DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2011-007 
  
XXXXXXXXXXXXXX 
XXXXXXXXXXXXXX 

 

 
 

FINAL DECISION 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section  425  of  title  14  of  the  United  States  Code.    The  Chair  docketed  the  application  upon 
receipt of the applicant’s completed application on October 16, 2010, and subsequently prepared 
the final decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  July  28,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The applicant asked the Board to correct his record by modifying two officer evaluation 
reports (OERs) for the period from June 12, 2006 to March 31, 2007 (first disputed OER) and 
from April 1, 2007 to March 31, 2008 (second disputed OER).  He also requested to have his 
non- selection for captain before the Promotion Year (PY) 2011 selection board removed from 
his record.    
 

During the period covered by the two disputed OERs, the applicant was the chief of the 
logistics department at Sector Los Angeles.  With respect to the first disputed OER, the applicant 
asked  that  the  marks  of  5  be  raised  to  marks  of  6  in  “Looking  Out  for  Others,”  “Directing 
Others,” “Results/Effectiveness,” and “Adaptability,” and that the mark of 4 in “evaluations” be 
raised to 5.1  He also requested that the mark in the 4th block on the comparison scale in section 9 
be moved to the 5th block. 2     

 
With  respect  to  the  second  disputed  OER,  the  applicant  asked  that  the  marks  of  5  be 
raised to marks of 6 in “Directing Others,” “Evaluations,” and “Judgment.”  He also requested 
that the mark in the 4th block on the comparison be moved to the 5th block. 
                                                 
1  OER marks range from a low of 1 to a high of 7.  A mark of 4 is considered to be average..   
2 Section 9 on an OER is where the reporting officer compares the reported-on officer to all other officers of that 
grade that the reporting officer has known during his career. 

The applicant first noted that his supervisor for the two disputed ORS, then-Capt H, was 
forced to retire from the Coast Guard as a LT in April 2010 because of misconduct that included 
inappropriate relationships with enlisted personnel over a 13-year period.  The applicant stated 
that for 2 of the 13 years Capt H served as his supervisor for the disputed OERs. The supervisor 
is  referred  to  as  Capt  H  in  this  decision  because  that  was  his  grade  while  serving  on  the 
applicant’s rating chain. 

 
The  applicant  alleged  that  Capt  H  had  a  personal  bias  towards  him  that  resulted  in  an 
inaccurate assessment of his performance. The applicant contended that Capt H, the supervisor, 
was biased against him because of the following: 
 

1.  The  applicant  confronted  Capt  H.  about  his  misuse  of  government  vehicles.    The 

applicant stated that he spoke to Capt H about this and the misuse soon stopped.   

 

  

ALLEGATIONS 

2.  The  applicant  confronted  Capt  H.  about  his  inappropriate  comments  to  and  about 
women, including about their weight, as well as an appearance of impropriety in the manner in 
which he communicated with enlisted members. 
 

3. The applicant approached Capt H about the appearance of an inappropriate relationship 
between Capt H and YN1 B, who was Capt H’s executive assistant.   The applicant stated that he 
was  the  approving  official  for  enlisted  evaluations,  including  YN1  B.    He  stated  that  he 
consistently counseled YN1 B about her relationship with Capt H. and about referring to Capt H 
by his first name in the workplace.  He contended that counseling YN1 B was nearly impossible 
because she would immediately run crying to Capt H and tell him how she had been wronged by 
personnel of the logistics department.  The applicant alleged that Capt H would immediately side 
with YN1 B.   He alleged that the YN1 B utilized her personal relationship with the Capt H to 
sabotage his and his department’s relationship with Capt H by placing them in a bad light.  The 
applicant alleged that Capt H’s opinion of him was skewed by his inappropriate personal and 
unprofessional relationship with YN1 B.  The applicant alleged that Capt H blew little things out 
of proportion, such as: “[Capt] H had received a care package from a female enlisted that he was 
helping with an officer candidate school application.  Capt H did not get the package delivered to 
him  before  he  went  TDY  and  was  quite  upset  and  I  was  admonished  upon  his  return.”    The 
applicant also stated the following:   
 

YN1 B talked poorly to Capt H about the YNC that she reported to.  The YNC 
tried to hold YN1 B to the Coast Guard standard but was unable to because of 
Capt H’s interference.  YN1 B would consistently complain to Capt H about the 
YNC and about how I led the YNC and my department.  Capt H called me into 
his  office  numerous  times  for  discussions  about  YNC  and  my  leadership.    On 
several occasions he had the YNC attend meetings to personally question him on 
how  to  be  a  Chief  and  a  supervisor.    Capt  H  constantly  questioned  me  about 
things going on in the Yeoman/Admin Office.  As the approving official for all 
enlisted, Capt H never questioned the performance of other  chiefs or any  other 

enlisted  members  outside  the  Yeoman  workforce.    He  only  questioned  me  on 
YN1 B’s peers and supervisor. 
 
The  applicant  stated  that  upon  YN1  B’s  departure  from  the  command  in  2009,  he 
conducted a checkout interview with her, in which she stated that the applicant’s department’s 
customer service was horrible and that she had  no faith in the logistics department’s chain of 
command.   
 

The applicant alleged that that Capt H used his bias against him to influence Capt W, the 
rating chain reporting officer, to mark the applicant unfairly, particularly on the comparison scale 
in section 9.  In this category, the reporting officer marked the applicant in the 4th block of 7.  
The applicant stated that prior to the disputed OERs he has received only two 4s in this category 
in his career: one as an ensign and the other as a LT.   

  
The applicant alleged that his OERs were severely impacted and influenced by Capt H’s 
inappropriate  relationships.    The  applicant  stated  that  he  learned  in  April  2010,  that  Capt  H 
would be demoted to LT and forced to retire because of inappropriate relationships with staff 
members over a period of more than 13 years.  The applicant stated that according to the charges 
against him, Capt H talked about command issues and officer performance with enlisted females.  
He  sought  their  opinions  when  making  decisions.    The  applicant  argued  that  Capt  H’s 
relationship  with  YN1  B  was  no  different.    The  applicant  alleged  that  Capt  H.  discussed  his 
performance and his department’s performance with YN1 B and that their relationship negatively 
impacted his ability to lead the department.   

 
The applicant submitted a redacted charge sheet dated November 3, 2009, accusing Capt 
H of certain offenses under the Uniform Code of Military Justice.  Some of the alleged offenses 
included fraternization and adultery that occurred during the period in which Capt H served as 
the  applicant’s  supervisor.    However,  the  names  of  the  enlisted  members  with  whom  he 
fraternized are redacted.  Additionally, he was charged under Article 134 with fraternizing with 
an enlisted female on terms of military equality  between July 11, 2008 and May 10, 2009 by 
wrongfully discussing with her the performance of commissioned officers under his command 
and by seeking her input regarding the non-judicial punishment of enlisted members.   
 

The applicant alleged that after Capt H was transferred (May/June 2008) and replaced by 
Capt  C,  his  OERs  returned  to  their  usual  high  marks.    He  received  a  mark  in  the  6th  highest 
category on the comparison scale in section 9 of his departing OER under the new supervisor.   
 
Statements submitted by applicant 
 

1.  CWO2  C  wrote  a  declaration  under  penalty  of  perjury.    He  stated  that  he  was  the 
administrative officer at Sector Los Angeles and the applicant was his supervisor.  He wrote that 
the  chief  yeoman  (YNC)  on  his  staff  was  concerned  about  the  number  of  times  the  staff  was 
required to fill in for YN1 B due to her absences.  Those absences totaled 174 days.  According 
to CWO2 C, he and the applicant attempted to discuss the matter with Capt H, but he protected 
YN1  B.    CWO2  C  stated  that  YN1  B  spoke  to  her  seniors,  including  the  applicant,  in  a 
disrespectful  tone.    The  CWO2  stated  that  “[t]he  relationship  with  Capt  H  and  YN1  B  was 

completely inappropriate and carried over to after working hours at the RV park where they lived 
side  by  sided  for  some  period  of  time.”    CWO2  C  stated  that  Capt  H  encouraged  YN1  B’s 
behavior and belittled the applicant based on reports he received from YN1 B.   
  

The  CWO2  C  opined  that  the  applicant’s  evaluations  were  tainted  due  to  the 
inappropriate  information  that  Capt  H  received  from  YN1  B.    CWO2  C  stated  that  on  one 
occasion, YN1 B told him that she did not like the applicant and that Capt H was very upset with 
how he was running logistics. He also stated that YN1 B made inappropriate comments about the 
applicant’s leadership style to Capt H during the work day.  CWO2 also stated the following: 
 

On one occasion YN1 wanted me to get the applicant right away because Capt H 
was  very  upset  with  the  SKCM’s  shop  because  he  had  not  received  a  box  of 
cookies  from  a  friend.    [The  applicant]  was  openly  crucified  at  a  staff  meeting 
over this issue by Capt H.  On an interesting note, we later found out that the box 
of cookies proved to be from one of his inappropriate relationships.  With all this 
said, I would directly place the blame on Capt H for several Department Heads at 
Sector LA/LB getting passed over [for promotion].   

 

2.    MSTCM  K  (hereafter  referred  to  as  Chief  K)  was  the  command  master  chief.    He 
attested to the applicant’s excellent leadership skills and judgment.  He also stated generally that 
the  applicant’s  working  relationship  with  Capt  H  was  hostile  because  of  the  applicant’s 
willingness  to  approach  Capt  H  on  issues  that  he  believed  were  in  direct  conflict  with  Coast 
Guard  policy.    Chief  K  stated  that  Captain  H’s  family  and  YN1  B’s  family  were  neighbors, 
frequented  each  other’s  homes,  and  were  on  a  first  name  basis.    According  to  Chief  K,  the 
applicant confided in him that he had spoken with Capt H about how his close relationship with 
YN1 B was interfering with the good order and discipline of the command.  The Chief stated that 
he was aware that Capt H confided in YN1 B and discussed information and opinions with her.   
According to Chief K, he was aware of one particular instance in which Capt H tasked YN1 B 
with  compiling  career  information  about  his  replacement  because  he  did  not  believe  that  his 
replacement was qualified for the job.  He stated that when he confronted the YN1 B about the 
inquiry,  she  relied  that  “we  are’  not  sure  if  the  new  captain  is  qualified  for  the  position.”’  
According to Chief K, it was inappropriate to have a YN1 conducting background research into 
such a senior officer.   He stated that after expressing his concerns about YN1 B’s research “to 
both captains,” it ceased.   

 
3.  CAPT C replaced Capt H in June 2008 and was the applicant’s supervisor from May 
2008  until  July  2009.    Capt  C  stated  that  upon  his  arrival  at  the  command,  he  met  with  the 
applicant and found him to be very professional, extremely organized, highly detailed, and very 
forthright.  Capt C stated that during their discussions, the applicant brought up his concern that 
his  working  relationship  with  Capt  H  had  been  significantly  damaged  as  a  result  of  an 
inappropriate relationship between Capt H and YN1 B.  In regard to YN1 B, Capt C wrote the 
following: 

 
It  did  not  take  long  for  me  to  observe  that  the  YN1’s  behavior  was  indeed 
inappropriate,  and  that  she  had  become  accustomed  to  running  roughshod  over 
senior enlisted and junior officers who came into the front office.  I observed a 

particularly  acrimonious,  ongoing  quarrel  between  the  YN1  and  most  of  the 
members  of  the  Admin  Division;  YN1  voiced  to  me  that  she  was  only 
accountable to the Deputy and Sector Commander.  YN1 made multiple overtures 
toward  me  designed  to  undermine  the  Logistics  chain  of  command,  which  I 
promptly  put  to  a  full  stop.    I  found  the  existing  arrangement  to  be  definitely 
counter-productive  to  the  overall  good  order  and  discipline  of  the  unit.  I 
immediately  counseled  the  YN1  and  assigned  the  CWO  Admin  Officer  as  her 
direct supervisor.  These actions quickly restored good order and discipline at the 
unit.  
  
Capt C praised the applicant’s work for the year that he supervised him.  He stated that it 
was  his  professional  opinion  that  the  applicant’s  performance  evaluations  were  adversely  and 
unfairly  affected  by  his  predecessor  Capt  H.      He  stated  that  his  observations  at  the  unit 
supported the applicant’s assertion that an inappropriate working relationship between Capt H 
and YN1 B resulted in the applicant being prejudiced unfairly in the time prior to his arrival.  
Capt C concluded with the following: 
 

[T]he command climate between the previous Deputy and each of his department 
heads  was  very  poor  in  general.    The  response  Chief,  Planning  Chief,  and 
Logistics  Chief  had  all  been  effectively  marginalized  and  stripped  of  most 
decision-making  authority    The  Intel  Officer  had  also  been  marginalized.    The 
prevention Chief was the most functional of the department heads when I arrived, 
however, his marks under [Capt H] had dipped substantially after he reported to 
the Sector.  While these people were all quickly restored to their proper roles in 
the unit as I established myself at the command, the unfortunate prologue to this 
story  is  that  the  Response  Chief  had  already  been  passed  over  for  Captain  and 
retired within a month of my arrival to Sector.  In the two  years that followed, 
despite excellent performances and very strong OERs, the Logistics, Prevention, 
and Planning Chiefs all failed to make their next promotion points.  I suspect this 
to be a little out of the norm for a single unit.  
  

First Disputed OER 
 

The  applicant  received  marks  of  5  in  “Results/Effectiveness”,  and  “Adaptability.”    He 
asked that they be raised to 6.    Capt H’s comments in the Performance of duties section of the 
first disputed OER which include the “Results/Effectiveness” and “Adaptability” categories: 
 

Superbly prepared for duties upon reporting; reviewed Dept procedures, inspected 
spaces, reviewed budget.  Met w/depart/unit personnel, arranged meetings w/ISC 
work 
life  supervisor/EO/XO  &  outlying  cmds,  rcvd  feedback  on  Dept 
performance;  ensured  continuity  of  ops  while  assessing  areas  for  improvement.  
Foresight  for  AY07;  Id’d  fleet  ups,  updated  rotation  dates,  sought  &  rcvd 
approval  for  enlisted/officer  Cmd  concerns  &  communicated  w/CGPC  re 
alignment  of  mbrs  to  PAL,  key  to  increased  magmnt  potential  &  alignment 
w/COMDT’s  direction.    Maximized  available  resources;  drew  on  Eng  Div 
untapped capability to undertake housing fence project, building water intrusion 

&  AC&R  building  maintenance,  redirected  over  $100K  to  unfunded  projects; 
quickly organized unit & ISC resources (boat lift, personnel support) to repair 47 
MLB  engine/fuel  casualty;  exceptional  effort  led  to  boat  being  repaired  & 
returned  to  STA  w/in  2  days.    Provided  superb  admin  &  financial  support; 
coordinated  mini-compliance  inspections  to  outlying  units  to  ensure  admin. 
financial  prgms  in  compliance  w/applicable  laws,  procedures  &  regs;  fully 
compliant  &  financial  metrics  at  90%+,  received  praise  fm  D11  Funds  Mngr.  
Expertly mngd $1.9M+ budget & aggressively pursued fallout funding to “+” up 
LE/PPE  gear,  Command  Center  Wall  of  Knowledge  &  Boat  Engine  Overhauls 
needs;  rcvd  numerous  accolades  re  superb  customer  service  &  exceptional 
support.   
 
In  the  “Looking  Out  for  Others,”  and  “Directing  Others,”  categories  of  the 
leadership skill section of the OER, the applicant received marks of 5 that he wants raised 
to  6.      He  also  asked  that  the  4  in    “Evaluations”  be  raised  to  5.    Capt  H  wrote  the 
following comments about the applicant’s leadership skills: 
 

Effectively  addressed  numerous  challenges  presented  upon  arrival  re  medical 
conditions,  domestic  violence,  divorce,  drug  abuse,  financial  difficulties,  child 
care  &  family  problems;  arranged  for  physical  separation,  issued  military 
restraining order, engaged work life for alleged domestic abuse, initiated steps for 
good order & discipline &/or to yield max assistance in all cases.  Provided subs 
guidance  &  challenging  opportunities  to  dvlp  personally  &  professionally; 
encouraged mbrs to pursue higher education w/nearly 80% of eng crew enrolling 
in college classes, O-4 took on new duties & excelled as secretary to sub-ctme on 
training; yielded skilled & confident crew.  Worked closely w/WPB, D11, Orange 
County, FD&CC Seattle & MLCP to devise short/long term site plan for WPB 
during  pier  reconstruction;  reviewed  plans  for  new  building;  ID’d  temp  office 
(trailer,  shop  storage);  garnered  mutual  agreement  for  all  affected,  minimized 
conflict  &  impact  on  mission  execution.    Exchange  of  ideas  &  info  enhanced 
working relationship; addressed civilian mbr feeling duties exceeded job dscrptn 
w/D11 Civil Right Ofcr, Pacarea  Cmd Staff Advisor & Dept, encouraged mbr to 
trust Cmd, stress immediately lowered.  Approving official for all enl except sub-
unit OICs, held sups accountable, returned evls for sprt/clarification.  OSF well 
documented & on time.  
  
The applicant requested that the mark in the 4th block on the comparison scale in 
block  9  describing  him  as  an  “Excellent  performer,  highly  recommended  for  positions 
increased responsibility” be changed to the 5th highest block, which would describe him 
as  an  ‘Exceptional  performer,  give  toughest  and  most  visible  leadership  assignments.”   
Block 9 of the OER is the responsibility of the reporting officer.  It is where the reporting 
officer compares the applicant alongside all commanders he has known throughout his 
career.   
 
 

 

Second Disputed OER 
 

The applicant received marks of 5 in “Directing Others” and “Evaluations.” (Comments 
are similar in description and tone to those discussed in the first disputed OER for this section 
and are not summarized here).  He asked the Board to raise the marks to 6. 
 
 
In  the  reporting  officer’s  portion  of  the  OER,  the  applicant  received  a  mark  of  5  in 
“Judgment.”  He asked that it be raised to 6. Capt W, the reporting officer, wrote the following 
comments describing the applicant’s personal and professional qualities, inclusive of judgment: 
  

Sought a project Mgmnt Seminar for unit & local cmds; Id’d instructor, dvlped 
syllabus  &  prepared  handouts;  efforts  utilized  both  theoretical  &  interactive 
techniques which enhanced  effectiveness of trng & provided common frame of 
reference improving cooperation thru-out base.  Responsible & discreet; as CO, 
Enlisted  Personnel  handled  sensitive  personnel  issues  &  infractions  of  UCMJ; 
placed mbr on performance probation for core value violations; offered 2nd chance 
but  failed  when  discovered  lying;  took  action  to  discharge  w/out  ability  to 
reenlist.    Confident  envoy  for  CG  in  variety  of  forums;  participated  in  AUX 
Change  of  Watches,  appointment  for  future  Academy  cadet  &  volunteered  as 
coach  for  youth soccer teams.  Coordinated base wide soccer league; increased 
esprit de corps, wellness & morale of entire base.  Extremely fit & trim; exceeded 
criteria for unit fitness assessments; encouraged & led fitness prgm for subs.   
 
The  applicant  requested  that  the  mark  in  the  4th  highest  category  on  the 
comparison  scale  in  section  9  describing  him  as  an  “Excellent  performer,  highly 
recommended  for  positions  of  increased  responsibility”  be  raised  to  the  5th  highest 
category which would describe the applicant as an “Exceptional performer, give toughest 
and most visible leadership assignments.”    
 

VIEWS OF THE COAST GUARD 

 
 
On September 1, 2010, the Judge Advocate General (JAG) of the Coast Guard submitted 
an  advisory  opinion  recommending  that  the  Board  deny  relief  in  accordance  with  the 
memorandum from the Commander, Personnel Service Center (PSC). 
 
 
PSC stated that Capt H, the supervisor, was subsequently relieved from his duties while 
serving at a different unit.  PSC argued that there is no indication or evidence to suggest that the 
disputed OERs were not prepared and submitted in accordance with the guidance set forth in the 
Personnel Manual, and that in the absence of evidence to the contrary, it must be presumed that 
Capt H performed his rating chain supervisory duties in accordance with the regulation.  PSC 
argued  that  the  witnesses’  opinions  on  why  the  applicant  was  given  certain  marks  are  pure 
speculation.    PSC  obtained  a  statement  from  the  reporting  officer  confirming  that  the  two 
disputed OERS are accurate.  The reporting officer’s statement will be summarized later in this 
section.   
 

PSC  stated  that  the  block  9  comparison  scale  mark  is  where  the  reporting  officer 
compares  the  applicant  alongside  all  commanders  that  the  reporting  officer  has  known.  
According to Article 10.A.4.c.8.a of the Personnel Manual, the comparison scale represents the 
relative ranking of the reported-on officer, not necessarily a trend of performance.  As such, from 
period to period an officer could improve in performance but drop a category.  PSC stated that in 
this case, Capt W was the reporting officer for  three  consecutive OER  periods and it was his 
responsibility to mark the applicant.  He did so by comparing the applicant to all other officers in 
the grade of commander that he has known throughout his career.  PSC noted that Capt W stood 
by all of the marks that he assigned to the applicant.    
 
 
PSC  disagreed  with  the  applicant’s  contention  that  Capt  H  wrongly  influenced  the 
reporting officer’s opinion of the applicant and as such his marks suffered.  PSC noted that the 
reporting  officer  stated  that  Capt  H  was  a  “trusted  member  of  [his]  command  staff,”  that  he 
observed the applicant for three consecutive reporting periods, and that  the marks, comments, 
and his  assessment of the applicant’s performance should stand.  PSC argued that  as  a senior 
officer  and  the  reporting  officer,  Capt  W  had  the  intellect  and  background  to  make  his  own 
assessment  of  the  applicant’s  performance  and  did  so.    PSC  further  noted  that  under  the 
Personnel  Manual,  Capt  W,  as  the  commanding  officer,  as  well  as  reporting  officer,  had  the 
responsibility to ensure that the applicant’s OERs were accurate, fair and objective.  PSC stated 
that with no specific evidence to the contrary, Capt W is presumed to have carried out his duties 
and completed the disputed OERS in accordance with regulation.   
 
 
PSC  disagreed  that  the  applicant  was  not  selected  for  promotion  to  captain  due  to 
negative influences from the supervisor.  PSC stated that the applicant’s record  went before a 
best  qualified  selection  board  that  compares  officers’  performance  based    upon  their  past 
performance, “their capacity to undertake, successfully, tasks of progressively greater difficulty 
involving  broader  responsibilities,”  their  capability  for  further  professional  growth,  and  their 
potential to perform the duties of the next higher grade.  PSC stated that the zone for selection in 
PY 11 was larger than it had been in previous years.  For PY 11, there were 130 officers in and 
above the zone and only 59 were selected for promotion to captain.  PSC stated that selection 
board deliberations are secret and one can assume that the applicant’s record did not meet the 
criteria established by the selection board.   
 
 
PSC  concluded  by  stating  that  based  upon  all  of  the  evidence,  the  applicant  has  not 
provided sufficient  evidence to demonstrate that the disputed OERs contain inaccurate marks.  
The  applicant  has  not  provided  evidence  that  overcomes  the  presumption  of  regularity  with 
respect to the construction and submission of the disputed OERs.   
 
Rating Chain Statements Submitted by Coast Guard with Advisory Opinion 
 

Capt W, the reporting officer, stated that Capt H, the supervisor, was a trusted member of 
his command staff at Sector Los Angeles from 2006 to 2008.  Capt W stated that the assigned 
marks and comments reflect his assessment and observation of the applicant’s performance and 
qualities during the reporting periods under review.  He stated, “His marked comparison during 
all three periods relative to all other commanders I have known throughout my career stand.”   
 

Capt KC, was the reviewer for the disputed OERs.  He wrote that he was geographically 
separated from the applicant and did not directly observe his performance.  He stated that his role 
as reviewer consisted of ensuring that the narratives of the OER supported the marks assigned 
and that other requirements of the officer evaluation system were met.  He stated the following: 
 

I  did not personally observe the relationship between the applicant’s supervisor 
and  the  enlisted  command  EA,  and  have  no  information  as  to  whether  that 
relationship could have affected [the applicant’s] evaluation.  I do know Capt [W], 
[the applicant’s] reporting officer, fairly well, and I believe him to be a man who 
would 
their 
recommendations into account, but would ultimately make up his own mind as to 
the final recommendation or evaluation he would give.    

input  of  his  subordinates  and 

listen  closely 

take 

to 

the 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On April 26, 2011, the Board received the applicant’s response to the advisory opinion.  
He disagreed  with it.  He again pointed out that Capt H. was punished  at admiral’s mast  and 
forced to retire as a LT for having inappropriate relationships with women over the last 13 years 
that he was on active duty.  He again stated that the inappropriate relationship between Capt H 
and  YN1  B,  the  EA,  resulted  in  his  receiving  an  unjust  rating  because  Capt.  H  wrongly 
influenced  the  reporting  officer’s  opinion  of  the  applicant’s  performance  in  the  two  disputed 
OERs.  He again states that Capt H improperly relied on the YN1 B’s opinion when evaluating 
his performance.     

FINDINGS AND CONCLUSIONS 

 

 

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

1. The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

military record and submissions, the Coast Guard's submission and applicable law: 
 
 
of the United States Code.  The application was timely.    
 
 
2.    For  the  reasons  discussed  below,  the  Board  finds  that  the  applicant  has  submitted 
insufficient evidence to prove that Capt H was biased against the applicant in the disputed OERs; 
that YN1 B influenced Capt H to give the applicant erroneous and/or unjust OERs; that Capt H 
influenced  the  reporting  officer  to  mark  the  applicant  unjustly  or  erroneously  on  the  disputed 
OER; or that Capt H could not accurately evaluate the applicant’s performance for the periods 
under review because Capt H was subsequently charged with and punished for misconduct.   
 
 
3.    The  applicant  has  presented  insufficient  evidence  to  prove  that  Capt  H,  the  rating 
chain supervisor for the two disputed OERs, was biased against him because he confronted Capt 
H  about  his  inappropriate  use  of  a  government  vehicle,  about  his  inappropriate  comments  to 
various women, and about the appearance of an inappropriate relationship between Capt H and 
YN1  B.  With  regard  to  confronting  Capt  H  about  the  misuse  of  government  vehicles,  the 
applicant stated that he discussed the matter with Capt H and the misuse ceased.  There is no 
other evidence in the record of Capt H’s reaction to the applicant’s comments about his misuse 

of  government  vehicles.    None  of  the  three  individuals  who  submitted  statements  on  the 
applicant’s  behalf  offered  sufficient  evidence  that  would  support  a  finding  that  Capt  H  was 
biased against the applicant because of discussions about his misuse of a government vehicle.  
Nor  was  there  any  evidence,  except  for  the  allegation,  that  Capt  H  was  biased  against  the 
applicant  because  the  applicant  confronted  him  about  making  inappropriate  comments  to  and 
about women.  The applicant does not describe the comments made by Capt H that required him 
to  be  admonished  by  the  applicant  or  how  Capt  H  reacted  upon  being  cautioned  about  his 
behavior.   
 
 
4.    With  regard  to  confronting  Capt  H  about  the  appearance  of  his  inappropriate 
relationship with YN1 B and the impact that it had on the unit, Chief K wrote that the applicant 
confided  in  him  that  he  had  spoken  with  Capt  H  about  the  appearance  of  an  inappropriate 
relationship with YN1 B.  However, Chief K was not a witness to these conversations and did 
not provide any specific examples of Capt H responses after the alleged discussion from which 
the  Board  can  conclude  that  Capt  H  developed  a  bias  against  the  applicant  because  of  the 
discussion.  Chief K stated that a hostile relationship existed between Capt H and the applicant as 
a result of the applicant’s willingness to approach Capt H about his actions that conflicted with 
Coast Guard policy.  However, Chief K fails to explain or detail the hostile relationship.  For 
instance, there is no evidence that Capt H made unfavorable statements about the applicant to 
others, that he withheld any privileges from the applicant, or that he assigned the applicant or his 
department to any unfavorable duties that did not already belong to them.  Even if the applicant 
approached Capt H about misuse of government property, making inappropriate comments, or 
the appearance of an inappropriate relationship with YN1 B, there is simply insufficient evidence 
to prove that Capt H was biased against the applicant as a result of such discussions.  
 
5.    Nor  is  the  evidence  sufficient  to  prove  that  Capt  H  was  influenced  to  lower  the 
 
applicant’s  marks  on  the  disputed  OERs  based  upon  negative  input  about  the  applicant  from 
YN1  B.    The  applicant  offered  no  direct  evidence  that  Capt  H  discussed  his  performance 
evaluations with YN1 B.  The applicant speculates that the conversations he had with Capt H 
about his leadership of the logistics department were the result of negative information provided 
to Capt H by YN1 B.  However, Capt H had access to other individuals in the command other 
than  YN1  B  that  he  communicated  with  that  could  easily  have  provided  him  with  their 
observations of and information about the applicant’s performance.  Additionally, Capt H had 
the ability to observe the applicant’s performance daily and could have based his evaluation of 
the applicant’s performance on his own observations.  The fact that Capt H was subsequently 
accused of fraternizing with enlisted members by discussing officer performance with an enlisted 
female  at  another  unit  during  a  different  time  period  does  not  prove  that  he  discussed  the 
applicant’s performance evaluations with YN1 B.  Even if he had, there is no evidence of what 
was said or how what was said affected the marks in the disputed OERs.   
 
 
6.  The CWO2 wrote that the disputed OERs were tainted because of the inappropriate 
information that YN1 B provided to Capt H.  However, CWO2 C does not describe what the 
inappropriate information was, except to state that on several occasions YN1 B told him that she 
did not like the applicant and that Capt H was very upset with how the applicant was running the 
logistics department.  YN1 B, as the executive assistant to Capt H and reporting officer could 
have obtained that bit of information from various other sources and to attribute it to a direct 

conversation  between  Capt  H  and  YN1  B  is  speculation.    Additionally,  the  comment,  even  if 
true, is not proof that Capt H sought, obtained, or relied on YN1 B’s opinions in his evaluation of 
the applicant’s performance.   
 
 
7.  Capt C, the applicant’s subsequent supervisor commented that it was his professional 
opinion  that  the  applicant’s  performance  evaluations  were  adversely  and  unfairly  affected  by 
Capt H and that based upon his observations an inappropriate working relationship between Capt 
H and YN1 B was prejudicial to the applicant.  However, Capt C was not at the unit during the 
time of the disputed OERs and had no opportunity to observe the applicant and Capt H interact, 
to observe Capt H and YN1 B interact, or to observe Capt H and the reporting officer interact.  
Capt C’s opinions are just that and are not proof that the applicant performed any better during 
the periods under review than described in the disputed OERs.   
 
 
 
8.  The applicant alleged, but failed to prove, that Capt H used his alleged bias against 
him to negatively influence the  reporting officer to give the  applicant a  4 in judgment on the 
second disputed OER and marks in the 4th block on the comparison scale of both disputed OERs.  
First, as stated above, the applicant has not demonstrated that Capt H had a personal bias against 
him.  Second, he has not shown that the reporting officer’s marks were not his honest assessment 
of the applicant’s performance.  Third, Capt W, the reporting officer stood by the evaluation of 
the applicant’s performance in the disputed OERs.  Like the supervisor, the reporting officer had 
the  opportunity  to  observe  the  applicant’s  performance  over  the  course  of  the  two  reporting 
periods  and  could  make  his  own  assessment  of  the  applicant’s  performance.    The  applicant’s 
allegations that Capt H influenced the reporting officer to assign unjust marks in the disputed 
OERs amount to speculation.   
 
9.    The  third  member  of  the  rating  chain  was  the  reviewer,  Capt  KC.    However,  the 
 
reviewer  is  a  designated  position  and  is  responsible  for  ensuring  that  the  supervisor  and  the 
reporting officer carry out their OER duties, for adding comments as necessary, for ensuring that 
the OER reflects a reasonably consistent picture of the applicant’s performance, and for returning 
the  OER  to  the  reporting  officer  to  correct  errors,  omissions,  or  inconsistencies  between  the 
numerical evaluation and written comments.  Article 10.A.2.f.2. of the Personnel Manual.  Capt 
KC  stated  that  he  carried  out  his  OER  functions.    He  was  not  responsible  for  evaluating  the 
applicant’s performance.   
 
 
10.  The Board correct errors and remove injustices.  The applicant asked to have certain 
marks raised on the disputed OERs, but he offered insufficient evidence to prove that the marks 
are erroneous or unjust.  Even if Capt H had a bias against the applicant, the applicant would still 
need  to  demonstrate  how  the  bias  manifested  itself  in  the  disputed  OERs.    The  applicant’s 
disagreement with some of his marks is not proof that they are erroneous or unjust. Nor has the 
applicant  proved  that  Capt  H  was  incapable  of  accurately  evaluating  his  performance  for  the 
periods under review because he was subsequently charged with and punished for misconduct, 
some of which may have occurred during the period that he was the applicant’s supervisor.   
 
11.    The  applicant  has  failed  to  proved  that  the  disputed  OERs  are  in  error  or  unjust.   
 
Therefore,  no  basis  exists  on  which  to  consider  removing  the  applicant’s  failure  of  selection 
before the PY 2011 captain selection board.    

 
 

 
 
 

12.  Accordingly, the applicant’s requests should be denied. 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

ORDER 

The application of XXXXXXXXXXXXXXXXXXX, for correction of his military record 

 

 
 

is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Katia Cervoni 

 

 
 
 Lillian Cheng 

 

 
 Ashley A. Darbo