DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2010-092 
 
XXXXXXXXXXXXX 
XXXXXXXXXXXXX 

 

 

 
 

FINAL DECISION ON FURTHER CONSIDERATION 

 
 
This  proceeding  on  further  consideration  was  conducted  according  to  the  provisions  of 
section 1552 of title 10 and section 425 of title  14 of the United States  Code.  The  application 
was  completed  and  docketed  on  January  30,  2010.   The  Chair  subsequently  prepared  the  final 
decision for the Board as required by 33 C.F.R. § 52.61(c).  
 
This  final  decision  on  further  consideration,  dated  November  5,  2010,  is  approved  and 
 
signed by the three duly appointed members who were designated to serve as the Board in this 
case. 
 

PROCEDURAL HISTORY 

 
 
In an earlier application, Docket No. 2009-058, the applicant asked the Board to correct 
his record by removing a special officer evaluation report (SOER)1 for the period June 30, 2006, 
to December 14, 2006, and a regular OER for the period December 16, 2006, to April 30, 2008 
(regular OER).   
 

On  September  10,  2009,  the  Board  issued  a  final  decision  in  docket  No.  2009-058 
denying  relief  because  the  applicant  had  not  proved  his  allegations  against  the  Coast  Guard.  
However,  the  Board  noted  two  issues  and  advised  the  applicant  that  it  would  grant  further 
consideration with regard to them if the applicant submitted a new request regarding those issues 
within 180 days of the issuance of that final decision.  
 
 
The two issues left open by the earlier Board in Docket No. 2009-058, were “whether the 
CO had unilateral authority to remove the applicant from his PSC assigned duty as head of the 
prevention department and whether the submission of the SOER was a violation of the Personnel 
Manual in effect at the time of submission. “ 

                                                 
1  Special OERs are reports of evaluated performance other than regular or concurrent OERs directed by reporting 
officers  or  higher  authority  usually  documenting  performance  problems  or  misconduct.    However  SOERs  are 
permitted prior to the convening of a selection board.  See Article 10.A.3.c. of the Personnel Manual.  

 

 

 

 

ORIGINAL APPLICATION BCMR NO. 2009-058 

(Previous case) 

The decision in Docket No. 2009-058 is attached for a full and complete understanding of 
the  events,  allegations,  evidence,  and  findings  of  the  Board.    A  limited  summary  is  provided 
below to aid in the two issues before this Board. 
 

The  applicant  was  assigned  to  duty  as  chief  of  the  prevention  department  at  a  marine 
safety  unit.      On  December  14,  2006,  he  was  given  an  administrative  letter  of  censure2  for 
unacceptable  behavior  and  performance.    The  commanding  officer  (CO),  who  was  also  the 
reporting officer for the SOER advised the applicant in that letter that he had lost confidence in 
his  ability  to  continue  as  chief  of  the  prevention  department  and  that  he  was  relieved 
immediately  of  those  duties  because  the  applicant  had  made  sexist  and  racist  statements  to 
subordinates; had taken  unauthorized leave on at least  five occasions and lied to  the CO  about 
one  particular  incident;  had  failed  to  brief  the  CO  as  requested  using  the  unit’s  quick  response 
card series;  and  had allowed his personnel to attend an initiation ceremony rather than sending 
them or himself to investigate a grounding incident as the CO directed.  
 
Summary of SOER 
 

The applicant  was  given a SOER for the period  from  June 30, 2006 through  December 
14, 2006.  The Personnel  Manual  requires that SOERs contain a statement  as to  the reason for 
their submission in block 2 (description of duties) in accordance with the guidance provided in 
10.A.3.c.1.of the Personnel Manual.   The subject SOER was submitted under Personnel Manual 
Article  10.A.3.c.1.a.  to  “document  loss  of  confidence  in  [the  applicant’s]  ability  to  effectively 
perform  assigned duties.  Per Article 10.A.4.h.1.c., this OER is  derogatory;  [the applicant] was 
relieved of primary duties on 14 Dec 2006.”   

 
The supervisor for the SOER is the same individual who had given the applicant 6s and 
7s  as  head  of  the  prevention  department  on  the  two  previous  OERs.    In  the  performance 
dimensions on the SOER, the supervisor gave the applicant marks of 2 in workplace climate and 
evaluations;  marks  of  3  in  planning  and  preparedness,  using  resources,  results/effectiveness 
speaking/listening,  developing  others,  directing  others,  and  teamwork;  a  mark  of  4  in 
adaptability; and marks of 6 in professional competence, writing, and looking out for others.  In 
the  comments  sections  accompanying  the  marks,  the  supervisor  noted  that  although  the 
applicant’s  overall  performance  was  poor  he  had  good  foresight  in  procuring  needed  reference 
books in advance of implementation of a new international treaty and that he met the challenge 
in  assisting  the  sector  in  complying  with  new  security  regulations.    The  supervisor  noted  the 
applicant’s  poor  communication  with  his  subordinates  and  the  command;  his  placement  of 

                                                 
2  Nonpunitive  letters  of  censure  (or  administrative  letters  of  censure)  are  not  punitive  and  may  be  administered 
orally or in writing.  They are private in nature  and shall not be forwarded to the Chief of Personnel, quoted in, or 
appended to, performance reports, included as enclosures to investigative reports, or otherwise included in official 
Coast Guard records of the recipient.  Article 1.G.1.d. of the Military Justice Manual; Article 8.E.4. of the Personnel 
Manual.   
 

 

 

personal  priorities  over  those  of  the  command;  his  failure  to  provide  timely  briefs  on  urgent 
matters;  his  use  of  inappropriate  sexist  comments  about  a  subordinate’s  wife  and  racist 
comments  about  a  senior  Coast  Guard  officer.    The  supervisor  also  noted  that  the  applicant 
submitted two OERs almost five months late and stated that he did not think they were a priority 
for the command. 

The  applicant  challenged  each  of  the  allegations  made  against  him  in  the  SOER.    His 

 
 
In  the  reporting  officer’s  portion  of  the  OER,  the  applicant  received  a  mark  of  5  in 
initiative; marks of 3 in judgment, responsibility, and professional presence; and a mark of 5 in 
health  and  well-being.    In  this  section  the  reporting  officer  noted  the  problems  with  the 
applicant’s performance as described in the letter of censure.  On the comparison scale in block 
9,  the  reporting  officer  described  the  applicant  as  a  marginal  performer  when  compared  with 
other LCDRs the reporting officer has known in his career.  (The mark is equivalent to a 2 on a 
scale of 1 to 7, with 7 being the highest.) The reporting officer did not recommend the applicant 
for promotion in block 10 (potential).  The reporting officer noted that at the time the applicant 
took  over  the  prevention  department,  he  lacked  the  proper  preparation  which  should  be 
considered in  determining his  suitability  for retention.  The reviewer signed the SOER without 
comment. 
 
Applicant’s Addendum and Reply to the SOER 
 
 
addendum and reply are filed with the OER in his military record.   
 
Applicant’s Allegations in Docket No. 2009-058 
 
The  applicant  alleged  in  his  earlier  application  that  the  SOER  should  be  removed  from 
 
his record because it contained negative statements about his performance and behavior without 
any investigation, without any documentation, and without any due process.  The content of the 
SOER  was  contrary  to  his  ten  years  of  prior  excellent  service,  inclusive  of  the  more  than  two 
years of prior stellar performance in the same position and under the same supervisor.  He argued 
that given his two years of stellar performance in the same position with the same supervisor, the 
command  should  have  been  able  to  provide  documentation  if  his  performance  was  as  poor  as 
indicated  in  the  SOER.    The  applicant  stated  that  the  SOER  was  based  solely  upon  the 
CO/reporting officer’s five-month period of observation.   
 
Views of the Coast Guard in Docket No. 2009-058 
 
 
On May 11, 2009, the Judge Advocate General (JAG) of the Coast Guard submitted the 
advisory  opinion  in  the  earlier  case  (Docket  No.  2009-058)  and  recommended  that  the  Board 
deny the applicant’s request. 
 
 
The  JAG  stated  that  the  SOER  was  prepared  and  submitted  in  accordance  with Article 
10.A.3.c.1.a. of the Personnel Manual which specifically stated the following:  “A special OER 
may  be  completed  to  document  performance  notably  different  from  the  previous  reporting 
period,  if  deferring  the  report  of  performance  until  the  next  regular  report  would  preclude 
documentation  to  support  adequate  personnel  management  decisions,  such  as  selection  or 

 

 

reassignment.”   The JAG further stated that the SOER in this particular case was submitted to 
properly  document  the  CO’s  decision  to  relieve  the  applicant  of  his  position  as  head  of  the 
prevention  department.   The  JAG  argued  that  the  SOER  was  submitted  in  accordance  with  the 
Personnel Manual.   
 
Applicant’s Reply to the Views of the Coast Guard in Docket No. 2009-058 
 
On July 10, 2009, the BCMR received the applicant’s response to the views of the Coast Guard.  
The applicant restated the arguments in his basic application.   
 
Pertinent Findings and Conclusions in Docket No. 2009-058 

 
On  September  10,  2009,  the  Board  issued  a  final  decision  in  docket  No.  2009-058  and 
found  that  the  applicant  had  not  carried  his  burden  of  proof  with  regard  to  the  allegations  he 
raised.    However,  the  Board  noted  two  issues,  not  raised  by  the  applicant  that  required  further 
development and input from the Coast Guard.  In granting further consideration on the two issues 
the Board stated the following: 
 

First, the Board is concerned whether the reporting officer exceeded his authority 
by removing the applicant from his department head assignment without approval 
from PSC.  In an advisory opinion in an earlier case, BCMR 2008-091, the JAG 
stated that that applicant’s superiors committed an error by reassigning her within 
the  command  without  CGPC3  concurrence.  (A  reassignment  within  a  unit  is  not 
necessarily adverse, but a relief of duties is almost always an adverse action.)  The 
JAG stated that under Article 4.A. of the Personnel Manual, the authority to make 
officer  assignments  is  specifically  reserved  for  CGPC.  Furthermore,  in  Docket 
No.  2008-106,  the  JAG  again  stated  that  it  was  legal  error  for  the  CO  to  have 
reassigned  that  applicant  from  his  PCS  assigned  duty  to  another  duty  within  the 
same unit and recommended that the Board grant relief on those grounds.  So, if a 
CO cannot reassign officers within his command, how can he officially relieve an 
officer assigned by the Personnel Service Command (PSC) without first obtaining 
the  express  approval  of  PSC.    Moreover,  nothing  in  Article  10.A.3.c.1.  of  the 
Personnel  Manual  in  effect  at  that  time  either  implicitly  or  explicitly  gives  the 
reporting  officer/CO  the  authority  to  remove  an  officer  from  his  primary  duty.  
Although  the  Board  finds  the  Personnel  Manual  and  specifically  Article 
10.A.3.c.1. to be silent on the issue of the CO’s authority to remove a department 
head, we will defer ruling on the issue  at this time because the applicant  did not 
raise it and the Coast Guard has not had an opportunity to comment on it.   
 
The  second  matter  of  concern  to  the  Board  is  whether  the  Coast  Guard  violated 
the  Personnel  Manual  by  preparing  and  submitting  an  SOER  under  the 
circumstances presented in this case. Under Article 10.A.3.c.1., the commanding 
officer may direct an SOER, but the circumstances for submissions of the SOER 
must be related to one of the subsections described below: 

                                                 
3   CGPC has been reorganized into PSC. 

 

 
a. An SOER may be submitted to document performance notably different 
from the previous reporting period if deferring the report of performance until the 
next  regular  report  would  preclude  documentation 
to  support  adequate 
management decisions, such as selection or reassignment. 

 
b. An SOER may be submitted after an officer has been found guilty of a 
criminal offense or has received non-judicial punishment (also known as captain’s 
mast). 

 
c.  An  SOER  may  be  submitted  for  an  officer  being  considered  by  a 
selection  panels  or  boards  for  promotion,  extension,  and  continuation  on  active 
duty. 

 
d.  An  SOER  may  be  submitted  to  document  significant  historical 
performance  or  behavior  of  substance  and  consequence  which  was  unknown 
when the regular OER was prepared and submitted.   

 
e.  An  SOER  may  be  submitted  when  specifically  directed  by  another 
Article  of  the  Personnel  Manual,  e.g.,  Article  4.F.6.  (CO’s  and  OIC’s  relief  for 
cause).   
 
Article  10.A.3.c.1.  of  the  Personnel  Manual  requires  block  2  of  the  SOER  to 
identify  the  subsection  under  which  the  SOER  is  submitted  and  include  a  brief 
description of the circumstances that prompted the submission.  In this case, block 
2 states that the SOER was “submitted under PERSMAN Article 10.A.3.c.1.a  to 
document  loss  of  confidence  in  [the  applicant’s  ability]  to  effectively  perform 
assigned  duties.”      Lose  of  confidence  in  a  member’s  ability  to  perform  his 
assigned duties is not listed as a basis for submitting an SOER.  Nor is relief from 
primary duty listed as basis for an SOER at the time in question.  The basis listed 
under  Article  10.A.3.c.1.a  is  performance  that  is  notably  different  from  the 
previous  reporting  period.    The  Personnel  Manual  defines  notably  different 
performance  as  that  which  results  in  marks  and  comments  that  are  substantially 
different from the previous reporting period and that which results in a change in 
the  comparison  scale.      Although,  the  marks,  comments  and  comparison  scale 
mark  were  substantially  lower  on  the  SOER  than  those  on  his  previous  OER, 
rather  than  stating  in  block  2  that  the  SOER  was  submitted  to  document 
performance notably different from the previous reporting period, the rating chain 
only  cited  the  pertinent  provision  and  then  explained  that  the  SOER  was 
submitted  because  of  a  “loss  of  confidence  in  [the  applicant’s]  ability  to 
effectively  perform  assigned  duties”    In  this  regard,  the  Board  notes  that  the 
reporting officer had not written an OER on the applicant and had been at the unit 
for only approximately five [months] when the OER was prepared.  The reporting 
officer’s  loss  of  confidence  in  the  applicant’s  ability  to  perform  his  duties  does 
not  have  the  same  meaning  as  performance  notably  different  from  the  previous 
reporting  period,  especially  when  the  commanding  officer  was  new,  had  no 

 

 

 

 

personal knowledge of the applicant’s previous OERs,  and had not submitted an 
OER on the applicant.     
 
Furthermore, contrary to the advisory opinion, under the version of the Personnel 
Manual in effect at time the SOER was prepared, the relief of an officer from his 
or  her  primary  duty  was  not  an  authorized  basis  for  the  submission  of  a  SOER.  
With  Change  41  to  the  Personnel  Manual  on  June  18,  2007  (after  the  subject 
SOER  was  prepared  and  submitted),  an  SOER  was  required  upon  an  officer’s 
relief from primary duty if reassignment was required.   Under the circumstances 
in this case, the Coast Guard appears to have erred by submitting the SOER on the 
ground of  a loss of confidence in  the applicant’s ability  rather than performance 
notably different from the previous reporting period.  The SOER appears to have 
been  submitted  not  because  of  performance  notably  different  from  the  previous 
reporting  period  (the  CO  was  not  the  reporting  officer  then)  but  because  of  his 
then-current  perceptions  of  the  applicant’s  performance.    Further,  loss  of 
confidence  does  not  appear  to  meet  any  of  the  other  bases  for  submitting  an 
SOER  under  Article  10.A.3.c.1.  of  the  Personnel  Manual.    However,  since  the 
applicant did not specifically raise this issue and the Coast Guard has not had an 
opportunity to comment on it, the Board will defer ruling on the issue at this time.   

APPLICATION ON FURTHER CONSIDERATION DOCKET NO. 2010-092 

(Current application) 

 
 
On  January  29,  2010,  the  Board  received  a  new  application  from  the  applicant  seeking 
further consideration and asking that the special OER be removed from his record based on the 
following allegations: 
 

[The  reporting  officer]  used  as  a  basis  for  his  action  to  reassign  me  from  my 
assigned duties the CG Personnel  Manual  . . . Article 10.A.3.c.1 stating  “loss of 
confidence” however neither this nor any other article of the [Personnel Manual] 
provides for reassignment of an officer based on a commanding officer’s loss of 
confidence. 
 
[The  reporting  officer]  acted  outside  of  his  authority  by  reassigning  me  without 
prior  consultation  and  consent  of  the  Personnel  Service  Command  (which  does 
have the authority to assign and reassign officers).   
 
The SOER is a derogatory report that I believe was unfairly written.  This SOER 
was conjured up to support my commanding officer’s hasty and baseless decision 
to  relieve  me  from  my  primary  duties  as  head  of  the  Prevention  Department  at 
Coast Guard Marine Safety Unit Galveston, where I had been admirably serving 
for over 2 years prior to his arrival.  There was no exercise of due process for me 
to  hear  and  respond  or  rebut  the  accusations  against  me  despite  clear  applicable 
Commandant HR policies directing him to do so.   
 

 

 

 

[The  reporting  officer]  selectively  picked  from  the  [Personnel  Manual]  elements 
which suited his whim citing “loss of confidence” which is in the stipulations for 
removal  of  a  commanding  officer  or  an  officer-in-charge,  but  then  chose  not  to 
follow  any  of  the  other  stipulations  in  the  removal  of  the  CO/OINC  process 
notably  to  conduct  an  investigation  prior  to  relieving  me  of  my  duties.     This  is 
inherently  arbitrary  and  not  in  keeping  with  Commandant’s  policies  [and]  the 
Coast Guard Core values of honor and respect and devotion to duty.     

VIEWS OF THE COAST GUARD ON FURTHER CONSIDERATION 

DOCKET NO. 2010-092 

 
 
On June 3, 2010, the Board received the views of the Coast Guard with regard to the two 
issues on which it granted further consideration.  The Coast Guard recommended denial of relief 
and stated that the applicant’s commanding officer (CO) had the authority and did not commit an 
error or injustice in exercising his discretion to remove the applicant from his primary duties and 
internally reassign him; nor did the rating chain commit any error with regard to the submission 
of the special officer evaluation report (SOER).  The JAG stated the following: 
 

[Did  the  applicant’s  CO  have  the  authority  to  remove  the  applicant  from  his 
primary duties?] Based on the facts and circumstances of this particular case . . . 
the applicant’s CO acted within his authority to temporarily reassign the applicant 
from his primary duties.  In the applicant’s previous BCMR, the Board mentioned 
the AO [advisory opinion] in Docket No. 2008-106 in comparison to this case.  It 
is  the [Coast Guard’s] position  that 2008-106 is distinguishable from  the case at 
bar.  [BCMR  No.]  2008-106  was  decided  based  on  a  “totality  of 
the 
circumstances” presented, which were completely different from applicant’s case.  
Moreover,  the  advisory  [opinion]  in  2008-106  was  never  intended  to  indicate 
shifts  in  [Coast  Guard]  policy  as  it  pertains  to  [the]  CO’s  authority  to  reassign 
members  under  his/her  command.    Furthermore,  [BCMR  No.]  2008-106  was 
extremely  unique  in  nature  based  on  its  own  particular  facts  and  circumstances 
and therefore should not be used or viewed as precedent in comparison with the 
case at bar.  The applicant was assigned from his primary duties and subsequently 
transferred IAW [in accordance with] policy. . . . 
 
[Was  the  applicant’s  SOER  submitted  in  violation  of  Article  10.A.3.c.1  of  the 
[Personnel Manual]]?  . . . The “SOER” in this particular case was submitted by 
the  applicant’s  rating  chain  to  properly  document  the  [CO’s]  decision  to  relieve 
the  applicant  of  his  position  as  Prevention  Department  Chief.    The  [SOER] 
accurately reflects the applicant’s serious performance deficiencies as declared by 
the applicant’s immediate supervisor, commanding officer, and reviewing official.  
The  applicant’s  rating  chain  carried  out  its  responsibilities  and  submitted  the 
applicant’s [SOER] in accordance with the Coast Guard Personnel Manual . . .   

 
The  JAG  attached  a  memorandum  from  the  Commander,  Personnel  Service  Command 
 
(PSC)  as  a  part  of  the  advisory  opinion.    PSC  also  recommended  denial  of  the  applicant’s 
request.    PSC  stated  that  there  are  two  types  of  reports  at  issue  in  this  case.    They  are  the 

 

 

exception  OERs,  which  includes  special  and  concurrent  OERs,  and  derogatory  OERs.    PSC 
stated  that  an  exception  OER  is  justified  when  OER  submission  criteria  does  not  meet  the 
scheduled  occasions  or  criteria  for  submitting  a  regular  OER.    An  exception  OER  can  address 
either  standard,  above  standard,  or  substandard  performance.    See  Article  10.A.3.  of  the 
Personnel manual. 
 
 
PSC stated that derogatory OERs are those evaluation reports that indicate the reported-
on  officer  failed  in  the  accomplishment  of  assigned  duties.    According  to  Article  10.A.4.h. 
derogatory  OERs  are  those  which  contain  a  numerical  mark  of  one  in  any  performance 
dimension, contain an “unsatisfactory” mark by the reporting officer in section 9; and/or is used 
to document adverse performance or conduct that results in the removal of a member from his or 
her primary duty or position.   PSC noted that under 10.A.3.c.1., a special OER submission must 
relate to the following among others: 

 
a. An SOER may be submitted to document performance notably different 
from the previous reporting period if deferring the report of performance until the 
next  regular  report  would  preclude  documentation 
to  support  adequate 
management decisions, such as selection or reassignment. 

 

 
PSC also noted that Article 10.A.3.c.1. of the Personnel Manual requires block 2 of the 
SOER  to  identify  the  subsection  under  which  the  SOER  is  submitted  and  include  a  brief 
description of the circumstances that prompted the submission.  PSC argued that the rating chain 
did  this  in  the  SOER  by  the  statement:    “Special  OER  submitted  under  PERSMAN  Article 
10.A.3.c.l.a.  to  document  loss  of  confidence  in  member’s  ability  to  effectively  perform  assign 
duties.”    (The  CO  further  explained:    “Per  Article  10.A.4.h.l.c.,  this  is  a  derogatory  OER, 
member was relieved of primary duties on 14 Dec 2006.”) PSC stated that the Personnel Manual 
permits a special OER where performance is notably different from the previous reporting period 
and results in a lower mark on the section 9 comparison or rating scale.  PSC stated that this did 
occur in this instance.  He further explained as follows:   
 

The member’s inability to perform his duties is the conduct/performance that is at 
issue.  Both  the supervisor’s and reporting officer’s statements (e.g.  addendums, 
declarations  etc.  [in  the  earlier  case])  indicate  the  marks  and  comments  they 
assigned were fair and accurate depictions of the applicant’s performance during 
the  marking  period  and  indicate  there  was  dissension  in  the  work  environment 
causing  distress  amongst  the  workforce  as  well  as  concerns  by  senior  members 
that  tasks  were  not  being  completed,  orders  not  being  followed,  and  serious 
questions being raised whether mission accomplishment was at risk.  With this in 
mind  the  rating  chain  removed  the  applicant  from  his  duties  and  prepared  the 
Special OER in accordance with the PERSMAN . . .   
 
The  applicant  (and  the  previous  BCMR  decision)  states  “loss  of  confidence”  is 
not listed under the PERSMAN Article 10.A.3.c.1 and cannot be used to reassign 
him from his primary duties.  [Coast Guard] PSC avers the applicant has confused 
the article under the PERSMAN.  Again, one being removed from primary duties 
follows an entirely separate Article (10.A.4.h) than the Exception (special OER) 

 

 

 

Article  (10.A.3.c.1.).    The  applicant’s  removal  and  reassignment  was  based  on 
adverse performance and/or conduct as described within the text  of the  disputed 
OER . . .  It is the derogatory article that drives the removal and reassignment of 
the reported-on officer.  The Exception OER article was used in conjunction with 
the Derogatory Article since the disputed OER  was being submitted prior to  the 
normal regular submission date of 30 April—the typical end of period date for a 
lieutenant  commander  –  and  the  evaluation  was  capturing  performance  notably 
different than the previous reporting period.   

a.  The  applicant  is  correct  that  loss  of  confidence  is  not  specifically  stated  in 
Article 10.A.3.c.1.  However, there is nothing in paragraph (a) of this article that 
states certain language must be cited verbatim or that language is precluded.  The 
paragraph simply states the OER should document performance notably different. 
. . . 
 
b.  Loss  of  Confidence  is  a  term  of  art  used  in  military  service  when  a  military 
member fails to sustain his or her immediate superiors’ trust or confidence in the 
member’s  judgment,  abilities,  responsibilities,  performance,  discipline,  and 
mission  accomplishments.    The  term  is  sometimes  used  when  a  commanding 
officer  or  officer  in  charge  is  relieved  for  cause.    Though  no  such  term  of  art  is 
specifically  set  forth  for  individuals  not  in  command  cadre  positions,  there  is 
nothing  to  prevent  it  being  used-especially  when  common  usage  is  understood. 
[Coast  Guard]  PSC  believes  the  term  “loss  of  confidence”  coupled  with  the 
statement of the applicant’s inability “to effectively complete his assigned duties” 
is acceptable as denoting performance notably different.   

 
 
PSC noted that in the previous final decision the Board questioned whether the reporting 
officer’s ability to  evaluate the  applicant’s performance because the SOER was his  first  on the 
applicant,  because  the  reporting  officer  had  only  a  five-month  period  to  observe  the  applicant, 
and because the reporting officer was not privy to the applicant’s past performance.  However, 
PSC stated that he was not convinced these reasons prevented the reporting officer from properly 
evaluating the applicant.  In this regard, PSC stated that the reporting officer is not limited to his 
or her own observations, but may use other information provided by the supervisor or any other 
reports and records he or she deems reliable.  PSC stated that there is every indication there were 
discussions  of  the  applicant’s  conduct  and  performance  as  evidenced  in  every  rating  chain 
declaration  presented.    He  stated  the  fact  that  the  same  supervisor  was  still  present  at  the  unit, 
had  previous  knowledge  of  the  applicant’s  prior  performance,  and  noticed  a  difference  in  the 
work  atmosphere  in  the  prevention  department  is  of  utmost  significance  and  certainly  material 
that the reporting officer utilized, as likely did the reviewer. 
 
 
PSC  stated  that  it  was  unclear  what  the  applicant  meant  by  the  allegation  that  the  CO 
acted outside of his authority by reassigning him without consulting or obtaining approval from 
PSC.  PSC stated that according to ALCGOFF 017-06 message, the CO is not required to notify 
PSC that he has moved someone under his command to another position unless the move would 

 

 

extend  past  the  six-month  mark.4    PSC  stated  that  it  was  4½  months  between  the  applicant’s 
removal from his position in December 2006 and the time he left MSU Galveston on PCS order 
to  Washington,  D.C.    During  this  period  he  was  reassigned  on  an  interim  basis  to  Sector-
Houston-Galveston on February 5, 2007.  PSC stated that on March 5, 2007 Permanent Change 
of Station (PCS) orders were issued transferring the applicant to Coast Guard Headquarters.   
 
 
PSC noted that the Board used BCMR No. 2008-106 as precedent.  In that case, the JAG 
stated that COs did not possess the authority to internally reassign officers without action from 
PSC.  The JAG clarified that while permanent transfers cannot occur without PSC’s concurrence, 
temporary  reassignments  are  historically  supported  under  policy.    PSC  stated  that  foundational 
guidance is provided within the Coast Guard regulations, which states that when the CO believes 
circumstances  require,  he  or  she  may  assign  a  commissioned  officer  or  warrant  officer  to  duty 
other  than  the  duties  ordered  to.    However,  for  periods  over  30  days  the  commanding  officer 
shall report the fact to the Commandant, which in this case is PSC.  PSC stated that in 2006 this 
policy  was  reaffirmed  and  amended  in  order  to  prescribe  the  CO’s  ability  to  internally  assign 
officers to accomplish mission objectives for periods not to exceed six months.5  Periods beyond 
six months require consultation with PSC.  A permanent transfer does not relieve a command of 
the  duty  to  document  an  officer’s  performance  shortfalls.    PSC  stated  that  ALCGOFF  017-06 
reaffirmed  that  removal  from  primary  duties  due  to  adverse  performance  or  conduct  shall  be 
documented in accordance with Articles 10.A.3.c. and 10.A.4.h. of the Personnel Manual.    
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD  

ON FURTHER CONSIDERATION 

 
 
On  June  29,  2010,  the  Board  received  the  applicant’s  reply  to  the  views  of  the  Coast 
Guard.    On  the  issues  before  the  Board  on  further  consideration,  the  applicant  stated  the 
following: 
 

In  the  advisory  opinion’s  conclusion,  they  state  that  the  CO  acted  within  his 
authority  to  temporarily  reassign  the  applicant.    However,  the  CO  did  not 
temporarily  reassign  me  as  the  advisory  opinion  inaccurately  asserts.    Had  he 
done  so  in  accordance  with  [Personnel  Manual]  policy  it  should  have  been  in 
concert  with  conducting  an  official  investigation  (per  10.A.3.c.1.b.)  and  would 
have been agreeable.  Rather he simply removed me from my [Personnel Service 
Center] assigned duties and replaced me with the newly arrived deputy.   

FINDINGS AND CONCLUSIONS 

 

 

The Board makes the following findings and conclusions on the basis of the submissions 

 
of the applicant and the Coast Guard, the military record of the applicant, and applicable law: 

                                                 
4 The Coast Guard is incorrect that ALCGOFF 017/06 stated that assignments  more than  six  months in 
length  must  be  reported  to  the  assignment  officer.    It  was  ALCGOFF  037/08  issued  on  March  25,  2008 
that mandated this requirement.   

5  The Board has already noted that the 6-month reassignment policy went into effect on March 25, 2008 
pursuant to ALCGOFF 037/08. 

 

 

1.  The  BCMR  has  jurisdiction  of  the  case  pursuant  to  section  1552  of  title  10,  United 

 
 
States Code.  The application was timely. 
 
 
2.  The findings and conclusion addresses only the two issues on which the Board granted 
further consideration.  They are whether the CO had unilateral authority to remove the applicant 
from his PSC assigned duty as head of the prevention department and whether the submission of 
the  SOER  was  a  violation  of  the  Personnel  Manual  in  effect  at  the  time  of  submission.    The 
Board  resolved  and  disposed  of  all  other  issues with  respect  to  lack  of  counseling,  lack  of  due 
process, and lack of investigations in its final decision in Docket No. 2009-085.   
 
 
3. The Board raised the question of the CO’s authority to remove an officer from his PCS 
assigned  duty  (primary  duty)  because  in  another  earlier  case,  Docket  No.  2008-091,  the  JAG 
took the position that the CO lacked the authority to internally reassign that applicant to another 
position within the command without CGPC’s (now PSC’s) approval.6  The JAG further noted in 
that  case  that  under  Article  4.A.  of  the  Personnel  Manual,  the  authority  to  make  officer 
assignments  is  specifically  reserved  for  PSC,  which  was  affirmed  by  the  Commandant  in 
ALCGOFF  017-06  issued  on  March  9,  2006.   The  JAG  took  the  same  position  in  Docket  No. 
2008-106 and stated that it was legal error for the CO to have reassigned that applicant from his 
PCS  assigned  duty  to  another  duty  within  the  command  without  at  a  minimum  notifying  the 
assignment officer (AO). 7  
 

4.    The  JAG  currently  argues  that  the  CO  has  the  authority  to  remove  or  relieve  the 
applicant  from  his  PCS  assigned  duty  as  head  of  the  prevention  department  and  reassign  him, 
under  Article  7-5-1B  of  Coast  Guard  Regulations  and  ALCGOFF  017/06.    However,  these 
authorities were in effect and known to the Coast Guard when it issued its recommendations in 
Docket  No.  2008-106  and  Docket  No.  2008-091.  Article  7-5-1B  of  Coast  Guard  Regulations 
states the following:  

 
When  circumstances  require,  the  [CO]  may  assign  a  commissioned  or  warrant 
officer to duty other than the type specified in the orders assigning the officer to 
the  unit.    When,  under  the  authority  of  this  section,  an  officer  is  assigned  for  a 
period  of  more  than  30  days  to  perform  duty  in  lieu  of  the  type  specified  in  his 
orders, the commanding officer shall report the fact to the Commandant.   
 

                                                 
6  The  JAG  stated  in  Docket  No.  2008-091  that  the  applicant’s  superiors  committed  an  error  by  reassigning  the 
applicant  to  another  duty  within  the  command.    The  JAG  stated  that  the  CO  lacked  the  authority  to  internally 
reassign  the  applicant  to  another  position  within  the  command  without  CGPC  concurrence.    The  JAG  stated  that 
under  Article  4.A.  of  the  Personnel  Manual  the  authority  to  make  officer  assignments  is  specifically  reserved  for 
CGPC. 
7  Docket No. 2008-106, the Board wrote that the JAG stated the following in pertinent part in the advisory opinion:   

[The  CO’s]  decision  to  relieve  the  applicant  of  his  duties  as  the  Chief  of  the  [NATON  school], 
placing  him into a position of lesser responsibility and opportunity  for leadership stemmed from 
information  provided  in  an  inaccurate  OER.  The  JAG  noted  that  the  disputed  OER  in  that  case 
reflected the applicant’s performance in an unauthorized reassignment with less responsibility for 
leadership.  The JAG stated that the reassignment constituted “legal error.”     

 

 

With regard to the above, the JAG contended that while permanent transfers cannot occur 
without  PSC’s  concurrence,  temporary  re-assignments  are  historically  supported  under  this 
policy.    However, ALCGOFF  017/06  issued  on  March  9,  2006,  added  confusion  to  the  Coast 
Guard  regulation because  CGPC clearly indicated  in  that message that  it was the official order 
issuing  authority,  but  allowed  COs  to  request  approval  of  intra-unit  reassignments.   The  Coast 
Guard added further confusion to this issue by finding legal error with the reassignments of the 
applicants  in  2008-091  and  2008-106.  The  Coast  Guard  clarified  the  issue  somewhat  in 
ALCGOFF  037/08  issued  on  March  25,  2008,  by  directing  that  COs  at  a  minimum  inform  the 
assignment  officer  (AO)  of  internal  reassignments  expected  to  last  more  than  six  months.    
However, ALCGOFF 037/08 was not applicable to the applicant’s situation because his removal 
from duties and the SOER occurred prior to the issuance of this message.   
 

5.  Therefore, the policy in effect at the time of the applicant’s removal from his primary 

duty was ALCGOFF 017/06 issued on March 9, 2006.  It stated in pertinent part: 
  

To  meet  the  personnel  needs  of  commands,  reduce  unintended  negative 
consequences  for  members  or  the  service  as  a  whole,  support  cross-training 
opportunities,  and  to  improve  HR  [human  resources]  data  accuracy,  commands 
shall  contact  the  appropriate  CGPC  AO  to  propose  moving  officers  from  one 
position  to  another  year,  the  best  time  to  do  this  is  immediately  prior  to  the 
assignment season . . .   
 
This  process  is  not  intended  to  replace  the  assignment  process  particularly  for 
fleet-ups  .  .  .  This  process  also  does  not  relieve  a  unit  of  the  duty  to  document 
performance shortfalls in accordance with [the Personnel Manual] for officers that 
have  difficulty  performing  in  their  assigned  position.    Removal  from  primary 
duties due to adverse performance or conduct shall be documented IAW Articles 
10.A.3.C. and 10.A.4.H. of the [Personnel Manual].   
 
An officer’s primary duty  is  defined by the unit PAL  [personnel  allowance lists] 
as  shown  in  Direct Access  and  is  the  position  that  is  indicated  on  the  member’s 
permanent change of station orders.   

 

5.    The  Board  disagrees  with  the  Coast  Guard  that  ALCGOFF  017/06  authorized  the 
removal  of  an  officer  from  his  primary  duty  who  received  a  derogatory  OER  under  Article 
10.A.4.h.1.c.  of  the  Personnel  Manual  and  that  the  derogatory  SOER  was  the  driver  for  the 
applicant’s  removal  from  his  primary  duty  in  this  case.    Article  10.A.4.h.1.  only  defines  a 
derogatory  OER;  it  does  not  authorize  the  CO  to  remove  an  officer  from  his  primary  duty  or 
position due to  poor performance or misconduct.   The provision  defines a derogatory  OER  as 
one that contains a mark of 1 in any performance dimension, contains an unsatisfactory mark by 
the  reporting  officer  in  section  9  (comparison  scale),  or  documents  adverse  performance  or 
conduct  that results in  the removal of a member  from  his  or her primary  duty or position.      It 
documents the results of a removal from primary duties; it does not authorize it.  Nor did Article 
10.A.3.c.1. of the Personnel Manual authorize the CO to remove an officer from his primary duty 
at that time.   
 

 

 

6.    Therefore,  under  Coast  Guard  regulation,  the  CO  had  limited  authority  to  assign 
/reassign within his command but could not remove or dismiss an officer from their primary duty 
without  the  approval  of  PSC.   ALCGOFF  017/06  affirmed  this  interpretation  by  reserving  the 
authority  to  make  assignments  to  CGPC.    In  this  regard, Article  4.A.  of  the  Personnel  Manual 
and ALCGOFF 017/06 state that CGPC “exercises directing,  guiding, and restraining  authority 
over  enlisted  and  officer  assignments.”    Therefore,  the  Board  concludes  that  at  the  time  in 
question,  the  CO  could  not  remove  the  applicant  from  his  PSC  assigned  duty  without  the 
approval of CGPC.   
 

7. Notwithstanding finding 6. above, the Board finds that CGPC was aware of the CO’s 
decision  to  remove  the  applicant  from  his  primary  duty  because  according  to  the  Investigating 
Officer’s  (IO)  report  into  the  applicant’s Article  138  complaint,  CGPC  advised  the  CO  on  the 
preparation of the SOER which documented the CO’s loss of confidence in the applicant and his 
decision to remove the applicant from his primary duty (Paragraph 2 of Enclosure (2) of the IO 
report into the applicant’s Article 138 complaint).    Also, CGPC validated the SOER on March 
3, 2007, and placed it into the applicant’s record.   Therefore, by not objecting to the CO’s action 
when providing guidance in preparation of the SOER and by validating the SOER and placing it 
into the applicant’s record, CGPC approved the CO’s decision to remove the applicant from his 
primary  duty  and  subsequently  issued  permanent  change  of  station  orders  assigning  him  to 
Washington,  D.C.    Additionally, Fact  35 of Enclosure (1) of the  IO report  into the Article 138 
complaint  stated  that  “[t]he  Sector  Commander  and  Deputy  Sector  Commander  met  with  [the 
applicant]  for  2  hours  on  January  22,  2007,  to  discuss  his  relief  and  pending  [SOER].”   
Therefore,  the  Board  finds  that  the  CO  removed  the  applicant  from  his  primary  duty  with  the 
knowledge and approval of CGPC.   

 
8.    The  Board  notes  as  it  did  in  the  original  decision  that  the  Coast  Guard  has  no 
procedures  in  place  for  removing  officers,  other  than  COs  or  officers-in-charge,  from  their 
primary  duties.    The  lack  of  regulation  in  this  area  makes  it  difficult  for  the  Board  to  review 
applications  alleging  injustice  and/or  error  in  the  process  because  there  are  no  standards  by 
which to measure whether a removal from primary duty was carried out  in a just and equitable 
manner.   The Board notes that there are procedures in Article 4.F. of the Personnel Manual for 
relieving a CO or OIC and that the Navy has procedures in place for removing officers from their 
primary duty, as well as relieving COs.  The Board refers the Coast Guard to Article 1611-020 of 
the MILPERSMAN (the Navy’s Military Personnel Manual) which authorizes the detachment of 
officers  and  well  as  COs  for  cause  and  provides  procedures  for  their  detachment.8    In  each 
instance,  Article  4.F.  of  the  Coast  Guard  Personnel  Manual  (removal  of  CO’s  and  OICs  for 
cause) and the Navy’s MILPERSMAN, officers are given an opportunity to submit a statement 
on the proposed action which is forwarded to higher authority for review along with the request 
for removal from duty.    The Board recommends that the Coast Guard review its policy in this 
area by making regulations that informs its officers as well as any reviewing authorities how and 
when officers are to be relieved of their primary duties and the procedures for doing so.  The lack 
                                                 
8   The Board notes that section 1-5.d. of AR 600-20 (Army regulation) dated March 18, 2008 states that 
“soldiers are assigned to stations or units where their services are required.  The commanding officer then 
assigns  appropriate  duties.”  It  is  unclear  whether  this  provision  applies  to  officers.    Section  3-50  of  AR 
623-105  (1998)  discusses  in  detail  the  standard  for  relieving  an  officer  for  cause  and  what  information 
must be included in a performance evaluation when an officer is relieved for cause.    

 

 

of written guidance led the applicant’s CO to use “loss of confidence” as the basis for removing 
the applicant from his primary duty, which is listed as a basis for relieving COs and OICs.  If the 
bases  for  removing  officers  from  their  primary  duties  are  the  same  as  those  identified  for  the 
removal of COs, then it appears to the Board that Article 4.F. should apply to all officers and that 
all officers should  get  the benefit of what little due process is provided under that Article. The 
only due process provided to a CO or OIC facing relief for cause is notification of the proposed 
action, notification of the right to submit a statement in writing on his or her behalf within five 
days  of  notification,  which  is  forwarded  to  the  relieving  authority  along  with  the  request  for 
permanent  relief  for  cause,  and  notification  of  the  temporary  duty  station  to  which  the  officer 
will be assigned while the action is  pending.     The applicant  was not  given the opportunity to 
submit a written statement in response to the CO’s decision to remove him for review by higher 
authority  because  there  are  no  regulations  in  this  area.        However,  the  Board  finds  that  the 
applicant had some due process because he was notified of the action in the December 14, 2006 
letter of censure, given the opportunity to write an addendum and reply to the SOER that noted 
his removal from primary duty, and had his Article 138 complaint against the CO investigated.  
Moreover, there is no evidence in the record that the decision to remove the applicant from his 
primary duty would have been any different had he had the opportunity to write a statement for 
review by higher authority prior to his removal from his primary duty. 
 

9.  The Board noted its concern in the previous decision that “loss of confidence” was not 
listed  in  Article  10.A.3.c.1.  as  a  basis  for  submitting    a  SOER.    This  provision  states  that  the 
commanding  officer  may  direct  an  SOER,  but  the  circumstances  for  submission  of  the  SOER 
must be related to the following reason (among others not relevant to this case): 

 
An SOER may be submitted to document performance notably different from the 
previous  reporting  period  if  deferring  the  report  of  performance  until  the  next 
regular  report  would  preclude  documentation  to  support  adequate  management 
decisions,  such  as  selection  or  reassignment.    Notably  changed  performance  is 
that  which  results  in  marks  and  comments  substantially  different  from  the 
previous reporting period and results in a change in section 9 comparison or rating 
scale.   

 

10.  Further, Article 10.A.3.c.1. of the Personnel Manual requires block 2 of the SOER to 
identify the subsection under which the SOER is submitted and include a brief description of the 
circumstances  that  prompted  the  submission.    In  this  case,  block  2  states  that  the  SOER  was 
“submitted  under  PERSMAN  Article  10.A.3.c.1.a    to  document  loss  of  confidence  in  [the 
applicant’s ability] to effectively perform assigned duties.”   The Board noted in the earlier case 
that loss of confidence in a member’s ability to perform his assigned duties is not listed as a basis 
for submitting an SOER.   Nor was relief from primary duty listed as basis for an SOER at  the 
time question.   
 

11.   After  further  review, the Board agrees  with  the Coast  Guard that  the  SOER in  this 
case  met  the  requirements  of  Article  10.A.3.c.1.    In  this  regard,  the  SOER  identifies 
10.A.3.c.1.a., which is performance notably different form the previous reporting period, as the 
basis for submission of the SOER. The brief description of the circumstances for the OER is loss 
of  confidence  in  the  applicant  to  effectively  perform  his  assigned  duties.      Upon  further 

 

 

consideration,  the  Board  agrees  with  the  Coast  Guard  that  performance  that  notably  different 
from  the  previous  reporting  period  can  result  in  a  CO’s  loss  of  confidence  in  an  officer.  
Moreover, the applicant’s performance was notably different from the previous reporting period.  
He received a mark of 2 (marginal performer) on the comparison scale for the SOER and a mark 
of  6  (strongly  recommended  for  acceleration)  on  the  previous  OER.    In  addition,  the  applicant 
received below average marks of 2s and 3s and unflattering comments on the SOER compared to 
marks of 5s and 6s and highly favorable comments on the previous OER.   

 
12.  The Board also agrees with the Coast Guard that although the CO had only been at 
the command for five months when he gave the applicant the SOER, under the Personnel Manual 
he  could  rely  on  the  memory,  knowledge,  and  reports  of  the  supervisor  in  making  a 
determination  whether  the  applicant’s  performance  was  notably  different  from  the  previous 
reporting  period.    The  same  officer  served  as  supervisor  on  the  SOER  and  the  applicant’s 
previous OER.  Article 10.A.4.7.d. of the Personnel Manual states that the reporting officer shall 
include comments citing specific aspects of the reported-on officer’s performance and behavior 
for each mark that deviates from a four.  It provides that the reporting officer shall draw on his or 
her  own  observations,  information  provided  by  the  supervisor,  and  other  information 
accumulated during the reporting period.  Additionally, the Board noted in the original case that 
the applicant had not proved the content of the SOER to be erroneous.  Therefore, the SOER was 
properly  submitted  to  document  performance  that  was  notably  different  from  the  previous 
reporting period that led to the CO’s loss of confidence in the applicant.     

 
13.    Having  reviewed  the  issues  on  which  the  Board  granted  further  consideration,  the 
Board finds that CGPC affirmed and validated the CO’s decision to remove the applicant from 
his  primary  duty  by  not  acting  to  change  it  when  it  provided  assistance  to  the  CO  in  the 
preparation  of  the  SOER,  by  not  acting  to  change  it  when  it  validated  the  SOER  on  March  3, 
2007,  and  by  issuing  PCS  orders  to  the  applicant  for  an  assignment  in  Washington,  D.C.  
Additionally,  the  Sector  and  Deputy  Commanders  were  aware  of  the  decision  to  remove  the 
applicant  from  his  primary  duty  and  did  not  object.    Further,  the  Board  is  persuaded  that  the 
submission of the SOER was proper.    

 
14.    Accordingly,  relief  should  be  denied  for  the  issues  on  which  the  Board  granted 

further consideration. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
     
 
 
 

 

 

The  application  on  further  consideration  of  XXXXXXXXXXXX,  USCG,  for  the 

 

ORDER 

 

 
correction of his military record is denied.   
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

  

 
 Donna M. Bivona 

 

 

 
 Evan R. Franke 

 

 

 
 
 Darren S. Wall