DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2008-115 
 
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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 
25, 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  22,  2009,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST 

 
 
The applicant requested that an officer evaluation report (OER) for the period June 13, 
2002 to May 31, 2003 (first disputed OER) be removed from her record and replaced with an 
OER for continuity purposes prepared by an alternative rating chain.  She further requested that 
the end date for this OER be corrected to August 23, 2003.   
 

 The applicant also  requested that the subsequent OER for the period June 1, 2003, to 
May 31, 2004, (referred to as the second disputed OER) be corrected to show 25 days of non-
observed  time  in  block 1.h  instead  of  109  days.    This is  the  only  correction  requested  by  the 
applicant with respect to this OER.    
 
 
In addition, the applicant requested the removal of her failure of selection for promotion 
to  LCDR before the calendar  year 2007  LCDR  selection board.  She further  requested that if 
selected by the calendar year 2008 LCDR selection board, her date of rank once promoted should 
be adjusted to the date she would have had if she had been selected by the 2007 LCDR selection 
board, with back pay and allowances.  The applicant failed of selection before the 2008 LCDR 
selection board.  Therefore, the Board will also consider the removal of this second failure of 
selection together with the first.   
 

The  applicant  stated  that  she  received  a  direct  commission  into  the  Coast  Guard  as  a 
lieutenant junior grade (LTJG) on March 27, 2000.  At that time she was nearing completion of 
her Ph.D. in environmental Science and Public Policy.  Her first assignment was at Coast Guard 
Headquarters, in the Office of Response Operations.   
 

The applicant’s subsequent assignment in the summer of 2002 was to MSST (Maritime 
Safety and Security Team) 91102, which was a new unit, as the planning officer.  According to 
the applicant, she did not request this assignment.  Prior to reporting to the MSST, she visited the 
command  and  met  with  the  executive  officer  (XO),  CDR  R.  The  applicant  stated  that  it  was 
apparent to herself and her prospective XO that she did not have the experience and background 
for the planning officer billet assignment.  The XO contacted the detailer and was told that the 
assignment was final. 
 

According to the applicant, after she had been at the MSST for about 6 months it became 
clear to the XO that she and the unit could benefit from additional training.  So he sent her TAD 
to MSO Hampton Roads for training.  She was TAD to Hampton Roads from January 29, 2003, 
until August 2003, when she departed for MSO Morgan City to begin her new PCS assignment. 
 

The applicant claimed that in April 2003 while TAD the XO told her that she was being 
transferred unexpectedly because the planning officer position at the MSST was “unbudgeted.”   
 

ALLEGATIONS 

 
First Disputed OER1 
 

 

BACKGROUND  

The applicant alleged that the first disputed OER contained  errors and injustices.  She 
specifically  alleged  that  the  comment  referring  to  her  self-image  in  the  following  sentence  in 
block 8  “Mbr continues to work on improving own self image, composure during mentoring/ 
counseling  session  appearance  in  uniform  education  in  military  etiquette  &  meeting  CMDT 
weight standards” violated Article 10.A.4.f. of the Personnel Manual.  This provision prohibits 
“[mention of] any medical or psychological conditions, whether factual or speculative.”   In addi-
tion, she argued that the comment is irrelevant because it is not an observation of her perform-
ance, and has no bearing on any of the performance dimensions contained in block 8.  Therefore, 
she  contended  that  the  comment  is  a  factor  that  adversely  affected  her  ratings  and  had  no 
business in the rating process.   
 

                                                 
1   The first disputed OER covered the applicant’s duty as the planning officer for the MSST.  Block 2 of the OER 
described  her  duties  as  follows:      “Supervisor  for  2  E-7s.    Responsible  for  the  development  of  unit  plans  & 
organizational doctrine for the deployment of 2 Maritime Homeland Security  . . . teams & 9 person support section.  
Liaison  &  coordinate  [with]  .  .  .  [group]  Cos,  Districts,  Areas,  CMDT  and  other  .  .  .  law  enforcement  units  to 
develop  strategic  policy  for  deployment  of  teams.    Responsible  for  maintaining  current  charts,  organizational 
listings,  port  security  plans,  &  other  information  required  for  unit  to  deploy  anywhere  in  CONUS  [within]  12 
hours.”    The  applicant  did  not  receive  a  mark  lower  than  4  (on  a  scale  of  1  to  a  high  of  7)  in  any  of  the  18 
performance categories.    A 4 is considered to be an average mark.   

 
The reporting officer did not recommend the applicant for promotion in block 10 of the 
first  disputed  OER.    The  applicant  claimed  that  this  recommendation  was  based  on  factors 
discussed in the section 7, 8, and 10 comment blocks that were adverse to her rating and had no 
business in the rating process.  She specifically alleged that the following bolded comments in 
block 7 were impermissible factors in the rating process: 
 

This  assignment  is  proving  very  challenging  to  the  ROO  [reported-on 
officer].  ROO has faced steep learning curve due to relative inexperience in 
the CG and switching from environmental mgt to operational security.  With 
increased  training  &  professional  development  at  a  larger  MSO,  ROO  can 
augment capabilities of the unit and add significant professional value to the CG.  
ROO’s progress toward completion of doctorate work in environmental science & 
policy  exemplifies  ROO’s  capabilities  to  succeed.    Progressed  well  during  6 
[month] TAD to MSO training.   

The  applicant  further  alleged  that  the  reporting  officer  relied  on  the  following 

impermissible factors (bolded) in evaluating her potential in block 10:    
 

[The applicant] continues to work on capturing required skill sets & knowledge 
base to succeed in operational MHLS program.  Mbr’s comparative lack of CG 
experience & and assignment to a start-up unit proved to be a substantial but 
not  insurmountable,  challenge.    [The  applicant]  participated  in  extended 
training program at local MSO to increase operational proficiency & familiarity.  
[The applicant] has made strides during this TAD period and gained some of 
the  experience  &  knowledge  that  should  have  been  requisite  prior  to 

The  applicant  also  contended  that  the  following  bolded  comments  in  block  8  were 

impermissible factors that had not business in the rating process: 
 

While challenged by inexperience & assignment to unique operational unit, 
continues to develop initiative.  As evidenced [sic] in ROO’s near-completion of 
Ph.D. mbr had drive & intellect to succeed in tough situations but must develop 
similar  foresight  &  drive  in  operational  crafts.    Above  average  judgment  when 
face with decisions; delegation of responsibilities with dept ensured that proper 
skill set were assigned to tasks at hand maximizing effectiveness of dept while 
minimizing  training  requirements.    Effectively  managed  AIRSTA  load  out 
exercise to validate unit air deployment capabilities; composed results in narrative 
which  evoked  a  programmatic  review  of  MSST  emergency  deployment 
requirements  vs  CG  airframe  capabilities.    High  ethical  mbr  noted  for  honesty.  
Although not experience in CG operational community, ensured policies & 
programs were followed even when ROO was unsure or had concerns, mbr 
then took action to review & understand policies.  Mbr continues to work on 
improving own self-image, composure during mentoring/counseling sessions, 
appearance  in  uniform,  education  in  military  etiquette,  &  meeting  CMDT 
weight standards.  Encourages subordinates to work out.   

 

 

 

The applicant argued that taken as a whole the above comments constituted impermis-
sible comments on things that are entirely out of the applicant’s control and yet they formed the 
basis for a recommendation against promotion.  The applicant argued that the above comments 
were  inappropriate  and  had  no  business  in  the  rating  process  because  (1)  the  OER  is  not  the 
appropriate forum for complaining about an officer’s lack of qualification or experience for the 
billet to which she is assigned; and (2) the comments are irrelevant to her performance and yet 
loomed so large in the overall message of the OER that they could not be ignored by a selection 
board.    She  stated  that  the  reporting  officer’s  quarrel  about  the  applicant’s  qualifications  was 
with the Personnel Command.  
 

The  applicant  argued  that  the  reporting  officer  based  his  evaluation  of  her  block  9 
comparison scale mark as a “fair officer” (the third lowest block out of 7) on his belief that the 
applicant should never have been assigned to the unit, a factor which was adverse to the rating 
that had no business being in the rating process.  The applicant explained that in no less than four 
places on the OER did the reporting officer link her lack, or perceived lack, of experience with 
her  assignment  to  the  unit.    She  also  argued  because  the  reporting  officer  sought  to  have  her 
“short toured,” there is no reason to believe that he did not take his perception of her lack of 
knowledge  and  experience  into  consideration  when  he  compared  her  with  other  LTs  he  has 
known.             

 
The Applicant contended that because she has established errors in her OER that violated 
the  personnel  Manual  and  because  she  has  established  that  the  reporting  officer  considered 
factors  adverse  to  the  rating  that  had  no  business  in  the  ratings  process,  the  next  question  is 
whether the alleged error(s) caused her record to appear worse than it would in the absence of the 
errors.    Engels  v.  United  States,  678  F.2d  173  (Ct. Cl.  1982).    She  argued  that  her  record 
certainly  appears  better  with  comments  like  “not  recommended  for  promotion”  and  “lack  of 
experience & knowledge” removed from the disputed OER.   
 
 
Finally, the applicant argued that it was an injustice for her not to have a concurrent OER 
covering her 231-day TAD assignment.  The applicant admitted that under Article 10.A.3 of the 
Personnel Manual, a concurrent OER is not mandatory.  However, she argued that while it was 
not an error under the Personnel Manual, it was an injustice because without a concurrent OER, 
the selection board only had half the picture of her performance, which she described as good. 
 

assignment  t  a  planning  officer  billet.    [The  applicant]  is  currently  not 
recommended for promotion but, with further CG experience may.   

The applicant also complained that end date for the first disputed OER should be August 

23, 2003, the date she officially checked out of her then-parent command.   
 
Second Disputed OER 
 

The applicant requested that this OER be corrected to change non-observed days “other” 
in block 1.h. from 109 to 25, which covered the period between her departure from MSST 91101 
on August 23, 2003 and the date she reported to MSO Morgan City on September 17, 2003.  No 
other complaints were registered by the applicant about this OER. 

 
Statements Submitted by the Applicant 
 
 
1.  The applicant submitted an affidavit in her own behalf.  She put forth many of the 
allegations  and  facts  stated  in  the  brief  from  her  attorney.      She  stated  that  CDR  R,  the  XO, 
became  her  supervisor  in  October  2002,  and  that  in  January  2003,  he  told  her  that  he  had 
arranged a TAD assignment for her at MSO Hampton Roads. The purpose of the assignment was 
for the applicant to familiarize herself with the different missions of an MSO.  She stated that 
CDR R chose a six-month period because it was the usual length of time to indoctrinate a junior 
officer for a first MSO tour.  The applicant stated, “I was excited and relieved to have such an 
opportunity since I was struggling to succeed in my present position.”  She indicated that she 
was struggling in her  current assignment because “(1)  I had no operational experience of  any 
kind and had served only two years in the Coast Guard, and (2) the unit, the second one of its 
kind in the Coast Guard lacked an operational and administrative doctrine for it to be managed 
effectively.”   
 
 
2.    The  applicant  submitted  a  statement  of  questions  that  she  posed  to  her  supervisor, 
CDR R, and his responses.  CDR R stated that he contacted the assignment officer to confirm 
that the applicant’s background and experience was commensurate to the billet.  He was told that 
the assignment was final and he never pressed the issue again.  He denied that he requested the 
cancellation of the applicant’s orders at any point.  CDR R stated that had he known that the 
applicant was going to transfer that summer it is likely that he would not have sent her to the 
MSO for training because his unit would not have realized any benefit from the training.  CDR R 
stated that once the applicant’s PCS orders were issued he contacted her prospective command to 
obtain their acceptance because the applicant was not within Coast Guard weight standards at 
that time.   
 
 
3.  The applicant submitted a statement from the then-XO of the TAD command, CDR H.  
He stated that the purpose of the applicant’s TAD assignment was the parent- command’s desire 
to  broaden  her  base  of  maritime  expertise  to  enhance  her  ability  to  perform  as  the  unit’s 
operation and contingency planner.  He stated that his command enjoyed a solid reputation as an 
informal  “training  port,”  and  it  was  not  uncommon  to  host  one  or  more  TAD  members  from 
other commands.   He stated that the applicant was at his command for approximately 8 months.  
He  stated  that  with  respect  to  her  OER,  it  was  understood  that  her  parent  command  would 
continue to evaluate the member and that a concurrent OER would not be completed.  He stated 
that he gathered feedback and observations on the applicant’s performance from his department 
heads and provided that information to CDR R.  He stated that he remembered that the feedback 
was generally favorable.   
 
 
4.  The applicant submitted a statement from the Chief of Port Operations at her TAD 
Command, MSO Hampton Roads.  He stated that the applicant was sent to his command to work 
on obtaining certain qualifications and experience as detailed by her XO.  He stated that he never 
had,  not  was  he  directed  to  have,  direct  administrative  operational  oversight/control  of  the 
applicant.  He stated that he understood from his XO at the TAD command that the applicant 
would still work for and report to the XO of her parent command.  He stated that from his limited 

observation  the  applicant  made  good  progress  in  obtaining  the  qualification  and  experience 
directed by CDR R.   
 
 
5.  The applicant submitted a statement from CDR W who was the XO of her new parent 
command.  CDR W wrote that he contacted CDR R of the applicant’s pervious command about 
the decision to transfer her early from the MSST assignment.  He stated that CDR R told him 
that the CO wanted her transferred because she was not a good fit for the MSST assignment.  
However,  CDR  W  stated  that  based  on  the  positive  feedback  he  received  from  her  TAD 
Command,  he  decided  that  she  was  acceptable  for  assignment  to  MSO  Morgan  City.    With 
respect to her performance at MSO Morgan City, CDR W stated the following: 
 

Over  the  course  of  approximately  two  years  .  .  .  I  observe  [the  applicant’s 
performance] as an Investigating Officer, Chief of Vessel Traffic Service (VTS) 
Berwick Bay  and as the unit’s collateral duty education services officer  (ESO).  
During those 2  years . . . I was pleased with the applicant’s performance.  She 
worked diligently to complete the PQS items assigned to her by her Department 
Head  and  became  a  fully  qualified  Investigating  Officer  .  .  .    She  assumed  the 
duties  of  the  Chief  of  the  unit’s  VTS  and  excelled  at  learning  her  new  duties, 
managing VTS personnel and equipment and, in my opinion, raised the morale of 
that  department.    In  addition,  [the  applicant]  voluntarily  took  on  the  collateral 
duty of ESO at the unit.  As ESO, she excelled at assisting several units members 
work toward and complete educational goals and was a direct contributor in the 
advancement of several petty officers at the unit.   
 
 
6.  The applicant submitted a statement from her reporting officer while assigned to MSO 
Morgan City.  He stated that in his professional opinion the following comment in the applicant’s 
first disputed OER was inappropriate: “[The applicant] has made strides during this TAD period 
&  gained  some  of  the  experience  &  knowledge  that  should  have  been  requisite  prior  to 
assignment to a planning officer billet.”  He stated that in his opinion it is inappropriate to use 
the applicant’s OER to indirectly criticize OPM and the assignment process.  He stated that units 
have an opportunity to  discuss the unit’s personnel needs with the assignment officer prior to 
orders being issued.    
 

VIEWS OF THE COAST GUARD 

 
 
On September 2, 2008, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion.2    The JAG recommended that the Board grant the following partial relief 
to the applicant with respect to the first disputed OER: 

                                                 
2    Attached  to  the  advisory  opinion  were  comments  from  the  Commander,  Coast  Guard  Personnel  Command 
(CGPC).  However, from reading the advisory opinion signed by COMDT (CG-0946) the comments from CGPC 
were  not  included  as  a  part  of  the  Coast  Guard’s  views  in  this  case.    The  usual  language  in  paragraph  1  of  the 
advisory opinion advising the Board to accept such comments as the advisory or as a part of the advisory opinion is 
omitted.  Therefore, CGPC comments are not discussed in the advisory opinion portion of this decision.  However, 
the Board notes that the recommendation made by CGPC with respect to the number of day that should be counted 
as non-observe “other” on the first disputed OER has merit.   
 

 

a.  Section  1:    change  the  number  of  days  listed  as  “not  observed”  in  the  other 
category from 122 to 25.  
 
b.    Section  8:    remove  the  phrase  “own  self-image”  resulting  in  the  corrected 
sentence  reading:  “Mbr  continue  to  work  on  improving  composure  during 
mentoring/counseling  sessions,  appearance  in  uniform,  education  in  military 
etiquette, & meeting CMDT weight standards.”   
 
c.   Section 10:  Delete the following last two sentences in this section.  “[The 
applicant]  has  made  strides  during  this  TAD  period  and  gained  some  of  the 
experience & knowledge that should have been requisite prior to assignment t a 
planning  officer  billet.    [The  applicant]  is  currently  not  recommended  for 
promotion but, with further CG experience may.”   
 
d.   Remove the applicant’s failure of selection and any references to the failure of 
selection for promotion to [LCDR].  If applicant is selected for promotion by the 
first  selection  board  to  review  her  record  after  it  is  corrected  according  to  this 
recommendation, that her date of rank should be changed to what it would have 
been had she been selected for promotion by the first LCDR selection board that 
reviewed her record.   

 
 
The JAG noted that the applicant argued that the end date for the first disputed OER is 
erroneous because she did not officially leave her parent command until August 2003.  She also 
argued that the OER erroneously shows that she had 122 non-observed days in block 1.h. She 
further argued that she should have had a concurrent OER because she was TAD more than 60 
days.  The JAG stated that Article 10.A.3.a.1.b.2. of the Personnel Manual allows officers not in 
Zone for promotion, which was the applicant’s situation at the time, to delay the end date of their 
reporting  period  to  coincide  with  their  departure  from  a  command.   The  JAG  also  stated  that 
Article  10.A.3.c.2  allows  concurrent  OERs  when  an  officer  had  been  TAD  away  from  the 
command for more than 60 days, but again, concurrent OERs are not required.3  Therefore, the 
JAG argued that the Coast Guard did not commit a legal error by ending the applicant’s reporting 
date on May 31, 2003 and by submitting only a regular OER.  The JAG stated that block 1.h of 
the applicant’s first disputed OER should show 25 non-observed days “other” rather than 122 as 
currently indicated on the OER. 
 
With regard to the applicant’s complaint about the comments in block 7, the JAG stated 
 
that none of the comments are prohibited by the Personnel Manual and they elaborate on issues 
raised in other sections of the OER.   
 
 
The  JAG  agreed  with  the  applicant  that  the  reference  to  her  self  image  in  the  block  8 
comment section violated Article 10.A.4.f.5. of the Personnel Manual, which states in pertinent 
part, that members of the rating chain shall not mention any medical or psychological conditions, 
whether  factual  or  speculative.    The  JAG  stated  that  the  comment  about  “self-image”  can  be 

                                                 
3  The JAG mistakenly referred to a continuity OER when discussing a portion of the concurrent OER issue. 

reasonably interpreted as a comment on a medical or psychological condition.  The JAG stated 
that  because  a  LCDR  selection  board  is  a  best  qualified  board,  the  Coast  Guard  is  not  in  a 
position to demonstrate the erroneous comment was harmless.   
 
 
The JAG stated there is no evidence to support the applicant’s claim that the reporting 
officer marked her as a fair performer on the block 9 comparison scale because he believed that 
the applicant should never have been assigned to the unit.  The JAG stated that the  applicant 
offered no evidence to support her contention, and therefore, insufficient evidence was submitted 
to demonstrate legal error with regard to the applicant’s comparison scale mark.   
 
 
The JAG concluded that the following two sentences regarding the applicant’s potential 
in block 10 should be removed from the disputed OER:  “[The applicant] has made strides during 
this TAD period & gained some of the experience & knowledge that should have been requisite 
prior to assignment to a planning officer billet.  [The applicant] is currently not recommended for 
promotion,  but  with  further  CG  experience  may.”    The  JAG  stated  that  the  two  sentences 
recommended  for  removal  are  not  in  accordance  with  Article  10.A.4.c.9.  of  the  Personnel 
Manual  because  they  do  not  address  the  applicant’s  potential  for  greater  leadership  roles  and 
responsibilities in the Coast Guard based on her conduct and performance demonstrated during 
the  reporting  period.    Nor  according  to  the  JAG,  do  the  comments  address  the  applicant’s 
qualification to assume duties of the next grade, her possession of special skills, or the reporting 
officer’s recommendations for specialty assignments or advance education.  The JAG also stated 
that  a  reasonable  interpretation  of  the  comments  in  block  10  is  that  the  reporting  officer’s 
promotion recommendation was based upon the applicant’s arrival to the unit for the planning 
officer  assignment  without  the  requisite  experience  and  qualifications  for  the  position,  which 
would  mean  that  the  reporting  officer  based  his  promotion  recommendation  on  an  event  that 
occurred outside of the reporting period.   See Article 10.a.4.c.9. of the Personnel Manual.  The 
JAG further stated that he could not state that these errors were harmless to the applicant’s record 
before the LCDR selection board.   
 
 
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 non-
selection,  i.e.  whether  it  is  harmless  or  prejudicial.    The  JAG  stated  that  the  court  in  Engels, 
placed  the  burden  on  the  applicant  to  establish  a  prima  facie  case  of  a  substantial  connection 
between  the  error  and  the  non-selection.    Under  Engels,  the  two  standards  to  be  applied  in 
answering this question are.  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?”  Id.  The JAG stated that the errors identified by the Coast Guard in the applicant’s 
record made it appear worse.  The JAG further concluded that it is not unlikely that the applicant 
would have been promoted with a corrected record.  Specifically, the JAG noted that with the 
recommendation  against  her  promotion  removed,  the  applicant’s  selection  opportunity  would 
have improved.   
 

  

 

  
 
 
On  October  3,  2008,  the  Board  received  the  applicant  reply  to  the  views  of  the  Coast 
Guard.  She appreciated the relief recommended by the Coast Guard; however she still argued 
that  the  entire  first  disputed  OER  should  be  removed  because  many  other  of  the  reporting 
officer’s comments violated the Personnel Manual.   
 

In this regard, she argued that comments in block 7 referring to her steep learning curve 
due to her inexperience in the Coast Guard and her switching from environmental management 
to operation port security  document performance that occurred  outside of the reporting period 
and that they are irrelevant to her performance during the reporting period, not only because they 
refer  to  performance  outside  of  the  performance  period  but  because  the  comments  involve 
factors that have no business in the rating process.   

 
With respect to comments in block 8, the applicant argued that comments referring to her 
inexperience or her lack of Coast Guard experience are similar to the comments that the JAG 
stated  should  be  removed  from  block  10  because  they  refer  to  performance  outside  of  the 
reporting  period.    She  argued,  as  she  did  her  basic  brief,  that  such  comments  include  factors 
adverse to the rating that had no business in the rating process.  The applicant also argued that 
the reference to the Hurricane Plan in the disputed OER is erroneous because she did not do that 
work during the marking period.   She stated that she was not assigned to work on this plan until 
mid May 2003.  She noted that the reporting period ended on May 31, 2003.   

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
The applicant disagreed with the JAG that the reporting officer’s comparison scale mark 
rating her as a “fair performer” is entitled to the presumption of regularity, particularly when the 
JAG has pointed to several errors by the reporting officer in preparing the disputed OER.  The 
applicant argued, as she did in her basic brief, that the reporting officer’s mark was based on his 
opinion  that  the  applicant  should  never  have  bee  assigned  to  the  unit.    The  applicant  further 
argued  that  the  reporting  officer’s  comments  when  read  in  their  entirety  place  unwarranted 
emphasis on her lack of experience and qualifications for the position to which she was been 
assigned.  Therefore, she argued these comments must have influenced his block 9 comparison 
scale mark.   

 
Again,  the  applicant  argued  that  she  it  was  unjust  for  her  not  to  have  been  given  a 
concurrent OER for the six months that she was TAD.  She stated that the regular OER does not 
cite any specific examples of her performance while TAD.  In this regard, the applicant claims 
that the disputed OER does not include any discussion of her training, or the more than 120 PQS 
items that she completed in the areas of T-Boat Inspector, Hull Inspector, Harbor Safety Officer, 
Container Inspector, or her work on the Hurricane Contingency Plan.  The applicant argued that 
the remedy for this failure to adequately document her TAD performance is the removal of the 
first disputed OER.   

 
The applicant noted that the JAG recommended changing the days not observed in the 
first disputed OER from 122 to 25 without offering an explanation of how the 25 non-observed 
days were calculated.   Changing the days not-observed to observed ignores the factuality of this 

case and does not resolve the issue that no one in her rating chain observed or was knowledge-
able of her performance while TAD.   
 

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 was commissioned in the grade of LTJG on March 27, 2000.  At the 
time  of  her  commissioning,  she  was  a  Ph.D.  candidate  in  Environmental  Science  and  Public 
Policy.    Her  first  assignment  was  at  Coast  Guard  Headquarters  in  the  Office  of  Response 
Operations, where her OERs indicate she performed well.  The applicant’s next assignment was 
as the Planning Officer for the MSST where she received the first disputed OER.  The applicant 
and CDR R met and discussed her background for the job prior to the applicant reporting for 
duty.  There is some disagreement as to what was said during the conversation, but both agree 
that after their conversation CDR R contacted the detailer and was told by the detailer that the 
decision to assign the applicant to the MSST was final.  About six months into the assignment, 
the applicant was sent TAD to MSO Hampton Roads for training to help her fulfill her duties at 
the MSST.  She remained at MSO Hampton Roads until August 2003 when she departed on PCS 
orders to MSO Morgan City.  The second disputed OER covers her duty while assigned to the 
MSO  Morgan  City.    She  has  alleged  that  the  first  disputed  OER  is  erroneous  and  unjust  and 
requested to have it removed from her record, as well as the removal of her failures of selection 
for promotion to LCDR.  
 

 
4.    The  Board  begins  its  analysis  by  presuming  that  the  disputed  OER  is  correct  as  it 
appears in the record. The applicant bears the burden of proving by a preponderance of the evi-
dence that it is erroneous or unjust.4   In this regard, the JAG has admitted to several errors in the 
disputed OER.  First, the JAG admitted that the comment in block 8 about the applicant’s effort 
to  improve  her  “self-image”  could  be  interpreted  as  a  violation    of  Article  10.A.4.f.  of  the 
Personnel  Manual,  which  prohibits  “[mention  of]  any  medical  or  psychological  conditions, 
whether factual or speculative.”   The JAG recommended that the phrase “own self-image” be 

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

deleted from the pertinent sentence.  The JAG concluded that the error was not harmless before 
the LCDR selection board.   The Board agrees with JAG’s recommendation and will direct the 
correction. 

 
5.  Second, the JAG recommended that the last two sentences of block 10 (potential)  be 
removed from the disputed OER.  The sentences read:  “[The applicant]” has made strides during 
this TAD period & gained some of the experience & knowledge that should have been requisite 
prior  to  assignment  to  a  Planning  Officer  billet.    [The  applicant]  is  not  recommended  for 
promotion but with further CG experience may.”  According to the JAG, the comments are not in 
accordance with Article 10.A.4.c.9. of the Personnel Manual because they do not comment on or 
evaluate the applicant’s qualification to assume duties of the next grade or any special skills. Nor 
do they recommend the applicant for specialty assignments or advanced education.  Instead, the 
JAG  stated  that  the  comments  could  be  interpreted  as  the  reporting  officer’s  objection  to  the 
decision to assign the applicant to the planning officer billet and, if true, would constitute basing 
the  applicant’s  performance  and  non-promotion  recommendation  on  an  event  that  occurred 
outside of the reporting period.  The Board does not agree with the JAG’s interpretation of these 
two  sentences  and  notes  that  an  officer’s  lack  of  experience,  training  and/or  knowledge  is 
relevant  to  that  office’s  readiness  to  perform  in  the  higher  grade  or  to  undertake  special 
assignments, or to participate in advanced education.  However, since the JAG has recommended 
the removal of the two sentences and the applicant has accepted the recommendation, the Board 
will direct their removal from the OER.   
 

6.    Even  with  the  error  admitted  by  the  Coast  Guard  in  block  8,  the  JAG’s 
recommendation for corrections to block 10, and the recommendation for removal of her failures 
of selection for promotion to LCDR, the applicant maintained her request for the removal of the 
entire first disputed OER.  Therefore, the Board must decide whether the entire OER should be 
removed  from  her  record  because  the  reporting  officer  based  his  entire  evaluation  of  the 
applicant’s performance on factors adverse to the rating that had no business in the rating process 
or on events that occurred outside of the reporting period.    The applicant suggested that the 
reporting officer’s comments that she was challenged in the planning officer assignment because 
of her lack of Coast Guard and operational experience were factors adverse to her rating that had 
no business in the rating process.   She asserted that if the CO had a problem with her assignment 
to the MSST as the planning officer, he should have taken the matter up with the assignment 
officer and should not have blamed her in the first disputed OER.    

 
7.  In Hary v. United States, 618 F.2d 704, 708 (Ct. Cl. 1980), the court stated that in the 
face of the presumption of regularity, an applicant must do more than merely allege or prove that 
an OER seems inaccurate, incomplete, or subjective in some sense; the applicant must go further 
and establish the presence of factors adversely affecting the ratings that had no business being in 
the  rating  process,  or  a  clear  violation  of  a  statute  or  regulation,  or  the  misstatement  of  a 
significant hard fact.  The applicant argued that the reporting officer’s comments about how her 
lack of Coast Guard and operational experience limited her ability to perform as the planning 
officer for the MSST were factors adverse to her rating that had no business in the rating process.  
However, the applicant never provides the Board with examples of the types of adverse factors 
that have no business in the rating process.  We find such guidance in Guy v. United States, 608 
F.2d 867, 870 (Ct. Cl. 1979).  The court stated in that case that bias and personal animosity of 

rating  officers  against  the  reported-on  officer  are  impermissible  factors  in  the  rating  process.  
The applicant has not put forth any evidence that the reporting officer was biased against her or 
that he held any animosity towards her.  She admitted in her statement that her discussion about 
her qualifications for the planning officer job was with the XO, who was her supervisor, and not 
with  the  reporting  officer  who  was  the  CO.    Therefore,  the  applicant  has  not  shown  that  the 
reporting officer’s comments about her inexperience were anything except his honest expression 
and  opinion  for  why  she  did  not  excel  in  the  job  as  the  unit’s  planning  officer.    Moreover, 
discussions about an officer’s inexperience or lack of operational experience are not restricted by 
Article 10.A.4.f. of the Personnel Manual. 

 
8.  The applicant has not shown the comments to be inaccurate; nor has she shown them 
to  refer  to  events  outside  of  the  reporting  period.    In  this  regard,  the  Board  points  to  the 
applicant’s own comments in her sworn statement.  She stated, “I was excited and relieved to 
have such [a TAD] opportunity since I was struggling to succeed in my present position.  This 
was due to two reasons: (1) I had no operational experience of nay kind and had served only two 
years in the Coast Guard, and (21) the unit, the second one of its kind in the Coast Guard, lacked 
operation  and  administrative  doctrine  for  it  to  be  managed  effectively.”    Therefore,  the 
applicant’s own statement corroborates the accuracy of the reporting officer’s comments that her 
performance  as  the  unit’s  planning  officer  was  hampered  by  her  lack  of  Coast  Guard  and 
operational experience.   

 
9.  The fact that the applicant had been in the Coast Guard for only two years and that she 
had no operational experience when she was assigned as the MSST planning officer was true 
during the previous reporting period and continued to be true during the period of the OER under 
review.  The difference is that her lack of experience did not limit her ability to perform in her 
first assignment as it was a non-operational assignment.  However the reporting officer noted and 
observed  during  the  current  reporting  period  that  such  inexperience  limited  her  inability  to 
perform  the  functions  of  her  then-current  assignment.    Such  inexperience  continued  and  was 
present during the reporting period  and it  affected the applicant’s ability  to do her job.5  The 
reporting officer never stated, as the applicant suggested, that the applicant should not have been 
assigned to the planning officer position.  He simply noted that once she assumed those duties, 
her performance was hampered by her lack of operational knowledge and experience.   Therefore 
the  comments  were  not  irrelevant  to  the  evaluation  of  her  performance,  as  argued  by  the 
applicant.  The reporting officer’s comments explain to the reader, as well as the applicant, why 
he evaluated her as he did and therefore serve to place her performance in the best possible light.  
See  King  v.  United  States,  19  Cl.  Ct.  703  (1990)6  and  the  Decision  of  the  Deputy  General 
Counsel in BCMR No. 161-93.7  They also explain why it was necessary to send the applicant 
                                                 
5  Article 10.A.2.b.7.b. of the Personnel Manual states that for the evaluation area, the reporting officer shall review 
the  reported-on  officer’s  performance  and  qualities  observed  and  noted  during  the  reporting  period.    Next,  the 
reporting officer shall carefully read the standards and compare the reported-on officer’s performance to the level of 
performance described by the standards. 
6    In King, the court did not find the BCNR’s refusal to remove a reference to the applicant’s failure of selection for 
promotion,  normally a restricted comment in an OER, arbitrary and capricious.  The BCMR determined that the 
manner in which the references were used in the OER was flattering and did not prejudice the applicant before the 
selection board.   
7   The Secretary’s Delegate overruled the Board in BCMR No. 161-093 and denied the Board’s recommendation 
that the following bolded comments be removed from that applicant’s OER.  The Delegate ruled that the comments 

TAD for training for approximately six months; an assignment the applicant was excited to have.  
Without  the  reporting  officer’s  understanding  of  the  applicant’s  limited  Coast  Guard  and 
operational experience, the applicant could very well of received worse marks and comments in 
the performance dimensions of the first disputed OER.   
 
 
10.  The applicant has not shown the block 9 comparison scale mark describing her as a 
“fair performer” to be erroneous.  Article 10.A.4.c.8.a. of the Personnel Manual states that the 
reporting officer shall fill in the circle that most closely reflects the reporting officer’s ranking of 
the reported-on officer relative to all other officers of the same grade the reporting officer has 
known.  Subsection c. of this Article states that no specific comments are required to support the 
reporting  officer’s  judgment  in  this  section.    However  “a  mark  other  than  in  the  center  three 
circles is strengthened considerably if there are comments in the report from which one could 
reasonably draw a conclusion why this particular officer has been identified as different from the 
majority  of  officers  of  this  grade.”    The  applicant  was  marked  in  the  first  of  the  three  center 
blocks, a “fair performer.”  Since no specific comments were required to justify the reporting 
officer’s mark on the comparison scale,  the applicant’s suggestion that the mark was based on 
the reporting officer’s belief that she should never have been assigned to the unit is speculation.  
There is no direct evidence in the record that the CO ever stated that the applicant should never 
have been assigned to the MSST as planning officer.  His recognition of the fact that she faced 
challenges in the job due to her lack of Coast Guard and operational experience is not the same 
as stating she should never have been assigned to the job.  There is no doubt that some Coast 
Guard officers are assigned to positions for which they may not have the “right” background, but 
still  perform  the  job  to  the  satisfaction  of  their  seniors.  The  applicant  has  not  proved  by  a 
preponderance  of  the  evidence  that  the  reporting  officer  marked  her  as  a  “fair  performer” 
because he believed she should never have been assigned to the MSST as the planning officer 
rather than upon his observation of her performance during the period.     
 

11.    Finally,  the  applicant  argued  that  the  comments  in  sections  7  and  8  of  the  first 
disputed OER are similar to the comments that the JAG recommended removing from block 10.  
The JAG stated that a reasonable interpretation of the two sentences recommended for removal 
could  be  that  the  reporting  officer  based  his  evaluation  of  the  applicant’s  potential  and 
recommendation  against  her  promotion  on  his  disagreement  with  the  decision  to  assign  the 
applicant  to  the  planning  officer  job,  and  if  true,  would  constitute  basing  the  applicant’s 
performance  on  an  event  that  occurred  outside  of  the  reporting  period.   As  noted  earlier  the 
Board does not agree with the JAG’s interpretation of the comments and finds that they could be 
read  as  explaining  the  applicant’s  then-current  inability  to  perform  at  a  level  expected  by  her 
superiors and why she was not recommended for positions of greater responsibility, for advanced 
education, for specialty assignments, or for promotion.  However as also stated earlier, the Board 

                                                                                                                                                             
were  not  discriminatory  or  prejudicial  and  were  intended  to  explain  or  mitigate  adverse  comments  about  the 
applicant’s communication style, and in fact retention of the references to the New York City area make the OER 
comments appear less harsh than with them redacted:  “[The applicant] is occasionally unintentionally abrasive.  He 
is a New Yorker born and bred, and the brusque and confrontational demeanor of this city is evident.  As a 
result,  he  sometimes  makes  a  poor  first  impression  but  quickly  overcomes  that  with  his  natural  friendliness  and 
demonstrated effectiveness.  He is well liked by those who know him.”    “[The applicant] has a colloquial style; 
uses regional expressions of greater NY area.”   

will  direct  the  removal  of  the  two  sentences  in  block  10  because  the  Coast  Guard  and  the 
applicant are in agreement that they should be removed.   
   

12.  The applicant made several other ancillary arguments.  She argued that she suffered 
an injustice when she was given an assignment for which she did not have the background for 
success.  The applicant received a direct commission in the rank of LTJG, no doubt due to her 
advanced education.  The applicant argued that the reporting officer blamed her for a situation 
beyond her control.  After all, she did not request assignment to the MSST.  The Board has no 
way of knowing how many other officers were assigned to billets for which their backgrounds 
were  not  an  absolute  match.    How  many  succeeded  or  not.    Was  the  expectation  that  the 
applicant would be able to do the job reasonable?  Since there has been no evidence presented to 
the Board to answer these questions, it is not possible for the Board to conclude that the applicant 
suffered  an  injustice  because  she  was  assigned  to  a  job  for  which  her  background  was  not  a 
perfect match.    
 
 
 
13.  The applicant also complained about the end date for the first disputed OER.  In this 
regard,  the  Board  finds  that  under  the  Personnel  Manual  the  submission  schedule  for  the 
applicant’s first disputed OER was May 31, 2003.  However, the submission of the OER was 
delayed, which is permitted by the Personnel Manual.  The question is whether the delay was an 
extension of the reporting period that should have been covered by MSST.  The applicant stated 
when she was informed that she would receive PCS orders in April 2003, she and CDR R agreed 
that she would  complete her TAD training.  However, there is no indication from the applicant 
or in the record as to the effective date of the PCS orders.  If they were effective on June 1, 2003, 
then  the  MSST  was  not  responsible  for  that  period  because  the  applicant  would  then  have 
belonged  to  another  command.    If  the  PCS  orders  were  effective  in August  2003,  the  MSST 
would  have  been  responsible  for  this  portion  of  the  reporting  period.    The  applicant  has  the 
burden of proof in this case and she has not submitted sufficient evidence as to the effective date 
of her PCS orders and therefore failed to establish that the MSST was her parent command on 
June 1, 2003.  The Board must conclude that May 31, 2003 was the correct end date for the first 
disputed  OER.   Accordingly,  it  was  appropriate  for  the  MSO  Morgan  City  to  account  for  the 
TAD days between June 1, 2003 and the date the applicant reported to that unit in September 
2003 in the second disputed OER covering the period form June 1, 2003 to May 31, 2004.   
 
 
14.  The JAG recommended reducing the days not observed listed as “other” in section 
1.h  from 122 to 25 on the first disputed OER without explanation for the calculation.  The Board 
notes that in the memorandum from Coast Guard Personnel Command attached to the advisory 
opinion but not made a part of it, CGPC recommended that the “other” non-observed days be 
corrected to 8, which would include the first 8 days of the reporting period prior to the applicant 
reporting to the MSST.  This calculation  appears correct to the  Board  and it will be directed.  
TAD days should only be marked non-observed if not performed in the execution of an officer’s 
normal duties.  Article 10.A.4.c.1.g. of the Personnel Manual.  The JAG noted that the appli-
cant’s duties at her TAD command were assigned to improve her skills for her primary job at the 
MSST, and therefore, her TAD performance was properly documented in the first disputed OER.  
It appears to the Board that the applicant’s request to change the 109 “other” non observed days 
to  25  on  the  second  disputed  OER  is  not  appropriate  because  her  TAD  during  this  period, 

although documented in the second disputed OER, was not in the performance of her duties at 
MSO Morgan City.    
 
 
15.  The applicant complained that she did not receive a concurrent OER for the period 
that  she  was  assigned  TAD.    She  admits  however  that  concurrent  OERs  are  not  mandatory.  
Article 10.A.3.c.2 allows for the submission of concurrent OERs when an officer has been TAD 
away from the command for more than 60 days, while being observed by a senior other than the 
reporting officer. Since the submission is discretionary, no legal error exists.  Nor is the Board 
persuaded that an injustice was done to the applicant, specifically in light of the fact that in both 
the first and second disputed OERs her TAD assignment is discussed in the OER.    There is 
evidence in the record that CDR R kept abreast of the applicant’s performance while TAD and in 
fact developed her training plan.   
 

 
16.  Based upon the error admitted by the Coast Guard in the first disputed OER with 
respect  to  the  comment  about  the  applicant’s  self-image  and  the  the  removal  of  the  last  two 
sentences in section 10, one of which did not recommend the applicant for promotion, the Board 
agrees with the JAG that the applicant’s failures of selection for promotion to LCDR should be 
removed.  In deciding this issue, the Board applied 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?”  
 
 
17.  With respect to the first prong, the Coast Guard admitted, and the Board agrees, that 
the error, and the removal of the recommendation against the applicant’s promotion made her 
record appear worse than it would in the absence of the error or the removed sentences. The JAG 
admitted  that  with  these  corrections,  it  is  not  unlikely  that  the  applicant  would  have  been 
promoted  in  any  event.    Accordingly,  the  applicant’s  failures  of  selection  should  be  removed 
from her record.  
 

18.  All of the applicant’s contentions have been reviewed.  Those not discussed within 
the findings and conclusions are considered not to be dispositive of the case.  The applicant is 
entitled to the partial relief recommended by the Coast Guard.     
 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 
.   

 

ORDER 

 

The application of XXXXXXXXXXXX, USCG, for correction of her military record is 
granted in part.  Her OER for the period from June 13, 2002, to May 31, 2003, shall be corrected 
as follows:   
 
•  Change the number of days listed as “not observed” in the “other” category of block 1.h. to 8. 
 
•  Delete the phrase “own self-image” from block 8, so that the corrected sentence shall read as 
follows:  “Mbr  continues  to  work  on  improving  composure  during  mentoring/counseling 
sessions, appearance in uniform, education in military etiquette, & meeting CMDT weight 
standards.”   

 
•  Delete  the  following  two  sentences  from  block  10  of  the  OER:    “[Applicant’s  name]  has 
made  strides  during  this  TAD  period  &  gained  some  of  the  experience  &  knowledge  that 
should  have  been  requisite  prior  to  assignment  to  a  Planning  Officer  billet.    [Applicant’s 
name] is currently not recommended for promotion, but with further CG experience, may.” 

In addition, her record shall be corrected by removing her calendar year 2007 and 2008 
failures of selection for promotion to LCDR.   If she is selected for promotion by the first LCDR 
selection board to review her record after it is corrected in accordance with this order, her date of 
rank shall be backdated to what it would have been had she been selected for promotion by the 
calendar year 2007 LCDR selection board.   
 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

All other requests for relief are denied.   
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 Bruce D. Burkley 

 

 

 
 Patrick B. Kernan 

 

 

 
 David A. Trissell