DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2010-097 
 
Xxxxxxxxxxxxx 
xxxxxxxxxxxxx 

FINAL DECISION 

This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.  The Chair docketed the case upon receipt of the applicant’s 
completed  application  on  January  3,  2010,  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  June  23,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S INITIAL REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  either  to  remove  a  prejudicial  comment  from  his  officer 
evaluation report (OER) covering his service from May 23, 2007, to June 30, 2008, or to remove 
the OER from  his  record in  its entirety.  The comment,  which supports a low mark of 3 in  the 
performance category “Responsibility,”1 states the following:   “Had to be counseled on several 
occasions to comply w/ own dependent support memo.”  The applicant alleged that the comment 
should be removed because it is prohibited under the Personnel Manual.2 
 

VIEWS OF THE COAST GUARD 

 
 
In  response to  the applicant’s request,  the Officer Personnel  Management  branch of the 
Personnel Service Center (PSC) advised the applicant on May 28, 2010, that his request had been 
approved administratively by the PSC pursuant to Article 14.B.3.h. of the Personnel Manual3 and 
that his OER had been corrected.  PSC attached to this letter an amended version of the OER in 
which the phrase “dependent support” was removed so that the disputed comment now reads as 

                                                 
1  In  OERs,  officers  are  evaluated  in  a  variety  of  performance  categories,  such  as  “Professional  Competence,” 
“Teamwork,” “Initiative,” and “Responsibility,” on a scale of 1 (worst) to 7 (best).   
2  Article  10.A.4.f.10.  of  the  Personnel  Manual  states  that  in  preparing  OER  comments,  rating  officials  shall  not 
“[r]efer to Reported-on Officer’s marital or family status.” 
3 Article 14.B.3.h. states that  when a  member submits an application form DD 149,  “[t]he Coast Guard Personnel 
Command or program manager responsible for the contested record will screen the application and take appropriate 
action within its authority.” 

 

 

follows:  “Had to be counseled on several occasions to comply w/ own … memo.”  On June 18, 
2010, the Judge Advocate General submitted an advisory opinion to the Board in which he rec-
ommended  that  the  Chair  close  the  case  administratively  because,  he  alleged,  the  PSC  had 
already corrected the applicant’s OER.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On  June  25,  2010,  the  Chair  mailed  the  applicant  a  copy  of  the  advisory  opinion  and 
noted that she would administratively close the case unless the applicant objected within 30 days.  
Initially, no objection was received.  In response to an email from the BCMR staff on September 
10, 2010, the applicant called and stated that he had never received the Chair’s mailing.  There-
fore, on September 14, 2010, the advisory opinion was emailed to the applicant.  In response to 
the advisory opinion, the applicant called and stated that he objected to the incomplete correction 
of his OER and asked whether the Board would be backdating his date of rank if he was selected 
for promotion to CWO3 by the selection board slated to meet on October 18, 2010.  The BCMR 
staff advised the applicant that there was no request for backdating his date of rank in his appli-
cation.    The  applicant  requested  a  90-day  extension  of  the  time  for  responding  to  the  advisory 
opinion.  

 
On October 13, 2010, the applicant responded to the Coast Guard’s advisory opinion.  He 
stated  that  the  entire  disputed  comment  should  be  removed  from  his  OER  because  the  Coast 
Guard’s memoranda stated that his request had been approved, and he had requested removal of 
the entire comment.   The applicant  also stated that  he had thought  a request  for backdating  his 
date  of  rank  was  included  in  his  application,  and  he  submitted  a  revised  application  form 
requesting backdating and a copy of a memorandum, dated December 15, 2009, addressed to the 
Personnel  Records  Review  Board  in  which  he  asked  that  board  to  correct  the  prohibited  com-
ment  in  his  OER  and  to  consider  backdating  his  CWO3  date  of  rank  to  January  1,  2010,  and 
awarding  him  back  pay  and  allowances  if  he  were  subsequently  selected  for  promotion  to 
CWO3.  The BCMR staff advised the applicant that this new request for relief could stand alone 
as  a  separate  application,  in  which  case  a  decision  on  his  original  application  would  be  issued 
promptly,  or  his  requests  for  relief  could  be  combined  and  decided  together,  in  which  case  the 
Board’s  ten-month  clock  for  issuing  a  decision  would  be  reset  in  accordance  with  the  Board’s 
rules at 33 C.F.R. § 52.26(c).  The applicant elected to have his requests for relief combined. 
 

 

SUPPLEMENTAL ADVISORY OPINION 

 
On November 3, 2010, the Chair sent the Coast Guard a copy of the applicant’s response 
 
to  the  advisory  opinion  with  the  new  request  for  relief.    The  Chair  invited  the  Coast  Guard  to 
submit a supplemental advisory opinion within 120 days, but no supplemental advisory opinion 
was received.  However, when the  Board ordered copies of the applicant’s official  OERs from 
his Headquarters record, the copy of the disputed OER was found to have been further redacted 
by  removal  of  the  word  “memo,”  so  that  instead  of  saying,  “Had  to  be  counseled  on  several 
occasions to comply w/ own … memo,” the comment now states, “Had to be counseled on sev-
eral occasions to comply w/ own … .” 
 
 

 

 

 

 

SUMMARY OF THE RECORD AND REGULATIONS 

The written criteria for the numerical marks for “Responsibility” on an OER form appear 

below with the mark assigned by the applicant’s reporting officer, a 3, filled in: 

STANDARDS FOR NUMERICAL MARKS IN “RESPONSIBILITY” ON AN OER FORM 

 

Responsibility 

1 

Ability to act 
ethically, 
courageously, 
and 
dependably 
and inspire the 
same in 
others; 
accountability 
for own and 
subordinates’ 
actions. 

 

 

 

 

 

 

 

Actions demonstrated 
questionable ethics or lack 
of commitment.  Tolerated 
indifference or failed to hold 
subordinates accountable.  
Allowed organization to 
absorb personnel problems 
rather than confronting them 
as required. Tended not to 
speak up or get involved. 
Provided minimal support 
for decisions counter to own 
ideas. 

 

3 

 

 

 

 

 

 

Held self and subordinates 
personally and 
professionally accountable. 
Spoke up when necessary 
even when expressing 
unpopular positions. 
Supported organizational 
policies and decisions which 
may have been counter to 
own ideas.  Committed to 
the successful achievement 
of organizational goals. 

 

 

5 

 

 

 

 

 

 

Integrity and ethics beyond 
reproach.  Always held self 
and subordinates to highest 
standards of personal and 
professional accountability.  
Did the right thing even when it 
was difficult. Succeeded in 
making even unpopular 
policies or decisions work.  
Actions demonstrated 
unwavering commitment to 
achievement of organizational 
goals. 

 

7 

 

 

 

 

 

 

Article  10.A.4.c.7.  of  the  Personnel  Manual  instructs  reporting  officers  to  assign  marks 

and write comments in their portion of an OER form as follows: 
 

b.  For  this  evaluation  area,  the  Reporting  Officer  shall  review  the  Reported-on  Officer’s  perfor-
mance and qualities observed and noted during the reporting period. Then, for each performance 
dimension, the Reporting Officer shall carefully read the standards and compare the Reported-on 
Officer’s  performance  to  the  level  of  performance  described  by  the  standards.  The  Reporting 
Officer 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  standard  best  describes  the  Reported-on  Officer’s  performance  and  qualities  during  the 
marking period, the Reporting Officer fills in the appropriate circle on the form in ink. 

       

d.  In  the  “comments”  block  following  this  evaluation  area,  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. The Reporting Officer shall draw on his or her own observations, 
information provided by the  Supervisor, 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.  Well-written  comments  must  be  suffi-
ciently specific to paint a succinct picture of the officer’s  performance and qualities  which com-
pares 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 marks. 

 

The reporting officer’s marks and comments in the disputed OER appear below with the 

contested comment highlighted: 
 
 

 

 

 

# 

7 

REPORTING OFFICER’S MARKS AND COMMENTS IN THE DISPUTED OER 

CATEGORY 

MARK  WRITTEN COMMENTS 

Reporting 
Officer 
Comments 

NA 

Concur [with supervisor’s evaluation].  [The applicant] consistently performed well above & 
beyond the assigned role as a PE [port engineer].  [He] expertly managed 2 dry-dock availabilities 
& repair of several major casualties.  Always asked for input during progress mtngs & briefs.  
Tech insight enabled all yard work to be completed on-time w/ no delays.  Rapid understanding of 
PE challenges & mastery of PE skills was very useful in development of CG-wide training 
program for PEs.  Promoted constant team participation; leadership ability boosted unit 
performance.  Asked right questions; provided sound & seasoned advice. 

8a 

Initiative 

8b 

Judgment 

8c  Responsibility 

8d  Professional 

Presence 

8e  Health & Well-

Being 

9 

Comparison 
Scale 

5 

5 

3 

4 

5 

4 

10  Potential 

NA 

Outstanding planning prior to cutter availability periods; ensured pending worklist documents 
always up to date to effectively prioritize work items.  Set realistic goals & aggressive work 
schedules to improve cutter plant reliability & mission effectiveness.  Utilized sound process 
improvement techniques during preps for cutter maintenance periods; allowed EPOs to keep 
ahead of casualties & concentrate on maintenance.  Implemented alternate work plans during 
availability to keep work items IAW [in accordance with] time/spec requirements.  Provided 
accurate feedback of previous material deficiencies & mandated submission of long term hull 
preservation CSMPs.  Excellent steward of Coast Guard finances.  Successfully negotiated 
contract chngs to cut costs.  Provided accurate govt estimates [within] 3% of contractors bids to 
allow cutters to better prioritize AFC 30 funded work.  Had to be counseled on several occasions 
to comply w/ own                                     .  Proficient at working w/ both military & civilians during 
all phases of cutter support.  Very composed in stressful situations.  Fitness level consistently 
better than standards.  Regularly eliminated safety hazards.  Meticulously reviewed ship yard 
docking plans & actions to protect personnel & equipment; no casualties. 

[This mark means that in comparison to all other CWO2s whom the Reporting Officer has ever 
known, the applicant ranked as “one of the many competent professionals who form the majority 
of this grade.”] 

[The applicant] is a superb Naval Engineer who is prepared to take on the broader spectrum of 
technical & leadership responsibilities.  [He] has demonstrated superior knowledge of cutter 
engineering.  As the cutter fleet ages, [his] skills will be necessary to keep the current fleet of 
cutters fully operational.  [He] has shown the willingness & ability to use his extensive experience 
& drive to significantly improve the readiness of the fleet as well as his own cutters.  His ambition 
to expand his knowledge & improve his professional abilities will render him very well suited for 
NESU PE, type desk/platform manager, WLB EO, Sector EO, or MPA on a WMEC/WHEC. 

 
The mark of 3 for “Responsibility” and the disputed comment are the only negative ele-
 
ments in the applicant’s OERs, which are otherwise very laudatory.  In 2009, with the disputed 
comment in his record, the applicant was not selected for promotion to CWO3 by the promotion 
year (PY) 2010 CWO selection board.  However, in 2010, after the PSC had amended the OER 
by removing the phrase  “dependent  support memo” from  the reporting officer’s  comments, the 
applicant was selected for promotion by the PY 2011 CWO selection board. 
 

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant’s 

 
 
military record and submissions, the Coast Guard’s submission, and applicable law: 
 
 
The applicant was timely.  
 

1. 

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

2. 

The Board begins its analysis in every case by presuming that the disputed infor-
mation in the applicant’s military record is correct as it appears in her record, and the applicant 
bears the burden of proving by a preponderance of the evidence that the disputed information is 

 

 

erroneous  or  unjust.4    Absent  evidence  to  the  contrary,  the  Board  presumes  that  Coast  Guard 
officials and other Government employees have carried out their duties “correctly, lawfully, and 
in good faith.”5  When challenging an OER, an applicant cannot “merely allege or prove that an 
[OER] seems  inaccurate, incomplete or subjective  in  some sense,” but  must prove that the dis-
puted 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.6 

 
3. 

The applicant asked the Board to remove the disputed comment and alleged that it 
is prohibited.  Although he did not explain why he believes the comment “Had to be counseled 
on  several  occasions  to  comply  w/  own  dependent  support  memo”  is  prohibited,  Article 
10.A.4.f.10. of the Personnel Manual states that rating officials may not “[r]efer to Reported-on 
Officer’s marital or family status.”  Therefore, the reference to the applicant’s dependents in the 
disputed  comment  is  prohibited.    However,  the  Coast  Guard  has  removed  the  prohibited  refer-
ence  by  redacting  the  phrase  “dependent  support  memo”  from  the  comment.    Without  that 
phrase,  there  is  no  prohibited  comment  in  the  OER,  and  the  remainder  of  the  comment,  which 
reveals that the applicant had to be counseled on several occasions because he failed to comply 
with something, is required to explain why the reporting officer assigned the applicant a mark of 
3 for “Responsibility,”7 which the applicant has not challenged.  The applicant has not proved by 
a preponderance of the evidence that his OER, as corrected by the PSC, contains any prohibited 
reference or any other error. 

 
4. 

Although  the  applicant  argued  that  the  entire  comment  should  be  removed 
because  the  PSC  stated  that  it  had  approved  his  request,  which  was  to  remove  the  entire  com-
ment, he has not  shown  that the partial  redaction made by the PSC is  not the actual correction 
that was approved. 

 
5. 

The  applicant  was  selected  for  promotion  to  CWO3  in  2010  by  the  PY  2011 
CWO selection board after the PSC had corrected his OER by removing the phrase “dependent 
support memo.”  He asked the Board to backdate his CWO3 date of rank to what it would have 
been had he been selected for promotion in 2009 by the PY 2010 CWO selection board.  Under 
Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982), to determine if the applicant is entitled 
to  the  removal  of  a  failure  of  selection,  the  Board  must  answer  the  following  two  questions:  
“First, was the [applicant’s] record prejudiced by the errors in the sense that the record appears 
worse than it would in the absence of the errors?  Second, even if there was some such prejudice, 
is it unlikely that [he] would have been [selected for promotion in 2009] in any event?”  When an 
officer shows that his record was prejudiced before a selection board by error, “the end-burden of 
persuasion  falls  to  the  Government  to  show  harmlessness—that,  despite  the  plaintiff’s  prima 
facie case, there was no  substantial  nexus or connection” between the prejudicial error  and the 
failure  of  selection.8    To  void  a  failure  of  selection,  the  Board  “need  not  find  that  the  officer 
                                                 
4 33 C.F.R. § 52.24(b). 
5 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
6 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). 
7 Personnel Manual, Article 10.A.4.c.7.d. (requiring comments to support any marks above or below a mark of 4). 
8 Christian v. United States, 337 F.3d 1338, 1343 (Fed. Cir. 2003), citing Engels v. United States, 678 F.2d 173, 175 
(Ct. Cl. 1982); Quinton v. United States, 64 Fed. Cl. 118, 125 (2005). 

 

 

would in fact have actually been promoted in the absence of the error, but merely that promotion 
was not definitely unlikely or excluded.”9   

 
6. 

The only error in the applicant’s record when it was reviewed by the CWO selec-
tion board in 2009 was the prohibited phrase “dependent support.”  The phrase strongly implied 
to  the  selection  board  that  the  applicant  was  not  financially  supporting  his  children.    Such  an 
implication,  whether  or  not  true,  is  clearly  very  prejudicial  and  more  prejudicial  than  a  less 
specific substitute term, such as “financial obligations,” would have been.  Therefore, the appli-
cant has met the first prong of the Engels test. 

 
7. 

With  regard  to  the  second  prong  of  the  Engels  test,  the  Coast  Guard  has neither 
argued nor shown that even without the phrase “dependent support memo” in his OER in 2009 it 
is unlikely that the applicant would have been selected for promotion in any event.  Although the 
applicant  received  a  mark  of  3  for  “Responsibility,”  the  Board  cannot  determine  without  com-
parative data that one low mark would have precluded his selection for promotion in 2009, espe-
cially given the fact that he was selected for promotion in 2010 after the prohibited phrase was 
redacted from his OER but with the mark of 3 still in place.  Therefore, the Board finds that the 
applicant has met both prongs of the  Engels test  and is entitled to the removal of his failure of 
selection in 2009 by the PY 2010 CWO selection board.   

 
8. 

For  the  same  reasons  that  the  Board  will  remove  the  applicant’s  2009  failure  of 
selection for promotion, the Board finds that he is entitled to have his CWO3 date of rank back-
dated to what it would have been had he been selected for promotion in 2009, as well as to back 
pay and allowances.  Under 10 U.S.C. § 1552, an applicant is entitled to “placement in the same 
position [he] would have been had no error been made.”10  Although the Board cannot be certain 
that the applicant would have been promoted in 2009 had his OER not contained the prohibited 
phrase, the Board finds that he is entitled to full relief in this regard because it is not unlikely that 
he would have been promoted.11 

 
9. 

Accordingly, the Board will grant partial relief by removing the applicant’s failure 
 
of selection for promotion to CWO3 in 2009 by the PY 2010 selection board; by backdating his 
date of rank, after he is promoted, to what it would have been had he been selected for promotion 
by that selection board; and by awarding him corresponding back pay and allowances. 

                                                 
9 Engels v. United States, 678 F.2d 173, 175 (Ct. Cl. 1982). 
10 Denton v. United States, 204 Ct. Cl. 188, 199-200, cert. denied, 421 U.S. 963 (1975),  cited in Bliss v. Johnson, 
279 F. Supp. 2d 29, 35 (D.D.C. 2003); see Kimmel v. United States, 196 Ct. Cl. 579, 591 (1971) (“The injustice was 
removed  by  placing  plaintiff  in  the  same  position  he  would  have  been  had  no  error  been  made.  This  was  all  that 
plaintiff  was  entitled  to  receive.”);  Hamrick  v.  United  States,  120  Ct.  Cl.  17,  25,  96  F.  Supp.  940,  943  (1951) 
(holding that “full correction of the error would require plaintiff’s being put in the same position he would be in had 
the erroneous determination not been made”),  cited in Ramsey v. United States, 123 Ct. Cl. 504, 506 (1952), cert. 
denied, 345 U.S. 994 (1953). 
11 “[O]nce the Board decides to give a remedy, it should not be free to slice the relief illegally or arbitrarily, sending 
the  claimant  forth  with  half-a-legal-loaf or  even  less.”  DeBow  v.  United  States,  193  Ct.  Cl.  499,  504  (1970),  cert. 
denied, 404 U.S. 846 (1971); see Bonen v. United States, 229 Ct. Cl. 144, 149 (1981) (“The ‘half-a-loaf’ doctrine 
normally applies where a corrections board grants plaintiff’s claim, but stops short of awarding the full appropriate 
relief  requested  by  plaintiff.  Failure  of  the  board  to  grant  full  relief  where  it  is  mandated  by  the  records  change 
results in ‘a new cause of action’ or ‘“continuing” claim’ which revives the statute of limitations.”) (citing Denton v. 
United States, 204 Ct. Cl. 188, 195, cert. denied, 421 U.S. 963 (1975)). 

 

 

 

ORDER 

The application of xxxxxxxxxxxxxxxxxxxx, USCG, for correction of his military record 

is granted in part as follows: 

 
The Coast Guard shall remove his failure of selection for promotion to CWO3 by the PY 
2010 selection board, and after he is promoted, the Coast Guard shall backdate his CWO3 date of 
rank to  what  it would have been had  he been selected  for promotion  by the PY 2010 selection 
board and shall pay him any back pay and allowances he is due as a result of these corrections. 

 

 
 

 
 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

 
 

 
 

 
 
 

 
 

 
 

 
 

 
 

 
 

 
 
  

 
 

 
 

 
 

        

 
 Philip B. Busch 

 

 

 
 Reagan N. Clyne 

 

 

 
 Rebecca D. Orban