DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2010-022 
 
Xxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxx 

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  after receiving the  applicant’s 
completed application on November 6, 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 23, 2010, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  remove  from  his  record  his  officer  evaluation  report 
(OER) for the period June 1, 2005, to June 5, 2006, and to replace it with one prepared for conti-
nuity  purposes  only  (without  numerical  marks  or  comments).    The  OER  is  the  second  he 
received  as  an  Engineering  Officer  in  Training  (EOIT)  on  a  high  endurance  cutter.    He  also 
asked the Board to promote him to lieutenant commander (LCDR), to backdate his promotion to 
the date of rank he would have had if he had been selected for promotion in 2008, and to award 
him corresponding back pay and allowances. 
 
 
The applicant stated that when he received the disputed OER, he did not agree with the 
marks  and  comments  and  therefore  called  the  Personnel  Command.    However,  someone  in  the 
Officer  Personnel  Management  Branch  told  him  that  if  he  submitted  an OER  Reply,  his  rating 
chain would be able to enter six extra pages of comments about his performance in his record so 
he opted not to reply to the OER.  He was also told that the OER was not bad enough to affect 
his chances of promotion for LCDR.  However, this advice proved to be untrue since he failed of 
selection  in  2008  and  2009.    The  applicant  asked  the  Board  to  include  his  allegations  to  the 
Board in his record as an official reply to the disputed OER. 
 
 
The  applicant  alleged  that  the  OER  as  a  whole  is  unfair  because  in  entering  their  com-
ments about his performance, his rating officers used the positive comments he submitted in his 
OER  input  but  stripped  them  of  pertinent  facts  and  figures  and  misconstrued  others  “to  render 
them generic and contradictory of the assigned marks.”  He also alleged that the OER is unfair 

 

 

because  “[n]ot  once  during  this  period  did  I  receive  supervision,  frequent  feedback  or  monthly 
counseling sessions as outlined in [paragraph 5.a.(2) of the EOIT Program manual].”  
 
 
The applicant also challenged several specific comments in the disputed OER.  For exam-
ple, he stated that the disputed OER impermissibly comments on his performance outside of the 
evaluation period because it states that he “required 19 of 23 months to qualify Underway EOW” 
(Engineering Officer of the Watch), while the evaluation period lasted only a year.  Moreover, he 
alleged,  there  were  mitigating  circumstances  that  delayed  his  qualification  as  underway  EOW.  
He  explained  that  two  weeks  after  he  reported  aboard  the  cutter,  he  assumed  the  position  of 
Damage Control Training Team (DCTT) Leader.  Being the DCTT “consumed the remainder of 
[his]  first  deployment”  with  the  cutter.    When  the  cutter  was  at  homeport,  his  position  as  the 
Auxiliary  division  officer  “demanded  the  refurbishment  of  40  auxiliary  engineering  systems.”  
During the cutter’s next deployment, the applicant was sent ashore to attend DCA school.  Upon 
his return to the cutter, he was appointed to Assistant Engineering Officer (AEO).  He noted that 
he is criticized in the disputed OER for not qualifying as an AEO, but “there is no such qualifica-
tion; it is merely a collateral duty similar to the other four division officer billets.”  In addition, 
because of his competence and maturity, he was appointed the investigating officer for two med-
ical review boards and four cases resulting in non-judicial punishment.  These duties “consumed 
[his]  attention  for  the  entire  third  deployment,  as  per  the  command’s  desire.”    The  applicant 
stated that the duties that consumed his time in lieu of underway EOIT qualification during the 
first three deployments were documented in his first OER as an EOIT aboard the cutter.  In addi-
tion, he alleged, when the cutter returned to home port after the third deployment and the Execu-
tive Officer (XO) and Engineering Officer (EO) were transferred, they told the new XO and EO 
of his “command support and dedication in lieu of EOIT qualification delinquency.” 
 
The  applicant  stated  that  “the  fourth  deployment  was  very  productive”  because  the  EO 
 
requested his assignment as the Main Propulsion Assistant (MPA), and the applicant served suc-
cessfully as the MPA for six months.  However, “the fifth and sixth deployments, encompassing 
the remaining six months of [his] tour were impeded by major power plant casualties which pre-
vented  all  engineering  personnel  from  completing  required  PQS.”    However,  special  “power 
plant transferring considerations” allowed seven of them to complete their qualifications.   
 

The applicant also noted that the OER fails to show that he “stood watch on a daily basis, 
eight  hours  in  the  engine  room  divided  by  four  hours  on  the  bridge.”    Yet  he  was  accused  of 
“routinely displaying lack of motivation and initiative” and “forsak[ing] personal help and assis-
tance in  qualifications.”   The applicant  explained that he “did  not  ask the EO for help  in  com-
pleting  his  EOIT  PQS  [performance  qualification  standards]  anymore  than  I  asked  the  CO  for 
help  to  complete  the  Deck  Watch  Officer  PQS.”    However,  he  did  ask  qualified  personnel  for 
help  in  completing  the  41  drawings  and  getting  601  signatures.    Regarding  the  signatures,  he 
explained that information about much of the engineering work “is not available in printed for-
mat,” so attaining PQS required “one-on-one instruction and performed proficiencies.” 

 
Regarding  the  comment  that  he  routinely  took  longer  to  attain  qualifications  than  other 
officers, the applicant stated that during his tour of duty, there were six other junior officers and 
two warrant officers pursuing EOIT qualifications.  None of them completed the PQS within the 
“normally”  allotted  time  in  accordance  with  paragraph  5.a.  of  the  EOIT  Program  manual;  one 

 

 

requested an extension of his tour to complete the PQS; and three others were transferred to other 
units before completing the PQS, yet only he received negative marks and comments in his OER. 

 
The applicant alleged that the comment that he was “removed from almost all collateral 
duties” during the evaluation period to pursue the EOIT PQS is untrue because he retained all of 
his collateral duties except DCTT leader until the last week of his tour of duty.  He noted that he 
performed  several  time-consuming  collateral  duties  throughout  the  evaluation  period  even 
though paragraph 5.a. of the EOIT Program manual states that “[d]ue to the demanding nature of 
this program, non-engineering collateral duties shall be minimized until completion of Part I.” 

 
The applicant complained that the disputed OER calls him a “minimalistic speaker.”  He 
alleged that this term is defined as someone “who favors restricting the functions and powers of a 
political organization or the achievement of a set of goals.”  He stated that there is no evidence 
whatsoever for this claim about his viewpoint and that it should be removed from the OER. 

 
The applicant noted that in his 22-year military career, he has “qualified in eight different 
communities  and  …  received  31  evaluation  reports.    All  of  these  evaluation  reports,  with  the 
exception  of  this  one,  clearly  and  repeatedly  document  [his]  sustained  loyalty,  dedication, 
accountability, and performance of duties.”  In support of his allegations, the applicant submitted 
copies of the four reports of investigation he prepared, two of which are dated March 10, 2005, 
and the other two are dated April 5, 2005, and April 21, 2005.  He also submitted copies of two 
memoranda concerning crewmates’ fitness for duty and physical disability evaluations.  As evi-
dence of his  progress in  attaining his  EOIT PQS,  the applicant  submitted  fifteen  record  entries 
showing that while assigned to the cutter he completed the following courses and qualifications: 

 

First 
OER 
period 

as 

EOIT 

9/29/04  Engineering Throttle Watchstander 

11/4/04  Navy Shipboard Structural Fire Fighting 

 

Navy Damage Control Wet Trainer 

12/2/04  All PQS for Basic Damage Control 

 

All PQS for Flight Deck On-Scene Leader 

2/24/05  Damage Control Assistant  

 

Gas Free Engineer  

5/10/05  Engineering Security Watchstander 

First 
day of 
second 
period 

6/1/05  All PQS for Damage Control, which qualified him for these watchstations: Advanced Damage 

Control; Advanced Shipboard Fire Fighting (Structural); Chemical, Biological, and 
Radiological Defense; AFFF Station Operator; Investigator; Scene Leader; Repair Party Leader; 
Damage Control Training Team 

Second 

8/24/05  Generator Watchstander 

OER 
period 

as 

EOIT 

9/16/05  Machinery Watchstander 

9/17/05 

Inport Engineering Officer of the Watch 

1/17/06  FEMA Introduction to the Incident Command System 

 

 

 

FEMA ICS for Single Resources and Initial Action Incidents 

FEMA National Incident Management System (NIMS), an Introduction 

FEMA National Response Plan (NRP), an Introduction 

 

3/17/06  Underway Engineering Officer of the Watch 

 

 

The  applicant  also  submitted  copies  of  nineteen  performance  evaluations  with  excellent 
 
marks and several awards and qualifications that he received as a member of the Navy.  In addi-
tion,  he  submitted  copies  of  his  OER  input  and  the  OERs  he  received  as  an  EOIT,  which  are 
summarized  below;  his  EOIT  Notebook,  showing  the  dates  of  his  drawings  and  completion  of 
PQS; and the EOIT program manual. 
 

EOIT PROGRAM MANUAL 

 
 
The  EOIT  program  manual,  COMDTINST  M3502.11B,  provides  guidance  for  officers 
assigned  to  the  program  to  train  for  duty  as  Engineer  Officers.    The  program  is  generic  for  all 
cutters and is administered in conjunction with the EOW qualification process.   Paragraph 5 of 
the manual states the following: 
 

a. PART 1 – Practical Naval Engineering Watch Qualifications and Damage Control PQS should 
normally be completed within 6 months of reporting aboard.  Assignment as EOIT is an officer’s 
primary  duty.    Due  to  the  demanding  nature  of  this  program,  non-engineering  collateral  duty 
assignments shall be minimized until completion of Part 1. … 
 

(1) The EOIT shall: 
 

 

 

 

 

(a) Actively pursue and complete the course of study outlined herein, and conti-

(b) Establish and maintain an EOIT Notebook that documents the completion of 

 
nuously seek feedback from the EO regarding progress. 
 
Parts 1 – 7. 
 
(c)  Qualify  as  an  EOW.    Until  qualified,  the  EOIT  shall  stand  underway  and 
inport watches with a qualified EOW as directed by the EO and the unit’s break-in watch rotation 
standards.    Watchstanding  (learning  by  experience)  is  the  backbone  of  the  EOIT  Program.    As 
general  guidance,  an  EOIT  should  stand  break-in  watches  at  least  2  days  per  week  inport  and 
optimize the time available to stand watches while underway. 
 
electrical, and damage control divisions. 
 
and special evolutions until qualified as an EOW. 
 

(e)  As  directed  by  the  EO,  participate  in  engineering  plant  light-off,  securing, 

(d) As directed by the EO, work as a member of the main propulsion, auxiliary, 

(2) The EO shall: 
 

 
 

(b) Actively supervise, instruct, and provide frequent feedback to the EOIT. 
(c)  Conduct  counseling  sessions  at  least  once  per  month  to  review  the  EOIT’s 

 
(a) Brief the Engineering Department on their role in the EOIT program.  Solicit 
input  from  chief/senior  petty  officers  regarding  the  EOIT’s  technical  aptitude  and  interpersonal 
skills demonstrated while working closely with enlisted personnel. 
 
 
notebook and evaluated his/her progress. 
 
b.  PART  2  –  DCA  School.    Completion  of  Part  1  is  normally  a  prerequisite  for  attending  DCA 
School.  Officers shall not be assigned to the position of DCA without having successfully com-
pleted DCA School. … 
 
c.  PART  3  –  Naval  Engineering  Division  Officer  Fundamentals.    The  emphasis  of  Part  3  is  to 
develop the knowledge and skills to serve in the capacity of an Engineering Department Division 
Officer and to sharpen EOW skills acquired in Part 1. 
 

(1) The EOIT shall: 
 

 
ing Department Division Officer. 
 

 

(b) Serve as a member of the EOW watch rotation. 

(a) Be assigned (at the EO’s discretion) and serve in the capacity of an Engineer-

 

 

 

 
 

 

(c) Continue to seek feedback from the EO. 

(2) The EO shall: 
 
 

(a) Continue to supervise, instruct, and provide frequent feedback to the EOIT. 
(b) Continue counseling sessions at least once per month to review the EOIT’s 

 
 
notebook and evaluated his/her progress. 
 
d.  PART  4.  –  Deck  Watch  Officer  (DWO)  Training.    Procedures  for  completing  Part  4  are  out-
lined in Chapter 6 of COMDTINST M2502.4E, Cutter Training and Qualification Manual. 
 

(1)  Parts  1-4  shall  be  completed  during  the  EOIT’s  first  afloat  tour  (18  –  24  months).  
Upon completion of Parts 1-4, the EO shall adequately document completion in the officer’s OER 
stating his/her overall capabilities, interest, and engineering aptitude. … 
 
e. PART 5  – Naval Engineering Organization, Policy and Procedures.  Part 5 may be completed 
during the initial afloat tour or follow-on tour.  The EO shall properly document completion in the 
officer’s OER and on Form CG-4082 Officer Educational Record. 
 
f.  PART  6  –  Technical  and  Contracting  Schools.    Technical  and  contracting  courses  outlined  in 
Part 6 shall be completed as required by the EOIT’s follow-on tour Billet Description … 

SUMMARY OF THE RECORD 

 
 
The applicant served as an enlisted member in the U.S. Navy for almost 15 years before 
accepting a commission in the Coast Guard Reserve on October 1, 2001.  His initial assignment 
was to be a project manager at a LORAN support unit.  On his three OERs in this position, he 
received increasingly good marks and was recommended for promotion “with his peers.”   
 

The applicant was promoted to lieutenant on April 1, 2004, and integrated into the regular 
Coast  Guard  on  April  23,  2004.    He  reported  aboard  the  high  endurance  cutter  as  an  EOIT  on 
July 19, 2004.  On his first OER for this tour of duty, dated May 31, 2005, the applicant’s duties 
are listed as follows: 
 

  Engineering Officer in Training (EOIT);  
  Assistant Engineering Officer (AEO);  
  Engineering  department  CASREP  manager  with  responsibility  for  equipment  casualty 

reports; 

  Auxiliary  division  officer  with  responsibility  for  maintenance  of  all  mechanical  equip-

ment outside of the engine room;  

  Flight Deck On-Scene Leader;  
  Damage Control Training Team (DCTT) leader;  
  Aviation Training Team (ATT) member;  
  Gas Free Engineer; and  
  Command Intel Officer.   

 

On this first OER, the applicant received ten marks of 5 and eight marks of 6 in the vari-
ous  performance  categories,1  many  laudatory  comments,  a  strong  recommendation  for  promo-
                                                 
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 

 

 

tion, and a mark of 5 on the comparison scale, which means that in comparison with other lieu-
tenants whom his reporting officer had known, he was an “[e]xcellent performer; give toughest, 
most challenging leadership assignments.”  The comments in this OER include the following: 
 

Exceptional  performer;  quickly  ramped  up  on  Engineer  &  DCTT  duties.    Displayed  excellent 
skills  in  multi-tasking  environment,  expertly  assumed  Auxiliary  Div  Officer  and  Repair  Locker 
Leader positions during Tailored Annual Cutter Training (TACT), first tour afloat & progressing 
toward  watch  qualifications.    Insightfully  assessed  galley  and  medical  ice  machine  projects  … 
creatively  out-sourced  …  Fleeted  up  to  DCTT  Leader;  achieved  superior  results  in  execution  of 
duties; revised and tailored DC drills, team members poised to train at all levels, every DC train-
ing requirement met or exceeded.  Persistent & meticulous inspection identified 25 auxiliary engi-
neering systems in a critical status that, coupled with reduced home port time, necessitated concise 
prioritizing  and  methodical  tailoring  of  maintenance;  forward  progress  ensued  resulting  in  very 
successful  early  completion  in  amazing  39  days  w/  additional  15  discrepancies  identified/ 
refurbished.  Fleeted up to AEO; … Articulate speaker & avid listener, very comfortable with any 
type  &  size  audience  …  Written  work  prolific  and  concise;  superb/thorough  NJP  investigation 
showed excellent writing ability … Excellent leader and supervisor.  Consistently recognized and 
responded to needs of crew resulting in unsurpassed loyalty and dedication to work.  Strong advo-
cate for professional development; … Superb results as DCTT Leader; instilled teamwork and unit 
cooperation,  empowered  training  team  …  Instrumental  in  numerous  multi-division  and  dept 
projects … dramatically enhanced crew comfort and esprit de corps.  Adeptly provided technical 
assist to NESU maintenance team to immediately resolve imposing aft steering problem … Highly 
conscientious efforts to ensure timely and appropriate recognition during marking period … con-
tinued  to  surpass  all  expectations  in  his  performance.    Ambitious  in  all  areas,  routinely  exhibits 
superior  leadership  practices  beyond  department  and  expert  technical  skills.    Display  of  positive 
attitude/dedication  has  been  an  outstanding  example  of  others.    Confidently/easily  stepped  up  to 
roles  requiring  greater  responsibility.  …  Exceptional  leader;  consistently  displayed  outstanding 
judgment, initiative & responsibility; actively sought ways to improve naval engineering/damage 
control knowledge by completing: Damage Control PQS, Eng Security Watch qual, Pipe Patching 
& Shoring trng, Fire Fighting trng, and Damage Control Assistance Course.  Selected to be DCTT 
leader  despite  first  tour  afloat  due  to  proven  judgment  –  tremendous  focus  on  key  issues  drew 
steady increase in DC drill scores … professional competence and maturity lent credence to selec-
tion as Investigating Officer for 4 NJP Masts … daily support for cmd is very evident. Volunt’d as 
Cmd  Intel  Officer  in  absence  of  assigned  ofcr  …  Extremely  prof’l  officer  …  proven  to  be  an 
exceptional ofcr and Engineer. A highly motivated prof’l that has sought greater responsibility and 
quickly responded to changing priorities in a positive manner … Repeatedly demonstrated excel’t 
ldrship/mgmt  skills,  sound  judgment  &  a  genuine  concern  for  others.    Tremendous  work  ethic 
enabled  him  to  excel  in  challenging  posns  as  DCTT  ldr  and  AEO  despite  short  time  afloat.  … 
Strongest recommendation for promotion w/ peers. 

 
 
The applicant’s second annual OER as an EOIT is the disputed OER in this case and cov-
ers his service from June 1, 2005, to June 5, 2006.  It is signed by a new Engineering Officer as 
the supervisor and a new Executive Officer as the reporting officer.  The Commanding Officer of 
the cutter was the same.  The applicant’s duties during this period are listed as follows: 
 

  Engineering Officer in Training (EOIT);  
  Command CASREP manager with responsibility for equipment casualty reports; 
  Engineering special project officer, assisting EO in planning long-term maintenance; 

                                                                                                                                                             
“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.”  A  mark in the 
fourth, or middle, spot denotes a “[g]ood performer; give tough, challenging assignments.” 

 

 

 

# 

  Engineering budgeT administrator; 
  Main Propulsion Assistant (MPA), responsible for maintenance and operation of all main 

propulsion and diesel generator systems; 

  Flight Deck On-Scene Leader; 
 
  Aviation Training Team (ATT) member. 

Inport and Underway Engineer Officer of the Watch (EOW); and 

MARKS AND COMMENTS IN THE DISPUTED OER 

CATEGORY 

MARK  WRITTEN COMMENTS 

3a  Planning and 
Preparedness 

3b  Using 

Resources 

3c  Results/ 

Effectiveness 

3d  Adaptability 

3e  Professional 
Competence 

4a  Speaking and 

Listening 

4b  Writing 

5a  Looking Out 

for Others 

5b  Developing 

Others 

5c  Directing 

Others 

5d  Teamwork 

5e  Workplace 

Climate 

5f  Evaluations 

5 

4 

4 

4 

4 

4 

4 

5 

4 

4 

4 

4 

4 

Effectively coordinated scullery upgrade with CG Yard, overcame scheduling con-
flicts between ship’s force and CG Yard technicians, helped to resolve configura-
tion/install dilemmas; positive task intervention helped to alleviate contract delays.  
Utilized all avenues (USCG/USN/Contrator) to repair Glide Slope Indicator system 
and overcome supply system delays in time for Aviation Certification and Tailored 
Annual Cutter Training (TACT) periods.  Assisted department with preparations for 
Shipboard-Helicopter Standardization Training (STAN); assisted Aviation Training 
Team (ATT) with fire party and crash on deck drills; training 100% effective, in-
stilled confidence during execution of graded exercises.  Achieved positive results 
in execution of CASREP management duties; implemented tracking matrix as 
directed; very few reports were submitted late or inaccurate.  Demonstrated mar-
ginal performance with regards to EOIT requirements; slow to reach all target 
points, required 19 of 23 months to qualify as an underway Engineer Officer of the 
Watch and waited until end of tour to turn in EOIT PQS.  Preferred to forsake per-
sonal help and assistance in qualifications and assigned tasking, resulting in over-
due timelines & routinely displayed lack of motivation/initiative; had to be prompted 
to complete projects/quals.  Even though he completed the minimum EOIT PQS, 
he did not receive an Assistant Engineer Officer (AEO) qualification. 

Minimalistic speaker, very direct & clear to subordinates.  Presented all hands brief 
concerning dry dock safety, covered all details clearly and concisely, made good 
use of MLC power plant slides to convey project initiatives.  Proficient writer/proof-
reader, authored and/or reviewed several CASREPs and page 7s, 2 CSMPs, 14 
PO evals, 2 awards, 1 SOQ and SOY recommendation, ROTC Instructor and DCO 
letters of recommendation with minimal changes.  Conducted very good/thorough 
NJP investigations with appropriate findings and recommendations. 

Routinely displayed an understanding of balance between unit and crew needs.  
Comfortably interacted with subordinates at all hours to resolve issues, act as a 
sounding board, or encourage future success through advancement or promotions; 
sacrificed significant personal time counseling member to apply for commission, 
using personal experience to assist with the application process.  Involved in many 
successful multi-division/cross-dept projects; including scullery upgrade, crew 
berthing area deck refurbishment, and Command Assessment of Readiness and 
Training (CART) checks; all of which greatly increased crew health, well-being and 
safety.  As acting MPA for 3 months, partnered w/ MLC(vr) to tackle imposing 
maintenance and logistics issues afflicting ship’s Power Take Off system and Main 
Reduction Gear bearing; restored both systems to designed specifications while 
maintaining operational readiness.  Fully empowered CPO/LPOs with freedom to 
make decisions concerning divisional responsibilities without fear of reprisal; 
substantiated constant CPO/LPO interaction and professional development.  
Submitted evaluations early, of good quality w/ proper supporting documentation; 2 
Pos promoted, prepared good Sailor of the Year package on short notice for 
deserving subordinate.  Own OSF submitted in a timely manner. 

6 

Signature of the new EO as the applicant’s supervisor, dated June 20, 2006 

 

 

7  Reporting 

NA 

Officer’s 
Comments 

8a 

Initiative 

8b 

Judgment 

8c  Responsibility 

8d  Professional 

Presence 

8e  Health & 

Well-Being 

4 

4 

4 

4 

4 

[Concur with supervisor’s assessment] [The applicant] was removed from almost 
all collateral duties in order to allow him to concentrate on his engineering quals 
this period.  He performed his duties in an extremely professional manner, but he 
routinely took much longer than necessary to do so and was surpassed by new 
JOs on board half as long.  This OER reflects a significant change from his prior 
evaluation due to the time it took for him to complete assigned tasks & EOIT PQS 
stds.  He has taken his entire tour to complete required PQS and failed to qualify 
as an EOW until the last week of his last patrol. 

Assigned duties as the main Prop DivO for 3 mos. During absence of CWO incum-
bent, acquired true ownership and ensured all preventive and corrective mainten-
ance was correctly performed and tracked.  As an engineering watch stander, han-
dled all watch procedures and engineering casualties calmly, took initial actions 
and provided accurate plant status and limitations info to OOD & EO; held subordi-
nate watchstanders accountable to EO’s standing orders.  Fair and impartial NJP 
investigation led to immediate resolution; alertly ascertained conflicting evidence 
regarding enlisted member’s performance; initial charges decreased, achieved 
proper outcome.  Completed EOIT program including: advanced damage control 
PQS, inport and underway EOW qual, machinery watch qual, engineering throttle 
watch qual, deck watch officer (DWO) indoc.  Routinely presented a positive atti-
tude toward assignments & shipmates; ready to work long hours if needed.  Dis-
played impeccable image with Detyens Shipyard team leaders as a primary 
inspector for availability work on sea strainers; ensured CG image was professional 
and proper.  Continually displayed impeccable grooming and uniform standards.  
Maintained weight within CG standards. 

9  Comparison 

4 

Scale 

[In comparison with other lieutenants, he was rated a “[g]ood performer; give tough, 
challenging assignments.] 

10  Potential 

NA 

[The applicant] has successfully completed his EOIT tour on [the cutter] and with 
more time and supervision, he can achieve the potential for greater leadership 
roles.  Considering background & prior experience, I am confident [he] will do well 
in the performance of his C4I duties at MLCLANT (TS).  With more experience, he 
will be ready for future positions of higher responsibility in the C4I community, or 
assignments in the intelligence community or in other technical fields.  Promote 
with peers.  Without further shipboard and engineering experience, he is not 
recommended for an Engineering Officer afloat billet. 

11  Signature of the new XO as the applicant’s reporting officer, dated June 22, 2006 

12  Signature of the CO as the reviewer, dated June 23, 2006 
 
 
After leaving the cutter, the applicant was assigned to maintain, install, and modify elec-
tronic systems, such as maritime and nationwide differential global positioning system sites and 
other  aids  to  navigation.    He  received  excellent  OERs  for  this  work  with  strong  recommenda-
tions for promotion.  However, the applicant failed twice of selection for promotion and so was 
retired as a lieutenant on June 30, 2010. 

VIEWS OF THE COAST GUARD 

 

 

On March 30, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory  opinion  in  which  he  recommended  that  the  Board  grant  partial  relief  in  this  case  by 
redacting one comment from the disputed OER. 

 
The JAG argued that the only error committed by the Coast Guard in the disputed OER is 
that the comment about the applicant requiring 19 of 23 months to qualify as Underway EOW is 
a comment, in part, about his performance outside of the evaluation period since the evaluation 
period  was  only  12  months  long.    The  JAG  admitted  that  comments  about  an  officer’s  perfor-

 

 

mance outside of the evaluation period are not permitted in an OER. 

 
The JAG argued that the evidence submitted by the applicant fails to prove that his rating 
chain  violated  their  duty  under  the  Officer  Evaluation  System  to  complete  a  fair  and  accurate 
performance evaluation.  The JAG argued that the statements submitted by the applicant’s rating 
officials,  which  are  summarized  below,  show  that  they  carried  out  their  duties  correctly,  law-
fully, and in good faith when evaluating his performance. 

 
The  JAG  then  argued  that  the  applicant  has  “failed  to  show  that  the  Coast  Guard  com-
mitted a legal error, making it logically impossible for him to make a prima facie showing of a 
substantial connection, or nexus, between the alleged errors and the Coast Guard’s decision not 
to promote him.  Under these circumstances, it is unnecessary to conduct  an analysis under the 
second prong of Engels or for the Government to show harmlessness.” 

 
In  recommending  only  redaction  of  one  comment,  the  JAG  adopted  the  findings  and 
analysis  provided  in  a  memorandum  on  the  case  prepared  by  the  Personnel  Service  Center 
(PSC).   The PSC stated  that the applicant’s claims  that he was not  counseled about  his  perfor-
mance are refuted by his rating officers.  Moreover, the PSC stated, Article 10.A.2.c.2.b. states 
that officers “are responsible for managing their performance.  This responsibility entails deter-
mining job expectations, obtaining sufficient performance feedback, and using that information 
to meet or exceed standards.” 

 
The  PSC  stated  that  the  applicant  admits  that  he  was  slow  to  qualify  as  an  underway 
EOW and noted that his rating officers acknowledged that he had collateral duties but still found 
that he should have completed his qualifications sooner. 

 
The PSC noted that the applicant could have filed an OER Reply or sought correction of 
the  disputed  OER  through  the  Personnel  Records  Review  Board  but  did  not  do  so.    The  PSC 
noted  that  the  applicant  also  did  not  take  advantage  of  his  opportunity  to  submit  letters  to  the 
selection boards before they convened.  The PSC argued that there are no grounds for removing 
the applicant’s failures of selection in 2008 and 2009 because his record contained no error that 
would have biased the decision of the boards.  Therefore, the PSC recommended that the BCMR 
remove only the words  “required 19 of 23 months” from  the disputed OER  and grant  no other 
relief. 
 
Statement of the EO, who was the Applicant’s Supervisor 
 
 
The EO stated that he has 29 years of Coast Guard experience and 19 years of sea time 
and  became  an  officer  after  having  been  an  enlisted  member  and  a  chief  warrant  officer.    He 
alleged that the applicant “was given both positive feedback and negative counseling many times 
both in my stateroom and the XO’s conference room during this marking period.”  The EO did 
not give the applicant formal, written counseling because he did not want to put such a negative 
entry in the applicant’s permanent record.   
 

The EO further  stated  that  the applicant  “waited  until  May 2006 to  present  me with  his 
EOIT PQS book for signatures.  The EOIT program is designed to be completed throughout the 

 

 

2-year  assignment  and  all  EOITs  were  instructed  to  present  me  with  their  PQS  at  every 
qualification  level,  as  most  of  the  other  EOITs  successfully  did.    I  would  remind  everyone  at 
quarterly Division Officer/Division Chief meetings.”   
 
 
Regarding the applicant’s collateral duties during the reporting period, the EO stated that 
the applicant’s “duties during the ‘refurbishment of 40 auxiliary engineering systems’ was that of 
a supervisor for the daily inspectors, a position most every EOIT has the opportunity to perform 
during  a  dockside  or  dry-dock  availability.    This  does  not  require  the  undivided  attention  of  a 
division officer as the auxiliary division on a [high endurance cutter] has a Chief Petty Officer, 2 
First  Class Petty Officers, and 8 junior personnel  assigned.” The EO stated that the applicant’s 
duties  during  his  entire  tour  of  duty  aboard  the  cutter  were  “no  different  than  any  other  EOIT, 
and there are 5 [to] 6 EOITs on [a high endurance cutter] at any given time.”  The EO stated that 
the applicant was “rotated through all the division officer and collaterals on a 4 – 6 month basis 
just as every other EOIT with the exception of DCA.  I have no personal knowledge that he ever 
served  as  DCA  on  [the  cutter].”    He  also  stated  that  the  applicant  was  not  assigned  any  non-
engineering related collateral duties and “his involvement was minimized to allow a more con-
centrated effort on his engineering qualifications.” 
 

The EO also stated that the applicant stood the same engineering watches as other EOITs 
and  completed  his  deck  watch  officer  watchstanding  requirements  under  the  EOIT  program 
manual within a single week, from February 21 to 28, 2005.  “This is for a total of 6 watches, the 
minimum required for the EOIT program.” 
 
 
The EO concurred with the applicant’s statement that there is no formal AEO qualifica-
tion process but explained that it is “a position based on trust of the EO” and that the applicant, 
“by his qualifications and actions, or lack thereof, did not have my trust and confidence for this 
position.”  The EO stated that he used the term “minimalistic speaker” to mean minimal or the 
smallest amount.  In this regard, the EO explained that the applicant gave one lecture on shipyard 
safety and, in so doing, simply read a Powerpoint presentation the cutter had received from the 
MLCLANT word for word. 
 
 
The  EO  stated  that  the  applicant’s  claims  about  his  fellow  EOITs  require  clarification.  
For  example,  the  EOIT  who  requested  a  one-year  extension  ‘was  a  winter  [Officer  Candidate 
School]  graduate  and  arrived  in  December  2004  or  January  2005,  completed  all  EOIT  require-
ments within 14 months and only extended 1 year to get full Deck Watch Officer (DWO) quali-
fied and become competitive for a 378 Weapons Officer billet and future WPB CO.”  One of the 
two  chief  warrants  officers  in  the  EOIT  program  with  the  applicant  injured  his  back  and  com-
pleted  just  one  patrol  before  being  transferred  ashore.    The  second  chief  warrant  officer  in  the 
EOIT program did not arrive on the cutter until February 2006.  The EO stated that “[w]ith the 
exception of [the applicant], all EOITs assigned to [the cutter] during my tenure completed all of 
their engineering qualifications and EOIT PQS will within their allotted time.” 
 
 
The  EO  stated  that  the  marks  and  comments  in  the  disputed  OER  are  accurate.    The 
applicant’s “understanding of engineering systems was well above average for an EOIT, but his 
performance and completion of PQS/qualifications were not.  He was extremely methodical with 
assigned  tasking,  but  could  not  comfortably  complete  two  assignments  at  once.  …  [He]  per-

 

 

formed his duties as an average EOIT and was evaluated as an average EOIT within the scope of 
the OER criteria.” 
 
Statement of the Executive Officer (XO), who served as the Reporting Officer 
 
 
The XO stated that she does not concur with the applicant’s “versions of events and his 
characterization of his and others’ performance.”  The XO stated that the disputed OER “was fair 
and, in fact, was rather generous.  To this day, I would be hard pressed to tell you what he did on 
the ship other than the bare minimum.  He was given ample opportunity to complete his PQS and 
qualification program and still took until the very end of his last patrol to do so.  Contrary to his 
claims,  he  was  counseled  at  least  several  times  by  the  EO.”    The  XO  stated  that  the  comment 
about the applicant using 19 of 23 months to qualify as an underway EOW was included “not to 
refer to prior performance but rather to show that he had nearly 2 years to complete a qualifica-
tion program and that it took him almost all of that time to qualify.  As this was his primary duty, 
and  finding  nothing  significant  that  legitimately  impeded  his  ability  to  complete  his  qualifica-
tions, I felt this was an appropriate comment.”  The EO stated that she knew about the investiga-
tions the applicant worked on during his first year aboard the cutter and the time he spent off the 
cutter and “found those items to be insufficient mitigating factors.” 
 
 
The  XO  stated  that  the  applicant’s  claim  that  the  other  EOITs  failed  to  complete  their 
qualifications is inaccurate.  She alleged that the applicant “was taking an excessive amount of 
time to complete a program that is routinely completed in a timely fashion by other officers, all 
of whom were junior to him and who had similar competing demands of other duties and watch-
standing requirements, as well as having to learn how to be an officer.  As an O-3 with extensive 
time in the military, [the applicant] should have been able to easily handle the demands of some 
basic collateral duties, division duties, and the qualification program.” 
 
 
The XO stated that the “EOIT program is challenging, but not overwhelming, and there 
was  sufficient  time  and  assistance  available  for  [the  applicant]  to  complete  the  program  much 
earlier.  I evaluated him accordingly.  As it was, he took so long (qualifying during the last week 
of  his  last  patrol)  that  he  did  not  contribute  to  the  ship  as  a  qualified  EOW.  …  Quite  frankly, 
based on my  observation and knowledge of his  performance,  I  was unable to  legitimately  give 
him marks or comments higher than those that he received.  As a LT with years of military expe-
rience, he should have been able to contribute at a much higher level but did not and barely per-
formed at a basic level.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On  May  19,  2010,  the  applicant  responded  to  the  views  of  the  Coast  Guard.    He  stated 
that he disagreed with  the recommendation  to  grant  only  partial relief, but  “loathly  accept[s] it 
since the burden to provide cogent and clearly convincing evidence will be insuperably difficult.  
Considering  the  present  Coast  Guard  retention  climate  for  workforce  management  to  reduce 
body-to-billet overages, it is apparent that positive consideration will not be awarded.”  
 
 

 

 

 

 

SUMMARY OF THE OER REGULATIONS 

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

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

Article  10.A.1.b.2.  of  the  manual  states  that  “[i]ndividual  officers  are  responsible  for 
managing their performance. This responsibility entails determining job expectations, obtaining 
sufficient performance feedback, and using that information to meet or exceed standards.” 
 

Article 10.A.1.c.4. b. states that each officer is normally evaluated by a “rating chain” of 
three superior officers, including the supervisor, who is “[n]ormally, the individual 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.4.c.4.  of  the  manual  provides  the  following  instructions  for  Supervisors 
completing their section of an OER (similar instructions are provided for Reporting Officers in 
Article 10.A.4.c.7.): 
 

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. 
 
c.  Where  the  Supervisor  has  insufficient  information  to  provide  a  mark  or  if  observations  are 
believed inadequate to render a judgment, the “not observed” circle shall be used. The reason for 
the “not observed” must be briefly stated in the “comments” blocks or Section 2. 
 
d. In the “comments” block following each evaluation area, the Supervisor shall include comments 
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 iden-
tify specific strengths and weaknesses in performance. Comments must be sufficiently specific to 
paint a succinct picture of the officer’s performance and qualities which compares reasonably 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 justification 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. Those assigned the superlative  mark of 
seven should have specific comments demonstrating how they exceeded the six standard block. 

●  ●  ● 

 

 

 

Article 10.A.4.c.8.a. states that on the comparison scale in an OER, a Reporting Officer 
“shall fill in the circle that most closely reflects the Reporting Officer’s ranking of the Reported-
on Officer relative to all other officers of the same grade the Reporting Officer has known. 

 
Article  10.A.4.f.11.  prohibits  a  rating  official  from  adding  a  comment  to  an  OER  that 
“[d]iscuss[es] Reported-on Officer’s performance or conduct which occurred outside the report-
ing period.” 

 
Article 10.A.4.g. allows an officer to submit an OER Reply through his rating chain for 
inclusion  in  his  record  with  the  OER.    The  reply  must  be  submitted  within  21  days,  and  each 
member  of  the  rating  chain  must  forward  it  with  either  no  comment  or  a  single  page  of  com-
ments responding to the OER Reply. 
 

FINDINGS AND CONCLUSIONS 

1. 

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

2. 

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.2   
 
The applicant asked the Board to expunge from his record his OER for the period 
 
June  1,  2005,  to  June  5,  2006,  and  also  to  expunge  his  failures  of  selection  for  promotion  to 
lieutenant commander.  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 
preponderance of the evidence that the OER is erroneous or unjust.3  Absent specific evidence to 
the  contrary,  the  Board  presumes  that  the  members  of  an  applicant’s  rating  chain  have  acted 
“correctly, lawfully, and in good faith” in preparing their evaluations.4  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.5 
 

3. 

                                                 
2 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”). 
3 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)).   
4 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
5 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. 

6. 

4. 

The applicant alleged that “[n]ot once during this period did I receive supervision, 
 
frequent feedback or monthly counseling sessions as outlined in [paragraph 5.a.(2) of the EOIT 
Program manual].”  Although the EO apparently did not review the applicant’s EOIT notebook 
once per month and evaluate his progress—in fact the EO complained that the applicant failed to 
bring him his notebook for review, as the EO requested at quarterly meetings, until the last week 
of the evaluation period—it is clear from the statements of the EO and the XO that the applicant 
did receive a great deal of verbal feedback during the evaluation period.  The Board finds that the 
applicant  has  not  proved  by  a  preponderance  of  the  evidence  that  the  disputed  OER  is  unfair 
because of the alleged lack of feedback. 
 
 
The applicant alleged that he had too many time-consuming collateral duties and 
had  to  perform  too  much  watchstanding  to  complete  the  EOIT  program  in  a  timely  manner.  
Paragraph  5.a.  of  the  EOIT  Program  manual  states  that  “[d]ue  to  the  demanding  nature  of  this 
program,  non-engineering  collateral  duty  assignments  shall  be  minimized  until  completion  of 
Part 1.”  However, the collateral duties shown on the applicant’s OER all appear to be related to 
engineering, and the EO stated that the applicant received the same collateral duty assignments 
and watchstanding duties that other EOITs received and that the other EOITs, who were junior to 
the  applicant,  were  able  to  complete  the  program  in  a  timely  manner  with  the  same  workload.  
The Board finds that the applicant has not proved that his workload was so heavy that his duties 
reasonably prevented him from completing his PQS as an underway EOW in a timely manner. 
 
 
The applicant  alleged that  the statement in  the disputed OER about  taking 19 of 
23 months aboard the cutter to qualify as underway EOW is impermissible because it comments 
on his performance outside of the evaluation period.  He noted that the evaluation period for the 
disputed OER was only 12 months long.  Article 10.A.4.f.11. of the Personnel Manual prohibits 
OER  comments  that  concern  an  officer’s  “performance  or  conduct  which  occurred  outside  the 
reporting  period.”    The  disputed  OER  states  that  the  applicant  was  “slow  to  reach  all  target 
points, required 19 of 23 months to qualify as an underway Engineer Officer of the Watch and 
waited  until  end  of  tour  to  turn  in  EOIT  PQS.”    The  Board  agrees  with  the  applicant  and  the 
Coast Guard that the part of this comment that refers to him taking 19 of 23 months to qualify as 
an  underway  EOW  is  prohibited  under  Article  10.A.4.f.11.  as  it  clearly  characterizes  his 
performance as slow during the prior evaluation period as well as the evaluation period for the 
disputed OER.  Therefore, the Board will order the Coast Guard to remove the phrase “required 
19  of  23  months  to  qualify  as  an  underway  Engineer  Officer  of  the  Watch”  from  the  dispute 
OER so that the remaining comment shall read, “slow to reach all target points, [redaction] and 
waited until end of tour to turn in EOIT PQS.” 
 
 
Although  not  challenged  by  the  applicant,  the  Board  notes  that  the  reporting 
officer’s  comment  that  “[h]e  has  taken  his  entire  tour  to  complete  required  PQS  and  failed  to 
qualify  as  an  EOW  until  the  last  week  of  his  last  patrol”  also  violates  Article  10.A.4.f.11.  by 
referring  to  conduct  and  performance  outside  of  the  evaluation  period  for  the  disputed  OER.  
Therefore, the phrase “taken his  entire tour to  complete required PQS  and” should be removed 
from  the  OER  so  that  the  sentence  will  read,  “He  has  [redaction]  failed  to  qualify  as  an  EOW 
until the last week of his last patrol.” 
 

7. 

 

 

8. 

9. 

The applicant complained that his supervisor, the EO, called him a “minimalistic 
 
speaker.”    He  claimed  that  this  phrase  erroneously  suggests  that  he  favors  restricting  the  func-
tions and powers of political organizations and performance of duties.”  According to Webster’s 
Dictionary,  however,  this  is  the  definition  of  a  “minimalist,”  not  a  “minimalistic  speaker.”  
Moreover, the Board finds that the phrase is unlikely to be misinterpreted by any reader to mean 
something else than what the EO intended to communicate—i.e., that the applicant had very little 
to  say  when  he  given  the  opportunity  to  speak  to  a  group.    The  applicant  has  not  proved  by  a 
preponderance of the evidence that this phrase is inaccurate, misleading, or unjust. 
 
 
The applicant alleged that the comment that “he did not receive an Assistant Engi-
neer  Officer  (AEO)  qualification”  is  technically  accurate  but  misleading  because  there  is  no 
formal AEO qualification process since the EO simply appoints one of the EOITs to be the AEO.  
The EO admitted that there is no formal qualification process but stated that the AEO position is 
one of trust and that the applicant “by his qualifications and actions, or lack thereof, did not have 
my  trust  and  confidence  for  this  position.”    The  applicant  did  not  deny  knowing  that  he  was 
expected to attain qualifications and thus gain the EO’s trust so that he could serve as the AEO.  
Although  there  are  no  formal  AEO  qualifications,  it  is  clear  that  gaining  the  appointment 
depended wholly on the EO’s trust, which would logically depend in large part upon an EOIT’s 
progress in attaining his PQS.  Therefore, the Board finds that the applicant has not proved by a 
preponderance of the evidence that the comment is erroneous or unjust. 
 
 
The applicant argued that the excellence of his other performance evaluations as 
an  enlisted  member  of  the  Navy  and  junior  officer  in  the  Coast  Guard  prove  that  the  disputed 
OER is erroneous and unjust.  However, an OER covers only an officer’s performance during a 
specific period,  and  an officer’s performance can vary  over time for  a variety  of reasons.   The 
Board finds that the quality of the applicant’s other performance evaluations does not prove that 
the criticisms of his performance in the disputed OER, which contains comparatively mediocre 
but not negative marks, are erroneous or unjust. 
 
The applicant asked the Board to include his allegations about the disputed OER 
 
in his record as an OER Reply.  However, the applicant clearly was aware of the opportunity to 
submit  a  timely  OER  Reply  within  21  days  of  his  receipt  of  the  disputed  OER,  pursuant  to 
Article 10.A.4.g. of the Personnel Manual, and rejected that opportunity.  Therefore, the Board 
finds no reason to include his allegations to the Board in his official record as an OER Reply. 
 
 
The  applicant  has  not  proved  that  the  disputed  OER  is  an  inaccurate  or  unfair 
assessment  of  his  performance  by  the  rating  officials  who  were  properly  tasked  to  and  had the 
best opportunity to evaluate his performance during the evaluation period.  He has proved only 
that  the  phrases  “required  19  of  23  months  to  qualify  as  an  underway  Engineer  Officer  of  the 
Watch” and “taken his entire tour to complete require PQS and” are impermissible under Article 
10.A.4.f.11. of the Personnel Manual and should be removed from the OER. 
 
 
The  applicant  asked  the  Board  to  remove  his  failures  of  selection  for  promotion 
from  his  record  so  that  he  may  remain  on  active  duty  and  have  additional  opportunities  to  be 
promoted.    When  an  applicant  proves  that  his  military  record  contained  an  error  or  injustice 
when  it  was  reviewed  by  a  selection  board,  this  Board  must  determine  whether  the  applicant’s 

12. 

13. 

10. 

11. 

 

 

failures  of  selection  should  be  removed  by  answering  two  questions:    “First,  was  [the  appli-
cant’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?”6    Under  this  Engels  test,  when  an  officer 
shows that his record was prejudiced before a selection board by error, “the end-burden of persu-
asion  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.7  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.”8 
 
 
The erroneous comments in this case—“required 19 of 23 months to qualify as an 
underway Engineer Officer of the Watch”  and “taken his  entire tour to  complete required PQS 
and”—are negative comments but their inclusion in the OER does not make the OER worse than 
it  would  otherwise  have  been  because  many  other  comments  in  the  OER  contain  substantially 
similar criticisms of his slowness to achieve required qualifications:    
 

14. 

Demonstrated  marginal performance  with regards to EOIT requirements; slow to reach all target 
points, [erroneous comment redacted] and waited until end of tour to turn in EOIT PQS.  Preferred 
to forsake personal help and assistance in qualifications and assigned tasking, resulting in overdue 
timelines  &  routinely  displayed  lack  of  motivation/initiative;  had  to  be  prompted  to  complete 
projects/quals.  
 
[The applicant] was removed from almost all collateral duties in order to allow him to concentrate 
on his engineering quals this period.  He performed his duties in an extremely professional man-
ner, but he routinely took much longer than necessary to do so and was surpassed by new JOs on 
board  half  as  long.    This  OER  reflects  a  significant  change  from  his  prior  evaluation  due  to  the 
time it took  for him to complete assigned tasks & EOIT PQS stds.  He has  [erroneous  comment 
redacted] failed to qualify as an EOW until the last week of his last patrol. 

 
Therefore, the Board finds that the erroneous comments did not prejudice the applicant’s record 
when it was reviewed by the selection boards.  Thus, under the Engels test, there is no basis for 
removing the applicant’s failures of selection for promotion from his record.   
 
 
Accordingly,  the  applicant  is  entitled  only  to  partial  relief  in  that  the  erroneous 
comments “required 19 of 23 months to qualify as an underway Engineer Officer of the Watch” 
and  “taken  his  entire  tour  to  complete  required  PQS  and”  shall  be  removed  from  the  disputed 
OER.  No other relief is warranted.   
 
 

15. 

 

                                                 
6 Quinton v. United States, 64 Fed. Cl. 118, 125 (2005); Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982). 
7 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.   
8  Engels, 678 F.2d at 175. 

 

 

ORDER 

No other relief is granted. 

The application of LT xxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG (Retired), for correction 

 
 
of his military record is granted in part as follows: 
 
 
The Coast Guard shall remove from his OER for the period June 1, 2005, to June 5, 2006, 
the  following  two  phrases:    “required  19  of  23  months  to  qualify  as  an  underway  Engineer 
Officer of the Watch,” which appears in block 3, and “taken his entire tour to complete required 
PQS and,” which appears in block 7.