DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-210 
 
xxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxx   

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 after receiving the 
completed application July 30, 2009, and assigned it to staff member J. Andrews to prepare 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  April  22,  2010,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, a Reserve commander, asked the Board to correct his record by removing 
certain remarks from his officer evaluation report (OER) for the period May 1, 2007, to June 30, 
2008.1  The applicant argued that the remarks should be removed because they  are “factually 
incorrect and without foundation.”  The disputed remarks are as follows: 
 

•  From block 7:  “[The applicant’s] performance and drill status turned around during the 
second half of the reporting period following expectation management consultations with 
supervisor and District SRO [Senior Reserve Officer]. 

 

 
 

 

 

 

•  From block 8:  “Held self accountable during performance counseling given by supervi-

sor and unit SRO regarding lack of ADT for FY08; no excuses made.” 

                                                 
1 On an OER form (CG-5310B), Coast Guard officers are rated in eighteen different performance categories, such as 
teamwork and judgment on a scale of 1 (worst) to 7 (best), and written comments are added to support the assigned 
marks.  Each OER is prepared by a  “rating chain” of officers,  which includes a  supervisor,  who is normally the 
person to whom the reported-on officer reports on a daily basis and who completes the first thirteen numerical marks 
on  an  OER  and  the  supporting  comments  for  those  marks;  a  reporting  officer,  who  is  normally  the  supervisor’s 
supervisor and who completes the remaining marks and comments on an OER; and the reviewer, who reviews the 
OER for consistency and may add a page of comments but need not have personal knowledge of the reported-on 
officer’s performance.  PERSMAN, Arts. 10.A.2.a., 10.A.2.d.1.a., 10.A.2.e.1.a., and 10.A.2.f.1.a.  

The applicant explained that in the spring of 2006, he returned to his regular Selected 
Reserve unit from Kuwait, where he had been serving on Title 10 orders.  He was assigned to 
drill with the Field Intelligence Support Team (FIST) located in Seattle.  In the summer and fall 
of 2006, he drilled mostly on weekends, doing cruise ship liaison work on the waterfront.  In late 
fall 2006, he arrived to find that the FIST office had been moved to a new building on the pier.  
He had not been notified of the move and had no way of entering the building.  He emailed the 
lieutenant in charge of the FIST (LT S) about the problem and received no reply.  Therefore, he 
called the lieutenant and left a voicemail message about needing access to the office but again 
received no reply.  “Over the next few months, I both called and emailed [LT S’s] supervisor, 
[LCDR A] at the D13 Intelligence Branch.  I cannot honestly recall what he told me he would do 
about the situation, but in any event I never received access to the new building. 

 
The applicant alleged that by early 2007, he was quite frustrated because he wanted to 
fulfill his drill obligations, so he decided on his own to move his drill location to the D13 Intelli-
gence  office  at  D13  Headquarters,  for  which  he  still  had  an  access  card  although  it  had  been 
deactivated.  LCDR H, who had replaced LCDR A, “seemed sympathetic to my situation and 
said she did not have any issues with me using D13 spaces to do my drills.”  Therefore, he asked 
to have his access card reactivated, but several months passed and, by the spring of 2008, his 
card  was  still  not  reactivated.    He  asked  LCDR  H  for  access  a  second  time  but  still  did  not 
receive access.  Therefore, in order to drill, he had to depend on someone else being in the office 
to let him in the door.  Since only tow or three other people worked in that office, he could not 
get in when they were out of the office or off duty, and once he was in, he could not leave to use 
the restroom and count on getting back in.  Thus, he could not drill on weekends. 

 
The applicant further alleged that when he needed to fill his annual training obligation in 
2008, he asked LCDR H for suggestions, but she had none.  He “was not going to submit for 
ADT when [he] had no real access to Coast Guard working spaces.”  However, he kept busy with 
some  correspondence  courses  and  small  projects.    When  a  new  SRO  arrived,  the  applicant 
expressed his frustrations with his lack of access to the office, but there was no improvement. 

 
The applicant alleged that the two disputed remarks are therefore unwarranted.  They “do 
not reflect the true nature of the reasons behind [his] inability to complete drills or ADT.  [His] 
performance ‘turnaround’ had nothing to do with counseling and everything to do with [his] own 
initiative to do the right thing.  The remarks completely ignore the real issue, [his] supervisors’ 
inability or inexplicable unwillingness to provide [him] a place to do [his] work, or even to pro-
vide [him] with work to do.  The remarks unfairly place the blame for this situation entirely on 
me.  It was simply not the case.  I am not sure what more I could have done.” 

 
With regard to the many mediocre marks of 4 he received on the disputed OER, the appli-
cant stated, “Clearly these [disputed] remarks contributed to my low OER scores.  I understand 
the difficulty in changing scores; I just ask that the remarks be removed.” 

 
The applicant submitted a copy of the disputed OER but did not submit any evidence to 

support his allegations. 

 

SUMMARY OF THE RECORD 

 

On October 22, 1975, the applicant enlisted in the Reserve.  He then served four years on 
active duty in the regular Coast Guard from March 29, 1976, to March 28, 1980.  Following his 
release into the Reserve in 1980, the applicant drilled regularly for 25 consecutive years, earning 
satisfactory  years  of  service  for  retirement  purposes  each  year.    He  was  commissioned  as  an 
ensign in 1992. 

 
On July 1, 2001, as a lieutenant, the applicant began drilling at the FIST in Seattle.  He 
served as a law enforcement liaison and intelligence analyst.  His first OER at the FIST, covering 
his service from July 1, 2001, through April 30, 2002, shows that he performed 48 of 48 sched-
uled drills and 12 days of annual training.  He received all marks of 5 or 6 in the various per-
formance categories, laudatory supporting comments, and a mark in the fifth spot on the com-
parison scale.2  He was highly recommended for promotion to lieutenant commander (LCDR). 

 
The applicant’s second OER at the FIST, covering his service from May 1, 2002, through 
April 30, 2003, shows that he again performed 48 of 48 drills and 12 days of annual training and 
that he received all marks of 5 and 6 in the performance categories, laudatory comments, and a 
mark in the fifth spot on the comparison scale.  He was promoted to LCDR on July 1, 2003. 

 
On the applicant’s third OER at the FIST, covering his service from July 1, 2003, through 
April  30,  2004,  he  again  received  marks  of  5  and  6  in  the  various  performance  categories, 
laudatory comments, and a mark in the fifth spot on the comparison scale.  The reporting officer 
noted that the applicant 

 
is a dedicated & highly effective officer who demonstrated consistently high performance during a 
challenging evaluation period during which he played a key role in the very successful overhaul of 
the D13 Reserve Intelligence program and the stand-up of the Seattle FIST.  [His] efforts  were 
critical in attaining the District Thirteen goals of developing our people &  meeting the greatly-
expanded requirements for MDA intelligence.  [He] has shown himself to be very adept at man-
aging  complex  projects  with  competing  demands.    Highly  recommended  for  any  position  of 
greater responsibility commensurate with rank. 
 
On  the  applicant’s  fourth  OER  at  the  FIST,  covering  his  service  from  May  1,  2004, 
through February 26, 2005, he received marks of 5, 6, and 7 in the various performance catego-
ries, highly laudatory comments, and a mark in the fifth spot on the comparison scale.  he was 
highly recommended for promotion to commander (CDR). 

 
From  February  27,  2005,  though  March  28,  2006,  the  applicant  served  with  a  Naval 
Coastal  Warfare  Squadron  in  Kuwait3  under  Title  10  orders.    On  his  OER  for  this  period  of 
                                                 
2 The comparison scale on an OER form is not actually numbered, but as with the performance categories, there are 
seven possible  marks on the  scale from the first (“performance unsatisfactory for grade or billet”) to the seventh 
(“BEST OFFICER of this grade”).  For LCDRs, a mark of 5—i.e., a mark in the fifth spot—on the scale denotes an 
“Excellent performer; give toughest, most challenging leadership assignments.”  The Reporting Officer assigns the 
Reported-on  Officer  a  mark  on  the  comparison  scale  by  comparing  him  with  all  other  officers  of  the  same  rank 
whom the Reporting Officer has known throughout his career. 
3  The  Board  notes  that  the  applicant’s  DD  214  for  this  period  of  active  duty  does  not  reflect  any  foreign  or  sea 
service during these 13 months with the Naval Coastal Warfare Squadron in Kuwait. 

active duty, he received marks of 5 and 6 in the various performance categories and a mark in the 
fifth spot on the comparison scale.  In addition, he was recommended for promotion. 

 
Upon his release from active duty, the applicant was reassigned to the FIST.  His OER 
for the period March 28, 2006, through April 30, 2007—his fifth and last from the FIST—shows 
that he attended 56 of 56 scheduled drills during this period and performed no active duty.4  The 
Chief of the Intelligence Branch, LCDR A, served as both the supervisor and reporting officer on 
the rating chain for this OER and  assigned him marks of 5 and 6 in the various performance 
categories, laudatory comments, and a mark in the fifth spot on the comparison scale.  The appli-
cant was highly recommended for promotion. 

 
The disputed OER covers the applicant’s performance from May 1, 2007, through June 
30, 2008, and shows that he was assigned as an Intelligence Staff Member and Critical Incident 
Response Team Member at District Thirteen Headquarters.  The OER shows that he attended 56 
of 56 scheduled drills during the year but performed no days of active duty for the annual train-
ing requirement.  LCDR H, the new Chief of the Intelligence Branch, served as both the supervi-
sor and reporting officer for the disputed OER and thus assigned all of the marks and comments 
therein.  She assigned him fifteen marks of 4 and three marks of 5 in the various performance 
categories and a mark in the fourth spot on the comparison scale.5  LCDR H included some posi-
tive comments in the OER but also the two critical comments disputed by the applicant, which 
appear on page 1 of this decision.  In addition, in block 10 of the OER, which is for the reporting 
officer’s comments on the evaluated officer’s potential for leadership, LCDR H described him as 
merely  a “qualified officer.”  She noted that the applicant’s “[s]election for promotion to O-5 
[CDR]  demonstrates  exceptional  past  performance  and  future  potential.    Recommended  for 
future billets in intel and port security.”  She also noted that he was being transferred to a new 
assignment  at  USTRANSCOM,  a  joint  command  managing  the  deployment  of  military  mem-
bers. 

 
The  disputed  OER  was  also  signed  by  a  reviewer,  CAPT  D,  the  Chief  of  the  District 

Response Division.” 

VIEWS OF THE COAST GUARD 

 

 
 
On December 10, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion recommending that the Board deny the applicant’s request.  In so doing, the 
JAG adopted the findings and analysis provided in a memorandum prepared by the Personnel 
Service Center (PSC). 
 

The PSC noted that the applicant never submitted a reply to the OER and did not submit 
“any supporting documentation to substantiate any claim expressly stated or implied.”  The PSC 
stated that the applicant’s rating chain members presumptively carried out their duties correctly 
in preparing the OER and “were in the best position to observe the applicant’s performance and 
                                                 
4 With permission,  members  may  satisfy their annual training requirement by transferring 12 days of active duty 
from the year before or the year after the anniversary year in question. 
5 For LCDRs, a mark of 4—i.e., a mark in the fourth, or middle, spot—on the comparison scale denotes a “Good 
performer, give tough, challenging assignments.” 

provide a fair, accurate, and objective OER.”  The PSC argued that because the applicant has 
“failed to substantiate any error or injustice with regards to the record,” the Board should deny 
his request. 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

On December 14, 2009, the Chair sent the applicant a  copy of the views of the Coast 

 
 
Guard and invited him to respond within 30 days.  No response was received.  
 

APPLICABLE REGULATIONS 

 
 
Article 10.A. of the Personnel Manual governs the preparation of officers’ OERs.  Article 
10.A.1.b.1. states that “Commanding officers must ensure accurate, fair, and objective evalua-
tions are provided to all officer under their command.” 

 
Article 10.A.2.d.2.a. states that it is the responsibility of the supervisor to evaluate the 
reported-on officer in the execution of her duties and to prepare the supervisor’s portion of the 
OER  form.    Article  10.A.2.e.2.a.  states  that  it  is  the  responsibility  of  the  reporting  officer  to 
evaluate the reported-on officer based on direct observation, reports of the supervisor, and other 
reliable  reports  and  to  prepare  the  reporting  officer’s  portion  of  the  OER  form.    Article 
10.A.2.f.2.c. states that the reviewer “[e]nsures the supervisor and the reporting officer have ade-
quately executed their responsibilities under the OES.”  
 

Article 10.A.4.c.4. instructs supervisors to assign marks and write comments for the first 
thirteen  performance  categories  on  an  OER  as  follows  (nearly  identical  instructions  appear  in 
Article 10.A.4.c.7. for reporting officers, who complete the rest of the OER): 
 

•   •   • 

•   •   • 

b.  For each evaluation area, the Supervisor shall review the Reported-on Officer’s performance 
and qualities observed and noted during the reporting period.  Then, for each of the performance 
dimensions, the Supervisor shall carefully read the standards and compare the Reported-on Offi-
cer’s performance to the level of performance described by the standards.  The Supervisor shall 
take care to compare the officer’s performance and qualities against the standards—not to other 
officers and not to the same officer in a previous reporting period.  After determining which block 
best describes the Reported-on Officer’s performance and qualities during the marking period, the 
Supervisor fills in the appropriate circle on the form in ink. 

d.    In  the  “comments”  block  following  each  evaluation  area,  the  Supervisor  shall  include  com-
ments  citing  specific  aspects  of  the  Reported-on  Officer’s  performance  and  behavior  for  each 
mark that deviates from a four.  The Supervisor shall draw on his or her observations, those of any 
secondary supervisors, and other information accumulated during the reporting period. 
 
 e.    Comments  should  amplify  and  be  consistent  with  the  numerical  evaluations.    They  should 
identify specific strengths and weaknesses in performance.  Comments must be sufficiently spe-
cific to paint a succinct picture of the officer’s performance and qualities which compares reasona-
bly  with  the  picture  defined  by  the  standards  marked  on  the  performance  dimensions  in  the 
evaluation area.  Mere repetition or paraphrasing of the standards is not sufficient narrative justifi-
cation for below or above standard marks. 

g.  A mark of four represents the expected standard of performance. Additional specific perform-
ance observations  must be included  when an officer has been assigned a  mark of  five  or six to 
show how they exceeded this high level of performance. … 
 
Article 10.A.4.c.6.a. states that block 7 of an OER 

provides  an  opportunity  for  the  Reporting  Officer  to  comment  on  the  Supervisor’s  evaluation. 
Although this section is not mandatory, Reporting Officers are encouraged to cite other informa-
tion and observations they may have which would confirm or provide another perspective of the 
Reported-on  Officer’s  performance  and  qualities  demonstrated  during  the  reporting  period.    By 
doing so, the Reporting Officer gives a more complete picture of the Reported-on Officer’s capa-
bilities. 

 
 

 

Article 10.A.4.c.8.a. instructs the reporting officer to complete the comparison scale on 
an OER by filling in the circle that most accurately reflects his or her ranking of the reported-on 
officer  in  comparison  to  all  other  officers  of  the  same  grade  whom  the  reporting  officer  has 
known.  Article 10.A.4.c.9. states that in the comment block titled “Potential,” the reporting offi-
cer  “shall  comment  on  the  Reported-on  Officer’s  potential  for  greater  leadership  roles  and 
responsibilities in the Coast Guard.” 
 
 
Article 10.A.4.g. states that an officer may submit a written reply to an OER within 21 
days of receipt of the official copy.  The reply and any responses to the reply prepared by the 
rating chain will be included in the officer’s record with the OER. 
 

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: 
 

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

1. 

The application was timely. 
 

2. 

The applicant alleged that certain comments in the disputed OER are erroneous 
and unfair.  The Board begins its analysis by presuming that the disputed OER in an applicant’s 
military record is correct and fair, and the applicant bears the burden of proving by a preponder-
ance of the evidence that the OER is erroneous or unjust.6  Absent specific evidence to the con-
trary, the Board presumes that the members of an applicant’s 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 

                                                 
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 prior to the promulgation of the latter 
standard in 2003 in 33 C.F.R.§ 52.24(b)). 
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).   

significant hard fact,” factors “which had no business being in the rating process,” or a prejudi-
cial violation of a statute or regulation.8   

 
3. 

 
The  applicant  alleged  that  the  disputed  comment  in  block  7  is  erroneous  and 
unjust  because  he  was  prevented  from  drilling  regularly  on  weekends  during  the  evaluation 
period when the District command repeatedly failed to provide him with access to a Coast Guard 
office where he could work.  Because the applicant has drilled regularly and accumulated more 
than 25 consecutive years of satisfactory service, the Board finds his allegations that inadequate 
access  to  Coast  Guard  office  space  sometimes  interfered  with  his  drilling  to  be  credible  even 
though he submitted no evidence to support his claim.  However, the applicant did not elaborate 
on what efforts he made to gain a key card to the office, and the OER shows that he completed 
56 of 56 scheduled drills during the evaluation period.  His supervisor, the Chief of the Intelli-
gence  Branch,  apparently  believed  that  the  disputed  comment  in  block  7  was  justified.    The 
Board does not have enough information or evidence to conclude that the disputed comment in 
block 7 is erroneous or unjust. 
 
 
The applicant alleged that when he inquired about performing annual training dur-
ing  his  2008  anniversary  year,  his  supervisor  did  not  offer  him  an  opportunity  to  fulfill  the 
requirement.  Therefore, he alleged that the disputed comment in block 8 is erroneous and unjust.  
The applicant did not elaborate on what efforts he made at what point during his anniversary year 
to fulfill the annual training requirement, and his supervisor apparently believed that the disputed 
comment in block 8 was justified.  The Board does not have enough information or evidence to 
conclude that the disputed comment in block 8 is erroneous or unjust. 
 

Accordingly, the applicant’s requests should be denied because he has not proved 
by a preponderance of the evidence that the disputed comments or anything else in 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.9   
 
 
 

4. 

5. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

 

                                                 
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 Id. 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Evan R. Franke 

                     

 

    

 

 
 James E. McLeod 

 

 

   
 
 Adrian Sevier 

 

 

 

 

 

 

 

  

 
 

 
 

military record is denied.