DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-024 
 
XXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXX 
   

 

 

 

FINAL DECISION 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section 425 of title 14 of the United States Code.  The Chair docketed the case on November 20, 
2008, upon receipt of the applicant’s completed application, and subsequently prepared the final 
decision for the Board as required by 33 CFR § 52.61(c).         
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  18,  2009,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The  applicant  asked  the  Board  to  correct  his  officer  evaluation  report  (OER)  for  the 
period May 2, 2006, to March 31, 2007 (disputed OER) by raising his comparison scale mark in 
block 9 to show that he was marked as an “exceptional performer; give toughest and most visible 
leadership  assignments”  rather  than  as  a  “strong  performer;  very  competent  and  respected 
professional.”  He further requested that his failure of selection before the promotion year (PY) 
2009 captain selection board be removed and that his corrected record be placed before the next 
captain selection board convened to consider officers of that grade.  Additionally, he requested 
that  if  selected  by  the  first  selection  board  to  consider  him  for  promotion  to  captain  with  a 
corrected record, that his date of rank once promoted be the date he would have had if he had 
been selected by the PY 2009 captain selection board.    
 

 The  comparison  scale  portion  of  block  9  of  the  OER  is  where  the  reporting  officer 
compares  the  reported-on  officer  with  others  of  the  same  grade  that  the  reporting  officer  has 
known.   The applicant was marked the lowest of the three middle group categories.  They are 
from  the  lowest  to  the  highest  as  follows:    “Strong  performer;  very  competent  and  respected 
professional,”  “Excellent  performer;  highly  recommended 
increased 
responsibility,”  and  “Exceptional  performer;  give  toughest  and  most  visible  leadership 
assignments.”   The  other  portion  of  block  9  is  the  promotion  scale  and  the  ratings  are  either 
accelerated promotion/in zone reordering, definitely promote, or do not promote.  The applicant 
was marked as definitely promote, which is not in dispute.   

for  positions  of 

Of the 18 performance dimensions on the disputed OER, the applicant received 14 marks 
of 6 and 4 marks of 7, on a scale of 1 to 7, with 7 being the highest.  In block 10 where the 
reporting  officer  described  the  applicant’s  potential  to  assume  greater  leadership  roles  and 
responsibilities, the reporting officer wrote the following: 

implementation)  enabling  operational 

 
An  exemplary  officer.    [The  applicant]  is  excelling  in  command,  meeting  all 
challenges with vigor & creativeness.  Consistently achieves outstanding results 
implementing new & complex initiatives (WPB biometric prototype, WPB multi-
crewing;  HAWKEYE 
innovation  & 
success.    He  has  proven  his  ability  to  successfully  lead  in  the  high  pressure 
cauldron of D7 operations, and is unquestionably  ready  for positions of greater 
responsibility. 
  Recommended  for  promotion  to  CAPT  with  the  highest 
performing  of  his  peers.    Desires,  extremely  well-prepared  for,  &  has  my 
strongest recommendation for senior service schools or equivalent programs.   
 
 
The applicant argued that the reporting officer committed an error when he marked the 
applicant in the lowest of the three middle categories on the comparison scale, which constituted 
a violation of Article 10.A.1.b. of the Personnel Manual.  This provision states the following: 
 

The commanding officers must ensure accurate, fair, and objective evaluations are 
provided  to  all  officers  under  their  command.    To  that  end,  performance 
evaluation  forms  have  been  made  as  objective  as  possible,  within  the  scope  of 
jobs and tasks performed by officers.  In using the Officer Evaluation Form, CG-
5310  (series),  strict  and  conscientious  adherence  to  specific  wording  of  the 
standards is essential for realizing the purpose of the evaluation system.   

 
 
  The  applicant  argued  that  based  upon  his  evaluation  of  performance  on  the  disputed 
OER  he  should  have  been  marked  in  the  highest  category  as  an  exceptional  performer.    He 
argued that the reporting officer’s evaluation of his performance on the disputed OER proves that 
the mark describing him as merely a “strong performer,” rather than an “Exceptional performer” 
is erroneous and violated Article 10.A.1.b. of the Personnel Manual.  He provided the following 
five examples that support his contention that the mark he received on the comparison scale was 
in error.   
 

of 

the 

three  middle-range 

1.  In Block 10, the reporting officer’s very first sentence crisply describes [the 
applicant] as “[a]n exemplary officer.”  If anything, “exemplary” suggest that the 
options—covering 
highest 
“[e]xeptional 
performer[s]”—should have been selected, rather than the lowest.   
 
2.  The next sentence described [the applicant] as “excelling in command, meeting 
all challenges with vigor and creativeness.”  “Excelling” suggest selection of the 
middle option: “Excellent performer,” although it would not be out of the question 
for  an  officer  receiving  such  a  comment  to  be  described  as  an  “Exceptional 
performer” in the Comparison Scale.   
 

3.  The  sentence  after  that  refers  to  his  consistent  achievement  of  outstanding 
results.    This  language  is  consistent  with  either  excellent  or  “exceptional” 
performance.   
 
4.  The comments in block 10 go on to describe [the applicant] as “unquestionably 
ready for positions of greater responsibility,” a phrase that is clearly reminiscent 
of  the  second  clause  of  the  description  of  ‘Excellent  performer[s],”  “highly 
recommended for positions of increased responsibility.” 
 
5.  The penultimate sentence in Block 10 is critical.  It squarely recommends [the 
applicant]  “for  promotion  to  CAPT  with  the  highest  performing  of  his  peers.”  
Taking as a given that the overall category in which [the applicant] belonged, in 
the  Reporting  Officer’s  own  view,  was  the  middle  range  that  accounts  for  the 
“majority of high performing commanders, this comment plainly points to a mark 
in the highest of the three middle categories, not the lowest and not the “Excellent 
performer” middle.  Because this particular comment speaks to promotion, it is 
entitled  to  special  weight  from  the  stand  point  of  its  implications  for  the 
Comparison Scale mark.   

 
 
The applicant argued that the first, second, third, and fifth points mentioned above point 
to a mark in the highest of the three middle categories, with the fourth comment pointing to mark 
in the second highest of the middle categories.  The applicant argued that the reporting officer’s 
mark on the disputed OER cannot be reconciled with the Personnel Manual’s direction for strict 
and conscientious adherence to the descriptors on the form.   
 
In addition to the above, the Board should consider the internal inconsistency between the 
 
applicant marks in the performance categories, which is nothing lower than a 6, and the mark in 
the  lowest  of  the  three  middle  categories.    The  applicant  argued  that  his  marks  in  the 
performance  dimensions  would  suggest  that  he  was  an  exceptional  officer  or  at  worst  an 
excellent officer.   
 
 
The applicant also argued that his mark of definitely promote on the promotion scale is 
more consistent with a comparison scale mark of excellent performer because the second phrase 
of  the  description  for  that  category  (‘highly  recommended  for  positions  of  increased 
responsibility”)  implies  promotion,  whereas  the  lower  category  to  which  the  reporting  officer 
relegated the applicant is silent with respect to promotion.  The applicant argued that OERs are 
supposed  to  be  internally  consistent.    See  Personnel  Manual Articles  10.A.4.c.11.g  (Reviewer 
Authentication), 10.A.4.j.2 (Review of OERS at Coast Guard Personnel Command).  According 
to the applicant, the disputed OER is not internally consistent.   
 
 
The applicant noted that the comparison scale mark on the disputed OER is the lowest 
mark in that section that he has received in his present rank, and that he has never received a 
mark below “Exceptional performer” in the grade of commander.  
 
 
The applicant stated that based upon the foregoing, the disputed OER should have had a 
higher mark in the Comparison Scale.  This requires the Board to decide whether the applicant’s 

failure  of  selection  for  promotion  should  be  removed  using  the  analysis  in  Engels  v.  United 
States, 678 F.2d 173 (Ct. Cl. 1983).  The higher mark in Block 9, especially on a recent OER, 
would have made the applicant’s record stronger when he met the PY 09 Captains Board.    He 
also argued that there is no basis for the Coast Guard to contend, much less prove, that he would 
have failed of selection in any event.  
 

  

VIEWS OF THE COAST GUARD 

 
 
On March 19, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion recommending that the Board deny relief to the applicant.   The JAG identified 
the issue as “whether there existed a “clear and prejudicial violation of a statute or regulation, or 
alternatively, a misstatement of a significant had fact,” found in or around the applicant’s OER; 
i.e. legal error.  See Germano 26 Cl. Ct. at 1460.”  The JAG stated that the applicant failed to 
prove that the disputed  OER was adversely affected by  a clear  and prejudicial violation of a 
statute, regulation, or alternatively, a misstatement of a significant hard fact.    
 
 
The JAG stated that the applicant’s argument that the reporting officer violated his duty 
under the Personnel Manual by marking the applicant as a strong performer on the comparison 
scale is without merit.  The JAG stated that block 9 comparison scale mark is not dependent on 
the applicant’s marks in the performance dimensions, but rather the comparison scale mark is for 
the reporting officer to compare the applicant alongside all commanders that the reporting officer 
has known.  According  to Article 10.A.4.c.8.a of the Personnel Manual, the comparison scale 
represents the relative ranking of the reported-on officer, not necessarily a trend of performance.   
 
 
The JAG argued that the policy guidance with respect to completing the comparison scale 
clearly refutes and renders applicant’s argument meritless.  According to a declaration from the 
reporting  officer,  he  rated  the  applicant  in  accordance  with  the  standard  as  set  forth  on  the 
applicant’s  OER  and  in  conjunction  with  the  policy  guidance  of  the  Personnel  Manual.  The 
evidence submitted by the applicant is insufficient to rebut the presumption that his rating chain 
carried out their duties correctly, lawfully, and in good faith.   
 
 
The Coast Guard argued that an analysis of a causal connection between the alleged error 
and the applicant failure of selection for promotion is unnecessary because he has failed to make 
a prima facie showing of an error.   
 

The  JAG  submitted  a  memorandum  from  the  Commander,  Coast  Guard  Personnel 
Command (CGPC) as a part of the advisory opinion.  CGPC recommended that the application 
be denied.   

 
CGPC obtained a declaration from the reporting officer and noted that he did not agree 
that the applicant’s block 9 comparison scale mark should be revised upward.  CGPC noted that 
the  reporting  officer’s  evaluation  of  the  applicant’s  performance  was  based  on  his  direct 
observation of the applicant along with input from the applicant’s supervisor.  CGPC noted that 
the reviewer who also submitted a statement agreed with the reporting officer that the disputed 
OER is accurate.   

 

CGPC stated that the Personnel Manual does not require the reporting officer to comment 
on  his  reason  for  marking  the  applicant  as  a  “strong  performer  rather  than  as  an  exceptional 
performer.  CGPC stated that the applicant only provided his own statement as support for his 
allegations, which is insufficient to overcome the presumption of regularity with respect to the 
construction or submission of the disputed OER.  

 
CGPC attached the declaration from the reporting officer to the advisory opinion.  The 

reporting officer stated the following, in pertinent part: 

 
As I recall the OER in question was completed on a newly revised form and the 
wording  was  changed  specifically  for  block  9,  to  task  the  reporting  officer  to 
“Compare this Commander alongside all Commanders you have known through 
your career” . . . [T]his was the first OER I had ever prepared on [the applicant]    
. . . therefore there is no issue of consistency in my evaluation of [the applicant].  I 
considered [the applicant] to be completely promotable.  If I were asked to rank 
order the commanding officers of the six Electronic Support Units at the time of 
the  report,  I  would  have  place  [the  applicant]  at  the  bottom.    All  were  fine 
performers.  That is not to say that ANY were the best, or even above median, of 
ALL THE COMMANDERS I knew in 29 years of commissioned service.     

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On April  10,  2009,  the  Board  received  the  applicant’s  reply  to  the  views  of  the  Coast 

 
 
Guard.  He disagreed with them.   
 
The  applicant  stated  that  the  reporting  officer’s  declaration  that  none  of  the  six 
 
commanding officers assigned to work for him performed above the medial of all commanders 
he  has  known  is  remarkable  given  the  great  care  that  the  Coast  Guard  takes  in  selecting  its 
commanding officers.  He noted that of the 770 commanders on active duty at any given time 
only about 11% of the most talented have the opportunity to serve in command, which defies the 
odds that all six of those who worked for the reporting officer of the disputed OER performed 
below the median.   
 
 
The  applicant  disagreed  with  the  reporting  officer’s  statement  that  there  was  no 
inconsistency within the OER because it was the first OER he prepared on the applicant.  In this 
regard the applicant stated the following: 
 

In his declaration, [the reporting officer] paints the applicant as an officer who is 
performing below the median.  However,  every  performance mark on the OER 
except for [the disputed] block 9 was a six or seven, and in block 10 of the OER 
he  gives  [the  applicant]  his  strongest  recommendation  for  senor  service  school.  
Assignment to such a school is a sign that the officer is potentially on track for 
promotion to flag rank.  The precept for the latest senior service school panel . . .  
directs the panel . . . to “select only those highly qualified officers and civilians, 
who, in the Panel’s opinion, offer the greatest potential for executive level service 
in  the  Coast  Guard.”      It  is  impossible  to  reconcile  [the  reporting  officer’s] 

 

FINDINGS AND CONCLUSIONS 

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

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

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

of the United States Code.  The application was timely. 

declaration or the block 9 comparison scale marking with the other performance 
marks on the OER, his “strongest recommendation” for senior service school and 
the  “definitely  promote”  mark  contained  in  the  OER.    Whatever  was  actually 
going on in the preparation of this OER, it simply does not hang together.   
 
[T]he approach reflected in [the reporting officer’s] declaration and the advisory 
opinion would basically drive a wedge between block 9 (which is one of, if not 
the, most important parts of the OER) and the rest of the OER.  It seems illogical 
that  the  Commandant  could  really  have  intended  that  these  two  parts  of  the 
evaluation—block  9  vs.  everything  else—would  function  in  isolation  from  one 
another.  We are aware of no guidance, in the Personnel Manual or elsewhere, to 
personnel  boards  and  panels  that  they  should  view  different  parts  of  the  OER 
through different lenses when making important personnel decisions.  The lack of 
any authoritative guidance to interpret different parts of the OER in isolation from 
one  another  seriously  undermines  the  advisory  opinion’s  position  that  the  other 
parts of the OER have no bearing on block 9.   

 
2.  The Board begins its analysis by presuming that the disputed OER in the applicant’s 
military record is correct and the applicant bears the burden of proving by a preponderance of the 
evidence that the OER is erroneous or unjust.  33 C.F.R. § 52.24(b).  For the reasons discussed 
below, the applicant has failed to prove by  a preponderance of the evidence that the disputed 
OER is in error or unjust. 
 

3.  The issue is whether the block 9 comparison scale mark is in error.  There are seven 
rating choices on the  comparison scale in block 9:  they  are  range from highest to lowest, as 
follows: “Best Officer of this grade”;  “One of the few Distinguished performers”; “Exceptional 
performer; give toughest and most visible leadership assignments”; “Excellent performer; highly 
recommended for positions of increased responsibility”; ‘Strong performer; very competent and 
respected professional”; “Steady performer; limited potential for increased responsibility”; and 
“Unsatisfactory performance/conduct; no potential for increased responsibility.”  The applicant 
was rated as a “strong performer.” 
 

4.   With  respect  to  evaluating  an  officer  on  the  comparison  scale  of  an  OER, Articles 

10.A.4.c.8.a. & d. of the Personnel Manual state as follows: 
 

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.  NOTE:  this section represents a 

relative  ranking  of  the  Reported-on  Officer,  not  necessarily  a  trend  of 
performance.    Thus,  from  period  to  period,  an  officer  could  improve  in 
performance but drop a category. [Article 10.A.4.c.8.a.] 
 
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  reasonable  draw  a  conclusion  why  this  particular  officer  has  been 
indentified as different from the majority of this grade.  [Article 10.A.4.c.8.d.] 

 

5.    The  applicant  argued  that  the  evaluation  of  his  performance  on  the  disputed  OER 
supports a comparison scale mark higher than “Strong performer” which is the lowest block of 
the three middle categories.  He argued that the evaluation of his performance supports a mark in 
the highest block of the middle categories, which is “Exceptional performer . . .” or at least a 
mark in the second highest block in the middle category as an “excellent performer . . .”  The 
Board  agrees  with  the  applicant  that  having  no  marks  lower  than  6,  with  several  7s,  in  the 
performance  dimensions  and  being  described  in  block  10  (potential)  as  an  exemplary  officer, 
who excelled in command and is ready for positions of greater responsibility, who consistently  
achieved outstanding results, and who is recommended for promotion to captain with the highest 
performing of his peers seem inconsistent with a comparison scale mark in the lowest block of 
the middle categories.   However, as stated in Article 10.A.4.c.8.a. of the Personnel Manual, the 
reporting officer fills 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.  The provision further states that the comparison section scale mark represents a relative 
ranking of the reported-on officer, not necessarily a trend of performance.  Thus, from period to 
period, an officer could improve in performance but drop a category.  In light of the guidance 
from the Personnel Manual, a comparison mark seemingly inconsistent with the remainder of the 
OER is not necessarily erroneous.  The comparison scale mark represents the reporting officer’s 
judgment  of  where  the  applicant  ranked  when  compared  to  others  of  the  same  grade  that  the 
reporting officer  has known.  Therefore, while the applicant performed  his duties well for the 
period under review, in the judgment of the reporting officer he was a “Strong performer; . . .” 
when compared to other commanders that the reporting officer has known.  The reporting officer 
stood  by  his  evaluation  of  the  applicant’s  rating  scale  mark  in  a  statement  attached  to  the 
advisory opinion.1 
 
 
6.  The applicant also argued that his mark of definitely promote on the promotion scale 
is more consistent with a comparison scale mark of “Excellent performer; highly recommended 
for positions of increased responsibility,” which implies promotion, whereas the lower category 
of  strong  performer  where  the  applicant  was  placed,  is  silent  as  to  any  recommendation  for 
increased responsibility.  Article 10.A.4.c.8.b.of the Personnel Manual states that the reporting 
officer, in addition to the comparison scale mark, is to also assign one promotion scale mark.  
                                                 
1  In  BCMR  No.  1996-084,  the  Secretary’s  Delegate  wrote  that  she  was  reluctant  to  second-guess 
expressions of opinion or judgments in OERs by supervisors and reporting officers, who are entitled to a 
presumption  of  correctness,  where  there  is  no  legal  error.    The  Delegate  further  noted  that  OER 
comments  represent  the  opinions  or  discretionary  judgments  of  different  supervisors  and  reporting 
officers over a period of time.   

This  provision  requires  the  reporting  officer  to  provide  the  reviewer  with  a  copy  of  his  most 
recent rating scale history.  The reviewer for the disputed OER stated that he found the disputed 
OER  to  be  consistent,  correct,  and  he  recommended  no  changes.    There  is  nothing  in  the 
Personnel Manual that requires correlation between the marks assigned on the comparison scale 
and those assigned on the promotion scale.  With the reporting officer and the reviewer standing 
by the disputed OER, the weight of the evidence favors the accuracy of the OER.  
 

7.  Further evidence favoring the accuracy of the OER, is the lack of a finding by CGPC 
of a substantive error upon its review of the disputed OER.  Article 10.A.4.j.2. of the Personnel 
Manual  states  that  during  the  review  of  an  OER,  CGPC  should  pay  particular  attention  to 
inconsistencies between the numerical evaluations and written comments to ensure that the OER 
has  been  prepared  in  accordance  with  the  officer  evaluation  system  guidelines.    There  is  no 
indication  that  CGPC  found  any  irregularity  with  the  disputed  OER. Although,  the  applicant 
suggested  that  CGPC  failed  in  its  responsibility  by  not  noting  an  inconsistency  between  the 
comparison scale mark and the other marks and comments on the disputed OER, other than the 
applicant’s opinion in this regard, there is no proof that CGPC acceptance of the disputed OER 
was  erroneous.    The  applicant  has  not  proven  by  a  preponderance  of  the  evidence  that  the 
disputed OER is in error or unjust.  

9.  Accordingly, the applicant applicant’s request should be denied. 

 
8.    Since  the  applicant  has  failed  to  establish  an  error  or  injustice  with  respect  to  the 
disputed  OER,  there  is  no  basis  for  the  Board  to  consider  removing  the  applicant’s  failure  of 
selection for promotion to captain. 
 
 
 
 
 
 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

The application of XXXXXXXXXXXXXXXXXX, USCG, for correction of his military 

ORDER 

 

 

 
        
 Bruce D. Burkley 

 

 
 Robert F. Parker 

 

 

 
 
 Richard Walter  

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
  

 
  

 
 

 
 

 
 

 

 

 
 

 
 

 
 

 

record is denied