively with out joint inter-
agency partners to optimize mission execution.  They must understand how Coast Guard budgets 
and business systems impact operational outputs.  The qualities that we look for in Flag officers 
should be apparent in our best-qualified O-6’s. 

 

SUMMARY OF THE RECORD 

 
 
On  December  20,  1985,  the  applicant  was  appointed  an  ensign  in  the  Coast  Guard 
Reserve.  On August 26, 1986, he was integrated into the regular, active duty Coast Guard.  He 
was promoted to lieutenant junior grade on June 19, 1987; to lieutenant on July 1, 1990; to lieu-
tenant commander on August 1, 1996; and to commander on September 1, 2001. 
 
 
The applicant reported to the Training Center to serve as the xxxxx School Chief on July 
24, 2000, while still a lieutenant commander.  In his first annual OER in this position, which has 
an end date of April 30, 2001, he received nine marks of 5 and nine marks of 6 in the various 
performance categories and a mark in the fifth spot on the comparison scale, denoting an “excel-
lent performer; give toughest, most challenging leadership assignments.”  His reporting officer 
noted  that  the  applicant was highly qualified and highly recommended for command afloat or 
post-graduate study and that he had recently been selected for, and was well deserving of, promo-
tion to commander. 
 
On the applicant’s second annual OER as the xxxxx School Chief, which was his first 
 
evaluation as a commander and has an end date of March 31, 2002, the applicant received sig-
nificantly lower marks:  nine marks of 4, eight marks of 5, and one mark of 6 in the various per-
formance categories and a mark in the middle, or fourth, spot on the comparison scale, denoting a 
“good performer; give tough, challenging assignments.”  The comments in this OER are also not 
as laudatory as those in his OER for the prior year.  His reporting officer wrote that the applicant 
was a “sincere, conscientious officer” whose “vast shipboard experience and professional skills 
make him a candidate for any CO (WMEC) or XO (WAGB, WHEC) position.”  Instead of rec-
ommending the applicant for promotion to captain, the reporting officer noted that the applicant 
had been promoted to commander during the evaluation period. 
 

 
The applicant’s third annual OER as the xxxxx School Chief, with an end date of March 
31, 2003, is the 2003 OER that was removed from his record pursuant to the Board’s order in 
BCMR Docket No. 2006-085.  In lieu of the substantive OER, an OER prepared “for continuity 
purposes only” was entered in his record with no numerical performance marks or comments.  
Block  2  of  this  continuity  OER  states  only  the  following:    “SCHOOL  CHIEF,  xxxxxxx 
XXXXXXXX  SCHOOL:    OER  submitted  for  continuity  purposes  only  in  accordance  with 
Article 10.A.3.a.5.c. of the Coast Guard Personnel Manual.”4 
 
 
The fourth OER that the applicant received while assigned to the Training Center is the 
disputed 2004 OER in this case.  It documents his continuing service as the xxxxx School Chief 
in April and May 2003 and his service as the FPO from June 2003 through February 2004.  The 
marks and comments in this OER, which are mediocre for an O-5, appear in the table below.  
The “Description of Duties” in block 2 of the OER states the following: 
 

FORCE  PROTECTION  OFFICER  (FPO)  (9  months):    Leads  TRACEN  anti-terrorism  &  force 
protection  program;  protects  an  average  daily  population  of  over  1500  people,  a  $104  million 
dollar shore plant, a large armory & full service waterfront.  Coordinates unit contingency planning 
efforts for hurricanes & other natural disasters.  Leads several diverse teams such as the unit Physi-
cal  Security  Working  Group.    Represent  TRACEN  at  regional  security  coordination  meetings.  
CHIEF, xxxxxxxxx XXXXXXXX (xxxxx) SCHOOL (2 months):  Delivers comprehensive XXXX 
training, manages $235K annual budget, publishes quarterly XXXX Bulletin. 
ATTACHMENTS:  CG Achievement Medal Dated 20 February 2004 
 

 

MARKS AND COMMENTS IN APPLICANT’S 2004 OER 

#  CATEGORY 

3a  Planning and 
Preparedness 

3b  Using 

Resources 

3c  Results/ 

Effectiveness 

3d  Adaptability 

3e  Professional 
Competence 

MARK  WRITTEN COMMENTS 

5 

5 

5 

5 

5 

Submitted detailed overhaul of unit’s entire library of required security plans 
including: The Physical Security Plan, Emergency Operations Plan, Emergency 
Communications Plan & the Intrusion Detection Plan.  Organized & supervised a 
large cross-divisional team to improve unit compliance with published security 
standards & ability to implement COMDT mandated Force Protection Conditions.  
Group completed an exhaustive study of all military watchstanding positions, 
developed specific security performance standards for each watch station & 
integrated each watch into a unit Watch, Quarter & Station Bill; combined several 
stovepiped watches into a flexible response organization & developed a training 
program that may be offered as a resident course for other Coast Guard units.  
Completed new XXXX xxxx Supervisor Curriculum, improving the accounting 
process for calculation of instructor contact hours.  Updated other XXXX courses 
to make them more relevant & efficient; for example, Senior Officer XXXX course 
shortened by 20%.  Quickly adapted to new duties as FPO & the difficult challenge 
of implementing recommendations from an outside security study in a highly 
resource constrained environment.  Outreach to local sheriff’s department led to a 
cost-effective increase in unit security while reducing watchstanding requirements 
on unit personnel and increasing goodwill with the local community. 

                                                 
4 Article 10.A.3.a.5.c. of the Personnel Manual states that “[a]n OER for continuity purposes may be required by 
Commander (CGPC-opm) or Commander (CGPC-rpm) to implement judicial and administrative adjudications, and 
when directed by Commander (CGPC).”  Article 10.A.3.a.5.d. states that “[w]hen submitting a continuity OER, the 
… designated Supervisor shall briefly describe the Reported-on Officer’s responsibilities in Section 2 and state the 
reason the OER is submitted for continuity purposes, e.g., Submitted IAW Article 10.A.3.a.5., member separating on 
01 July 2000.  All other evaluation areas, including section 9, shall be left blank with “NOT OBSERVED” marked 
for each dimension.” 

4a  Speaking and 

4b  Writing 

5a  Looking Out 

for Others 
5b  Developing 

5c  Directing 

5d  Teamwork 

5e  Workplace 

5 

5 

4 

4 

5 

Others 

Listening 

Confident & articulate speaker.  Regular briefs to CO/XO on force protection & 
watchstanding matters; clearly presented objectives to the Physical Security 
Working Group; presented final group recommendations in formal presentation.  
Lead author on revisions to a host of security plans & unit Instructions.  Wrote 
clear article to help members prepare for Hurricane Isabel, which devastated parts 
of the local area & article on how to obtain assistance from the Federal Emergency 
Management Agency (FEMA) after storm passed. 
Voluntarily remained onboard during Hurricane Isabel to assist various watch-
standers & to capture lessons learned for further improvements to the TRACEN’s 
plans.  Active leader of the Yorktown Officer Association; arranged the CGPC 
(opm) “road show” for all junior officers, organized several events such as a visit 
from the head of the CG’s intelligence program & coordinated officer participation 
in supporting the unit’s Bluegrass Festival.  Successfully led the Physical Security 
Working Group to reach consensus on many difficult issues.  Pro-active steps to 
increase cooperation and information sharing with several local Department of 
Defense facilities and the York County Sheriff’s Department.  All efforts had a 
positive impact.  Represented command as guest speaker at Boy Scout Eagle 
Award banquet, advancing a key component of the unit’s balanced score card.  
While at xxxxx school, continued successful team effort to update curriculums, 
lesson plans, and practical exercises.  Worked with other branches to change 
process for curriculum reviews.  Worked well with other senior staff as a member 
of the TRACEN awards board.  Independent duty as FPO doesn’t permit [the 
applicant] to formally supervise any personnel; however, closely monitored & 
accurately reported performance of contracted security guards. 
Signature of the XO of the Training Center, serving as the Supervisor, dated March 12, 2004 

Climate 

Others 

4 

4 

5f  Evaluations 

4 

6 
7  Reporting 

Officer’s 
Comments 
Initiative 

8a 

8b 

Judgment 

8c  Responsibility 

8d  Professional 

Presence 

8e  Health & Well-

Being 

9  Comparison 

Scale 

4 

5 

5 

5 

5 

4 

10  Potential 

NA 

NA 

Reporting Officer is also Supervisor. 

Volunteered for a second year as a site manager for the Coast Guard’s “missions 
day” program which exposes Congressional & Department of Homeland Security 
staffs to the Coast Guard; ensured that the important, multi-mission site at the 
waterfront ran like clockwork to impress these important visitors.  Sound judgment 
in leading various security & planning initiatives.  Highly active member of the 
community generating goodwill for the CG.  Dedicated member of local Boy Scout 
troop leadership; completed advanced scout leadership program to serve on scout 
district training team.  Volunteer football coach at local middle school.  Raised 
cancer research funds as part of “Circle of Life” relay team.  Quickly developed 
working knowledge of security standards & methods, the Incident Command 
System & engineering planning factors to present a credible Coast Guard 
presence in various inter-service security planning & coordination groups attended 
largely by full-time DOD security experts with years of related experience.  
Completed 18 credits (50%) of a Masters of Public Administration Degree with a 
4.0 GPA.  Works out regularly; completed 13th marathon. 
[A mark of in the fourth spot means that in comparison with other commanders, the 
Reporting Officer rated the applicant as a “[g]ood performer; give tough, 
challenging assignments.”] 
Transferring, off season, to a “purple” job with the Department of HLS where [his] 
broad experience will be an asset.  A serious mariner with prior command afloat 
who strongly desires additional sea duty and has pursued a Merchant Mariner’s 
License to maintain proficiency.  Recommended for XO afloat duty; willing to 
accept short-notice orders, including overseas assignment, to obtain additional 
operational tour.  Obtained useful “joint” experience with DOD units in FPO role.  
Also well suited for positions within the XXXX program such as a District or 
Headquarters XXXX staff.  Recommended for promotion with peers. 

11  Signature of the XO of the Training Center, who also served as the Reporting Officer, dated March 12, 2004 
12  Signature of the Reviewer, who was the CO of the Training Center, dated March 12, 2004 
 

 

 
On March 1, 2004, the applicant was detailed to the Department’s xxxxxxxxxxx Staff as 
an  xxxxxxxxxxxxxx.    In  this  position,  he  used  his  operational  expertise  to  facilitate  the 
integration and coordination of field-level operations throughout the Department; to develop a 
Department-wide  doctrine  and  policy  for  operations;  and  to  test  and  evaluate  the  concept  of 
regional  operations  centers.   As a member of the Department’s  xxxxxxxxxxxxxxxx  Team, he 
helped to develop and implement an initial national operations plan to counter elevated terrorist 
threats and to develop and coordinate implementation of national strategic initiatives, including 
the National Response Plan and the National Incident Management System. 
 
 
On  his  first  OER  as  an  xxxxxxxxxxxxx  for  the  Department,  which  covers  the  period 
March 1, 2004, to March 31, 2005, the applicant received nine marks of 5, seven marks of 6, and 
two marks of 7 in the various performance categories and a mark in the fifth spot on the compari-
son scale.  His Reporting Officer, a rear admiral serving as the Deputy Director of Department’s 
Operational Integration Staff, noted that the applicant had “made significant contributions to the 
development of DHS policies” and recommended him for promotion “with peers.”  On his sec-
ond OER in this position, which covers his service from April 1, 2005, to October 18, 2005, the 
applicant received six marks of 5, ten marks of 6, and two marks of 7 in the performance catego-
ries and a mark in the fifth spot on the comparison scale.  His Reporting Officer wrote that he 
“continues  to  make  significant  contributions  to  the  development  of  DHS  policies”  and  highly 
recommended  him  for  promotion  to  captain.    On  the  applicant’s  third  OER  in  this  position, 
which covers his service from October 19, 2005, to March 31, 2006, the applicant received four 
marks of 5, twelve marks of 6, and two marks of 7 in the performance categories and a mark in 
the fifth spot on the comparison scale.  The Reporting Officer and Reviewer wrote that the appli-
cant  displayed  exceptional  operational  knowledge  and  had  their  highest  recommendation  for 
promotion to O-6” as well as for command afloat or ashore.  The OER notes that the applicant 
received a Coast Guard Commendation Medal for this work on March 1, 2006.  From April 1 to 
July 31, 2006, the applicant served as the Chief xxxxxxxxxxxxxxxxxxxx in the DHS xxxxxxx.  
On his OER for this work, he received ten marks of 6 and eight marks of 7 in the performance 
categories  and  a  mark  in  the  sixth  spot  on  the  comparison  scale,  which  indicates  that  he  was 
“strongly  recommended  for  accelerated  promotion”  by  his  Reporting  Officer.    Because  his 
Reporting Officer was a civilian, the Reviewer added a comment page and assigned him a mark 
in  the fifth spot on the comparison scale.  The OER notes that the applicant received another 
Commendation Medal on May 26, 2006. 
 
 
The applicant failed of selection for promotion to captain in 2006, but this failure was 
removed from his record pursuant to the Technical Amendment in BCMR Docket No. 2006-085 
because the 2003 OER disputed in that case was still in his record when the selection board met 
in 2006. 
 
 
In August 2006, the applicant began serving as xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.  
On an OER covering his service from August 1, 2006, to March 31, 2007, the applicant received 
thirteen marks of 6 and 5 marks of 7 in the performance categories.  Under a new comparison 
system, the applicant was marked as among the top 10% of all commanders and “one of the few 
distinguished  performers”  on  the  comparison  scale,  and  on  the  promotion  scale  he  received  a 
mark of “definitely promote.” 
 

 
On June 8, 2007, the Commandant issued ALCGOFF 059/07 announcing the upcoming 
captain  selection  board  in  July  2007  for  PY  2008  and  stating  that  the  captain  selection  board 
would be allowed to select 61 of 92 eligible commanders for promotion to captain, providing an 
opportunity of selection of 66%.  Paragraph 16 of this bulletin advises all candidates for promo-
tion to review their military records prior to the date of the selection board.5  On June 14, 2007, 
the Commandant issued ALCGOFF 067/07 announcing the names of the commanders, including 
the applicant, who would be considered for selection for promotion in July 2007.  This bulletin 
also advised all candidates for promotion to review their military records.  The applicant failed of 
selection  for  promotion  to  captain  in  2007.    Although  the  2003  OER  disputed  in  Docket  No. 
2006-085 had been removed from his record and replaced with the continuity OER pursuant to 
the Board’s order, the 2004 OER disputed in this case was in his record. 
 

On  his  OER  as  xxxxxxxxxxxxxxxxxxxxxxxxxxxx  from  April  1,  2007,  to  March  31, 
2008, the applicant received nine marks of 6 and nine marks of 7 in the performance categories, 
and he was again assigned a mark in the top 10% as “one of the few distinguished performers” 
and  a  mark  of  “definitely  promote.”    On  July  11,  2008,  the  new  commanding  officer  of  the 
Training Center awarded the applicant a Commendation Medal for his work as the xxxxx School 
Chief from August 2000 to May 2003.   

 
The applicant failed of selection for promotion again in July 2008.  The opportunity of 
selection by this board was 66% in that the captain selection board was allowed to select 89 of 
the 134 eligible candidates for promotion to captain. 
 

VIEWS OF THE COAST GUARD 

 

On September 16, 2008, the Judge Advocate General (JAG) of the Coast Guard submit-
ted  an  advisory  opinion  in  which  he  recommended  that  the  Board  grant  relief  in  this  case  by 
replacing the disputed OER with one prepared “for continuity purposes only” and by removing 
the applicant’s failures of selection in 2007 and 2008 from his record. 
 
 
The JAG stated that the applicant “has provided sufficient evidence to carry the estab-
lished burdens under law.  [The CO’s] decision to relieve the applicant of his duties as the Chief 
of the [xxxxx  School], placing him into a position of lesser responsibility and opportunity for 
leadership stemmed from information provided in an inaccurate OER.”  The JAG noted that the 
disputed OER in this case reflects the applicant’s performance in an unauthorized reassignment 
with  less  responsibility  and  opportunity  for  leadership.   The JAG stated that the reassignment 
constituted “legal error.” 
 

The JAG further argued that the applicant’s record “was not prejudiced by the reassign-
ment error per se” but “the subsequent OER that stemmed from that erroneous reassignment has 
a ‘worsening’ effect on his record and could have contributed substantially to his non-selections.”  
The JAG noted that the disputed OER does not contain any negative marks or present an injus-
tice in his record, but “it does present a negative deviation from Applicant’s OERs both before 
and  after  the  OER  at  issue.    Applicant’s  OER  history  displays  a  continuous  pattern  of  distin-
                                                 
5  This  advice  has  long  been  standard  in  all  ALCGOFFs  announcing  selection  boards  and  eligible  candidates  for 
promotion. 

guished and excellent performance.”  The JAG stated that although the disputed OER does not 
contain negative information, it also “does not address the Applicant’s demonstration of leader-
ship, management, and professional skills, which must be demonstrated at the O-5 and O-6 levels 
in accordance with the Commandant’s Guidance.” 

 
The JAG stated that “[b]eing erroneously placed into a position of lesser responsibility 
and opportunity for leadership at the O-5 level and then subsequently receiving an OER that does 
not  reflect  the  leadership  and  responsibility  performance  levels  makes  the  Applicant’s  record 
appear worse than it would in the absence of such error.”  The JAG concluded that the mediocrity 
and  lack  of  leadership  potential  in  the  disputed  OER  “is  clearly  evident  and  when  viewed  in 
comparison  to  Applicant’s  OER  history—is  detrimental  and  could  have  been  the  cause  of  his 
non-selections in PY09.”  The JAG concluded that “there appears to be a causal nexus between 
the reassignment error, the OER in question, and the failure to promote.” 
 

The JAG attached to his recommendation some information on the case prepared by the 
Coast Guard Personnel Command (CGPC).  CGPC noted that Article 4.A.1.b.a. of the Personnel 
Manual  states  that  CGPC  “fills  authorized  allowances  by  providing  personnel  capable  of  per-
forming all necessary tasks so the Coast Guard can properly carry out its mission.  To accomplish 
this  task  the  CGPC  exercises  directing,  guiding,  and  restraining  authority  over  enlisted  and 
officer assignments.”  In addition, under Article 4.A.3.b.1., CGPC issues permanent change of 
station (PCS) orders.” 

4. 
… was looking for a CDR with operational experience for an important full-time project 
involving physical security and force protection.  While it had been over 18 months since 9/11, the 
TRACEN’s security and force protection had not really changed much.  We had taken a few mod-
est steps, mostly as a visual deterrent, but our efforts were fractured, incomplete, and not effective 
against the predicted threats.  This was unacceptable given a daily population of over 1500 people, 
a large armory, and the importance of the TRACEN’s overall mission. 
 
5. 
It was critical to have a CDR (O-5) working on this project full time.  Prior efforts using 
part-time,  and  more  junior,  personnel  had  been  ineffective.    The  project  required  working  with 
many CDR School Chiefs & Department Heads at the TRACEN, the TRACEN CO & XO, some-

 

 
CGPC stated that in the summer of 2000, while still a lieutenant commander, the appli-
cant was issued PCS orders to report to the Training Center to serve as the xxxxx School Chief, 
which  was  a  lieutenant  commander  billet.    His  job  code  in  CGPC’s  database  never  changed 
during his four-year tour at the Training Center from the summer of 2000 until his transfer in 
March  2004.    CGPC  submitted  the  following  statements  signed  by  the  CO  and  XO  of  the 
Training Center in 2004, who prepared the disputed 2004 OER. 

Statement of the XO (Supervisor and Reporting Officer for the 2004 OER) 
 
 
The XO stated that although present at the Training Center in 2002 and 2003, he has no 
direct knowledge or the difficulties between the applicant and his prior supervisor that resulted in 
the 2003 OER, which was previously removed by the Board.  He stated that as the xxxxx School 
Chief,  the  applicant  reported  to  a  more  senior  CDR, who was his supervisor and who in turn 
reported to another CDR—the Training Officer—who in turn reported to him as the XO.  As the 
FPO, the applicant report directly to the XO, who is a captain.  The XO stated that when the 
difficulties between the applicant and his prior supervisor “came to a head,” he  
 

where in the range of a hundred military security watchstanders, civilian security guards, a range of 
military  watch  team  leaders—including  officers  and  senior  enlisted  personnel,  in-house  medical 
personnel, local fire departments & EMS, Coast Guard Headquarters security staff, security con-
sultants, local law enforcement, and Force Protection Officers (FPO) from nearby military instal-
lations.  (I think the FPOs from the neighboring Army and Navy bases were O-5s.) 
 
6. 
[The  applicant]  was  serving  in  a  position  at  the  [xxxxx  School]  designated  for  a  more 
junior officer (LCDR/O-4).  In this sense, he was an “extra” CDR resource.  He had a wealth of 
operational experience and a highly regarded assistant at the school.  [He], therefore, had been dis-
cussed as a potential candidate for this project several months beforehand.  In early April 2003, he 
was, obviously assigned to this project by the Commanding Officer.  Again, I had no formal role in 
the prior OER and cannot fully address how that OER influenced the decision to assign [him] to 
this project. 
 
7. 
Accordingly, [the applicant’s] OER rating chain was amended to have me, the Executive 
Officer, as his Supervisor & Reporting Officer for the duration of the project.  I supervised him 
throughout the period and provided any necessary funding and support.  he was treated like the 
other senior Division Chiefs, meeting regularly with the TRACEN Commanding Officer to discuss 
force protection issues. 

 

 

The  XO  further  stated  that  the  2004  OER,  “including  the  attached  award,  accurately 
describes [the applicant’s] duties and how he performed them.  He had a very large and difficult 
job  during  a  time  when  the  CG’s  security  doctrine  and  procedures  were  incomplete,  at  best.  
There was no well-worn path, in other words, for [the applicant] to simply follow.  He had to 
lead  and  coordinate  several  diverse  groups,  build  consensus, and develop and then implement 
effective doctrine and procedures.” 

Statement of the CO (Reviewer for the 2004 OER) 
 
 
The CO stated that he worked closely with the applicant in his work as the Force Protec-
tion Officer.  The CO stated that since he was not present when the applicant was reassigned to 
this position, he cannot address why it happened.  However, he and the XO did not consider the 
reassignment  to  be  a  “temporary  landing  place”  but  rather  a  “critical  responsibility  that  was 
appropriately placed in the trust of a Commander.”  The CO stated that “[h]ad [the applicant] not 
been assigned to this position through other circumstances, it is likely that another O-5 [com-
mander] would have been ‘detailed’ to assume these responsibilities.  There were many complex 
relationships to manage, and while the work was somewhat ambiguous, clear roles and responsi-
bilities were articulated by [the XO].” 
 
 
The  CO  further  stated  that  the  2004  OER  “accurately  reflects  the  performance  of  [the 
applicant].  He had many opportunities to excel, and leadership and initiative can be exercised (or 
not) whether (or not) you have direct reports and a finite budget.  In fact as is articulated in Block 
2 of the OER, [the applicant] led several teams, even though they were not direct reports, and in 
the absence of a finite budget, had access to the range of funds available to the XO and those he 
could have garnered from other programs/partners.” 
 
 
The  CO  alleged  that  the  applicant  “performed  his  duties  in  an  average  manner  as  is 
reflected in this OER.  He was given many opportunities to excel and in this position with direct 
access to the top leadership of a major training command he could have created security regimes 
and doctrine that would have served as examples for other commands.  Many Commanders fill 

administrative  billets  with  no  supervisory  or  budgetary  responsibilities.    They  compensate  by 
creating opportunities and supporting through exceptional effort and enthusiasm the interests of 
their superiors.  I believe his performance was evaluated fairly and accurately.” 

 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On  October  17,  2008,  the  applicant  responded  to  the  Coast  Guard’s  recommendation.  
The applicant stated that his reassignment as Force Protection Officer was unlawful and unjust 
because COs may not make internal officer personnel transfers contrary to CGPC’s orders and 
because the reassignment was the “direct fallout” of the erroneous OER, which the Board has 
already  removed  from  his  record.    The  applicant  argued  that  the  unlawful  intra-unit  transfer 
harmed him because it “was not a career-enhancing position for an active duty regular officer of 
his grade.”   

 
In addition, he argued, the 2004 OER documenting this “serious career sidetrack” preju-
diced his record before the selection boards.  The applicant noted that the JAG has agreed that his 
record is prejudiced by the 2004 OER and that it is not unlikely that he would have been selected 
for promotion had the OER not been in his record when it was reviewed by the captain selection 
boards in 2007 and 2008.  

 
The  applicant  noted  that  on  July  11,  2008,  he  was  finally  awarded  a  Commendation 
Medal for his work as the xxxxx School Chief, more than five years after he was removed from 
that position.  He argued that the late delivery of this medal is another reason to remove his 2007 
failure of selection from his record. 

 
The applicant further stated that the removal of the 2004 OER will create a two-year gap 
in his performance record filled only with continuity OERs.  Therefore, he asked the Board to 
consider recommending that he be directly promoted to captain.  The applicant stated that the Air 
Force Board for Correction of Military Records has made promotion recommendations “where, 
as here, an officer has suffered career injury of a kind that cannot be remedied otherwise.”  The 
applicant argued that direct promotion, instead of merely removing his failures of selection, is 
appropriate “because it is impossible to see how [he] will ever be able to overcome the ruinous 
effect on his career opportunities as a result of the events underlying this case and the cumulative 
impact of two successive continuity OERs in his current grade.” 
 

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 submission, and applicable law: 
 
The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  
 
Although  the  application  was  not  filed  within  three  years  of  the  applicant’s  discovery  of  the 

1. 

2. 

4. 

alleged error or injustice, it is considered timely under Detweiler v. Pena, 38 F.3d 591 (D.C. Cir. 
1994).6  
 
 
The  applicant  alleged  that  his  2004  OER  should  be  removed  from  his  record 
because  it  documents  an  unlawful  intra-unit  reassignment  to  duties  that  were  not  on  a  par,  in 
terms of leadership and management opportunities, with his duties as the xxxxx School Chief.  
He asked the Board also to remove his failures of selection to captain in 2007 and 2008.  How-
ever, on April 6, 2006, when the applicant submitted his application in BCMR Docket No. 2006-
085 seeking removal of his 2003 OER, his 2004 OER had been in his record for more than two 
years, and yet he made no complaint whatsoever about it or about his reassignment to new duties 
in  May  2003.    Therefore,  the  Board  concludes  that  in  early  2006,  the  applicant  reviewed  his 
record and found only his 2003 OER to be erroneous or unjust.  Moreover, after meeting in per-
son with the applicant about his failures of selection, the chief of the Officer Career Management 
Branch wrote in an email dated August 14, 2007, that the applicant “believes the PY08 [calendar 
year 2007] board should count as his first look for O-6.”  Therefore, the applicant was apparently 
satisfied in 2007 that his record, with his 2004 OER therein, was correct when it was reviewed by 
the captain selection board in 2007.  If the applicant was actually unhappy with his reassignment 
and the 2004 OER all along, he must have made a strategic decision not to request removal of the 
2004 so that he would not have two continuity OERs in his record.7 
 
 
Now, however, in retrospect, after failing of selection again, the applicant alleges 
that his 2004 OER is also unjust and should be removed from the record along with his further 
failures of selection.  The applicant is alleging errors in old records in piecemeal fashion so that 
he may have extra chances for promotion.   
 
The applicant alleged that the 2004 OER is unfair because he was given an assign-
 
ment  with  less  responsibility,  no  direct  subordinates,  and  no  budget  to  manage.    Article 
10.A.1.b.1. of the Personnel Manual provides that “Commanding officers must ensure accurate, 
fair, and objective evaluations are provided to all officers under their command.”  To establish 
that an OER is erroneous or unjust, an applicant must prove that it was adversely affected by a 
“misstatement of significant hard fact,” factors that “had no business being in the rating process,” 
or a “clear and prejudicial violation of a statute or regulation.”8  The applicant has not challenged 
the  accuracy  of  any  of  the  marks  or  comments  in  the  disputed  OER,  but  alleges a prejudicial 
violation of a regulation and an unfair lack of leadership and management opportunities during 
the evaluation period because of his reassignment, which he alleged, made the entire OER unfair.  
The Board must begin 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 

3. 

                                                 
6 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). 
7 A continuity OER is one that includes a description of the officer’s duties but does not contain any numerical marks 
or comments about his performance.  Personnel Manual, Article 10.A.3.a.5. 
8 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. 

5. 

it is erroneous or unjust.9  Absent evidence to the contrary, the Board presumes that the OER was 
prepared “correctly, lawfully, and in good faith.”10   
 
 
The applicant alleged that the 2004 OER is the result of a prejudicial violation of 
a regulation.  He alleged that his reassignment to new duties by his CO was unlawful because 
only CGPC has the authority to issue permanent change of station (PCS) orders.  In support of 
this allegation, he submitted ALCGOFFs issued in 2006 and 2008 providing procedures whereby 
COs who want to reassign officers within their units should request permission to do so.  He also 
pointed  out  that  Article  4.A.3.b.1.  of  the  Personnel  Manual  states  that  “Commander  (CGPC-
opm-2) issues permanent change of station (PCS) orders,” which normally specify a particular 
billet  at  the  station,  and  that  COs  may  not  issue  PCS  orders.    The  JAG  concluded  that  the 
reassignment constituted “legal error” without citing any regulation that actually prohibits a CO 
from reassigning an officer to new projects as they arise.  The fact that only CGPC issues PCS 
orders does not persuade the Board that intra-unit reassignments by COs are therefore unlawful 
or a violation of the Personnel Manual.  As noted in the ALCGOFFs submitted by the applicant, 
intra-unit  reassignments  have  long  been  quite  common.    Apparently  only  recently  (and  three 
years  after  the  applicant’s  own  reassignment)  has  CGPC  instituted  procedures  whereby  com-
mands should seek approval for such reassignments.  Just as the States and federal agencies must 
deal with unfunded mandates, Coast Guard commands must often handle significant new duties 
without  being  assigned  additional  personnel.    This  was  especially  true  in  the  aftermath  of  the 
terrorism of September 11, 2001, when force protection suddenly received much higher priority.  
COs apparently often reassign officers and enlisted members to optimize the performance of the 
command  as  missions  and  priorities  change.    The  Board  finds  that  the  applicant’s  intra-unit 
reassignment to new duties was not unlawful.  Moreover, even assuming arguendo that it was 
“legal error,” as the JAG stated, the Board finds that an assignment to new duties would not per 
se  render  the  OER  documenting  those  new  duties  erroneous  or  unjust  or  warrant  its  removal.  
The  Board  notes  that  while  the  JAG  argued  that  the  reassignment  was  “legal  error,”  the  JAG 
agreed that the reassignment was not per se prejudicial. 
 
The applicant alleged that the disputed 2004 OER is unjust because it documents 
 
a  reassignment  to  a  position  with  less  responsibility,  no  direct  subordinates,  and  no  budget, 
which he argued was prejudicial to his record.  The CO who made the reassignment in May 2003 
wrote on February 29, 2008, that he reassigned the applicant because of the erroneous 2003 OER 
and that the Force Protection Officer (FPO) position was “of lesser responsibility and opportunity 
for leadership.  The Force Protection Officer position was created as a stand alone position with 
no assigned personnel or funding.  As such, [he] was removed from any personnel or fiduciary 
responsibilities, duties normally entrusted to officers of his rank.”  However, the XO, who rec-
ommended  the  applicant’s  reassignment  as  FPO  and  who  signed  the  disputed  OER  as  both 
Supervisor and Reporting Officer, stated that as an O-5 serving in the xxxxx School Chief O-4 
billet, the applicant was an “extra” O-5 resource and that the XO needed to fill the FPO position 
and was looking for an O-5 because “[p]rior efforts using part-time, and more junior, personnel 
had been ineffective.  The project required working with many CDR School Chiefs & Depart-
ment Heads at the TRACEN, the TRACEN CO & XO, somewhere in the range of a hundred 

6. 

                                                 
9 33 C.F.R. § 52.24(b). 
10 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

7. 

 
8. 

military security watchstanders, civilian security guards, a range of military watch team leaders—
including  officers  and senior enlisted personnel, in-house medical personnel, local fire depart-
ments & EMS, Coast Guard Headquarters security staff, security consultants, local law enforce-
ment, and Force Protection Officers (FPO) from nearby military installations.  (I think the FPOs 
from  the  neighboring  Army  and  Navy  bases  were  O-5s.)”    Moreover,  the  XO  wrote  that  the 
applicant  was  chosen  as  the  FPO  because  “[h]e  had  a  wealth  of  operational  experience  and  a 
highly  regarded  assistant  at the school [to replace him as School Chief].  [He], therefore, had 
been discussed as a potential candidate for this project several months beforehand.” 
 
 
In light of the CO’s and XO’s statements, it is clear that the applicant’s erroneous 
2003 OER was a factor that was considered in his reassignment but certainly not the only factor.  
His O-5 rank, his operational experience, and the fact that his Assistant School Chief was quali-
fied to act as the xxxxx School Chief in his stead clearly were also factors.  In addition, while the 
FPO had no direct subordinates and no budget, it was apparently an O-5 level position appro-
priate to the applicant’s O-5 rank with significant responsibility, as shown in block 2 of the 2004 
OER, whereas the xxxxx School Chief position is an O-4 billet. 
 
 
The CO who reassigned the applicant before leaving the Training Center in June 
2003 supported his allegation that the reassignment was unfair because the FPO had less respon-
sibility  and  opportunity  to  demonstrate  leadership  and  management  skills  than  did  a  School 
Chief.  The XO’s description of the work and the 2004 OER itself, however, indicate that the 
applicant had significant responsibilities and worked with other military services’ officers of the 
same O-5 rank.  The subsequent CO, who was present throughout most of the evaluation period 
for the 2004 OER and who signed it as the Reviewer, stated that “[h]ad [the applicant] not been 
assigned to this position through other circumstances, it is likely that another O-5 [commander] 
would have been ‘detailed’ to assume these responsibilities.  There were many complex relation-
ships to manage, and while the work was somewhat ambiguous, clear roles and responsibilities 
were articulated by [the XO].”  This CO stated that the 2004 OER “accurately reflects the per-
formance of [the applicant].  He had many opportunities to excel, and leadership and initiative 
can be exercised (or not) whether (or not) you have direct reports and a finite budget.  In fact as is 
articulated in Block 2 of the OER, [the applicant] led several teams, even though they were not 
direct reports, and in the absence of a finite budget, had access to the range of funds available to 
the XO and those he could have garnered from other programs/partners.”  The CO also stated 
that the applicant “was given many opportunities to excel and in this position with direct access 
to the top leadership of a major training command he could have created security regimes and 
doctrine  that  would  have  served  as  examples  for  other  commands.    Many  Commanders  fill 
administrative  billets  with  no  supervisory  or  budgetary  responsibilities.    They  compensate  by 
creating opportunities and supporting through exceptional effort and enthusiasm the interests of 
their superiors.”  Therefore, the Board is not persuaded that the FPO position was inappropriate 
for  an  O-5  or  that  the  reassignment  necessarily  prevented  the  applicant  from  demonstrating 
leadership, management, and professional skills.  Without direct subordinates and a designated 
budget, it may have taken more initiative for the applicant to demonstrate such skills than in the 
O-4 xxxxx School Chief billet, but the CO’s statement shows that he had opportunities to do so. 
 

The JAG argued that the 2004 OER should be removed not because of any preju-
dice in the reassignment per se but because “the subsequent OER that stemmed from that errone-
ous reassignment has a ‘worsening’ effect on his record and could have contributed substantially 

9. 

to his non-selections.”  The JAG further argued that although the 2004 OER does not contain any 
negative marks or present an injustice in his record, “it does present a negative deviation from 
Applicant’s OERs both before and after the OER at issue.  Applicant’s OER history displays a 
continuous pattern of distinguished and excellent performance.”11  The JAG stated that the medi-
ocrity and lack of leadership potential in the 2004 OER is clearly evident in comparison to the 
rest  of  the  applicant’s  OERs  and  that  “[b]eing  erroneously  placed  into  a  position  of  lesser 
responsibility and opportunity for leadership at the O-5 level and then subsequently receiving an 
OER that does not reflect the leadership and responsibility performance levels makes the Appli-
cant’s record appear worse than it would in the absence of such error.”  Thus, the JAG is arguing 
that the 2004 OER is unfair because (a) the reassignment was not validated by CGPC; (b) the 
marks and comments in the disputed OER are not excellent; and (c) the applicant has received 
some excellent marks and comments in other OERs during his career.  In so arguing, the JAG 
contradicts long-standing precedent in Board decisions that the fact that one OER is worse than 
others  in  an  officer’s  record  is  not  significant  evidence  that  the  poor  OER  is  erroneous  or 
unfair.12   

 
10. 

The  marks  in  the  2004  OER  are  mediocre  for  an  O-5,  but  the  Board  is  not 
persuaded that anything about the FPO duties per se prevented the applicant from earning higher 
marks.  In their statements, the rating officials for the 2004 OER claimed that the applicant could 
have earned marks and comments that would have reflected well on his leadership, management, 
and professional skills, but that he did not earn exceptional marks.  The JAG and the CO who 
made  the  reassignment  insist  that  it  was  unfair  and  that  the  resulting  2004  OER  should  be 
removed.  However, they do not expressly contradict the rating chain’s claim that it was an O-5 
level position.  It is not clear whether they believe the FPO assignment would have been unfair 
for any O-5, or whether they believe it was unfair for the applicant simply because the erroneous 
2003 OER contributed to the decision to choose him for the assignment.  Nevertheless, because 
the JAG has found, contrary to the statements of the rating officials, that the reassignment was 
unfair because it gave the applicant little opportunity to demonstrate leadership, the Board will 
concur in his recommendation that the 2004 OER be removed and replaced with an OER pre-
pared for continuity purposes only. 

11. 

 
The  applicant  asked  the  Board  to  remove  his  failures  of  selection  in  2007  and 
2008.  Under Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982), to determine if the appli-
cant is entitled to the removal of his failures of selection because of the lack of the Commen-
dation Medal in his record, the Board must answer the following 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 [he] would have been [selected for promotion] in any event?”  The Board agrees with the 
JAG that the mediocre marks and comments in the applicant’s 2004 OER clearly make his record 
appear worse than it would without that OER.  In addition, given the fine marks and comments in 
the  applicant’s  more  recent  OERs,  it  is  not  unlikely  that  he  would  have  been  selected  for 
promotion if the 2004 OER had not been in his record when it was reviewed by the selection 
boards.  Therefore, the applicant’s failure of selections should be removed.  Moreover, because 
                                                 
11 The Board notes, however, that the applicant’s marks in his 2001 and 2002 OERs as the xxxxx School Chief show 
a downward trend in his performance. 
12 See e.g., BCMR Docket No. 162-94 (“The fact that the applicant received higher marks in certain categories in 
other OERs … does not prove that the mark he received on the disputed OER is inaccurate.”). 

12. 

the applicant first failed of selection for promotion to captain in 2006 with the disputed OER in 
his record, if he is selected for promotion by the next captain selection board to review his record 
as corrected pursuant to this decision, his date of rank as a captain should be back dated to what 
it would have been had he been selected for promotion in 2006, and he should receive back pay 
and allowances. 
 
 
The  applicant  asked  the  Board  to  recommend  his  direct  promotion  to  captain 
because, he alleged, the effect of having two continuity OERs in his record is ruinous and cannot 
be overcome.  In the Board’s experience, however, officers can be selected for promotion with 
large gaps in their performance records.13  Nothing in the record distinguishes this case from the 
many others in which failures of selection have been removed.  The Board is not persuaded that a 
direct promotion recommendation is warranted and will not usurp the role of the Coast Guard’s 
selection  boards,  which  are  tasked  with  the  difficult  job  of  selecting  for  promotion  to  captain 
only the best candidates from among many exceptional commanders. 
 
 
The applicant asked the Board to take any action that might alleviate any negative 
perceptions that a selection board might draw from the two consecutive continuity OERs he will 
have in his record.  Accordingly, the Board finds that the following paragraph should be included 
in block 3 of the new continuity OER: 
 

13. 

“[The  applicant’s]  Personnel  Data  Record  includes  two  continuity  Officer  Evaluation  Reports 
covering his active duty service from April 1, 2002, to February 29, 2004.  His record has been 
corrected by the Secretary in accordance with 10 U.S.C. § 1552, and no adverse inference of any 
kind  is  to  be  drawn  from  the  lack  of  more  substantive  Officer  Evaluation  Reports  during  this 
period.” 

14. 

 
Accordingly,  the  applicant’s  record  should  be  corrected  by  removing  the  2004 
 
OER; by replacing it with a continuity OER with the paragraph quoted in Finding 13 included in 
block 3; by removing his failures of selection for promotion in calendar years 2007 and 2008; 
and by back dating his date of rank and paying him corresponding back pay and allowances if he 
is selected for promotion by the next active duty captain selection board to review his record as 
corrected pursuant to this decision.  

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
13 See, e.g., BCMR Docket Nos. 2003-116 and 2005-058, in which the applicant was selection for promotion to O-4 
despite a recent six-year gap in his OERs. 

ORDER 

The application of CDR xxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his 

 
 
military record is granted in part as follows: 
 
 
His Officer Evaluation Report for the period April 1, 2003, through February 29, 2004, 
shall be removed from his record and replaced with one prepared “for continuity purposes only.”  
Block 3 of this continuity OER shall contain the following paragraph: 
 

CDR xxxxxxxxxxxx’s Personnel Data Record includes two continuity Officer Evaluation Reports 
covering his active duty service from April 1, 2002, to February 29, 2004.  His record has been 
corrected by the Secretary in accordance with 10 U.S.C. § 1552, and no adverse inference of any 
kind  is  to  be  drawn  from  the  lack  of  more  substantive  Officer  Evaluation  Reports  during  this 
period. 

His failures of selection for promotion in 2007 and 2008 by the PY 2008 and PY 2009 

 
 
captain selection boards, respectively, shall be removed from his record. 
 
 
If he is selected for promotion by the next active duty captain selection board to review 
his  record  as  corrected  pursuant  to  this  order,  his  date  of  rank  shall  be  back  dated  to  what  it 
would have been had he been selected for promotion by the PY 2007 captain selection board, 
which  convened  in  calendar  year  2006,  and  he  shall  receive  corresponding  back  pay  and 
allowances. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 Darren S. Wall 

 
 
 Paul B. Oman 

 
 

 

 
 Lillian Cheng