DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2009-230 
 
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XXXXXXXXXXXXXXXX 

 

 
 

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 upon receipt of 
the applicant’s completed application and military records on August 20, 2009, and subsequently 
prepared the final decision for the Board as required by 33 C.F.R. § 52.61(c).          
 
 
who were designated to serve as the Board in this case. 
 

This final decision, dated May 13, 2010, is signed by the three duly appointed members 

APPLICANT’S REQUEST  

 
 
 The  applicant  asked  the  Board  to  correct  his  record  by  modifying  the  language  in  a 
punitive  letter  of  admonition  (punitive  letter)  and  by  modifying  an  officer  evaluation  report 
(OER) for the period from June 1, 2008 to May 31, 2009 (disputed OER) by raising four marks 
and deleting certain comments.   
 

BACKGROUND 

 

 
During  the  period  covered  by  the  disputed  OER,  the  applicant  was  the  Work  Life 
supervisor for the Integrated Support Command (ISC), St. Louis, as well as the ISC’s collateral 
duty Morale Officer and the District 8 Western Rivers Morale Funds Custodian. 
 
 
On April 7, 2009, the applicant’s commanding officer (CO) issued a punitive letter to the 
applicant  as  non-judicial  punishment  (NJP)  for  violating Article  133  (conduct  unbecoming  an 
officer)  of  the  Uniform  Code  of  Military  Justice  (UCMJ).    The  punitive  letter  stated  the 
following, in part: 
 

[Y]ou  are  hereby  admonished  for  your  conduct  while  serving  as  the  collateral 
duty  morale  officer  at  [ISC]  St.  Louis  from  January  2008  to April  2009.   You 
behaved  in  a  reproachable  manner  in  that  you  engaged  in  an  inappropriate, 
extramarital affair with a married woman whose acquaintance  you made during 

official  travel.   You  used  your  position  as  the  collateral  duty  morale  officer  to 
develop  this  relationship  and  arrange  liaisons  with  this  woman  during  official 
temporary  duty  travel.   You  used  government  phones  and  computer  systems  to 
carryon  inappropriate  communications  that  ultimately  resulted  in  this  woman’s 
spouse submitting a complaint to Navy and Coast Guard investigators. I find your 
actions meet the elements of Article 133 of the [UCMJ], Conduct Unbecoming of 
an Officer.   
 
  The applicant acknowledged receipt of the punitive letter and his right to appeal the NJP 

 
and punishment.  
 
Disputed OER 
 
 
 
The disputed OER described the applicant’s primary duty as the Work Life Supervisor 
and  his  collateral  duties  as  the  Morale  Officer  and  the  D8  Western  Rivers  Morale  Funds 
Custodian.  This block also noted that the “OER was submitted under Article 10.A.3.c.1. due to 
NJP  on  7  [April]  09  for  violation  of  UCMJ  Article  133  (Conduct  Unbecoming  an  Officer).  
Awarded  a  Punitive  Letter  of Admonition.”    The  punitive  letter  was  attached  to  the  disputed 
OER. 
 
 
The applicant’s rating chain consisted of the supervisor, the reporting officer (who was 
the executive officer) and the reviewer (who was the CO).  Each member of the rating chain was 
responsible for completing a specific portion(s) of the OER.   
 
 
1.  The applicant’s supervisor was responsible for evaluating him in the performance of 
duties,  communication  skills,  and  leadership  skills  categories  of  the  disputed  OER.    The 
supervisor assigned the applicant marks of 5 and 6 (out of a high of 7) in the dimensions of these 
categories.  The comments were very positive. 
 
 
2.    The  reporting  officer  evaluated  the  applicant’s  performance  in  the  personal  and 
professional qualities area in Block 8, rated the applicant on comparison with others of the same 
grade  the  reporting  officer  has  known  in  his  career  in  Block  9,  and  assessed  the  applicant’s 
potential for greater leadership roles and responsibilities in Block 10.   
 

In the personal and professional qualities area of the disputed OER, the reporting officer 
gave  the  applicant  a  5  in  initiative,  a  2  in  judgment,  a  3  in  responsibility,  a  4  in  professional 
presence, and a 6 in health and well being.  In the comment section of Block 8, the reporting 
officer wrote the following: 
 

Failed  to  use  good  judgment  in  development  of  inappropriate  relationship; 
wrongly used position as MWR officer to further relationship during TDY travel; 
awarded  Punitive  Letter  of  Admonition  as  result  of  NJP.    Willingly  accepted 
responsibility of actions, showed true remorse for poor decision & continued to 
actively participate and contribute as staff member at ISC.  Good initiative with 
creation of fitness go-bags for TDY personnel; offered equipment and instructions 
on  exercise  &  nutrition  for  traveling  personnel.    Key  coordinator  for  highly 

successful  2009  ISC  diversity  day  celebration  utilizing  creative  talents  of  local 
college students.  Facilitated senior training on leadership self-assessment & EEO 
procedures.    Utilized  extensive  ICS  training  to  serve  as  PST  Leader  during 
Hurricane IKE response.  While inappropriate relationship not in alignment with 
CG  core  values,  for  most  of  period  was  strong  advocate  for  community 
involvement;  recognized  for  effort  as  Boy  Scout  Leader,  Coach,  referee,  and 
church  youth  group 
leader  with  Outstanding  Volunteer  Service  Medal.  
Coordinated Trees for Troops program and St. Louis military diversity campaign 
showcasing  diverse  military  staff.    Impeccable  personal  appearance;  serves  as 
standard for military grooming.     

 
 
On the comparison scale in Block 9, the reporting officer rated the applicant as a “fair 
performer who is recommended for increased responsibility,” which is the third lowest block of 
seven.   
 
 
described the applicant’s potential as follows:  
 

In Block 10, the reporting officer did not recommend the applicant for promotion.  He 

 [The applicant] is well aware that the consequences of his actions and resulting 
NJP will significantly impact his career.  Based on his overall performance and 
his  observed  performance  following  NJP,  I  am  confident  [the  applicant]  will 
continue to contribute to the success of the Coast Guard, both as a staff member 
of  the  ISC  and  as  a  future  Health,  Safety,  and  Work  Life  supervisor  (post-
modernization),  but  he  will  need  to  demonstrate  the  ability  to  make  better 
decisions without oversight to gain my recommendation for promotion to O-4.   

3.  The CO, who was the reviewer, authenticated the disputed OER on June 18, 2009 and 

   
 
did not attach any comments. 
 

Punitive Letter 

ALLEGATIONS 

 

 

 
The  applicant  alleged  that  the  following  two  sentences  should  be  removed  from  the 
punitive  letter:    “You  used  your  position  as  the  collateral  duty  morale  officer  to  develop  this 
relationship  and  arrange  liaisons  with  this  woman  during  official  temporary  duty  travel.   You 
used government phones and computer systems to carry on inappropriate communications . . .”  
He argued that he was  never  charged with or convicted of  any misuse  of official  government 
funds and that all of the TDY travel was reviewed and approved by his CO.  With respect to the 
use of the telephone and computer to carry on inappropriate communications, the applicant stated 
that he continued using his cell phone, as he was never ordered to return it.  He stated that his 
text  messaging  did  not  violate  formal  policy.    Therefore,  the  disputed  comments  should  be 
removed from the punitive letter. 
 
 
 

 
Disputed OER 
 
 
The applicant alleged that the mark of 2 in the judgment dimension should be raised to a 
4.  The applicant provided a list of accomplishments that he believes demonstrates that he should 
have  a  higher  mark  in  judgment.  He  mentioned  such  accomplishments  as  volunteering  and 
deploying as leader of the Personnel Support team for Hurricane Ike and serving as the Critical 
Incident Stress Management team leader.  He stated that he recommended individuals on both of 
these teams for awards which were approved by the CO.  He noted that his supervisor received a 
Coast  Guard  Commendation  Medal  for  service  as  Chief,  Personnel  Division  in  part  for  her 
support  of  the  Personnel  Support  Team  while  deployed  in  response  to  Hurricane  Ike.    The 
applicant  concluded:    “If  I  was  unable  to  make  sound  decisions,  did  not  risk  cost  and  time 
considerations, and unable to demonstrate common sense and analytical thought1 how were my 
subordinates and supervisors formally recognized for their participation . . . while I received a 
mark  of  two  while  as  the  [Personnel  Team  Leader]  in  addition  to  my  primary  and  collateral 
duties.”  
 
 
The applicant alleged that the mark of 3 in the responsibility dimension should be raised 
to a 4.  In this regard, the applicant stated that he discovered and investigated irregularities in the 
use of a government credit card by one of his staff.  The member admitted to the misuse and was 
appropriately disciplined.  He stated that in addition to other duties, he was a stakeholder in the 
ISC St. Louis modernization plans that included becoming the Health Safety Work Life (HSWL) 
Field  Office  Supervisor,  rewriting  unit  instructions,  standard  operation  procedures  and  other 
documents.  The applicant concluded this portion of his statement with the following:  “Before, 
during, and after the administrative investigation as well as during the entire performance period, 
my supervisor, the executive officer, nor the commanding officer ever reduced my primary and 
collateral responsibilities.  In fact, my responsibilities increased significantly with an increase in 
my overall performance and outcomes . . .” 
 
 
The applicant alleged that the mark of 4 in the professional presence dimension should be 
raised to 5.  He stated that in addition to his other duties, he volunteered to serve in a number of 
capacities that “bring credit to the Coast Guard through one’s actions . . .” He stated that the CO 
asked  him  to  serve  in  other  capacities,  such  as  the  representative  for  the  Combined  Federal 
Campaign and the Coast Guard Representative on the Federal Executive Committee’s Workforce 
Diversity Council. He volunteered to assist with First Book, Boy Scouts of America, and youth 
groups at a local church.  The applicant stated that he received the Outstanding Volunteer Service 
Medal  from  his  CO  and  he  was  a  recipient  of  the  2009  Excellence  in  Government  Award, 
Community Service Team Category by the Greater St. Louis Federal Executive Board.   
 

                                                 
1  The applicant essentially restated the general criteria on the OER form for evaluating an officer’s judgment, which 
is  the  “[a]bility  to  make  sound  decisions  an  provide  valid  recommendations  by  using  facts,  expenses,  political 
acumen, common sense, risk assessment, and analytical thought.”  The criteria for a mark of 4 in judgment on the 
OER  form  is  “[d]emonstrated  analytical  thought  and  common  sense  in  making  decisions.    Used  facts,  data,  and 
experience  and  considered  the  impact  of  alternatives  and  political  realities.    Weighed  risk,  cost  and  time 
considerations.  Made sound decisions promptly with the best available information.”  See OER form, CG-5310B 
(Rev. 02-09).   

 
Last, the applicant alleged that the Block 9 comparison scale mark should be raised from 
“fair  performer”  to  the  next  higher  category  “good  performer”  and  that  the  comment  “not 
recommended  for  promotion”  should  be  removed  from  block  10.    The  applicant  stated  that 
during the period of the disputed OER, he was given assignments of greater responsibility, such 
as Personnel Support Team Leader and the Coast Guard representative on the St. Louis Federal 
Executive Board.  He argued that it was a contradiction for the reporting officer to say that he 
was a “fair performer” and “not recommended for promotion,” but find him capable of assuming 
the  additional  responsibility  of  becoming  a  HSWL  Field  Office  supervisor  which  included 
managing a medical clinic, an administrative staff, and a legacy civilian Work Life department.  
The applicant stated that most of the HSWL field office supervisors are O-4s.  He stated that the 
OER does not mention his pursuit of a Masters in Business Administration and his 3.4 GPA.   
 
 
The  applicant  asserted  that  the  CO’s  personal  feelings  and  subjectivity  toward  his 
inappropriate action resulted in several egregious errors in the punitive letter and the disputed 
OER.    He  stated  that  the  CO  never  took  into  account  his  overall  performance  for  the  entire 
period, but approved the disputed OER based upon a single incident.   
 
 
The applicant submitted several email newsletters the CO sent to MLC District 8 setting 
out ISC St. Louis’s issues and accomplishments.  Several of these reports mention travel by the 
applicant.   
 
 
stated the following:   
 

The  applicant  submitted  a  statement  from  his  supervisor  for  the  disputed  OER.    She 

Upon taking the job as the MWR officer at ISC St. Louis, [the applicant] took the 
initiative to develop more robust programs and establish an ITT office to meet the 
needs of the Coast Guard members and federal employees in the area.  Having 
personally served as the MWR officer there for a year prior to [the applicant’s] 
arrival, I can tell you that many members strongly desired that more tickets and 
services  be  made  available  than  the  one  amusement  park  discount  that  was 
offered.   After  months  of  research  and  interaction  with  the  CG  MWR  Program 
Manager,  [the  applicant]  approached  the  ISC  command  with  a  solid  plan  to 
establish  an  ITT  office,  which  was  approved.    Over  the  last  two  years,  [the 
applicant]  was  able  to  offer  military,  retired,  and  federal  employees  discount 
tickets  to  over  40  attractions  in  addition  to  being  able  to  book  much  requested 
Disney  cruises  all  while  generating  revenue  for  ISC’s  morale  account.   As  his 
supervisor, I received a lot of positive feedback on the services and as a part of his 
duties allowed him to attend the annual MWR and ITT conferences, which was 
entered  into  our  budget  for  the  command  to  review.    I  don’t  feel  the  applicant 
misused funds doing a job that he was authorized to do and his trips were noted in 
monthly summaries provided to the command.  
 
During this period, even when an investigation was ongoing, [the applicant] was 
consistently called upon by me and the command to take on additional duties.  He 
was  critical  to  the  successful  deployment  of  a  personal  support  team  to  assist 
displaced military and family members following Hurricane Ike and responsible 

for  heading  the  transformation  process  for  his  work  life  staff.    In  addition  he 
continued  to  serve  as  the  civil  rights  officer,  webmaster,  CFC  campaign 
representative and was asked to take on new duties such as the St. Louis Federal 
Executive Board Diversity representative which he performed admirably.     
 
There is no doubt that [the applicant] demonstrated poor personal judgment with 
an  inappropriate  relationship  that  brought  discredit  to  the  Coast  Guard  with  its 
reporting to the Coast Guard Investigative Service by a civilian spouse.  He has 
never  disputed  that  fact.    When  I  informed  [the  applicant]  that  he  was  under 
investigation he expressed true remorse for his indiscretion.  I was impressed with 
[the applicant’s] immediate desire to take responsibility for his personal actions 
and determination to not let the investigation or outcome affect his work . . . 
 
During the OER period being reviewed, [the applicant] did his job and did it well.  
In my 21  years of service he is not the only officer  I have known to commit a 
personal  indiscretion  and  he  is  paying  both  a  personal  and  professional  price.  
However,  I  believe  the  OER  being  reviewed  focuses  too  much  on  that  one 
incident and does not take into account his entire performance for the period and 
should be corrected.   

 

VIEWS OF THE COAST GUARD 

 
 
On January 12, 2010, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion recommending that the Board deny the applicant’s request based upon the 
memorandum from Commander, Personnel Service Command (PSC).  PSC noted that despite 
the supervisor’s positive comments about the applicant’s performance of duties, the challenges to 
the marks and comments on the disputed OER are all in the reporting officer’s portion of the 
disputed OER and were reaffirmed by him in a recent letter to PSC.  In that letter, the reporting 
officer stated that all the positive accomplishments identified by the applicant were considered in 
his evaluation of the applicant’s performance.  The reporting officer’s letter further stated that the 
NJP aside, “the applicant’s achievements and performance this period were not remarkable,” and 
that  “If  anything,  [the  applicant’s]  final marks  were  higher,  not  lower,  than  what  was  merited 
based on his performance.” The reporting officer stated that taking everything into account, “a 
mark of 3 (“Fair performer:  recommended for increased responsibility”) was the correct mark in 
block  9  (Comparison  scale).”    PSC  stated  that  the  reporting  officer’s  comments  justified  the 
disputed marks in the reporting officer’s portion of the disputed OER. 
 
 
With regard to the applicant’s contention that the CO’s personal feelings and subjectivity 
towards his inappropriate action led to the creation of several errors in the disputed OER and 
punitive  letter,  PSC  stated  that  based  upon  affidavits  obtained  from  the  rating  chain  the 
applicant’s allegations are inaccurate.  In this regard, the supervisor stated, “There is no doubt 
that [the applicant] demonstrated poor personal judgment with an inappropriate relationship that 
brought discredit to the Coast Guard with its reporting to the Coast Guard Investigative Service 
by a civilian spouse.”  PSC quoted the following from the reviewer’s statement:  “While I agree 
with the positive action [the applicant] listed in his BCMR request,  I continue to support and 
approve the marking official’s marks.”  PSC further stated that if the reviewer thought the OER 

was  inaccurate  or  the  comments  were  not  substantiated,  he  had  the  option  to  either,  submit  a 
reviewer’s  page  to  reconcile  any  discrepancies  or  return  the  OER  to  the  reporting  officer  for 
additional information and/or clarifying comments.   PSC noted that the reviewer stated that he 
remained confident that his NJP decision was accurate, appropriate and fair, and that the marking 
official accurately evaluated the applicant’s performance and potential.   
 
 
PSC  stated  that  overall  the  disputed  OER  is  positive  and  highlights  many  of  the 
applicant’s  accomplishments  and  that  the  mark  on  the  comparison  scale  and  the  substandard 
marks are only for those areas in the reporting officer’s portion of the OER where the applicant’s 
performance  fell  below  standard.    PSC  stated  that  the  comment—“Based  upon  his  overall 
performance  and his observed performance following NJP,  I am confident [the applicant]  will 
continue to contribute to the success of the Coast Guard both as a staff member of the ISC and as 
a future Health, Safety and Work Life supervisor . . . but he will need to demonstrate the ability 
to make better decisions without oversight to gain my recommendation for promotion to O-4”—
reemphasizes that with time and positive performance, the applicant has the potential to perform 
at a higher level.   
 
 
With  respect  to  the  applicant’s  request  to  remove  the  following  language  from  the 
punitive  letter,  “You  used  your  position  as  the  collateral  duty  morale  officer  to  develop  this 
relationship  and  arrange  liaisons  with  this  woman  during  official  temporary  duty  travel.   You 
used government phones and computer systems to carry on inappropriate communications,” PSC 
stated  it  presumes  that  the  statements  are  factual  based  upon  the  comments  in  the  reviewer’s 
affidavit.  The reviewer stated that “cell phone and cell “text message” records showed excessive 
amounts of communications, and evidence of extra-marital relationship.  Travel records showing 
excessive  travel  to  conferences  where  extra-marital  liaisons  were  possible.”    PSC  stated  the 
applicant could have disputed the statements in the punitive letter through an appeal, but did not. 
 
 
PSC  concluded  the  advisory  opinion  by  stating  that  the  applicant  has  not  provided 
evidence  that  overcomes  the  presumption  of  regularity  with  respect  to  the  construction  or 
submission of the disputed OER and that there is no basis for expunging the OER or redacting 
the verbiage.   
 
 
 

The Coast Guard obtained statements from the rating chain, which are discussed below.  

1.    The  applicant’s  supervisor  for  the  period  under  review  stated  that  she  thought  the 
disputed  OER  focused  too  much  on  one  incident  and  did  not  take  into  account  his  entire 
performance for the period.   
 
 
2.  The reporting officer declared that the applicant received the marks that reflected his 
performance for the entire period.  He stated that he and the reviewer deliberated many times 
over  the  marks  assigned.    The  reporting  officer  stated  that  the  NJP  aside,  the  applicant’s 
achievements  and  performance  during  the  period  were  not  remarkable.    The  reporting  officer 
also stated that the applicant did not become the HSWL supervisor until September 2009, and 
any mention of increased responsibility associated with that position deserves mention in a future 
evaluation, not the one ending May 31, 2009. 
 

 
3.   The  reviewer’s  declaration  stated  that  the  comments  that  the  applicant  asked  to  be 
removed from the letter of reprimand explains the link to the official duties and is part of the 
admonishment  that  was  given  to  the  applicant.    According  to  the  reviewer,  the  evidence 
supporting the disputed comment in the letter of reprimand was as follows: 
 

-Copies of Coast Guard email correspondence that included discussions developing extra-
marital relationship. 
 
-Cell  phone  and  cell  “text  message”  records  that  showed  excessive  amounts  of 
communications and evidence of extra-marital relationship. 
 
-Travel  records  showing  excessive  travel  to  conferences  where  extra-marital  liaisons 
were possible.   

The  reviewer  supported  the  mark  of  2  in  judgment  and  the  related  comment.    In  this 

 
 
regard, the reviewer stated the applicant’s poor judgment led to the following: 
 

-Complaints about a U.S. Coast Guard officer to NCIS by a suspicious spouse. 
 
-Use of thousands of dollars in OE funding programmed for Work Life programs 
for his MWR related travel.  The size of the ISC St. Louis MWR program did not 
support  a  legitimate  need  for  nationwide  MWR  program  conferences  which  he 
was participating in. 
 
-[The  applicant’s]  judgment  resulted  in  overuse  of  funds  and  time  toward  the 
small MWR program . . .     

With respect to the applicant’s request to raise the mark in responsibility from 3 to 4, the 

 
 
reviewer stated the following: 
 

I agree with the positive actions [the applicant] listed in his BCMR request, but 
continue to support the marking official’s mark of 3 in the responsibility element.  
The marking official’s conclusion is justified by . . .  the comment “Failed to use 
good  judgment  in  development  of  an  inappropriate  relationship  wrongly  used 
disposition as MWR officer to further relationship during TDY travel . . .”  

 
The CO stated that he supported the mark of 4 in professional presence and that “while 
 
[the applicant’s] 
 actions on many instances were consistent with higher marks, his actions 
related to the misconduct brought discredit to the Coast Guard and resulted in complaints to the 
command by an aggrieved spouse, Navy Criminal Investigative Service making inquiries about a 
Coast Guard officer, and the need for an internal Coast Guard investigation into his conduct.   
 
 
The  CO  stated  that  while  he  supports  the  reporting  officer’s  mark  on  the  comparison 
scale  in  Block  9,  he  has  no  input  concerning  the  request  to  change  the  mark  from  “fair 
performer” to “good performer.”   
 

 
The CO stated that he supports the reporting officer’s comment not recommending the 
applicant  for  promotion.    He  stated  that  the  applicant’s  performance  and  conduct  during  the 
period demonstrated a lack of judgment and responsibility needed for an O-4 position.  The CO 
stated that while the applicant performed his primary and collateral duties enthusiastically and 
well, his misconduct and the Work Life program review highlighted areas where judgment and 
responsibility were lacking, especially for an O-4 position.   
 
The CO stated that his decision to issue the punitive letter and his review of the OER 
 
were done carefully, with legal counsel, and in a manner to allow for continued service by the 
applicant,  if  desired.   The  CO  stated  that  after  his  review  of  the  BCMR  package,  he  remains 
confident that his NJP decision was accurate, appropriate and fair, and that the marking official 
accurately evaluated the applicant’s performance and potential.    
 

APPLICANT'S REPLY TO THE VIEWS OF THE COAST GUARD 

 
 
On February 16, 2010, the Board received the applicant’s 10-page response to the views 
of the Coast Guard.  He took specific issue with the reporting officer’s and reviewer’s statements 
to PSC.  The applicant argued that “  My rating chain, excluding [the supervisor], failed to assess 
my performance for the entire period but instead used the OER in question to further document a 
single event during the period.”  The applicant argued that the punitive letter was sufficient to 
document his actions and that to document his actions further in the disputed OER was against 
the recommendation of his supervisor.   
 
 
With regard to the reporting officer, the applicant argued that the mark of 2 in judgment is 
erroneous  because  his  performance  met  all  of  the  pre-written  elements  on  the  OER  form  for 
evaluating  judgment,  which  reads:  “Ability  to  make  sound  decisions  and  provide  valid 
recommendations by using facts, experience, political acumen, common sense, risk assessment, 
and analytical thought.”   He stated that he utilized all of the judgment factors in several areas 
including as the Personnel Support Team leader for response to Hurricane Ike.  He argued that it 
was as a result of his leadership that each member of the team received a recommendation from 
him for a personal award that was approved by the reporting officer and reviewer and the team’s 
contribution was recognized in his supervisor’s Coast Guard Commendation Award citation.  The 
applicant questioned how the members of the Team he led could be recommended for an award 
and the accomplishments of the team be noted in his supervisor’s award citation, but he received 
below  average  marks  in  judgment  and  responsibility  and  an  average  mark  in  professional 
presence.  
 

 The applicant stated that his judgment was compromised for one isolated incident but not 
for the entire reporting period.  He stated that he did not receive any mid-evaluation discussion 
from the rating chain about any deficiencies in his performance.  He stated with the NJP aside, 
based upon the continuous feedback he received from the rating chain, he expected to receive an 
exemplary  performance  evaluation  that  would  have  resulted  in  his  selection  for  lieutenant 
commander.   With  regard  to  the  reporting  officer’s  comment  that  the  applicant’s  achievement 
during the period were not remarkable, the applicant listed all of the awards and accolades that 
he received.  The applicant argued that none of his responsibilities decreased during the reporting 

period, but they increased.   In this regard, he stated that he assumed the  duties of the HSWL 
supervisor, even though he did not assume the title until after the end of the reporting period.   
 
 
The  applicant  disagreed  with  the  reviewer’s  statement  to  PSC  that  the  applicant  used 
funds designated for other programs to fund his MWR related travel.  In this regard, the applicant 
stated that his supervisor approved all of his travel and that the reviewer was aware of the travel 
because  he  approved  the  budget  and  approved  all  quarterly  reports  of  expenses,  profits,  and 
inventory.   
 
 
The applicant stated that the reviewer approved the mark of 4 in professional presence 
based upon the complaint of an aggrieved spouse, but the aggrieved spouse was not an active 
duty or reserve member of the Coast Guard, but a civilian employee.  The applicant argued that if 
his performance was below the standards required for an O-4, then his supervisory duties should 
have decreased. Instead, they increased, such as becoming the sickbay supervisor.  
 

PERTINENT REGULATIONS 

 

Article 10.A.1. of the Personnel Manual defines performance dimensions as the items on 
which  the  Coast  Guard  evaluates  its  officers.    It  defines  Evaluation  areas  as  the  four  major 
performance categories into which all performance dimensions are grouped (e.g. Performance of 
Duties,  Leadership Skills, etc.).  Performance Standards  are the prescribed expectations levels 
within each performance dimension.  The standards are written to provide a common frame of 
reference among rating officials to which an officer’s observed performance and qualities may be 
compared.    Each  dimension  has  three  separate  written  standards  of  performance  described  as 
follows:    1.  “Below  standard”  is  performance  not  measuring  up  to  the  levels  expected.  2.  
“Standard performance” is the high level of performance expected of all Coast Guard officers. 3.  
“Above standard” is superlative performance.   

 
Article 10.A.1.d.3. of the Personnel Manual states that  each officer is  evaluated in the 
officer evaluation system, not only regarding job achievements, but also on common professional 
values and Service standards.  These values are not only customs, but conditions of employment 
in the Coast Guard. They are defined by the performance dimensions and standards listed on the 
OER.   
 
Article  10.A.4.c.4.g.  of  the  Personnel  Manual  states  that  a  mark  of  4  represents  the 

expected of performance.   

 
 
 

 

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 section 1552 of title 

10 of the United States Code.   The application was timely. 

1.  

 
2. 

Pursuant to the regulation at 33 CFR § 52.24(b), the Board begins its analysis in 
every  case  by  presuming  that  the  disputed  information  in  the  applicant’s  military  record  is 
correct as it appears in his record, and the applicant bears the burden of proving by a preponder-
ance of the evidence that the disputed information is erroneous or unjust. The applicant has not 
persuaded the Board that any of the comments in the punitive letter are erroneous or inaccurate.  
His  argument  that  the  punitive  letter  suggests  that  he  misused  government  funds  is  not 
persuasive.  As the Coast Guard pointed out in the advisory opinion, without the investigation 
into the misconduct or some other evidence that the CO’s comments in the punitive letter are 
inaccurate,  the  Board  must  presume  that  the  punitive  letter  is  accurate.  In  addition,  in  his 
statement to PSC, the CO affirmed the accuracy of the punitive letter’s content and stated that it 
explained  the  link  between  the  applicant’s  official  duties  and  his  misconduct.    Moreover,  the 
punitive letter does not suggest to the Board that the applicant misused government funds, but 
rather,  that  he  used  his  position  in  a  manner  to  assist  him  in  developing  the  extra-marital 
relationship.    For  instance,  the  travel  could  have  been  properly  authorized,  but  the  applicant 
could have scheduled such TDY trips to meet dual purposes: to discuss legitimate Coast Guard 
business,  and  to  meet  up  with  the  person  with  whom  he  was  having  the  inappropriate 
relationship.  The CO, who was the NJP authority and had access to the investigation, determined 
that  the  applicant’s  TDY  schedule  was  used  in  a  manner  to  assist  him  in  developing  the 
inappropriate  relationship.  The  applicant  has  presented  insufficient  evidence  to  prove  that  the 
CO’s assessment in this regard was erroneous.   

 
3.    The  applicant  argued  that  the  comments  about  his  use  of  phones  and  computer 
systems  to  carry  on  inappropriate  communications  with  the  other  woman  should  be  removed 
from the punitive letter because he did not violate any formal Coast Guard policy with regard to 
texting  and  because  his  cell  phone  and  computer  access  were  never  taken  from  him.  The 
applicant  has  provided  no  evidence  as  to  the  Coast  Guard’s  policy  on  the  personal  use  of  its 
electronic equipment.  However, the Board doubts that such a policy would support the use of 
Coast Guard equipment to commit adultery a violation of the UCMJ.  In this case, the applicant 
does  not  deny  that  he  used  his  official  government  equipment  to  communicate  with  the  other 
party in the inappropriate relationship.  The Board is not persuaded by the applicant’s argument 
in  this  regard.    Further,  the  Board  would  note  that  the  applicant  did  not  appeal  the  alleged 
inaccuracy of these comments or the NJP after acknowledging that he could do so.  
 

4.  With respect to the disputed OER, the Board presumes that the members of the 
applicant’s rating chain have acted “correctly, lawfully, and in good faith” in preparing 
their evaluations.  Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. 
United  States,  594  F.2d  804,  813  (Ct.  Cl.  1979).    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.    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). 

 
5.   The  applicant  has  failed  to  prove  an  error  or  injustice  with  respect  to  the  disputed 
marks and comments in the reporting officer’s portion of the disputed OER.  The applicant listed 
many of his accomplishments as support for his contention that he should have higher marks, but 
as the reporting officer and reviewer stated his accomplishments were considered when the OER 
was prepared.  Many of the accomplishments cited by the applicant are mentioned in the OER.  
The fact that the applicant believes he should have had higher marks is insufficient to prove that 
the  OER  marks  are  erroneous  or  unjust.    The  applicant  relies  on  the  statement  from  the 
supervisor to support his contention that the disputed marks in the reporting officer’s portion of 
the OER should have been higher.  However, the reporting officer is responsible for evaluating 
the  applicant’s  personal  and  professional  qualities  in  Block  8,  which  includes  the  judgment, 
responsibility, professional presence, and health and well-being dimensions.  The supervisor was 
responsible for evaluating the applicant in the performance of duties, communication skills, and 
leadership  skills  dimensions,  and  she  gave  the  applicant  mostly  6s  with  a  few  5s,  with  very 
positive comments and no mention of the NJP.  However, her marks and comments do not make 
the  reporting  officer’s  evaluation  erroneous,  particularly  since  each  was  responsible  for 
evaluating different categories of the applicant’s performance.   

 
5.    The  applicant  argued  that  the  2  in  judgment  should  be  raised  to  4  because  of  his 
accomplishments  during  the  period  under  review.    However,  Article  10.A.4.c.4.g.  of  the 
Personnel  Manual  states,  “A  mark  of  four  represents  the  expected  standard  of  performance,” 
which is defined as “the high level of performance expected of all Coast Guard officers.  See 
Article  10.A.1.c.2.  of  the  Personnel  Manual.    The  applicant’s  decision  to  carry-on  an  extra-
marital affair that  led to the other spouse reporting the issue to the Coast Guard  Investigative 
Service demonstrates poor judgment and decision-making.  Apparently, the applicant gave little 
thought  to  the  impact  his  conduct  would  have  on  the  Coast  Guard  or  his  career.      Even  the 
supervisor  admitted  that  the  applicant’s  actions  brought  discredit  upon  the  Coast  Guard.   The 
mark  of  2  in  judgment  is  supported  by  the  comment  in  the  disputed  OER  that  the  applicant 
“failed  to  use  good  judgment  in  development  of  inappropriate  relationship;  wrongly  used 
position as MWR officer to further relationship during TDY travel.”2  In the reporting officer’s 
judgment, the applicant’s decision to become involved in an inappropriate relationship during his 
TDY  travels  did  not  meet  the  high  standard  of  performance  expected  of  officers  and  was 
therefore not deserving of a mark of 4.  Moreover, the reporting officer and reviewer reaffirmed 
the mark in judgment in recent statements to PSC. The applicant’s disagreement with the mark 
does not make it inaccurate or unjust. 
 

6.  The applicant argued that the 3 in responsibility should be raised to 4 because of the 
favorable manner in which he carried out his duties, such as the discovery and investigation of an 
employee’s improper use of a government credit card, and the fact that his duties were increased 
during  the  period  of  the  disputed  OER.  The  pre-written  standard  of  performance  expected  of 
officers  in  the  responsibility  dimension  on  the  OER  is  described  as  follows:  “Held  self  and 
subordinates personally and professionally accountable.  Spoke up when necessary, even when 
                                                 
2   According to the pre-written standard on the OER form, an officer’s performance is below standard when his or 
her  “[d]ecisions often display poor analysis.  Failed to make necessary decisions or jumped to conclusions without 
considering  facts,  alternatives,  and  impact.    Did  not  effectively  weigh  risk,  cost,  and  time  considerations.  
Unconcerned with drivers of the organization.”    

expressing  unpopular  positions.  Supported  organizational  policies  and  decisions,  which  may 
have  been  counter  to  own  ideas.  Committed  to  the  successful  achievement  of  organizational 
goals.”    While  the  applicant  held  his  subordinate  accountable  for  misuse  of  a  credit  card,  he 
clearly did not hold himself accountable for his misconduct until it was discovered and brought 
to his attention by the command.  Nor was his misconduct supportive of organizational policies.  
Therefore,  in  the  reporting  officer’s  judgment  as  evidenced  by  the  mark  of  3,  the  applicant’s 
performance in the responsibility dimension did not meet the standard expected of officers and 
therefore  was  not  deserving  of  a  mark  of  4  or  higher.    As  stated  earlier,  the  applicant’s 
performance  of  his  duties  was  generally  favorable,  but  as  the  reviewer  noted,  the  reporting 
officer supported the 3 in responsibility by the comment “wrongly used position as MWR officer 
to  further  relationship  during  TDY  travel.”    The  reporting  officer  and  reviewer  recently 
reaffirmed the mark of 3 in the responsibility dimension.  The applicant’s disagreement with the 
mark does not prove that it is erroneous or unjust.   

 
7.  In alleging that the mark 4 in the professional presence dimension should be raised to 
a 5, the applicant pointed to his participation in several activities that placed the unit and Coast 
Guard  in  a  favorable  light,  such  as  representative  for  the  Combined  Federal  Campaign, 
representative on the Federal Executive Committee’s Workforce Diversity Council, volunteering 
for  community  service,  and  receiving  a  community  service  award.  The  reporting  officer 
mentioned  the  applicant’s  accomplishments  in  his  Block  8  comments  of  the  disputed  OER.   
However, the reporting officer also noted that the applicant’s inappropriate relationship was not 
in  alignment  with  the  Coast  Guard’s  Core  Values.    An  element  of  the  standard  level  of 
performance expected of officers in the professional presence dimension of an OER is that the 
officer  “abided  by  the  core  values  of  honor,  respect,  and  devotion  to  duty.”    Although  the 
applicant failed in this regard, the reporting officer noted that for most of the period he was a 
strong advocate for community involvement and gave the applicant a 4 in professional presence.  
The applicant has failed to prove that the mark is erroneous or unjust.  His argument or opinion 
that he is entitled to a higher mark does not cause the mark assigned to be erroneous or unjust.   

 
8.  The applicant also disagreed with his mark as a “fair performer” on the comparison 
scale  in  Block  9.    Here,  the  reporting  officer  compares  the  applicant  with  others  of  the  same 
grade that he has known throughout his career.  In the reporting officer’s judgment, the applicant 
was a “fair performer” who was recommended for increased responsibility.  The Board cannot 
substitute its judgment for that of the reporting officer in the absence of persuasive evidence that 
the  reporting  officer  based  his  comparison  scale  mark  on  something  other  than  his  honest 
evaluation of the applicant’s performance at the time.   

 
9.  The applicant argued that the “not recommended for promotion” should be removed 
from  Block  10  because  it  contradicts  with  his  assignment  as  the  HSWL  supervisor,  which 
constituted an increase in his responsibilities.   However, the reporting officer disagreed that the 
applicant was assigned as the HSWL supervisor during the period under review.  The reporting 
officer’s  comment  in  this  regard  is  supported  by  the  absence  of  any  mention  of  the  applicant 
being  the  HSWL  supervisor  in  the  description  of  duties  block  of  the  disputed  OER.    The 
applicant’s rebuttal, that even though he assumed the HSWL title after the reporting period ended 
he assumed the duties during the reporting period, does not persuade the Board to remove the not 
recommended comment.  In this regard, the reporting officer noted in block 10 that the applicant 

needed  to  demonstrate  the  ability  to  make  better  decisions  without  oversight  to  gain  his 
recommendation for promotion.  The reporting officer was the individual responsible for making 
the  promotion  assessment  based  upon  his  observation  of  the  applicant’s  performance  and  any 
other information he obtained during the period under review.  The Board will not substitute its 
judgment  for  that  of  the  responsible  officer  in  the  absence  of  persuasive  evidence  that  the 
recommendation is based on something other than the reporting officer’s honest assessment of 
the applicant’s potential to serve in the higher grade at that time.  The applicant has not submitted 
such evidence. 
 

10. An officer who has been punished at NJP for violating Article 133 of the UCMJ has 
not met the expected high level of performance expected of officers.  Therefore, the NJP was a 
sufficient basis for assigning a 2 in judgment, 3 in responsibility, 4 in professional presence, fair 
performer in Block 9, and a “not recommended for promotion in Block 10, as the applicant’s 
violation of the UCMJ reflected his performance in those areas.    Moreover, the Board is not 
persuaded  by  the  applicant’s  argument  that  the  reporting  officer  and  reviewer  based  the 
evaluation of his performance on the NJP and ignored his overall performance.  That argument is 
not supported by the OER in which the supervisor gave the applicant 5s and 6s and the reporting 
officer assigned marks ranging from 2 to 6 in the personal and professional qualities section of 
the OER and mentioned the applicant’s accomplishments while also holding him accountable for 
his misconduct.  

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
11.    The  applicant  argued  that  the  punitive  letter  was  sufficient  to  document  his 
misconduct and that it was against the recommendation of his supervisor to document it in the 
disputed OER.  However, the supervisor did not say that the applicant’s misconduct should not 
be mentioned in the OER, but that she thought the OER focused too much on that one incident.    
The supervisor stated her opinion, but it was not the opinion of the reporting officer who was 
responsible  for  evaluating  the  applicant’s  performance  in  blocks  8,  9,  and  10.    Moreover,  the 
Personnel  Manual  emphasizes  the  importance  of  documenting  an  NJP  in  an  officer’s  OER 
because it requires the submission of a special OER if an officer receives NJP and the process is 
not completed during the current reporting period.   See 10.A.3.c.b. of the Personnel Manual.    
The applicant’s NJP was completed during the reporting period and it was proper for the rating 
chain to consider it in evaluating the applicant’s performance.       
  
 
12.  The applicant has failed to prove by a preponderance of the evidence that the 
 
disputed OER or punitive letter contains a misstatement of significant hard fact, factors 
that had no business being in the rating process, or a prejudicial violation of a statute or 
regulation.  Accordingly, the applicant has failed to prove error or injustice in this case and it 
should be denied.   
 
 

 
 

The  application  of  XXXXXXXXXXXXXXXXXXX,  USCG,  for  correction  of  his 

ORDER 

 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 

 
 Donna M. Bivona 

 

 

 
 Nancy L. Friedman 

 

 

 

 
 Dorothy J. Ulmer 
 

 

 

 

 

 

 

 

 

 

 

 

 

military record is denied.