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CG | BCMR | OER and or Failure of Selection | 2009-071
Original file (2009-071.pdf) Auto-classification: Denied
DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2009-071 
 
Xxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxx 

 

 
 

DECISION OF THE DEPUTY GENERAL COUNSEL 

AS THE OFFICIAL WITH DELEGATED AUTHORITY TO TAKE FINAL ACTION  

ON BEHALF OF THE SECRETARY OF 

THE U.S. DEPARTMENT OF HOMELAND SECURITY 

 

       
 
 
I approve the Recommended Final Decision of the Board for Correction of Military Records of 
the United States Coast Guard and the relief recommended in the order therein. 
 
 
 
 
 
 
 
Date:  ____________________ 
 
 
 

     
_/s/_________________________________ 
Joseph B. Maher 
Deputy General Counsel 
U.S. Department of Homeland Security 

 
 
 
 
 

 
 
 
 
 

 

 
 
 

 

 
 
 

 

 
 
 

 

 
 
 

DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2009-071 
 
Xxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxx 

RECOMMENDED 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 upon receipt of the applicant’s 
completed application on January 15, 2009, 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 September 9, 2010, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  remove  from  his  record  a  special  officer  evaluation 
report (OER) covering his service from June 1, 2005, to March 10, 2006, and to replace it with 
one prepared for continuity purposes only (without numerical marks or comments). (Tab A)  The 
disputed  OER  (Tabs  B,  C)  purportedly  documents  his  removal  from  his  primary  duty  as  an 
Assistant  Operations  Officer  (AOO)  of  an  Enhanced  Maritime  Safety  and  Security  Team 
(EMSST). 
 
 
The applicant alleged that the disputed OER is unfair because he was not serving in the 
position to which he had been assigned.  The applicant stated that in 2004 he was assigned to be 
the Operations Officer (OO) of an MSST (not “enhanced”).  However, when he reported to the 
unit, it was being merged with a Tactical Law Enforcement Team (TACLET) and reorganized as 
an EMSST.  Because of the reorganization, instead of being the OO of an MSST, he was made 
the  AOO  of  the  EMSST  and  an  Assistant  Team  Leader.    The  applicant  stated  that  the  other 
Assistant Team Leaders were current or prior TACLET or MSST team leaders with at least two 
years of experience.  The applicant alleged that his prior assignments had prepared him for the 
managerial role of an OO, but did not give him the skills or qualifications necessary to be a tac-
tical  team  leader.    Therefore,  he  was  “disadvantaged  by  not  being  allowed  to  work  in  the 
capacity [to which he] was assigned.” 
 
 
Moreover, the applicant alleged, he was “never given an opportunity to learn [the neces-
sary skills] through a progression.”  Although he attended boarding officer school, he “was not 

given an opportunity to learn and practice these skills.”  He was also sent to a tactical training 
course, but “with little experience, [he] didn’t demonstrate sufficient proficiency to complete the 
course.”  He was removed from the course and was not allowed to undergo the training a second 
time even though it was a prerequisite course for team leaders.   
 

After his removal from the course, the applicant was “assigned as the Logistics Officer, a 
position which didn’t exist prior to non-completion of the training course.”  In this position, he 
“faced formidable challenges, to include managing property accounts for two units which had no 
accountability of a majority of its equipment.”  The applicant alleged that when he attempted to 
rectify the property discrepancies, he met “harsh resistance from [his] supervisor.”  His supervi-
sor, the Executive Officer (XO) of the EMSST, told him “on many occasions that [he] did not 
have the ‘tactical’ field operations skill sets expected of [his] pay-grade (i.e., qualified boarding 
officer), that [he] did not have the capabilities the unit required, and that [he] should not have 
been assigned to the unit.”  In addition, he was told that the XO had already communicated that 
opinion to the Officer Personnel Management (OPM) branch of the Personnel Command before 
his assignment orders were even finalized.  He alleged that “the negative attitude and condes-
cending comments from [his] supervisor hampered [his] ability to perform.”   

 
The applicant alleged that in January 2007, while assigned to a Sector Enforcement Divi-
sion, he successfully qualified as a boarding team member and boarding officer.  Thus, he proved 
that “under proper leadership [he] could perform to a high level.”  The applicant argued that the 
disputed OER should be removed because if he had served in the OO position to which he was 
actually assigned in 2004, he would not have received the derogatory special OER.  In support of 
his  allegations,  the  applicant  submitted  a  copy  of  the  disputed  OER,  his  OER  Reply,  and  an 
assignment page in his electronic record, which shows that he was ordered to report to the MSST 
on July 1, 2004, to serve as the Operations Officer (OO) (Tab D). 
 

SUMMARY OF THE RECORD 

 
 
On August 6, 1999, the applicant, a prior enlisted Reserve port security specialist, was 
appointed an ensign in the Coast Guard Reserve.  He was promoted to lieutenant junior grade on 
February 6, 2001, and began serving on extended active duty on August 1, 2002.  On June 1, 
2003, he was integrated into the regular Coast Guard as a lieutenant junior grade.  On August 6, 
2003, he was promoted to lieutenant. 
 

Before his assignment to the EMSST, the applicant had received excellent OERs1 (Tab 
E) serving as a marine investigator investigating marine casualties at the port of Los Angeles and 
Long Beach; an assistant intelligence officer at a Harbor Defense Command “providing expedi-
tionary  harbor  defense  and  force  security  for  CONUS  &  OCONUS  deployable  operations”;  a 
force protection officer at a Harbor Defense Command, managing a security program for a joint 
expeditionary unit of 51 members in multiple locations and situations; a staff officer in the Port 

                                                 
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.” 

Security  Directorate  at  Coast  Guard  Headquarters;  a  staff  officer  in  the  Maritime  Homeland 
Security  Operations  and  Tactics  Directorate;  and  a  staff  officer  in  the  Office  of  Port  Security 
Policy and Planning.  The record also shows that by August 2004, the applicant had attained the 
following education, training, and qualifications (Tab F): 

 

 

 

41/44-foot boat crew 

2001  Force Protection Officer 
2001  Anti-Terrorism Officer 
2001  Expeditionary Warfare Intelligence Course 
2001  Reserve Officer Association Leadership Seminar 
2002 
Industrial Security Leadership and Development 
2002  Weapons Officer 
2003  U.S.M.C. Rear Area Security & Combat Skills Course 
2003  U.S.N. SCUBA diver 
2003  Microsoft Basic Project 
2003  U.S.C.G. certified in vertical insertion 
2004  U.S.C.G. Basic Boarding Officer 
2004  U.S.C.G. Team Coordination Training/Group Ops 

1989  A.A. in Administration of Justice 
1991  Port Securityman School 
1991  Communications Watchstander 
1991  Police certified SCUBA diver 
1992  Boarding team member 
1992 
1993  B.S. in Justice and Security Management 
1994  U.S.A.F. Security Police Officer Course 
1995 
Investigating Officer 
1997 
Industrial Security Management 
1999  Master of Public Administration 
2000  First Aid and CPR 
2000  Global Command Control Systems 
 
The Applicant’s First OER at the EMSST (Tab G) 
 
 
On August 10, 2004, the applicant reported for duty at the EMSST.  His first OER from 
this command (Tab G) covers his service there through May 31, 2005, and states that he was the 
AOO  of  the  EMSST,  supervising  four  junior  officers,  four  chief  petty  officers,  and  45  petty 
officers and responsible for six small boats and trailers, two canine teams and their equipment, a 
dive  team  and  their  equipment,  and  chemical,  biological,  radiological,  nuclear  and  explosive 
detection equipment.  In addition, as a collateral duty, he was the Weapons Officer and as such 
managed  the  largest  operational  unit  armory  in  the  Coast  Guard.    This  first  OER  from  the 
EMSST was signed by the OO of the EMSST as the supervisor, the XO of the EMSST as the 
reporting officer (although he entered his title as CO), and the Chief of the Headquarters Port 
Operations Section as the reviewer.  On this OER, the applicant received sixteen average marks 
of 4 in various performance categories, a mark of 5 for adaptability, a mark of 6 for health and 
well-being, and a mark in the fourth spot on the comparison scale, denoting a “good performer, 
give tough, challenging assignments.”  The supporting comments included the following: 
 

Fair  start  to  operational  tour.    Qualified  as  MLE  Boarding  Team  Mbr.    Quickly  learning  CG/ 
EMSST  ops  planning  and  asset  deployment  methodology.    Deployed  as  Asst  Ops  Officer  for 
EMSST  support  of  US  Secret  Service  VIP  protection  at  2004  Republican  National  Convention 
(RNC).    Effectively  managed  largest  operational  armory  in  the  CG;  …  Oversaw  2  successful 
Waterside  Section  HLS  deployments  totaling  50  days;  managed  Ops,  admin  &  message  traffic.  
Mbr of EMSST planning cell for and deployed to TOPOFF3 WMD multi-agency exercise; stood 
TAO  watches.  …  [The  applicant]  is  beginning  to  understand  the  complexities  of  the  CG  field-
level operations arena; Growing in understanding of operations ashore, aviation and multi-agency 
operations.  Eagerly  inserted  into  the  CG  command  and  control  structure  during  EMSST 
deployments to learn CG operations planning and execution processes. With input from mentors, 
made process improvement recommendations.  Highly enthusiastic about organizational process 
changes; … 90% complete with MLE Boarding Officer qualification process.  Began small boat 
crew member qualification process … Completed Air Use of Force, Incident Command System 

(ICS) 100-200 training and TCT Command Group Ops courses. … Superb physical condition. … 
Recommended  for  promotion  to  LCDR  with  peers.    With  continued  prof  development  in 
leadership, mngt and ops areas, [the applicant] may rise to the challenges of the operations ashore 
community.    [He]  is  gaining  exposure  to  all  facets  of  CG  ops  via  mentorship  and  work 
assignments.  [His] teams managed several critical functional work areas of the unit …  

 
 
On January 19, 2006, the applicant submitted an OER Reply (Tab H) to this first OER 
from the EMSST.  In his OER Reply, he alleged that the OER was not timely completed or com-
pleted  by  an  established  rating  chain  because  the  unit  had  not  published  its  rating  chain.    He 
alleged that most of the accomplishments he had included in his OER input had been omitted 
from the OER comments, and he provided four paragraphs listing accomplishments.  He noted 
that  he  had  received  two  letters  of  recommendation  from  the  command  during  the  evaluation 
period praising his competency, leadership, energy, skills, maturity, writing style, and “personal 
qualities and potential for long-term, continued high performance.”  The applicant’s OER Reply 
was forwarded up the rating chain without comment for inclusion in his record. 
 
The Disputed OER (Tab B) 
 
 
The applicant’s second OER as the AOO at the EMSST is the disputed OER in this case 
and  covers  his  service  from  June  1,  2005,  until  March  10,  2006.    The  XO  of  the  EMSST 
prepared the entire OER as both the supervisor and the reporting officer, but signed it as the CO 
of the old MSST, and the Chief of the Headquarters Port Security Section served as the reviewer.  
Block 2 of the OER shows that in addition to being the AOO, the applicant’s collateral duty was 
to  be  the  Logistics  Officer.    Block  2  also  states,  “This  OER  is  submitted  under  Article 
10.A.3.c.1.a.  due  to  performance  notably  different  from  the  previous  reporting  period.    Per 
Article 10.A.4.h.1., this OER is a Derogatory Report.  ROO [reported-on officer] was removed 
from primary duties on  03/10/06.”  The numerical marks and comments in the disputed OER 
appear in the chart below. 
 

MARKS AND COMMENTS IN APPLICANT’S MARCH 2006 SPECIAL OER 

#  CATEGORY 
3a  Planning and 
Preparedness 

3b  Using 

Resources 

3c  Results/ 

Effectiveness 

3d  Adaptability 

3e  Professional 
Competence 

MARK  WRITTEN COMMENTS 

2 

4 

3 

4 

3 

Failed to become competent as AOPS.  Planning & preparation sub-standard.  In-
adequate prep for change of command briefs & reliefs resulted in passing of some 
misinformation to new CO, resulting in ROO being relieved of duties as Interim 
Dive Officer, & in poor documentation of morale & weapons property which result-
ed in certain items being unaccounted for.  Planned & executed vital dive training 
including classroom PQS & real dive experience off the coast of NC; Helped divers 
maintain qualifications while training the team in deep dive intricacies.  Assigned as 
Logistics (LOGS) Section Chief; Undertook new duties with energy, but failed 
repeatedly to produce work of adequate quality or thoroughness.  Displayed reluc-
tance to thoroughly research assigned projects resulting in frequent rework; unit 
Organization Manual (ORGMAN) consolidation project was carelessly reviewed & 
forwarded to the command with significant short-comings, despite proscriptive task 
direction.  Provided positive short-fuse logistics support to deploy Law Enforcement 
Detachment (LEDET) with government vehicle for Katrina response & to support 
K9 Team deployment to District 9.  Made progress on Boat Forces PQS; 
Successfully completed SAR School; Coordinated TDY assignment to local Sector 
for LE ops & was certified by that command as Boarding Officer.  Received 
generous compliments for TDY LE efforts, reflecting well on self & command. 

4a  Speaking and 

Listening 

4b  Writing 

5a  Looking Out 

for Others 
5b  Developing 

Others 

5c  Directing 

Others 

5d  Teamwork 

5e  Workplace 

Climate 

5f  Evaluations 

4 

2 

4 

4 

4 

3 

3 

4 

Briefed 10 visitors from USN explosives command on EMSST & armory training 
needs, articulated & promoted needs adequately.  Significant written work required 
formatting &/or grammatical corrections.  Poor proof reading habits; Often sent 
written work to XO without adequate review resulting in process slowdowns.  Inef-
fective efforts to develop subordinates & process improvements as Awards Board 
Chairperson; Processed 35 personal awards; Drafted 2 CG Commendation Med-
als, 3 Achievement Medals, 3 LOCs & 2 LOAs; Most all work needed editing. 
Provided appropriate recommendations & assisted XO with 2 retirement ceremo-
nies.  Effectively engaged deployed boat crew members to gauge morale & identify 
resource needs.  Provided mentoring to E5 to seek CPO’s Mess Counsel resulting 
in positive behavioral changes.  Moderately successful at leading & coaching E9 
EPO towards work process improvements & planning coordination with OPS staff.  
Wisely prompted command to request external help to prep unit for RE-HS Stan 
visit, contributing to unit receiving the KIMBALL Award.  Recommended Armory 
staffing changes for better workload distribution & provided solid LOGS support to 
long-term boat crew deployment mission, overcoming several complex challenges.  
Demonstrated poor leadership skills that hindered camaraderie & created confu-
sion & communication barriers inhibiting subordinates’ team processes; Subordi-
nates often circumvented [the applicant] to gain understanding of tasks & to align 
work with command direction.  Unwittingly created tense workplace climate; Often 
appeared not to listen to recommendations of peers & juniors; Incorrectly perceived 
feedback as personal criticism vs. professional development/helpful suggestions.  
Neglected to properly follow sound leadership principles & COMDT Human 
Relations guidance to resolve work place misunderstanding. 

6 
7  Reporting 

NA 

Initiative 

Judgment 

Officer’s 
Comments 

Signature of the EMSST XO, signing as the MSST CO and the applicant’s supervisor, dated April 17, 2006 
[The applicant] was provided abundant leadership opportunities plus command 
leadership & external mentoring support through-out this marking period, but 
demonstrate[d] a consistent level of poor preparation & execution of primary & 
collateral duties ultimately leading to relief of primary duty.  [He] lost confidence & 
trust of command by not taking responsibility & by making careless judgment calls.  
Delegated too much responsibility without appropriate oversight; Did not vigorously 
pursue adding value to processes, identifying problems & developing solutions. 
Despite constant command support & counseling, demonstrated declining initiative; 
Repeatedly requested to be relieved of all collateral duties; Often seemed 
overwhelmed by normal work load tasking.  Ineffective response to mentoring 
resulted in [his] being required to report to the XO by 0930 each workday to align 
[his] & team’s daily work efforts/objectives with the command.  Quality of judgment 
& responsibility were erratic & showed lack of topical research.  Did not build on 
experiences; Repeated work product errors even after being given specific task 
direction & exact written feedback to maintain focus.  Poor analytical skills; Applied 
careless approach & inattention during Weapons Officer relief; Tasked subordinate 
with conducting weapons inventory alone; Cmd ordered new inventory which iden-
tified several equipment items missing; [The applicant] seemed at a loss to explain 
procedural oversights.  Showed distinct interest in CG recruiting initiatives; Con-
ducted COMPASS-CGRC recruiting at local college with desirable results.  Active, 
positive role model in community; Coached youth sports & helped with church 
functions.  Committed to health & physical fitness; Maintained superior fitness level 
& assisted others in realizing same. 
[Compared with other LTs, he was rated a “[m]arginal performer; limited potential.”] 

Well-Being 

2 

2 

2 

3 

4 

5 

8a 

8b 

8c  Responsibility 

8d  Professional 

Presence 
8e  Health & 

9  Comparison 

Scale 

10  Potential 

NA 

Not recommended for promotion at this time.  [The applicant] lost the confidence & 
trust of his command, peers & subordinates.  Consistent poor performance indi-
cates that he is not prepared to assume duties with increased responsibilities at 
this time.  Recommended for staff/support positions where adequate oversight and 
mentoring can be applied with a specific road map for improvement/success.  
Recommended for developmental training that might provide an opportunity to 
develop sound leadership, judgment & resource management skills. 

11  Signature of the EMSST XO, signing as the MSST CO and the reporting officer, dated April 17, 2006 
12  Signature of the reviewer, who was Chief of the Port Operations Section, dated May 15, 2006 
 
Applicant’s Reply to the Derogatory OER (Tab C) 
 

 
Because the disputed OER was derogatory, the applicant was entitled to submit an adden-
dum to it, but declined.  However, he did submit an OER Reply on July 5, 2006 (Tab C).  The 
applicant stated that after reviewing the OER, he could “see there are several areas of improve-
ment”  and  that  he  accepted  responsibility  for  his  short-comings  in  those  areas.    However,  he 
alleged, the OER unfairly “focuse[d] exclusively on short-comings and [did] not reflect the full 
measure of my performance or contributions to the unit.” 
 
 
The applicant also stated in his OER Reply that during his previous assignment at Head-
quarters, he had been directly involved in the reorganization that effectively resulted in the CO of 
the MSST losing his command and becoming the XO of the EMSST.  Because of his involve-
ment with the reorganization, there was “an unintended adversarial and prejudicial relationship, 
as I was viewed as a cause of that change.”  In addition, the XO told him at the start that he 
should not have received the assignment because he “did not have the ‘tactical’ field operational 
skill sets expected of my pay-grade (i.e., qualified boarding officer), so my capabilities were mis-
judged.”  The applicant noted that his decision to submit an OER Reply to his first, mediocre 
OER from the EMSST may also have contributed to the XO’s decisions with respect to the dis-
puted OER. 
 
 
The applicant alleged that the OER is erroneous in that it claims to document his removal 
from  his  primary  duties  on  March  10,  2006,  when  in  fact  he  was  relieved  of  his  operational 
duties as an AOO in July 2005.  He believed at the time that his new assignment as the Logistics 
Officer was not a removal per se but a “change [that] was a part of the normal transfer season 
and the unit’s reorganization to align with ICS and Sector organizations.  Further the change to 
Logistics Officer, a Section Chief position, was broader in scope and responsibility.” 
 
 
The applicant alleged that he “received no ‘failure to perform’ counseling prior to [his 
receipt of his] 31 May  2005 OER.”  Because of that mediocre OER, he submitted an Officer 
Support  Form  on  December  28,  2005,  “to  more  clearly  identify  my  responsibilities  and 
command expectations,” and he “also initiated a daily check-in with [the XO] to align priorities 
and provide visibility of on-going projects and workload.  Meetings were initially constructive 
but became increasingly unproductive as the larger unit’s organizational uncertainties—structure, 
manning, and mission got in the way of routine business.” 
 
 
The applicant alleged that he requested  a “short tour”—i.e., an early transfer—to “any 
established operational assignment,” and that his request was approved by the actual CO of the 
EMSST and forwarded to the Personnel Command.   In  anticipation of  receiving the expected 
transfer orders, he asked to be relieved from his collateral duties to focus on his primary duties.  
The CO granted this request and so he “initiated the appropriate reliefs.” 
 
 
Regarding  the  OER  comment  about  passing  misinformation  to  the  new  CO  of  the 
EMSST, the applicant stated that he was “asked about a requirement to have a unit basic dive 

officer” and replied that “it was not mandatory.”  However, the “EMSST CO believed it was.  I 
immediately updated him with the correct information and references.” 
 
 
Regarding the OER comments about delegation and oversight, the applicant stated, with 
respect to the ORGMAN, that his delegation of the ORGMAN consolidation project had been 
approved and the delegee reported directly to the XO.  Regarding the missing weapons equip-
ment and the inventory, he stated that in passing on his collateral duty as the Weapons Officer, 
he did not perform a wall-to-wall inventory, but when some items were found to be missing, they 
performed a second inventory.  Three weapon sights were missing and he reported their absence 
and “instituted serialization of all weapon sights to prevent future occurrences.  The relief proc-
ess  identified  systemic  problem  that  only  periodic  R865  inventory  reports  would  detect.”    He 
noted that there were no incidents or injuries while he was the Weapons Officer.  Regarding the 
OER comment about morale equipment, he stated that his relief as Morale Officer asked about 
some bicycles at the unit which were “believed to be morale gear though not on [the] inventory 
or purchased with morale funds during my tenure.”  The applicant reviewed the books and ques-
tioned  his  predecessor  in  the  Morale  Officer  position  but  could  not  find  any  record  of  the 
bicycles.  He stated that the bicycles had been “purchased with evergreen funds,[2] located later 
in non-morale spaces and placed in inventory.” 
 
 
The  applicant  further  stated  in  his  OER  Reply  that  he  assumed  the  Unit  Dive  Officer 
position without a formal turnover by his predecessor; created a dive inventory and equipment 
status  report;  researched,  procured,  and  replaced  dive  equipment;  corrected  an  outstanding 
“PMS”; completed new diver assessment interviews for the dive school; developed a plan that 
enabled  the  unit  to  maintain  and  sustain  its  dive  capability;  deployed  eight  divers  to  a  joint 
military research project in Rhode Island; and planned and executed more than sixty dives in a 
five-day period.  In addition, he developed an electronic report tracker allowing the command to 
monitor required reports, completed the required motorcycle safety course for fifteen members, 
and completed the first version of the unit’s M240 standard operating procedures. 
 

After  his  departure  from  the  EMSST,  the  applicant  was  temporarily  assigned  to  the 
Sector Response Department.  On July 5, 2006, the Sector Commander advised the command of 
the  EMSST,  which  had  been  renamed  as  a  Maritime  Security  Response  Team  (MRST),  that 
between May 17 and June 9, 2006, the applicant had completed 70 percent of his Boat Force 
PQS, participated in numerous Sector activities, and learned about the Sector organization (Tab 
I). 
 

The applicant was then transferred to serve as a contingency planner at the Atlantic Area 
Contingency Planning Branch.  On his OER for this work (Tab J), he received four marks of 5, 
eight marks of 6, and six marks of 7 in the various performance categories and a mark in the fifth 
spot on the comparison scale, denoting an “[e]xcellent performer, give toughest, most challeng-
ing leadership assignments.”  In addition, he was strongly recommended for promotion.   

 
On  June  13,  2007,  the  applicant  resigned  his  regular  commission  and  returned  to  the 
Reserve.  He remained in the Individual Ready Reserve without an assignment from June 13, 
                                                 
2 The Coast Guard Foundation raises funds for the Coast Guard Auxiliary and maintains an “Evergreen Fund” to 
provide education, recreation, fitness, and morale equipment for Coast Guard enlisted members and their families. 

2007, through May 31, 2008.  On June 1, 2008, he was assigned to serve as the Senior Reserve 
Officer in the Response Department at Sector Los Angeles-Long Beach and as such was respon-
sible for five Reserve officers and 22 petty officers on two Reserve Sector Boarding Teams and 
Marine  Environmental  Response  Teams.    The  applicant  has  received  two  outstanding  annual 
OERs (Tab K) for this work with performance marks of 6 and 7 (highest) and marks in the fifth 
spot on the comparison scale, denoting an “excellent performer; give toughest, most challenging 
leadership assignments.”  He was strongly recommended for promotion in both of these OERs.  
However, in 2008 and 2009, he failed of selection for promotion as a Reserve officer with the 
disputed OER in his record. (Tab L) 

 

 

VIEWS OF THE COAST GUARD 

On May 11, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion (Tab M) in which he recommended that the Board deny relief in this case.  In 
so doing, he adopted the findings and analysis provided in a memorandum on the case prepared 
by the Personnel Service Center (PSC).   
 
 
The PSC admitted that the applicant was issued orders assigning him as the OO of an 
MSST and that due to the unit’s reorganization as an EMSST, the OO position was filled before 
he arrived at the unit.  Therefore, the command “tried to keep him in assignment” by making him 
an AOO, responsible for assisting the OO with operational execution of the EMSST.  The PSC 
noted that in his  OER  Reply, the applicant stated that  at his prior assignment at Coast Guard 
Headquarters, he had been “directly involved in the unit’s organizational change from two inde-
pendent units into a single command.”  The reorganization involved merging the MSST with a 
tactical law enforcement team (TACLET) to create an EMSST and, ultimately, a Maritime Secu-
rity Response Team with a new organizational structure.  The PSC noted that in the applicant’s 
reply to the first OER that he received as the AOO, he cited several alleged policy violations but 
never complained about not having been assigned as an OO in accordance with his orders.   
 

The PSC alleged that in assigning the applicant as the AOO following the reorganization 
of the unit, the command “carried out its duties in accordance with policy found in U.S. Coast 
Guard Regulations, COMDTINST M5000.3B, Article 7-5-1B (Internal Routine and Administra-
tion of the Unit).”  The PSC stated that under these regulations, the CO “may assign a commis-
sioned or warrant officer to duty other than the type specified in the orders assigning the officer 
to the unit.”  However, the PSC stated, “it seems that the applicant could not perform the duties 
of AOO, a position with even lesser responsibilities than the Ops Officer.  Based on these facts, 
it is believed the applicant has not provided any evidence to substantiate his claim that he was 
disadvantaged by not being placed in [the] position assigned per [his] assignment orders.”  The 
PSC  further  alleged  that  the  applicant’s  assignment  as  the  collateral  duty  Logistics  Officer 
resulted from the reorganization of the MSST and TACLET and that assignments to collateral 
duties are also authorized under Article 7-5-1B of Coast Guard Regulations. 
 
 
Based on the applicant’s first OER while assigned as the AOO of the EMSST and his 
reply thereto, the PSC alleged that there “is no evidence that substantiates the applicant’s claim 
that policy was not followed and that he was not given substantial opportunity to progress and 
become skilled in his position.”  The PSC noted that the applicant admitted to areas of poor per-

formance in his OER Reply and alleged that that poor performance caused the command to lose 
confidence in his capacity to carry out his duties as the AOO.  Therefore, the PSC stated, his 
allegation that his lack of aptitude for and failure to complete the tactical training course caused 
his removal from his AOO duties and assignment as the Logistics Officer is not substantiated. 
 
 
PSC stated the following: 
 

Regarding the applicant’s request to have the disputed OER removed from his record, the 

Removing  an  OER  because  the  applicant  was  not  placed  in  an  opm-2  assigned  position  might 
seem  plausible  if  the  applicant  was  placed  in  a  position  not  commensurate  to  that  which  was 
originally assigned.  In this case, the applicant  was assigned AOO by the Commanding Officer 
because  the  Operations  Officer  position  was  already  filled.    The  AOO  was  responsible  for 
assisting the Ops Officer with operational execution of the EMSST. … While performing duties as 
AOO, the applicant could not perform to the standard required.  If applicant is unable to perform 
as Assistant Operations Officer, it is a logical conclusion that the applicant could not manage the 
more detailed duties of Operations Officer; therefore the disputed OER should not be removed.  

 
 
The PSC concluded that the XO “was well within his rights to assign the applicant to the 
position of [AOO] upon his arrival” and “was in the best position to observe the applicant’s per-
formance and provide a fair, accurate and objective OER.”  The PSC argued that there are no 
grounds for removing the disputed OER because the applicant did not prove that it is inaccurate. 
 
Statement of the XO of the EMSST (Tab N) 
 
 
The  XO  stated  that  he  was  the  CO  of  the  MSST  and  his  “additional  responsibilities 
included  conducting  duties  as  assigned  in  the  functional  role  of  Executive  Officer  of  the 
EMSST.”  As the CO of the MSST, he served as the supervisor and the reporting officer of the 
disputed OER.  The XO stated that the applicant was not disadvantaged during the period cov-
ered by the disputed OER as a result of not being the OO of the MSST.  At the time, “all or 
almost all officers at the EMSST were engaged in duties outside their assigned PCS positions” 
because of the reorganization.  The applicant “was therefore in a similar position as the entire 
wardroom of both MSST … and TACLET … regarding assigned and functional duties.” 
 
 
The XO stated that the applicant “was given multiple opportunities to fulfill the duties 
and responsibilities as close to his assigned position as possible given the unique organizational 
situation of the unit.”  Because the EMSST had an OO, the applicant was assigned as the AOO, 
which gave him “multiple assigned primary and collateral duties that allowed him to participate 
in a broad range of leadership and managerial responsibilities aligned with an Operations Officer 
position.  The command worked closely with [the Personnel Command] to make sure that all 
officer OERs were carefully crafted to not disadvantage any officers because of the unit’s unique 
organizational  situation  and  that  actual  performance  was  properly  documented  to  support  the 
assigned officers’ career progression.” 
 
 
The XO stated that the applicant “knew exactly what he was getting into prior to execut-
ing his PCS orders to the EMSST.  He was previously assigned to the CGHQ program manager 
office for the EMSST and knew of the unit’s new mission set, new organizational structure and 
that all officers were performing duties outside of their assigned positions.”  Therefore, the XO 
alleged, the applicant was aware that he would not be working as the OO of an MSST when he 

received his orders.  Moreover, the XO alleged, he was told “by multiple officers and civilian 
government contractors  that [the applicant] knowingly and actively solicited and subsequently 
accepted orders to the EMSST in order to pursue duties as a Direct Action Team (DAT) Leader.”  
The XO stated that the applicant said himself that he desired to serve as a DAT Leader at the 
EMSST.  The applicant “was given the opportunity to do so by being assigned to complete the 
required DAT training.” 
 
Statement of the OER Reviewer (Tab O) 
 
 
CAPT S, who served as the reviewer for the disputed OER, stated that he does not sup-
port  the  applicant’s  request  that  it  be  removed  from  his  record.    The  reviewer  stated  that  his 
direct interaction with the applicant was limited but he made several visits to the EMSST and 
had at least two long telephone conversations with the XO about the applicant’s performance.  
Based on his observations and their conversations, he believes that the command gave the appli-
cant  “every  opportunity  to  be  successful”  and  that  “it  was  his  failure  to  perform  at  the  level 
expected of an O-3 that ultimately led to the marks he received on his March 2006 OER.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On May 22, 2009, the Chair sent the applicant a copy of the views of the Coast Guard 
and invited him to respond within 30 days.  He was granted extensions and submitted his first 
response on August 6, 2009, and his last response on January 30, 2010. (Tabs P and Y)  He sub-
mitted additional allegations and evidence and amended his request for relief to include removal 
of his failures of selection for promotion to lieutenant commander (LCDR). (Tab Q)  

 
The  applicant  argued  that  the  disputed  OER  should  be  removed  because  there  was  no 
 
published rating chain for the EMSST and that the XO improperly served as both his supervisor 
and reporting officer even though he was not the CO of the EMSST.  In addition, he stated that 
he recently learned that in 2007 the OO of the EMSST requested removal of the XO from his 
rating chain, and that request was granted by the Personnel Command.  The applicant stated that 
he  would  have  taken  this  step  in  2006  if  he  had  known  that  it  was  allowed,  but  he  had  been 
called to active duty from the Reserve and did not know the rule.  In this regard, the applicant 
alleged  that  the  XO  felt  cheated  out  of  his  command  and  was  strongly  prejudiced  against  the 
applicant  because  he  had  worked  in  the  Headquarters  office  that  recommended  the 
reorganization.  The applicant alleged that his work environment at the EMSST was tense with 
“signs of hostility” and the XO “continuously reminded me that if ‘he failed I would fail’.  He 
also would constantly threaten to put on his command pin since he felt he was cheated out of 
command; I reminded him that was not the case and it was simply done [to] capture personnel 
billets to form the EMSST.” 
 
 
The applicant argued that the OER should also be removed because it erroneously states 
that during the evaluation period his primary duty was being the AOO of the EMSST and that 
the OER was required by his removal from that duty in March 2006.  The applicant noted that in 
fact  he  had  no  operational  duties  as  of  July  2005  and  his  primary  duty  during  the  evaluation 
period was being the Logistics Officer.  With regard to the removal of his operational duties, the 
applicant alleged that whereas other members were allowed to retake the tactical training course 

when  they  failed  to  complete  it  successfully,  he  was  not  allowed  to  do  so  although  he  had 
completed 95% of the training.  The applicant stated that his AOO title “was a shell” during the 
evaluation  period  for  the  disputed  OER  because  he  “had  no  interaction  with  [the]  person 
assigned  as  Operations  Officer,”  which  is  why  the  Operations  Officer  did  not  serve  as  his 
supervisor for the disputed OER.  Instead, he was asked to perform the functions of logistics, 
finance, and administrative officers, but he had no background in these duties “of any sort of the 
new job [he] was now being requested to perform.”  The applicant noted that such functions are 
normally  performed  by  a  chief  warrant  officer  with  many  years  of  experience  in  his  or  her 
specialty.  The applicant alleged that by never allowing him to serve as the Operations Officer 
and assigning him to duties for which he had no experience, he was set up to fail.  Because he 
was assigned to the Logistics position for which he had no experience, he asked to be transferred 
during the next transfer season (summer 2006), and the CO of the EMSST granted his request.  
However,  while  he  was  still  at  the  EMSST,  the  unit  “became  more  dysfunctional  and  [his] 
professional relationship with [his] supervisor deteriorated.” 
 
 
The applicant alleged that the organizational changes he was expecting when he arrived 
at the unit never occurred.  Instead, the two units—the MSST and the TACLET—that were sup-
posed to merge continued to run independently the entire time he was assigned to the unit.  The 
official directions provided by Headquarters changed swiftly.  The applicant stated that “there 
was confusion in the organizational structure … .  There was not a clear career path for personnel 
assigned.  …  There  was  no  defined  reporting  chain,  OERs  were  submitted  late,  there  was  no 
description of an Asst Ops position (it was a shell) and [he] did not report to the OPS Officer. … 
Functionally, there was no Operations Officer [of the MSST] either.”  The applicant alleged that 
the XO’s affidavit shows how confused the unit was because the XO functionally served as the 
XO of the EMSST but signed documents, including the disputed OER, as the CO of the MSST 
and sometimes claimed to be the CO, which created confusion.   
 

The applicant submitted several statements, emails, and other documents in support of his 

The applicant noted that his statement in the OER Reply that he could see several areas 
for  improvement  in  his  work  and  accepted  responsibility  for  the  areas  in  which  he  failed  the 
command and himself does not mean that he agreed that the OER was fair.  The applicant argued 
that  the  disputed  OER  is  unfair  because  he  “was  not  able  to  do  the  job  my  orders  stated  and 
[was] asked to perform a job [he] had no training or experience to do.”  He asked the Board to 
review his performance records from before and after his assignment to the EMSST as they show 
that the disputed OER does not reflect his overall performance in the Coast Guard.   
 
 
allegations, as summarized below. 
 
Statement by the OO of the EMSST (Tab R) 
 
 
LCDR E, the OO of the EMSST, stated that in August 2007 he learned that the XO, who 
was his supervisor but not his reporting officer, had submitted his OER late and with few com-
ments to support the marks.  The CO of the EMSST told him that he had “grave concerns” about 
the OER the XO had prepared.  At about the same time, he learned that the XO had requested the 
removal  of  the  CO.    Because  the  OO  did  not  believe  that  the  XO  was  providing  a  fair  and 
unbiased  OER,  he  asked  that  the  XO  be  removed  from  his  rating  chain,  and  the  request  was 

granted.  The CO of the EMSST served as both his supervisor and reporting officer.  Thereafter, 
a lengthy investigation ultimately determined that the CO’s removal was not warranted although 
areas for improvement were identified. 
 
Statement by the Applicant’s Previous Supervisor (Tab S) 
 

In a letter dated August 4, 2009, the captain who served as the Chief of the Office of Tac-
tics and Special Missions at Coast Guard Headquarters from February 2004 to July 2006 stated 
that the applicant worked on his staff until he was transferred to the EMSST in August 2004.  He 
stated that the applicant had “a keen analytical and pragmatic mind along with a ferocious work 
ethic.  Because of his past background in security and law enforcement along with his highly 
professional demeanor,” the captain endorsed the applicant’s request for appointment as the OO 
of the EMSST, which was to evolve into a Maritime Security Response Team (MSRT). 
 

The  captain  further  stated  that  the  leadership  of  the  EMSST  was  “immersed  in  many 
uncertainties”  and  challenges  in  trying  “to  develop  an  initial  operational  capability  with  very 
high readiness standards using new equipment and aggressively conduct training and exercises. 
… Over time, though my communications with Atlantic Area (Aof) senior staff … and personal 
visits to the SRT/MSRT it became apparent to me that the existing command culture was detri-
mental  to  both  the  operational  capability  of  the  unit  and  the  professional  development  of  the 
newly assigned personnel.”  The captain stated that the command issues were not resolved and 
continued to fester so that even after he retired in July 2006, he was interviewed pursuant to an 
“administrative  investigation  into  the  MSRT  for  its  tardy  development  as  an  operational  unit, 
failure to train, and numerous reported personnel problems—all indicative of a very poor com-
mand climate.” 
 

The captain stated that he spoke to the applicant periodically as a mentor.  The applicant 
“would tell me his observations, his concerns, and his inability to both communicate ideas and 
demonstrate his abilities to his executive and commanding officers due to what  I believe was 
their pre-disposed distrust of [the applicant] based on his earlier planning experiences at Coast 
Guard  Headquarters.”    The  captain  stated  that  the  applicant  “was  frankly  working  against  a 
stacked deck; i.e., pre-disposed opinions by the command on how it should be formed and orga-
nized.  Unfortunately for all involved, those ideas ran contrary to the vision outlined by Coast 
Guard Headquarters and operational guidance being provided to it by Atlantic Area.” 
 

The captain stated that the XO “was ill-equipped to fulfill his command responsibilities 
and resented [the applicant’s] earlier exposure to Headquarters discussions on the SRT/MSST’s 
development and operational role within the Coast Guard.”  The captain also stated that the XO 
was unable to work through the stresses of the reorganization, which created a leadership gap, 
and that the applicant was “a principal casualty.”  Therefore, he recommended that the disputed 
OER be removed from the applicant’s record. 
 
Endorsement Letters Written by the Command of the CO and XO of the EMSST (Tab T) 
 
 
On December 10, 2004, the CO of the EMSST strongly endorsed the applicant’s applica-
tion to serve on the Commandant’s Diversity Advisory Council. (Tab T) He wrote that the appli-

cant  “consistently  displays  exceptional  performance  in  his  duties”  and  had  adapted  quickly  to 
juggling the tasks of a “fast-paced, high-pressure billet” as the AOO.  He stated that the applicant 
had the maturity, leadership, skill, and education necessary to serve on and benefit the council. 
 

 
In  an  undated  letter,  the  XO  endorsed  the  applicant’s  application  to  become  a  White 
House Fellow. (Tab T)  He identified himself as the applicant’s supervisor but not as his CO.  He 
highly praised the applicant’s maturity, public speaking, writing, intelligence, understanding of 
organizational functionality and business and management practices, leadership characteristics, 
and devotion to self improvement.  He also wrote that the applicant was very passionate about 
his career and work, but that this passion “must be tactfully and carefully managed so that he 
does not out step the pace of others or the overall organization.  I would like to see [him] focus 
more on the singularity of some tasking than on the big picture.  He is an outstanding officer and 
would  serve  his  subordinates  even  better  by  supportively  shaping  their  behavior  based  on  his 
understanding of where the unit needs to grow to facilitate future success.” 
 
Emails about the Applicant’s Duties as AOO (Tab U) 
 
 
On April 25, 2005, the applicant sent the OO and the XO an email asking for the staffing 
plan and the MSST manual.  He wrote than “[e]verything should not be according to the DAS. 
… This needs to [be] undone and balanced.  These guys are not as good as they think, it takes 
years to get good in the game. … I think stability and going back to basics are key to moving this 
unit  on.  …  By  the  way  5  different  directions,  ….  w/o  the  correct  infrastructure  to  support  it 
(people resources, office space, and trng fac’s) is a set-up for failure.  Everyone needs to be on 
the same sheet of music and operating as 1 unit (ENOUGH OF THE BS), the original vision is 
not playing out and the naysayers are loving it.  We (EMSST, LANT, OPC) need to slow the roll 
and re-think a strategy for success; maybe use some of the momentum from T3.  I hear we did 
OK in the eyes of some Sr folks from the CG and FBI.”  The OO replied, stating that the staffing 
plan was not yet complete and that the MSST manual was available online. 
 
 
On May 9, 2005, an ensign who was Officer in Charge of a division sent the applicant 
and the XO an email expressing concern over the lack of appreciation that had been shown for 
his crew’s work at a meeting that morning.  The XO replied that the ensign should have whis-
pered in their ears to make sure his people were adequately praised.  He noted that it was not any 
one person’s job to keep “track of all the crap that’s happening at the EMSST” and also that he 
had asked multiple times at the meeting whether there was anything else that should be said, and 
if anyone had mentioned the return of the division, it would have “sparked my memory to say a 
few  nice  things.  …  Continue  to  grow  in  your  full-spectrum  understanding  and  be  part  of  the 
solution.  My EMSST complaint crapper is full.”   
 

On May 10, 2005, the ensign responded, saying “Completely understood, my fault again.  
Sorry of the inconvenience.  I will work on a way to remind myself to remind everyone else.  
This was not a complaint, merely me taking the time to inform you of some of your crew’s con-
cerns which I addressed by supporting you as soon as I had my welcome back speech to all of 
them.  My apologies for letting them down.  I will speak to them all once again to ‘clear the 
air.’”    The  XO  responded  to  the  ensign  and  the  applicant  saying,  “Let’s  talk  over  a  beer  this 

Friday?    You’re  both  busting  ass  and  I  do  care.    You  just  need  to  help  me  help  you  &  your 
crew.” 
 
 
On May 10, 2005, the applicant sent an email indicating that his titles were MSST Opera-
tions Officer and EMSST Weapons Officer.  The XO replied with an email about “YOUR JOB 
TITLES,” stating that the “MSST does not exist … You are the EMSST AOPS & WEPO & soon 
to be DIVEO.  Your OER will read MSST/OPS MSST DIVEO/EMSST AOPS/EMSST WEPO.  
Please use the EMSST AOPS & WEPO titles for all correspondence.”  (Tab V) The applicant 
replied, “I was attempting to get a point out … suggest there be something sent out to all hands 
as to what the organization looks like and whom is responsible for what … it’s the best kept 
secret here.” 
 
 
On May 11, 2005, the XO sent an email to his junior officers noting that a scheduling 
conflict, which should have been identified, resulted in three enlisted members not being able to 
attend important training and asking them to look for process improvement options.  The appli-
cant  responded  to  the  XO  recommending  that  one  of  his  fellow  junior  officers  be  named  the 
Training Officer because the unit had  
 

a  huge,  sucking  chest  wound  and  no  accountability  in  the  training  dept.  …  This  email  is 
ineffective band-aid and someone [name omitted] needs to take ownership for training and put this 
unit  in  a  better  direction.  …  Everyone  is  going  different  directions,  and  only  concerned  about 
themselves  or  their  element.  …  this  unit  needs  to  come  together  to  be  effective,  whom  are  we 
trying  to  kid.    LANT  should  be  briefed  of  a  momentary  pause  to  re-group  and  take  a  different 
course.  I believe there is a plethora of things to point to for justification.  I say this knowing this is 
a hard thing to do, however, this has gone on way too long.  There are a ton of outside experts and 
influences running this unit and the unit needs to run itself. 
 
Training [is] an important element to this puzzle and it as well as others need to be defined.  This 
craziness will continue and as the word continues to spread [about] what really happens here … no 
one in their right mind will want to come.  Kind of hard to lead when no one follows.  Training 
needs to be properly documented and plans need to be prepared to sustain the operation elements 
… the CG way; we are not doing justice to the troops, especially if there is no balance. 
 
The way we are going is ass backwards; sorry, it [is] hard to stay under that radar when others are 
not; BLIND leading the BLIND; I’d love to see the results of a blind survey of our folks of how 
they really feel and want to do here. 
 
We continue to try to put a circle into a triangle and at the end of the day all I can feel good about 
is taking care of my folks, which breeds the divisions the unit faces.  My fun meter is beginning to 
get pegged and the BS flag needs to be raised.  We have really smart folks and I’m certain they see 
the same thing.  We are tasked to be the EMSST w/o proper staffing, resources or permanency for 
the EMSST prgm.  This is impossible to pull off and we are setting ourselves up for failure.  Cur-
rent tasking is pulling us apart as well; Maybe the big picture is to do just that … if that is the case 
tell us. 
 
A poss fix could be changing the MSST to the EMSST (CT capability) which would include the 
DAS-ATFP  section,  WE,  SUPPORT,  K9,  CBRNE,  and  rolling  in  a  defined  relationship  w/  the 
AVDET;  then  of  course  providing  the  right  flavor  of  billets  for  success.    Then  roll  out  the 
LEDETS stuff to FL and bump the CO to an O6.  Again, I know this [is] hard to do … it’s really 
not that hard. 
 
WIPE the slate, start over—what a mess! 

 
Very respectfully, 
[Applicant’s name] 

 
 
In response, the XO recommended that the applicant “[f]ix  your part of the world and 
make recommendations where you see opportunities, but realize that you’re experiencing what 
many of us more senior than you have always experienced.  Welcome to CG field level leader-
ship!  Why do you think I harp on processes?  I’m trying to bracket and control what I CAN con-
trol. … Highly suggest you adopt a similar attack plan, or you’ll go mad in short order. :-)” 
 
 
On June 16, 2005, a lieutenant junior grade (LTJG) assigned to the EMSST advised the 
XO and the applicant that an inventory of the armory had shown that all weapons, sights, and 
ammunition were accounted for.  The XO asked about the “pyro.”  The LTJG stated that he had 
not  been  told  to  inventory  the  pyro.    The  XO  then  forwarded  this  reply  to  the  applicant  and 
wrote, “I’m looking to YOU to tell me the status of the pyro. … telling [the LTJG] to see GM1 
in an email doesn’t cut it with me.”  The applicant replied that he thought the inventory had to be 
done by someone who did not work at the armory and advised the XO that all of the pyro had 
been accounted for by the GM.  He also noted that he had “had some recent miscomm’s w/ you 
and we should get together when you have time.  I’m still feeling out my way of what exactly 
you want sometimes.”  The XO responded, “Life as a JO is easy … listen to exactly what the XO 
says and do exactly that!  We’ll meet on Wednesday and I’ll present you with your way ahead.  
NOTE —it shall be much different than the way you came!  If you note a sense of displeasure 
with your recent work in my tone, you are correct in your reading of my feedback.” 
 
Emails after the Applicant’s Reassignment as Logistics Officer (Tab W) 
 
 
applicant had submitted entitled “Brief OPS on the LE sub-gp.”  The XO stated the following: 
 

On August 2, 2005, the XO sent an email to the applicant and the OO about a report the 

Let’s all clarify something here … there’s nothing to brief [Applicant]!  For the last time, you need 
to stay away from the local CG LE community!  You keep wanting to inject yourself into Sector 
Hampton Roads AOR!  Stop!  We DO NOT attend local LE meetings unless invited for specific 
reasons and OPS gets approval from the CO to represent the EMSST.  The Sector has its job with 
the locals.  We have other missions that may coincide with theirs, but we have no business over 
there  talking  up  the  locals  on  what  the  EMSST  does.    Let  the  Sector  LE  Officer  do  his  job.  
They’ll call us via Area if they need us! 
 
You need to be focused on your Dive tasks per the CO and your new Logistics job duties.  Your 
only activity into MLE shall be to complete your [boarding officer] cert. 

 
 
The applicant replied that his “intention was to advise OPS of the work grp as I continue 
to move OPS related items to OPS.”  The XO replied to the applicant and the OO that “[t]he 3 of 
us will have a coming to Jesus meeting next week guys.  The world just changed for [the appli-
cant] and both of you are being affected.  We will map out your success paths.  Hint … more 
manager tasks and less cool boy games!  We’ve got a unit to run and you’re my senior managers 
so welcome to the new game.” 
 
 
On August 7, 2005, the XO sent the applicant an email noting that as the Logistics Sec-
tion Chief, he now “owned” weapons, maintenance, administration, supply, and medical but that 

the Weapons Officer job would soon go to someone else.  He included a long list of the appli-
cant’s regular administrative responsibilities, as well as some “future work,” including the FY06 
budget and his diving, boarding officer, and boat crew qualifications. 
 
 
On August 18, 2005, the applicant sent an email to an HS1 about meeting somewhere for 
turn-over on September 1st and a leave request that the HS1 had submitted.  He cc’ed the email 
to the XO, who responded, “For the last F’ing time … stop copying me on your emails!!!”   
 
 
On September 29, 2005, the XO sent the applicant an email with the subject line “WHAT 
THE $%^&?,” saying, “Just kidding … Thanks for all you’re doing to make this place better :-)” 
 

Also  on  September  29,  2005,  the  applicant  exchanged  emails  with  a  lieutenant  com-

mander asking about his pending “short-tour” transfer to another unit. (Tab X)   
 
 
some work to the Operations Officer. (Tab W)  The XO further noted the following: 
 

On October 15, 2005, the XO sent an email to the applicant denying a request to shift 

You  need  to  take  a  firm  grip  on  the  reality  of  your  job  requirements.    You  have  great  people 
working for you.  It appears to me from your seemingly scattered work practices and last minute 
actions that you’re having trouble because you don’t know what the heck you’re supposed to do.  
You need to take my advice and create the annual reports and work project tracking tool I ordered 
you to complete.  It will give you control and piece [sic] of mind!  You’re just trying to keep up 
now [Applicant] and you need to devise a method to actually stay ahead of the work, or you will 
constantly fail in your duties. 
 
All of the unit’s recent ‘late submissions’ have come from your Section!  That’s going to cost both 
you and I on our OERs!  I’m through making any more “I’m sorry for that Sir” comments to the 
CO  because  someone  else  missed  a  known/published  due  date,  or  turned  in  crap  at  the  last 
moment. 
 
Your “We need to slow down” words are not actionable.  They never are for any operational CG 
unit.  I’ve been telling you that since you reported here.  We’re sailing and you’re on board for the 
cruise sailor! 
 
First fix your own LOG processes, then ID points of synergy between the LOGS and other Sec-
tions, then brief me on proposed changes to your processes. 
 
You must build the work/project tracking tool I ordered you to develop before you can forward 
any work load data to me and expect me to give any credibility to your Section’s level of work.  
Personnel  issues  will  always  be  a  joint  venture  between  LOGS  and  OPS  as  we  (support  pers) 
attempt to meet OPS’ staffing requirements.  No one works in a vacuum and to simply shift the 
entire work load is not realistic.  We have to develop a team approach (process) with everyone’s 
roles being clearly defined. 
 
A better action than asking to shift the work would be to tell the XO you’ve identified a problem, 
take it on as a quick project and show me what great managerial things you can do as a competent 
JO.  I highly recommend you adopt this leadership 101 process change: 

ID problem 

• 
•  Conduct research 
•  Develop solution options 
•  Brief supervisor on prioritized solution options and pro-cons for each—provide cost data 

if applicable 

On October 25, 2005, the XO stated in an email that he had received a notification about 
having a “worklist item for” the applicant in the Direct Access database and asking the applicant 
if he needed another e-resume endorsement. (Tab X)  On January 17, 2006, the applicant sent an 
email to the Assignment Officer about his request to transfer and noted that although he had been 
assigned to serve as the OO of the MSST, he was actually the Logistics Officer and the Dive 
Officer and wanted “the opportunity to develop additional operational skills for continued career 
progression.”    On  January  19,  2006,  the  applicant  received  an  email  from  the  Sector  New 
Orleans  Response  Department  stating  that  it  was  not  known  whether  the  applicant  would  be 
transferred or, if he was transferred, whether his prior billet would be gapped or filled until 2007.  
The applicant replied that his command had “endorsed my short tour request w/ a replacement 
for AY06.” (Tab X) 
 
Statements of a Prior Commanding Officer and Executive Officer (Tab Y) 
 
 
CAPT H, a retired Navy captain, stated that as a Reserve officer, the applicant deployed 
to the Middle East twice under his command with a Harbor Defense Command Unit following 
the bombing of the USS COLE.  He stated that the applicant “was the finest junior officer and 
one of the most capable operational leaders in the command.  He was proactive, direct, and cour-
ageous.”  CAPT H strongly recommended that the “questionable OER be expunged” and that the 
applicant be permitted to compete for promotion again. 
 
 
The XO of the Harbor Defense Command Unit wrote on behalf of the applicant that she 
had worked with him for more than two years at the deployable Navy Reserve unit with both 
Navy and Coast Guard personnel.  The XO stated that when called to extended active duty over-
seas,  the  “rigors  of  this  operational  command  revealed  [the  applicant’s]  integrity  and  compe-
tence” and that he often completed demanding tasks above his pay grade to ensure the success of 
their mission.  She recommended that the disputed OER be expunged and that the applicant be 
allowed to compete for promotion again. 
 

COAST GUARD RESPONSE TO THE APPLICANT’S SUBMISSIONS 

Under 33 C.F.R. § 52.26, if an applicant amends his request for relief or submits signifi-
cant new evidence after his application has been docketed, his application is considered newly 
complete as of the date the last new evidence or amended request for relief is received, and the 
Board forwards the applicant’s new submissions to the Coast Guard for further review.  In light 
of his new evidence and amended request for relief, the applicant was advised of this rule, and 
his submissions were forwarded to the Coast Guard with an invitation to submit a supplemental 
advisory opinion.  On April 1, 2010, the JAG informed the Board that the Coast Guard would not 
submit a response. (Tab Z) 
 

 

 

SUMMARY OF THE REGULATIONS 

Article 7-5-1 of Coast Guard Regulations,3 entitled “Assignment to Duties by the Com-

 
 
manding Officer,” states the following: 
                                                 
3 U.S. COAST GUARD, COMDTINST M5000.3B, COAST GUARD REGULATIONS (Change 2, October 1994). 

 

 

A.  Subject to such restrictions as may be imposed by these regulations or by a senior in the chain 
of command, the commanding officer of a unit shall assign commissioned and warrant officers to 
departments and divisions, to stand watches, and to perform collateral duties, in such manner as to 
achieve the maximum efficiency of the unit as a whole and to effect an equitable distribution of 
work among the officers attached. 
 
B.  When circumstances require, the commanding officer may assign a commissioned or warrant 
officer to duty other than the type specified in the orders assigning the officer to the unit.  When, 
under the authority of this section, an officer is assigned for a period of more than 30 days to per-
form duty in lieu of the typed specified in the officer’s orders, the commanding officer shall report 
the fact to the Commandant. 

Article 10.A.1.b.1. of the Personnel Manual4 states that COs “must ensure accurate, fair, 

and objective evaluations are provided to all officers under their command.” 
 

Article 10.A.1.c.4. b. of the manual states that each officer is normally  evaluated by a 
“rating chain” of three superior officers, including the supervisor, who is “[n]ormally, the indi-
vidual to whom the Reported-on Officer answers on a daily or frequent basis and from whom the 
Reported-on Officer receives the majority of direction and requirements”; the reporting officer, 
who  is  “[n]ormally  the  Supervisor’s  supervisor”;  and  the  reviewer,  who  is  “[n]ormally  the 
Reporting Officer’s supervisor.” 
 

Article 10.A.2.b.2.b. of the manual states that one of the CO’s duties is to “[d]esignate 

and publish the command’s rating chains.” 
 

Article 10.A.2.e.1.e. of the manual states the following regarding circumstances in which 

one officer may serve as both supervisor and reporting officer: 

 
The following officers in the grade of LT or above, or civilian members of the Coast Guard Senior 
Executive Service (SES), can be both Supervisor and Reporting Officer for their immediate subor-
dinates: 
 

(1) Commanding officers. 
(2) Headquarters: assistant commandants, directors, deputy directors, office and division 

chiefs. 

(3) Deputy commanders, executive officers, chiefs of staff, division and branch chiefs at: 

(a) Area Commands. 
(b) Maintenance and Logistics Commands. 
(c) Districts. 
(d) Headquarters units. 

 
Any exceptions not specifically cited herein must be authorized by Commander (CGPC-opm) or 
Commander (CGPC-rpm). 

 
 
Article 10.A.2.g.2.b. of the manual states that a rating official may be disqualified if he or 
she is relieved “for cause due to misconduct or unsatisfactory performance” or is “an interested 
party to an investigation or court of inquiry” or in “any other situation in which a personal inter-
                                                 
4 U.S. COAST GUARD, COMDTINST M1000.6A, COAST GUARD PERSONNEL MANUAL (Change 40, October 2005) 
(hereinafter PERSMAN). 

1. Special OERs.  The Commandant, commanding officers, higher authority within the chain of 
command  and  Reporting  Officers  may  direct  these  reports.    The  circumstances  for  the  Special 
OER must relate to one of the situations described in subsections a. through e.  The authorizing 
article listed below should be cited in Section 2 of the OER along with a brief description of the 
circumstances which prompted the OER’s submission. [Example: “This OER is submitted under 
Article 10.A.3.c.(1)(--) due to ...”].  Special OERs present unique preparation problems … 
 

a. A special OER may be completed to document performance notably different from the 
previous  reporting  period,  if  deferring  the  report  of  performance  until  the  next  regular  report 
would  preclude  documentation  to  support  adequate  personnel  management  decisions,  such  as 
selection or reassignment.  This report should not normally reflect performance that is reportable 
under  Article  10.A.3.c.1.b.    Notably  changed  performance  is  that  which  results  in  marks  and 
comments substantially different from the previous reporting period and results in a change in the 
Section 9 comparison or rating scale.  This OER counts for continuity. 

 
 
Article 10.A.4.c. authorizes the supervisor to prepare the numerical marks and comments 
for the first 13 blocks on an OER, while the reporting officer prepares the marks and comments 
for the last 5 blocks, as well as the important comparison scale mark and the block for comments 
about an officer’s potential for promotion and higher leadership positions. 
 

FINDINGS AND CONCLUSIONS 

est or conflict on the part of the Supervisor, Reporting Officer, or Reviewer raises a substantial 
question as to whether the Reported-on Officer will receive a fair, accurate evaluation.” 
 
 
 

Article 10.A.3.c. of the Personnel Manual states the following regarding special OERs: 

2. 

3. 

1. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  

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 applicant was timely.  
 
 
The applicant requested an oral hearing before the Board.  The Chair, acting pur-
suant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case without 
a hearing.  The Board concurs in that recommendation.5   
 
 
The applicant asked the Board to expunge from his record his OER for the period 
June 1, 2005, to March 10, 2006, and also to expunge his failure of selection for promotion to 
lieutenant commander. (Tabs A and Q)  The Board begins its analysis by presuming that the dis-
puted  OER  in  an  applicant’s  military  record  is  correct  and  fair,  and  the  applicant  bears  the 
burden  of  proving  by  a  preponderance  of  the  evidence  that  the  OER  is  erroneous  or  unjust.6  
Absent specific evidence to the contrary, the Board presumes that the members of an applicant’s 
                                                 
5 See Steen v. United States, No. 436-74, 1977 U.S. Ct. Cl. LEXIS 585, at *21 (Dec. 7, 1977) (holding that “whether 
to grant such a hearing is a decision entirely within the discretion of the Board”). 
6 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002, approved by the Deputy 
General Counsel, May 29, 2002) (rejecting the “clear and convincing” evidence standard recommended by the Coast 
Guard and adopting the “preponderance of the evidence” standard for all cases, including disputes over OERs, prior 
to the promulgation of the latter standard in 2003 in 33 C.F.R.§ 52.24(b)).   

4. 

6. 

5. 

rating chain have acted “correctly, lawfully, and in good faith” in preparing their evaluations.7  
To  be  entitled  to  relief,  the  applicant  cannot  “merely  allege  or  prove  that  an  [OER]  seems 
inaccurate, incomplete or subjective in some sense,” but must prove that the disputed OER was 
adversely affected by a “misstatement of significant hard fact,” factors “which had no business 
being in the rating process,” or a prejudicial violation of a statute or regulation.8 
 
 
The applicant alleged that although he was issued orders by the Personnel Com-
mand to serve as the OO of an MSST, he was improperly reassigned by his command to serve as 
an AOO and an assistant Direct Action Team leader, which was a position for which he did not 
have the proper background and was not allowed to gain the necessary experience progressively.  
He alleged that he would have succeeded if his duties had been limited to the managerial duties 
of an OO.  Moreover, he alleged, after he failed a single tactical training course, he was again 
improperly reassigned by the command from his operational duties to an entirely administrative 
position as the Logistics Officer, another position for which he did not have the proper back-
ground  or  training.    The  Coast  Guard  argued  that  the  command  had  authority  to  reassign  the 
applicant  under  Article  7-5-1  of  Coast  Guard  Regulations9  and  that  the  reassignments  were 
necessitated  by  the  merging  and  reorganization  of  the  MSST  and  a  TACLET.  (Tab  M)    The 
Coast Guard noted that the applicant was aware of the pending merger and reorganization before 
he sought and received the assignment from the Personnel Command. (Tab N) 
 
 
The Board finds that the applicant has failed to prove by a preponderance of the 
evidence that his assignment as the AOO of the EMSST and as an assistant direct action team 
leader was erroneous or unjust.  To the extent that he actually assisted the OO as an AOO, his 
duties cannot have been significantly different than those he would have had as the OO.  As an 
assistant team leader, the applicant may have had less tactical experience and training than other 
team leaders at the EMSST, but his training record shows that he had previously received exten-
sive training in law enforcement, leadership, and operations. (Tab F)  In addition, while assigned 
to the EMSST, he attended several additional operational training courses. (Tabs B and G)  Fur-
thermore, this reassignment was necessitated by  the merging and reorganization of the MSST 
and a TACLET into the EMSST. (Tab N)  As noted by the JAG (Tab M), under Article 7-5-1.B. 
of Coast Guard Regulations, a CO may reassign officers within their commands when circum-
stances require it. 
 
 
The emails between the applicant and the XO show that in July 2005, shortly after 
the evaluation period for the disputed OER began, the applicant was removed from his opera-
tional duties and assigned purely administrative, financial, and logistical duties as the Logistics 
Officer of the EMSST, a nominally collateral duty. (Tab W)  According to the applicant and the 
XO, the reassignment to this new position was due to the reorganization of the EMSST, but the 
                                                 
7 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
8 Hary v. United States, 618 F.2d 704, 708 (Ct. Cl. 1980), cited in Lindsay v. United States, 295 F.3d 1252, 1259 
(Fed. Cir. 2002). 
9 The Board notes that in the advisory opinion for BCMR Docket No. 2008-106, the JAG argued that an applicant 
was entitled to relief because his reassignment by the command constituted “legal error” since only the Personnel 
Command  had  authority  to  issue  officer  assignments.    The  Board,  however,  strongly  disagreed  with  the  JAG’s 
finding  of  legal  error  and  found  no  error  or  injustice  in  the  disputed  OER  but  granted  relief  based  solely  on  the 
JAG’s recommendation. 

applicant  may  well  have  been  the  junior  officer  chosen  for  this  new  administrative  position 
because of his relative lack of experience as a DAT leader and his failure to complete a particular 
tactical training course. (Tabs A and N)  Under Article 7-5-1.A. of Coast Guard Regulations, a 
CO may assign officers to duties to maximize the efficiency of the unit as a whole.  Therefore, 
the applicant’s reassignment as the Logistics Officer of the EMSST, with responsibility for man-
aging the unit’s administrative, finance, and logistics personnel, was not illegal.  However, under 
Article 7-5-1.B., the command is supposed to notify the Personnel Command if the reassignment 
lasts for more than 30 days.  The fact that the disputed OER (Tab B) states that his primary duty 
throughout  the  evaluation  period  was  AOO  of  the  EMSST  indicates  that  the  command  never 
received  the  Personnel  Command’s  approval  of  the  applicant’s  reassignment.    Moreover,  the 
record shows that the applicant had little to no experience or training for this work. (Tabs E and 
F)    In  the  Board’s  experience,  Logistics  Officers  responsible  for  all  of  the  administration, 
finance,  and  logistics  of  an  operational  unit  are  often  chief  warrant  officers  with  years  of 
experience,10 as the applicant alleged, and it is doubtful that the Personnel Command would have 
assigned him to such duties or concurred in the reassignment given his training and experience.   
 

The disputed OER states that the applicant’s primary duty during the evaluation 
period was to be the AOO of the EMSST and appears to show that he failed miserably in this 
position. (Tab B)    In fact, according to the XO,  the applicant had no operational duties at  all 
during  the  evaluation  period  because  he  had  been  reassigned  to  purely  administrative  duties 
because of the reorganization. (Tabs N and W)  On its face, therefore, the disputed OER is erro-
neous in this regard.  Moreover, the applicant was reassigned to duties for which he had little to 
no training or experience (Tabs E and F), and it is not clear whether the applicant’s supervisor 
took  this  lack  of  experience  into  account  when  evaluating  his  performance  as  the  Logistics 
Officer.  The supervisor, who was the XO of the EMSST, made no mention of such considera-
tions in his affidavit regarding the disputed OER and explained only that because of the reorgani-
zation many officers at the EMSST served in positions to which they had not been assigned by 
the Personnel Command. (Tab N)  Although the applicant apparently failed to meet the XO’s 
expectations as the Logistics Officer, the Board finds that his assignment to a position for which 
he had no training or experience was unjust and renders the accuracy of the OER suspect. 
 
 
The applicant alleged that the EMSST had no published rating chain, as required 
by Article 10.A.2.b.2.b. of the Personnel Manual, and that the XO of the EMSST served impro-
perly as both his supervisor and reporting officer and thus was erroneously responsible for the 
entire disputed OER. (Tab P)  The record shows that the XO had originally been assigned as the 
CO of the MSST and that the applicant was originally assigned as the OO of the MSST. (Tabs D 
and N)  Under Article 10.A.2.e.1.e. of the Personnel Manual, a CO may serve as both the super-
visor and reporting officer for personnel who report directly to them.  Therefore, if the MSST 
had existed in 2006, the CO of the MSST could have properly served as both the supervisor and 
the  reporting  officer  for  the  disputed  OER.    However,  as  the  XO  himself  pointed  out  to  the 
applicant in an email dated May 10, 2005 (before the evaluation period for the disputed OER 
even  began),  the  “MSST  does  not  exist.”  (Tab  V)    Their  unit  had  been  reorganized  into  an 
EMSST in 2004, and the XO was only the XO, not the CO, of the EMSST.  The Board notes in 
this  regard  that  the  XO  signed  all  of  his  emails  as  the  XO  (Tabs  U,  V,  W,  and  X);  that  in 
December 2004, the CO of the EMSST—not the XO—endorsed the applicant’s application to 
                                                 
10 See, e.g., BCMR Docket No. 2008-076. 

7. 

8. 

9. 

the Commandant’s Diversity Advisory Council (Tab T); and that in the fall of 2005 it was the 
CO of the EMSST, not the XO, who approved the applicant’s subordinates’ evaluations. (Tab 
W)  The XO apparently continued to use the title of CO of the MSST after the demise of the 
MSST, but the XO was not the CO of the EMSST and therefore was not the applicant’s CO at 
any  time  during  the  evaluation  period  for  the  disputed  OER.    Article  10.A.2.e.1.e.  of  the 
Personnel Manual does not authorize XOs to serve as both the supervisor and reporting officer 
for a subordinate.  The preponderance of the evidence shows that the Coast Guard violated this 
regulation  by  allowing  the  XO  of  the  EMSST  to  serve  as  both  the  supervisor  and  reporting 
officer  for  the  disputed  OER.  (Tab  B)    The  JAG  did  not  to  respond  to  this  allegation  by  the 
applicant, but the Board notes that the JAG has recommended relief many times in the past when 
officers have been evaluated by unpublished or improperly composed rating chains.11 
 
 
Having found that the Coast Guard violated Article 10.A.2.e.1.e. of the Personnel 
Manual by having the XO of the EMSST serve as both the supervisor and reporting officer for 
the disputed OER, the Board must decide whether this violation was prejudicial to the applicant.  
Normally, officers are evaluated by a rating chain of three different superior officers who have 
observed their performance.12  Marks and comments are assigned by a supervisor and a reporting 
officer, and a reviewer reviews the OER and “[e]nsures the OER reflects a reasonably consistent 
picture of the Reported-on Officer’s performance and potential.”13  In this case, a single officer, 
the XO, erroneously prepared the entire OER, and the officer who served as the reviewer stated 
in his affidavit that he had “very limited” contact with the applicant and concluded that the dis-
puted OER was fair based on his telephone conversations with the XO. (Tab O) 
 
 
The applicant alleged that the violation of Article 10.A.2.e.1.e. of the Personnel 
Manual was prejudicial to his OER because he had previously been assigned to the Headquarters 
planning office that was primarily responsible for the reorganization of the MSST/EMSST and, 
hence, for the XO’s loss of his position as the CO of the MSST.  He alleged that the XO com-
plained about the applicant’s assignment to the Personnel Command even before the applicant 
arrived  at  the  unit  and  that  the  XO  resented  him  because  of  his  work  at  the  Headquarters 
planning office responsible for his loss of command.  In responding to the applicant’s claims, the 
XO  admitted  that  he  had  discussed  the  applicant’s  assignment  to  his  unit  with  “multiple 
officers,” and he did not deny that he had voiced his objections to the applicant’s assignment to 
the unit to the Personnel Command before the assignment was finalized. (Tab N)  Moreover, the 
applicant’s allegations of prejudice are supported by an affidavit submitted by the Chief of the 
Headquarters planning office at issue. (Tab S)  This captain stated that the applicant had worked 
in  that  office  prior  to  his  assignment  to  the  EMSST,  that  the  EMSST  had  a  detrimental 
“command  culture”  and  a  poor  “command  climate,”  and  that  the  applicant  was  “a  principal 
casualty”  of  a  “leadership  gap”  at  the  EMSST.    More  specifically,  the  captain  stated  that  the 
EMSST command was “pre-disposed to distrust” the applicant because of his involvement in the 
planning of the reorganization.  Therefore, in retrospect, it appears that the XO should have been 
disqualified from serving on the applicant’s rating chain pursuant to Article 10.A.2.g.2.b. of the 
Personnel Manual.  The Chief of the Headquarters planning office also noted that although the 
applicant, because of his work in the planning office, knew how the EMSST was supposed to 
                                                 
11 See, e.g., BCMR Docket Nos. 2006-085, 2006-036, 2003-011, and 2002-101. 
12 PERSMAN, Art. 10.A.1.c.4.   
13 PERSMAN, Art. 10.A.2.f.2.a. 

10. 

11. 

function,  he  “was  frankly  working  against  a  stacked  deck;  pre-disposed  opinions  by  the 
command on how it should be formed and organized.  Unfortunately for all involved, those ideas 
ran contrary to the vision outlined by Coast Guard Headquarters.”  In addition, he noted that the 
command  of  the  EMSST  was  later  investigated  because  of  the  EMSST’s  tardy  development, 
failure to train members, and “numerous reported personnel problems.” (Tab S) 
 
 
The applicant has proven by a preponderance of the evidence in the record that 
during the evaluation period for the disputed OER, he was assigned to administrative, finance, 
and logistics duties for which he had little to no experience or training; that he was erroneously 
evaluated by a single officer, the XO, in violation of the Personnel Manual; that the XO did not 
want him to be assigned to the unit and was predisposed to distrust and resent him; and that he 
ultimately received a derogatory OER that erroneously shows that his primary duty during the 
evaluation period was to be the AOO.  Therefore, the Board finds that he has also proved by pre-
ponderance of the evidence that the disputed OER is erroneous and was negatively affected by a 
prejudicial violation of a regulation14 and so should be removed from his record and replaced 
with an OER prepared “for continuity purposes only.”15 
 

12. 

The applicant voluntarily resigned from his active duty commission in June 2007 
but is still a Reserve officer and has asked the Board to remove his failures of selection for pro-
motion to lieutenant commander so that he will have two additional opportunities to compete for 
promotion with a corrected record.  His Reserve OERs and affidavits from his superior officers 
in the Reserve show that he has performed exceptionally well in the Reserve. (Tabs E, K, and Y)  
The JAG opted not to address the applicant’s request to have his failures of selection for promo-
tion removed. (Tab Z)  When an applicant proves that his military record contained a prejudicial 
error or injustice when it was reviewed by a selection board, this Board must determine whether 
the applicant’s failure of selection 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?”16  Under this Engels test, 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,  despite  the  plaintiff’s  prima 
facie case, there was no substantial nexus or connection” between the prejudicial error and the 
failure of selection.17  To void a failure of selection, the Board “need not find that the officer 
would in fact have actually been promoted in the absence of the error, but merely that promotion 
was not definitely unlikely or excluded.”18 
 
The  disputed  OER  documenting  the  applicant’s  removal  from  his  duties  at  the 
 
EMSST is clearly derogatory and highly prejudicial as it labels him as a “marginal performer” 
with  “limited  potential”  and  states  that  he  is  “[n]ot  recommended  for  promotion.”  (Tab  B)  
Therefore, it clearly prejudiced his record when it was reviewed by the LCDR selection boards.  
                                                 
14 Hary, 618 F.2d at 708. 
15 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.  PERSMAN, Article 10.A.3.a.5. 
16 Quinton v. United States, 64 Fed. Cl. 118, 125 (2005); Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982). 
17 Christian v. United States, 337 F.3d 1338, 1343 (Fed. Cir. 2003), citing Engels, 678 F.2d at 175; Quinton, 64 Fed. 
Cl. at 125.   
18  Engels, 678 F.2d at 175. 

13. 

Furthermore, the disputed OER contains the only negative marks in the applicant’s record. (Tabs 
E, G, J, and K)  Therefore, it is not unlikely that the applicant would have been selected for pro-
motion  had  the  disputed  OER  not  been  in  his  record  when  it  was  reviewed  by  the  selection 
boards.  Accordingly, under the Engels test, the Board finds that the applicant’s failures of selec-
tion for promotion must be removed from his record.   
 
 
be selected for promotion in the future.  Therefore, the Board will not address this matter. 
 
 
OER; replacing it with a continuity OER; and removing his failures of selection for promotion.  

The applicant made no request regarding backdating of his date of rank should he 

14. 

15. 

Therefore,  the  applicant’s  record  should  be  corrected  by  removing  the  disputed 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
 

ORDER 

The application of LT xxxxxxxxxxxxxxxxxxxxx, USCGR, for correction of his military 

 
 
record is granted as follows: 
 
 
be removed from his record and replaced with one prepared “for continuity purposes only.” 
 

His officer evaluation report for the period June 1, 2005, through March 10, 2006, shall 

 
His  failures  of  selection  for  promotion  to  LCDR  since  March  10,  2006,  shall  also  be 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Evan R. Franke 

 

 
 Vicki J. Ray 

 

 

 

 

 
 
 Janice Williams-Jones 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

removed from his record. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 



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  • CG | BCMR | OER and or Failure of Selection | 2007-196

    Original file (2007-196.pdf) Auto-classification: Denied

    The reporting officer further stated: In block 7 of the OER, the reporting officer concurred with the supervisor’s marks and In the leadership section of the disputed OER, the applicant received a mark of 6 in “looking out for others,” marks of 5 in “developing others,” “directing others,” and “evaluations,” and marks of 3 in “workplace climate” and “teamwork.” The supervisors wrote the following in the comment block: [The applicant] was presented opportunities to learn critical new skills...

  • CG | BCMR | OER and or Failure of Selection | 2011-035

    Original file (2011-035.pdf) Auto-classification: Denied

    The PRRB found that prior to the reporting period for the OER, several officers who served on the bridge as Officer of the Day discussed the offensive content of the quote book, gave the quote book to the AOO “for disposition,” and “rightfully assumed the issue was resolved.” The PRRB found that the CO, who served as the Reviewer for LTJG X’s OER, found the quote book in April 2009 and “wrongfully based her view of the applicant’s performance on the date she personally discovered the quote...

  • CG | BCMR | OER and or Failure of Selection | 2005-053

    Original file (2005-053.pdf) Auto-classification: Denied

    This final decision, dated November 17, 2005, is signed by the three duly APPLICANT’S REQUEST AND ALLEGATIONS The applicant asked the Board to remove from his record an officer evaluation report (OER) covering his performance during a short tour as the Operations Officer of the Xxxxxx, a high-endurance cutter, from May 1, 1998, to April 27, 1999. The applicant argued that the CO vio- lated the Personnel Manual when he delayed the OER by a year, failed to include a comment on the applicant’s...

  • CG | BCMR | OER and or Failure of Selection | 2011-082

    Original file (2011-082.pdf) Auto-classification: Denied

    d. I do not believe [the applicant’s] statement that he did not know that the quote book was on the bridge during the marking period. There was one book. Rating chain officials must base their marks and comments in an OER only on a reported-on officer’s performance during the reporting period, and they may not comment on “performance or conduct which occurred outside the reporting period.” 9 Therefore, if the applicant was unaware that the quote book had been returned to the bridge during...