DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2011-035 
 
Xxxxxxxxxxxxxxxxx 
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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 December 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  July  28,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant asked the Board to correct an officer evaluation report (OER) covering his 
service as a deck watch officer and head of the Deck Department on a cutter from February 1 to 
June  29,  2009,  by  raising  certain  numerical  marks  and  removing  negative  comments  from  the 
OER or by removing the OER from his record in its entirety and replacing it with a continuity 
OER.  He also asked the Board to remove his non-selection for promotion to lieutenant (LT) by 
the LT selection board that convened in September 2010 and to award him back pay and allow-
ances.  He alleged that the disputed OER contains unauthorized marks and comments and is an 
inaccurate assessment of his performance during the reporting period.  The applicant stated that 
low marks and negative comments on the disputed OER are unauthorized because they are based 
on  performance  that  occurred  before  the  reporting  period  for  the  disputed  OER,1  when  he  was 
still an ensign.2   
 

The disputed OER, which is attached, shows that the applicant received high marks of 5, 
6,  and  7  in  many  performance  categories,3  but  an  average  mark  of  4  for  “Workplace  Climate” 

                                                 
1 Articles 10.A.4.c. and 10.A.4.f.11. of the Personnel Manual prohibit marks and comments based on performance 
that occurred outside of the reporting period for the OER. 

2 The applicant was promoted from ensign to lieutenant junior grade (LTJG) on November 23, 2008. 

3  In  OERs,  officers  are  evaluated  in  18  different  performance  categories,  such  as  “Professional  Competence,” 
“Teamwork,” and “Initiative,” on a scale of 1 to 7, with 7 being best.   

 

 

from  his  supervisor,4  the  Executive  Officer  (XO)  of  the  cutter,  and  an  average  mark  of  4  for 
“Judgment,”  a  low  mark  of  3  for  “Responsibility,”  and  a  mark  of  4  on  the  Comparison  Scale 
from his reporting officer, the Commanding Officer (CO) of the cutter.5  The applicant asked the 
Board to raise these marks to marks of 6.  The negative supporting comments in the OER, which 
the applicant wants the Board to remove, show that at least some of these marks were assigned 
because of the applicant’s involvement with a “quote book” found aboard the cutter: 
 

  “Participation in inappropriate and unprofessional behavior surrounding a quote book and 

failure to stop the quote book showed serious lack of responsibility.” 

 

  “Ready for more challenging assignments despite set back in responsibility, his personal 
accountability  for  poor  decision  showed  high  moral  character  and  is  indicative  of  his 
potential to be a successful CG officer.” 

 
The applicant stated that he reported aboard the cutter in July 2007 and sometime in the 
 
fall of 2007, while he was training to be a deck watch officer, he was shown a “quote book”—
sometimes  called  a  “bridge  quote  log”  or  “quote  log”—that  had  been  started  by  the  cutter’s 
bridge watch in 1999.  He was told it was a tradition of the cutter and that anyone on the bridge 
could contribute to it.  The applicant alleged that he understood the book was supposed to con-
tain “witty and appropriate humor” based on the “high caliber” of the officers who showed it to 
him, the length of time it had been in use, and its location on the bridge. 
 
 
The applicant  stated that in  the spring and summer of 2008,  before the reporting period 
for  the  disputed  OER,  he  was  involved  in  four  conversations  that  were  recorded  in  the  quote 
book.  To the best of his recollection, the four conversations were the following: 
 
1) 
 
 
 
2) 
 
 
 
3) 
 
 

Applicant:  “I’m really busy right now.  I have all of the deckies’ marks to do.” 
Boatswain’s Mate of the Watch:  “Marks?  I just had marks done about a month ago.” 
Applicant:  “Those were disciplinary marks.” 

Lookout:  “That oil rig looks like it’s sitting on coffee cans.” 
Applicant:  “Coffee cans?” 
Lookout:  “Yeah, you know, giant coffee cans.” 

Lookout:  “Sir, there is a floating rock off our starboard bow.” 
Applicant:  “Rocks don’t float.” 

                                                 
4  An  officer  is  evaluated  by  a  “rating  chain”  of  three  superior  officers,  including  a  supervisor,  who  completes  the 
first 13 marks on the OER; a reporting officer, normally his supervisor’s supervisor, who completes the rest of the 
OER; and an OER reviewer, who reviews the OER for consistency and comportment with regulations. 

5  On  an  OER  Comparison  Scale,  the  reporting  officer  assigns  a  mark  by  comparing  the  reported-on  officer  to  all 
other officers of the same grade whom the reporting officer has known throughout her career.  Although the marks 
on the scale are not numbered, there are 7 possible marks, which range from a low of “unsatisfactory” for a mark in 
the  first  spot  to  a  high  of  “a  distinguished  officer”  for  a  mark  in  the  seventh  spot.    A  mark  in  the  third,  fourth 
(middle), or fifth spot on the  scale denotes the  officer as  “one of the  many competent professionals  who  form the 
majority of this grade.”  A mark in the sixth spot denotes “an exceptional officer.” 

 

 

4) 

Applicant (to a seaman at the helm not paying attention):  “(Seaman’s name)! Less here 
(pointing to himself), more there (pointing to the helm)!” 

 
 
The applicant stated that in the late summer of 2008, following a discussion among some 
of  the  officers  about  the  offensive  content  of  the  quote  book,  the  Assistant  Operations  Officer 
(AOO)  took  the  book  off  the  bridge.    The  applicant  never  saw  the  quote  book  on  the  bridge 
again.  However, in early April 2009, three months before the end of his tour aboard the cutter, 
he  was  advised  that  the  Commanding  Officer  (CO)  had  discovered  the  old  quote  book  on  the 
bridge, and she read aloud from it at an Officers’ Call (meeting). 
 
 
The applicant stated that the mark of 3 for “Responsibility” was based on the quote book 
incident,  which occurred before the reporting period  and is  an inaccurate assessment of perfor-
mance  under  this  category  during  the  reporting  period.    The  applicant  alleged  that  during  the 
reporting  period,  he  held  several  very  responsible  positions,  such  as  Boarding  Officer,  Deck 
Watch Officer, Helicopter Control Officer, Inport Officer of the Day, and Over the Horizon Mis-
sion Commander, and conducted himself accordingly.  At one port of call, he ensured an on-time 
departure  by  preventing  some  of  the  crew  from  imbibing  alcohol  after  midnight.    He  carefully 
documented  the  poor  performance  of  one  non-rate,  which  facilitated  the  member’s  expedited 
discharge.  As First Lieutenant of the cutter, he demonstrated “exceptional project management 
skills  and  maintenance  of  the  ship’s  material  condition  during  two  extensive  inport  periods, 
despite the absence of guidance or mentorship from a permanent chief petty officer in the Deck 
Department.”  Furthermore, the applicant noted that the CO had assigned him marks of 6 in this 
category on his two prior OERs. 
 
 
Regarding the mark of 4 for “Workplace Climate,” the applicant stated that it is also pro-
hibited  because  it  is  based  on  the  quote  book  incident—i.e.,  conduct  that  occurred  outside  the 
reporting period for the disputed OER.  The applicant also argued that the mark is inaccurate and 
provided two examples of how he excelled in this category.  First, when it came to his attention 
that  a  crewmember  was  made  extremely  uncomfortable  by  crewmates  who  viewed  “inappro-
priate material in their common berthing space,” the applicant counseled the entire Deck Depart-
ment and “directed that all viewing of inappropriate material onboard the ship was to stop imme-
diately” to “create[] a safe, respectful and healthy working environment for the crew.”  Second, 
the applicant alleged that he recognized the potential in a seaman apprentice who was faced with 
financial and personal hardship and helped the member resolve his problems so that the member 
was  able  to  earn  his  rate  as  a  boatswain’s  mate.    The  applicant  stated  that  his  handling  of  the 
member, who many believed could not succeed, “conveyed a strong and positive message to the 
crew that they would receive fair and equal treatment.”  The applicant noted that he had received 
marks of 6 in this category on his two prior OERs, and there is nothing to indicate that this aspect 
of his performance declined during the reporting period.   
 
 
Regarding the mark of 4 for “Judgment,” the applicant alleged that it is also based on the 
quote  book  incident  and  therefore  prohibited  by  the  Personnel  Manual.    He  noted  that  his  CO 
described his judgment as “excellent” in the OER, and he had received marks of 6 and 7 in this 
category on his prior two OERs.  The applicant noted that there are no comments critical of his 
judgment in the disputed OER except the prohibited comments about the quote book.  The appli-
cant  noted  that  three  other  comments  in  the  disputed  OER  show  how  his  judgment  during  the 

 

 

reporting  period  met  the  requirements  for  a  mark  of  6.    First,  he  stated  that  as  the  Conning 
Officer during an outbound transit from Aruba in high wind, he noticed dangerous shoals and a 
shallow reef very close to the cutter and took action to avoid them.  Second, he stated that as the 
Deck Supervisor during ten special sea details and a two-week training period involving numer-
ous  anchoring  evolutions,  man-overboard  drills,  towing  exercises,  etc.,  he  ensured  that  his 
department received a score of 98% with zero safety incidents.  Third, the applicant pointed out 
that  an  OER  comment  shows  that  his  decisionmaking  and  leadership  exceeded  expectations 
when  he  was  serving  as  the  Boarding  Officer  during  the  board  of  a  fishing  vessel  that  yielded 
more than 2,000 pounds of cocaine and five drug traffickers. 
 
 
Regarding his CO’s mark in the fourth spot of the Comparison Scale, the applicant noted 
that the CO had previously assigned him a mark in the sixth spot, as an “exceptional officer,” in 
his prior two OERs and that the only basis for assigning him a lower mark was the quote book 
incident—i.e.,  conduct  that  occurred  prior  to  the  reporting  period—as  shown  by  the  comment 
about a “set back in responsibility” in the comment block below the Comparison Scale. 
 
 
The  applicant  alleged  that  he  was  passed  over  for  promotion  to  lieutenant  by  the  LT 
selection  board  that  convened  in  2010  because  of  these  prohibited  and  erroneous  marks  and 
comments.  He asked the Board to correct the OER by raising the disputed marks to marks of 6 
or to remove the OER from his record and to adjust his date of rank and award him back pay and 
allowances. 
 
PRRB Decision on LTJG X’s OER for February 1 to May 28, 2009 
 
 
In support of his allegations, the applicant submitted a decision of the Personnel Records 
Review Board (PRRB) concerning the OER of LTJG X, one of the other officers held account-
able  after  the  CO  discovered  the  quote  book.    LTJG  X  provided  the  applicant  a  copy  of  the 
PRRB’s  decision  for  his  BCMR  application.    The  PRRB’s  decision  shows  that  based  on  state-
ments solicited from LTJG X’s rating chain about his low marks for Directing Others, Respon-
sibility,  and  Professional  Presence,  which  are  summarized  below,  the  PRRB  concluded  that 
LTJG X’s OER for the period February 1 to May 28, 2009, should be removed from his record 
because  the  XO  had  been  improperly  directed  by  the  CO  to  lower  the  mark  he  assigned  for 
Directing Others based on performance not related to the quote book and because the low marks 
for Responsibility and Professional Presence were based on LTJG X’s contributions to the quote 
book, which occurred before the start of the reporting period for the OER.  The PRRB found that 
prior to the reporting period for the OER, several officers who served on the bridge as Officer of 
the Day discussed the offensive content of the quote book, gave the quote book to the AOO “for 
disposition,” and “rightfully assumed the issue was resolved.”   
 

The PRRB found that the CO, who served as the Reviewer for LTJG X’s OER, found the 
quote book in April 2009 and “wrongfully based her view of the applicant’s performance on the 
date  she  personally  discovered  the  quote  log  and  not  based  on  the  date  when  the  performance 
actually occurred.”  The PRRB found that the quote book had been removed from the bridge by 
the Assistant Operations Officer before the reporting period began and that any adverse effect on 
morale caused by the quote book during the reporting period resulted from the CO’s discovery of 
and response to the quote book, including an all-hands “stand down,” which created a “command 

 

 

climate  issue.”    The  PRRB  noted  that  when  a  command  discovers  poor  performance  that 
occurred before the current reporting period, the command may prepare an “exception OER” but 
may  not  document  such  past  performance  in  the  officer’s  current  regular  OER.    The  PRRB’s 
decision  to  replace  LTJG  X’s  disputed  OER  with  a  “Continuity  OER”  was  approved  by  the 
Director of Personnel Management on September 13, 2010. 
 
Statement of the Operations Officer of the Cutter to the PRRB 
 
 
The OO, who supervised LTJG X from June 2007 through May 2009, stated that after he 
submitted his draft of LTJG X’s OER, “it was made clear to me that anything other than [a mark 
of 2 in  the category “Directing Others”] would not  be approved by my  chain  of command and 
therefore I should make the edits as advised.”  The OO stated that the other low marks and com-
ments in the OER were based on LTJG X’s involvement with the quote book.  The OO claimed 
to  be unaware of any of the contents except  what  the CO read aloud  during the Officers’ Call, 
which was clearly unprofessional.  He noted that the officers who were held accountable for the 
contents of the quote book did not necessarily make any inappropriate quotations in it themselves 
and may not have read it all the way through or known about the offensive matter that the CO 
found. 
 
Statement of the Executive Officer of the Cutter to the PRRB Regarding LTJG X’s OER 
 

The Executive Officer (XO), who served as LTJG X’s reporting officer (and who is the 
supervisor who assigned the applicant a mark of 4 for “Workplace Climate”), stated that the CO 
had directed him to lower LTJG X’s mark for “Directing Others” to a 2 and that he had assigned 
LTJG X a mark of 2 for “Responsibility” because he  

 
participated in a repulsive and vulgar quote book as I described in section  8 of his OER.  While 
the commanding officer discovered and maintained custody of the quote book, she did read some 
of the entries to me and to the wardroom as examples of some of the severely offensive and inap-
propriate content.  The commanding officer was very clear about how deeply offended she was by 
the  entries  in  the  book  as  was  I  upon  hearing  them.    Additionally,  the  commanding  officer 
described  to  me  additional  entries  documenting  discussions,  vulgar  language,  and  behavior  by 
underway watch personnel that caused her great concern and doubt about the professionalism and 
senior/junior relationships taking place on the bridge.  It is my opinion that, while no crewmember 
openly  indicated  that  they  were  offended  by  the  book,  the  entries  highlighted  to  me  were  com-
pletely  inappropriate  and  in  violation  of  the  Commandant’s  Anti-Harassment  &  Hate  Incident 
Policy. 

 
The XO also stated that he assigned LTJG X a mark of 3 for “Professional Presence” and 
 
assessed his potential as an officer in the last block of the OER based on LTJG X’s participation 
in the quote book. 
 
Statement of the Commanding Officer of the Cutter to the PRRB Regarding LTJG X’s OER 

 
The  CO  of  the  cutter  served  as  LTJG  X’s  OER  reviewer  (and  the  applicant’s  reporting 
officer).    She  stated  that  she  supported  LTJG  X’s  mark  of  2  for  “Responsibility”  based  on  his 
participation in the quote book, which she discovered on the bridge during the reporting period.  
She stated that the quote book contained “references to perverted, disgusting, and at best unpro-

 

 

fessional  behavior  that  took  place  on  the  bridge  and  elsewhere  aboard  the  [cutter].    The  quote 
book was not routinely stored in open view. … The book was stopped and counseling given only 
after I discovered it.  [LTJG X] seems to take refuge in the fact that the book existed for several 
years.  [He] had  ample  opportunity to stop  the offensive behavior  and the documentation of it.  
[He] did not speak up and he did not get involved in the solution.”  The CO also supported LTJG 
X’s mark of 3 for “Professional Presence” because of his implicit condoning of the quote book 
during the reporting period. 
 

VIEWS OF THE COAST GUARD 

 
 
The Coast  Guard submitted two memoranda with  conflicting views of this matter.   In a 
memorandum dated March 25, 2011, constituting the program input for the advisory opinion on 
the application, the Personnel Service Center (PSC) recommended granting only partial relief by 
raising the mark of 4 for “Workplace Climate” to a mark of 6.  The PSC based this recommenda-
tion on affidavits from the applicant’s rating chain, which are summarized below.   However, in 
an advisory opinion dated May 3, 2011, the Judge Advocate General  (JAG) recommended that 
the Board grant the alternative request for relief by removing the disputed OER from the appli-
cant’s record, replacing it with a Continuity OER,6 removing the applicant’s failure of selection 
for  promotion  to  LT  in  2010  so  that  he  will  have  two  more  opportunities  for  promotion,  and 
backdating his  date of rank if selected for promotion by the first board to review his  corrected 
record.   
 
PSC’s Program Input 
 
The  PSC  recommended  that  the  Board  raise  the  applicant’s  mark  of  4  for  “Workplace 
 
Climate”  to  a  mark  of  6  but  to  deny  all  other  requested  relief  based  upon  sworn  declarations 
received  from  the  applicant’s  rating  chain.    The  PSC  stated  that  the  mark  for  “Workplace 
Climate” should be raised because the applicant’s supervisor, the XO of the cutter, has stated that 
he assigned the mark of 4 at the direction of the CO based on the quote book incident and that he 
supports raising the mark to a 6.  The PSC stated that it “believes that the supervisor was directed 
by the reporting officer to align his assessment with her view of the applicant’s performance in 
that  one  particular  dimension,  thus  resulting  in  a  lower  mark  than  would  otherwise  have  been 
assigned.”  The PSC stated that the CO’s comments about this mark are not dispositive because 
only the XO, as the supervisor, was allowed to assign the mark. 
 
 
The PSC stated that no further corrections to the disputed OER are warranted because the 
CO has stated that many entries in the quote book were dated during the reporting period for the 
disputed  OER  and  that the  existence  and  location  of  the  book  was  common  knowledge  among 
senior bridge watchstanders, including the applicant, who spent many hours on the bridge as the 
Officer of the Day and admitted to her that he knew about the quote book. 
 
 
The  PSC  stated  that  it  is  unclear  whether  the  applicant  himself  made  any  entries  in  the 
quote book during the reporting period, but it is “more probable that Applicant was aware of the 

                                                 
6 A Continuity OER contains a description of the officer’s position, duties, and responsibilities during the reporting 
period but no evaluative marks or comments. 

 

 

book on the bridge during the evaluation period and he failed to take action.”  Because the appli-
cant was a frequent watchstander on the bridge and supervised 20 members of the Deck Depart-
ment,  “it  is  unlikely  that  [he]  was  unaware  of  the  continued  use  of  the  quote  book”  during  the 
reporting period, and he “had a duty to put a stop to it.”  The PSC stated that the comment about 
the quote book in block 8 of the applicant’s OER “is generic enough and appropriately refers to 
[the applicant’s] conduct during the period of report.  The references to the ‘quote book’ should 
not  be  stricken  from  the  OER  as  they  speak  to  performance  that  occurred  within  the  period  of 
report.”  The PSC alleged that the XO’s comments about the marks and comments in the CO’s 
portion  of  the  OER  are  not  relevant  because  only  the  CO  is  responsible  for  that  portion  of  an 
OER. 
 
 
The  PSC  concluded  that  with  the  exception  of  the  mark  for  “Workplace  Climate,”  the 
disputed OER is a fair and accurate assessment of the applicant’s performance during the report-
ing  period.    The  PSC  noted  that  a  mark  of  4  is  the  “expected  standard”  of  performance  for  an 
officer and so the “PSC cannot speculate whether the applicant would have been selected by the 
board” if the applicant had received a mark of 6 for “Workplace Climate,” instead of a 4.   The 
PSC noted that, of the 518 candidates for promotion to LT in 2010, only 447 were selected, and 
argued that the applicant has not shown that he was one of the best qualified candidates for pro-
motion. 
 
 
The  PSC  did  not  in  any  way  address  or  distinguish  this  case  from  the  PRRB  case  of 
LTJG X or from  the case of the applicant  in  BCMR Docket  No. 2011-082 (not  yet  decided by 
the  Board),  in  which  the  PSC  recommended  removing  the  OER  of  another  LTJG  who  stood 
watches on the bridge of the cutter. 
 
Declaration of the XO of the Cutter 
 
 
The  XO  of  the  cutter,  who  as  the  applicant’s  supervisor  assigned  him  a  mark  of  4  for 
“Workplace Climate” in the disputed OER, stated that he fully concurs with the applicant’s con-
tentions about the OER.  The XO stated that he had no knowledge of the quote book until the CO 
told him about it, but she did not let him read it or tell him specifically what the applicant wrote 
in it.  The XO stated that he discussed the book with the junior officers involved, including the 
applicant, after the CO told him about it, and the junior officers told him “that they removed the 
book from the bridge many months ago.  I support [the applicant’s] assertion that the Assistant 
Operations Officer informed him that the book was removed in late summer of 2008. … Addi-
tionally, I have no facts to refute [the applicant’s] assertion that he was not aware that the book 
was returned to the bridge.”  The XO stated that as far as he knows, the negative content of the 
disputed OER was all based on “the entries [the applicant] made in a quote book … prior to the 
marking period in question.” 
 
 
Regarding  the  applicant’s  OER  marks,  the  XO  stated  that  the  applicant  should  have 
received marks of 6 for “Responsibility” and “Judgment,” instead of marks of 3 and 4, based on 
his performance during the reporting period.  In addition, the XO admitted that he had assigned 
the  applicant  a  mark  of  4  for  “Workplace  Climate”  “in  compliance  with  the  commanding  offi-
cer’s  direction  to  document  [the  applicant’s]  participation  in  the  quote  book  in  his  OER  in  the 
‘Workplace Climate’ section.  Had I not been directed as such, I would have assigned a mark of 

 

 

6.”  The XO also stated that he believes the applicant received a mark of 4 on the Comparison 
Scale because of his involvement with the quote book, which the CO insisted was “career alter-
ing.”  The XO stated that the applicant’s performance, as documented by most of the high marks 
and laudatory comments in the disputed OER, merited a mark of 6 (“exceptional officer”). 
 
Declaration of the CO of the Cutter 
 
The CO stated that contrary to the applicant’s claim, she knows that his involvement with 
 
the quote book took place during the reporting period for the disputed OER because she discov-
ered  the  book  in  April  2009  and  had  several  conversations  with  the  applicant  about  the  book 
during which he  
 

4.  … acknowledged the book’s existence, its inappropriate content, and his lack of action. …  A 
commissioned officer and Department Head, [he] should have recognized the inappropriateness of 
the book and should not have joined in.  He had a duty to take action even if it were to remove it 
himself. …  
 

b.  However lighthearted the quotes are that [the applicant] attempted to recall, the nature 
of the book and behavior detailed in the book are neither witty nor appropriate.  The quote book 
contains references to perverted, disgusting, and unprofessional behavior directly in opposition to 
Coast Guard core values that took place on the Bridge and elsewhere.  The book details sex acts, 
including … .  The book documents disrespect from officers to enlisted members (“How’s it goin 
[m.f.] Petty Officer”).  During the marking period references to “my black ass” and “fuckin” are 
recorded as well as a reference to the male sexual organ.  In addition, during the period disrespect 
from enlisted members to officers (“Sir, I could definitely see you being sold into sex trafficking”) 
is recorded.  During the period, [the applicant] was in a position to stop this behavior….  
 
5.  I know that the book was active and located on the bridge during the marking period.  I found 
the book on the bridge in April 2009.  I know that unprofessional behavior and the documentation 
of unprofessional behavior happened during the period of report because of specific dates written 
in  the  book  and  next  to  entries.    One  title  of  entries  is  labeled  “Mar-May  ‘09”.    [The  applicant] 
was an Officer of the Deck during the period and stood that watch on the bridge.  I knew that [he] 
knew  about  the  book  when  just  days  after  my  discovery  of  the  book,  he  requested  an  audience 
with me to discuss the book.  [He] clearly indicated to me his knowledge of the book, its location, 
its content, his participation in it and the inappropriateness of it. …  
 

a.    I  do  not  believe  [the  applicant’s]  statement  that  he  never  saw  the  quote  book  on  the 
bridge  again  after  the  summer  of  2008.    During  the  marking  period,  after  I  had  discovered  the 
book, I had at least  four conversation  with [him] concerning the book.   Not once, during any of 
those  conversations,  did  he  contest  his  knowledge  of  the  book,  my  interpretation  of  his  involve-
ment with the book, or his lack of action to stop it.  He never told me that he hadn’t seen the book 
in  months.    During  his  last  patrol  aboard  the  [cutter],  during  the  marking  period,  the  book  was 
active and on the bridge.  There was recent information in the book.  An entry was made by bridge 
watchstanders on 09 Apr 09, just days before my discovery of the book.  The book had not been 
dormant.  When presented with the [disputed OER, the applicant] never raised any issue refuting 
the marks or comments he received, and rather to the contrary, he continued to acknowledge his 
role. …  
 
7. 
…  a.  …  During  the  period,  while  underway,  [the  applicant]  stood  watch  on  the  bridge 
and while inport he made regular rounds of the bridge.  His subordinates and watchstanders made 
entries in the book.  Whatever [he] claims he was told by [the AOO], a subordinate, the fact is the 
book was on the bridge during the marking period.  After confiscating the book I discovered that 
the book and its location was common knowledge among senior bridge watchstanders, including 

 

 

[the applicant].  It is not credible to believe that … [he] did not know about it.  It is unlikely that as 
a frequent watchstander during the period he would not know about the book’s current [continued] 
existence.  Furthermore, based on his reaction when I discovered the book, it was and still is clear 
to  me  that [he]  was a  willing participant in the  unprofessional behavior and  the recording of  the 
unprofessional behavior and that he knew the location of the book. … 
 

c.  During the period, [the applicant] was the Deck Department Head.  He supervised 20 
crewmembers  in  the  Deck  Department  who  routinely  stood  watch  on  the  bridge.    During  this 
period, [he] enabled boorish and perverted behavior by turning a blind eye  to it.  He created the 
precedence that not only was the behavior acceptable but writing it town as if to celebrate it was 
acceptable also.  Members he directly supervised made entries or were quoted during the period.  
 

d.  … [The applicant] did not speak up when necessary.  As a relatively senior member of 
the command cadre and as a Department Head and Officer of the Deck, [he] had a duty to stop the 
book  and  the  inappropriate  behavior.    He  failed  to  do  so.    His  accusation  of  [the  AOO]  as  the 
“responsible officer” is outrageous and libelous.  [The AOO] was a subordinate and Coast Guard 
Academy classmate of [his].  [The applicant’s] attempt to shirk responsibility for his own actions 
further validates that he was not forthcoming with me about his knowledge of the book prior to me 
finding it and further validates the accurate evaluation of him. 

 
 
The  CO  stated  in  her  20  years  of  active  duty  and  tours  on  four  cutters,  the  applicant’s 
“performance, conduct,  and lack of  responsibility  [are] some of the most disturbing  and appal-
ling I have ever witnessed.”  Regarding the OER marks for “Workplace Climate,” “Judgment,” 
and “Responsibility,” she concluded that they were completely warranted based on his failure to 
stop the vulgar language and behavior and the documentation of the same in the quote book dur-
ing  the  reporting  period.    Regarding  the  mark  on  the  Comparison  Scale,  the  CO  wrote  that 
“[i]rrespective of my discovery of the book, I would not have rated [the applicant] as an excep-
tional officer during this period.  In his final marking period onboard and as a Department Head, 
[he] did not display the qualities that previously led me to rate him as exceptional compared to 
other officers of similar grade.” 
 
JAG’s Advisory Opinion 
 
 
The JAG stated that the applicant’s rating chain violated the Personnel Manual when the 
CO directed the XO to assign the mark of 4 for “Workplace Climate,” instead of the higher mark 
the XO wanted to assign.  The JAG also noted that the evidence from the XO suggests that the 
applicant knew that the quote book had been removed from the bridge in 2008 and was unaware 
of its return.  The JAG noted that there is no evidence that the applicant himself made any entries 
in the quote book after its return to the bridge.  The JAG concluded, based on “the totality of the 
evidence,” that the applicant has “met his burden of establishing ‘legal error’” in the preparation 
of the disputed OER. 
 
 
The  JAG  further  stated  that  the  applicant  has  made  a  prima  facie  showing  of  a  causal 
nexus between the disputed OER and his non-selection for promotion.   In this regard, the JAG 
noted  that  the  OER  is  substantially  worse  than  the  applicant’s  two  prior  OERs  received  while 
serving on the cutter.  Therefore, the JAG stated, “the conclusion can be reached that Applicant’s 
record appeared worse due to the erroneous OER,” and so the disputed OER “could have contri-
buted substantially to his non-selection.”   
 

 

 

Therefore, the JAG recommended that the remove the OER from the applicant’s record, 
 
replace it with a Continuity OER, remove his failure of selection for promotion in 2010 so that 
he  will  have  two  chances  to  compete  for  promotion  with  a  corrected  record,  and  backdate  his 
date of rank, with back pay and allowances, if he is selected for promotion after the removal of 
the disputed OER. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On  May  17,  2011,  the  applicant  responded  to  the  views  of  the  Coast  Guard.    He  stated 
that he agrees with the JAG’s advisory opinion and disagrees with the PSC’s memorandum.  The 
applicant  noted  that  the  PSC  relied  heavily  on  his  CO’s  affidavit  and  that  “many  of  her  state-
ments are at odds with my recollection.”  The applicant stated that during the reporting period for 
the disputed OER no entries were “entered or initialed by myself or anyone on my bridge watch 
as I did not see the book during the period until the Commanding Officer read it to all members 
of  the  wardroom  at  an  Officer’s  Call.”    The  applicant  noted  that  he  was  not  standing  watches 
during  the  specific  period  mentioned  by  the  CO  in  April  2009,  because  he  was  serving  as  the 
Boarding Officer in their operations on the fishing vessel.7  In addition, he alleged, he never con-
doned offensive language on the bridge.  The applicant stated that he made no objections when 
he received the OER because he believed that making objections could not help and might wor-
sen the OER.  The applicant argued that his OER should be removed for the same reasons that 
LTJG X’s was removed. 

SUMMARY OF THE REGULATIONS 

 

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

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

Article  10.A.4.c.4.  of  the  manual  provides  the  following  instructions  for  Supervisors 
completing the first 13 marks on an OER (similar instructions are provided for Reporting Offi-
cers for completing the last 5 marks in Article 10.A.4.c.7.): 
 

b.  For  each  evaluation  area,  the  Supervisor  shall  review  the  Reported-on  Officer’s  performance 
and qualities observed and noted  during the reporting period. Then, for each of the performance 
dimensions, the  Supervisor shall carefully read the standards and compare the Reported-on Offi-
cer’s  performance  to  the  level  of  performance  described  by  the  standards.  The  Supervisor  shall 
take  care  to  compare  the  officer’s  performance  and  qualities  against  the  standards—not  to  other 
officers and not to the same officer in a previous reporting period. After determining which block 
best describes the Reported-on Officer’s performance and qualities during the marking period, the 
Supervisor fills in the appropriate circle on the form in ink. [Emphasis added.] 

●  ●  ● 

d. In the “comments” block following each evaluation area, the Supervisor shall include comments 
citing specific aspects of the Reported-on Officer’s performance and behavior for each mark that 
deviates from a four. The Supervisor shall draw on his or her observations, those of any secondary 
Supervisors, and other information accumulated during the reporting period. [Emphasis added.] 

                                                 
7 According to a Coast Guard news release, the cutter intercepted a xxxxxx-flagged fishing vessel on April 7, 2009; 
sought and received permission from the xxxxxx government to board and search the vessel; found 2,200 pounds of 
cocaine  on  board;  and  escorted  the  vessel  and  its  crew  more  than  500  miles  before  turning  them  over  to  xxxxxx 
authorities on April 13, 2009. 

 

 

 

 
e. Comments should amplify and be consistent with the numerical evaluations. They should iden-
tify specific strengths and weaknesses in performance. … 

●  ●  ● 

g. A mark of four represents the  expected standard of performance. Additional specific perform-
ance  observations  must  be  included  when  an  officer  has  been  assigned  a  mark  of  five  or  six  to 
show how they exceeded this high level of performance. … 

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

 
Article 10.A.2.e.2.c. states that a reporting officer “[e]nsures the Supervisor fully meets 
responsibilities  for  administration  of  the  OES  [Officer  Evaluation  System].  Reporting  Officers 
are expected to hold designated Supervisors accountable for timely and accurate evaluations. The 
Reporting Officer shall return a report for correction or reconsideration, if the Supervisor’s sub-
mission is found inconsistent with actual performance or unsubstantiated by narrative comments. 
The Reporting Officer shall not direct that an evaluation mark or comment be changed (unless 
the comment is prohibited under Article 10.A.4.f.).” 

 
 
Article 10.A.4.f.11. states that in writing OER comments, rating chain members may not 
“[d]iscuss  Reported-on  Officer’s  performance  or  conduct  which  occurred  outside  the  reporting 
period.” 
 
 

FINDINGS AND CONCLUSIONS 

1. 

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

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 application was timely filed.  
 
 
The applicant asked the Board to correct or remove from his record his OER for 
the period February 1 to June 29, 2009, and also to expunge his non-selection for promotion to 
LT and award him back pay and allowances.  The Board begins its analysis by presuming that a 
disputed  OER  in  an  applicant’s  military  record  is  correct  and  fair,  and  the  applicant  bears  the 
burden  of  proving  by  a  preponderance  of  the  evidence  that  the  OER  is  erroneous  or  unjust.8  
Absent specific evidence to the contrary, the Board presumes that the members of an applicant’s 
rating  chain  have  acted  “correctly,  lawfully,  and  in  good  faith”  in  preparing  their  evaluations.9  
To be entitled to relief, the applicant cannot “merely allege or prove that an [OER] seems inaccu-

2. 

                                                 
8 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002, approved by the Deputy 
General Counsel, May 29, 2002) (rejecting the “clear and convincing” evidence standard recommended by the Coast 
Guard and adopting the “preponderance of the evidence” standard for all cases, including disputes over OERs, prior 
to the promulgation of the latter standard in 2003 in 33 C.F.R. § 52.24(b)).   

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

 

 

4. 

3. 

rate,  incomplete  or  subjective  in  some  sense,”  but  must  prove  that  the  disputed  OER  was 
adversely affected by a “misstatement of significant hard fact,” factors “which had no business 
being in the rating process,” or a prejudicial violation of a statute or regulation.10 
 
 
The applicant has alleged and proved by a preponderance of the evidence that his 
mark  for  “Workplace  Climate”  in  the  disputed  OER  was  prepared  in  violation  of  Article 
10.A.2.e.2.c. of the Personnel Manual because his reporting officer, the CO, directed his super-
visor, the XO, to assign him a lower mark than the XO thought should be assigned.  The XO has 
executed a sworn statement admitting this fact, and the CO did not deny it. 
 
 
The applicant alleged that the low and average marks and negative  comments in 
the disputed OER are based on performance that occurred outside of the reporting period for the 
OER—February 1 to June 29, 2009.  He alleged that before the CO brought the quote book to an 
Officer’s  Call  in  April  2009,  he  had  not  seen  it  on  the  bridge  since  the  summer  of  2008  when 
another junior officer, the AOO, removed it because of the offensive content.  Rating chain offi-
cials must base their marks and comments  in  an OER  only  on  a reported-on officer’s perform-
ance during the reporting period, and they may not comment on “performance or conduct which 
occurred outside the reporting period.” 11  Therefore, if the applicant was unaware that the quote 
book had been returned to the bridge during the reporting period for the OER until after the CO 
discovered it, any marks and comments based on his involvement with the quote book were pro-
hibited in his regular OER.12   On the other hand, if the applicant was aware that the quote book 
had been returned to the bridge during the reporting period and failed to dispose of it or report it, 
then the CO was certainly entitled to base OER marks and comments on his lack of good judg-
ment and responsibility in that regard, but not on his own contributions to the quote book, which 
were apparently all dated prior to the start of the reporting period.13 
 

5. 

The PRRB has already determined that the low marks and comments in LTJG X’s 
OER for the period February 1 to May 28, 2009, were based on performance that occurred before 
the start of the reporting period because they were based on his involvement with the quote book.   
The PRRB held that once the AOO removed the quote book from the bridge in the summer of 
2008, LTJG X could “rightfully assume[] the issue was resolved.”  The applicant in this case was 
in essentially the same position as that of LTJG X with regard to the quote book:  He knew that 
the AOO had taken the book from the bridge in  the summer of 2008, and there is no  hard evi-
dence that he  was aware that it had been returned to  the bridge before the CO brought  it to  an 
Officer’s  Call  in  April  2009.    The  CO  clearly  believes  that  the  quote  book  was  on  the  bridge 
throughout  the  reporting  period  for  the  disputed  OER  and  that  the  applicant  was  aware  of  its 
presence there because he stood watches on the bridge.  However, the CO herself remained igno-

                                                 
10 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). 

11 Personnel Manual, Articles 10.A.4.c. and 10.A.4.f.11. 

12  Poor performance  discovered  after  the  end  of  a  reporting  period  is  properly  reported  in  an  exception  or  special 
OER under Article 10.A.3.c. of the Personnel Manual, not a regular OER. 

13  The  Board  notes  that  the  CO  could  have  submitted  copies  of  any  pages  of  the  quote  book  that  contradicted  his 
claims but did not. 

 

 

rant of the quote book for almost a year after she took command of the cutter,14 which supports 
the applicant’s claim that the book was not stored on the bridge for most of that year as well as 
his claim that the book could have been returned to the bridge during the reporting period with-
out his knowledge.  The Board finds that the preponderance of the evidence shows that the quote 
book was not on the bridge in  February and March 2009 and that it was returned to the bridge 
sometime in April 2009, shortly before the CO found it and during a period when the applicant 
was not  standing watches on the bridge because  he was serving as  a boarding officer  aboard a 
fishing  vessel  that  was  being  driven  to  meet  xxxxxx  authorities.    However,  the  low  marks  and 
negative  comments  in  the  applicant’s  disputed  OER  are  clearly  based  on  his  involvement  with 
the quote book.  Therefore, he has proved by a preponderance of the evidence that some of the 
marks and comments in  the disputed OER were based on performance that occurred outside of 
the reporting period, which is a violation of Articles 10.A.4.c. and 10.A.4.f.11. of the Personnel 
Manual. 
 

6. 

Another junior officer who was involved with the quote book, LTJG X, has had 
his OER removed by the PRRB, whose decision was approved by the PSC, and the JAG and the 
PSC have unanimously recommended the removal of the OER of a third junior officer involved 
in the quote book in BCMR Docket No. 2011-082.  The JAG has recommended removal of the 
OER  in  this  case,  too.    Although  the  applicant  held  a  higher  position  on  the  cutter  than  these 
other two junior officers and the CO was authorized to assign him marks as his reporting officer, 
the Board finds insufficient reason in the record to deny him the relief that has been granted to 
the other two.  

 
7. 

The Board finds that the applicant has proved by a preponderance of the evidence 
that the disputed OER should be removed from his record because it was adversely  affected by 
prejudicial  violations  of  Articles  10.A.2.e.2.c.,  10.A.4.c.,  and  10.A.4.f.11.  of  the  Personnel 
Manual  in  that  his  reporting  officer  (a)  directed  his  supervisor  to  assign  a  lower  mark  for 
“Workplace Climate” than the supervisor considered to be accurate and (b) based certain marks 
and  comments  at  least  in  part  on  performance  that  occurred  outside  of  the  reporting  period.15  
The applicant originally asked the Board to correct the OER by raising the disputed marks to 6s 
and removing the negative comments, but he has concurred with the alternative relief—removal 
of the entire OER—recommended by the JAG.  Although the XO agreed that the marks should 
be raised, the CO has averred strongly that she would not have assigned the applicant a mark of 6 
on the Comparison Scale for this reporting period even if the quote book had never been discov-
ered.    In  BCMR  Docket  No.  151-87,  the  Board  found  that  an  OER  should  “not  be  ordered 
expunged  unless  the  Board  finds  that  the  entire  report  is  infected  with  the  errors  or  injustices 
alleged; unless the Board finds that every significant comment in the report is incorrect or unjust; 
or unless the Board finds it impossible or impractical to sever the incorrect/unjust material from 
the appropriate material.”  In this case, it is not clear exactly how the discovery of the quote book 
affected  the  reporting  officer’s  marks  and  comments  in  the  disputed  OER.    Removing  just  the 
reporting  officer’s  portion  of  the  OER  and  raising  the  supervisor’s  mark  for  “Workplace  Cli-
mate”  would  leave  a  half  an  OER  in  the  applicant’s  record  that  might  prejudice  him  further 

                                                 
14 The CO took command of the cutter in May 2008. 

15 See Lindsay, 295 F.3d at 1259. 

 

 

before  selection  boards.    Therefore,  the  Board  finds  that  the  OER  should  be  removed  from  his 
record in its entirety and replaced with a Continuity OER. 

 
8. 

The applicant asked the Board to remove his non-selection for promotion to LT in 
2010 by the promotion year (PY) 2011 LT selection board because the erroneous OER was in his 
record  when it was reviewed by that  board.  When an applicant  proves that his  military  record 
contained  an  error  or  injustice  when  it  was  reviewed  by  a  selection  board,  this  Board  must 
determine whether the applicant’s non-selection for promotion should be removed by answering 
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  [the  applicant]  would  have  been  promoted  in  any  event?”16  
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,[17] there was no substantial nexus or connection” between the prejudicial error 
and the non-selection for promotion.18  To void a non-selection, the Board “need not find that the 
officer  would  in  fact  have  actually  been  promoted  in  the  absence  of  the  error,  but  merely  that 
promotion was not definitely unlikely or excluded.”19 

 
9. 

The  applicant’s  record  definitely  appears  worse  because  of  the  low  and  average 
marks and negative comments in the disputed OER.  The mark of 3 for “Responsibility” is the 
only below-average mark he has ever received on an OER.  His first OER while assigned to the 
cutter contains almost all marks of 5 and 6, and his second OER contains almost all marks of 6 
and  7,  so  even  the  average  marks  of  4  on  the  disputed  OER  stand  out  as  negative  digressions.  
Therefore, the first prong of the Engels test is clearly met. 

 
10.  With regard to the second prong of the Engels test, the Board notes the very high 
marks  in  the  applicant’s  other  OERs  and  finds  that  it  is  not  unlikely  that  the  applicant  would 
have been selected for promotion if the erroneous OER had not been in his record when it was 
reviewed  by  the  PY  2011  LT  selection  board.    Thus,  the  applicant  has  submitted  prima  facie 
evidence, and the Coast Guard has submitted nothing to rebut this evidence.  Moreover, the JAG 
has admitted that the erroneous OER “could have contributed substantially to his non-selection.”  
Therefore,  the  Board  finds  that  the  second  prong  of  the  Engels  test  is  met,  and  the  applicant’s 
non-selection  for  promotion  by  the  PY  2011  LT  selection  board  should  be  removed  from  his 
record. 
 

11. 

The applicant asked the Board to award him the back pay and allowances he lost 
as a result of his non-selection for promotion in 2010.  The Board finds that if he is selected for 
promotion by the first LT selection board to review his record after it has been corrected, his LT 
date of rank should be backdated, once he has been promoted, to what it would have been had he 

                                                 
16 Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982). 

17  A  “prima  facie  case”  is  one  in  which  there  is  sufficient  proof  to  support  a  finding  in  the  plaintiff’s  favor  if  the 
evidence to the contrary is disregarded.  BLACK’S LAW DICTIONARY, Rev’d 4th ed. (1968), p. 1353. 

18 Christian v. United States, 337 F.3d 1338, 1343 (Fed. Cir. 2003), citing Engels, 678 F.2d at 175; Quinton, 64 Fed. 
Cl. at 125.   

19 Engels, 678 F.2d at 175. 

 

 

been selected  for promotion  in  2010 and he should  receive corresponding back pay and  allow-
ances. 

 
12. 

granted. 

Accordingly,  the  relief  described  in  findings  7,  10,  and  11,  above,  should  be 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

 

ORDER 

The application of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his 

 
 
military record is granted as follows: 
 
 
The Coast Guard shall remove from his record his OER for the period February 1 to June 
29,  2009,  and  replace  it  with  an  OER  prepared  for  continuity  purposes  only  with  the  same 
description of duties in block 2.  The Coast Guard shall also remove from his record his failure 
of selection by the PY 2011 LT selection board.   
 

 
 

 
 

 
 

 
 

 

 
 

If he is selected for promotion by the first LT selection board to review his record after it 
has  been  corrected  as  required  by  the  paragraph  above,  his  date  of  rank  shall  be  backdated  to 
what it would have been had he been selected for promotion by the PY 2011 LT selection board, 
and he shall receive corresponding back pay and allowances. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
 
 
 
 

 
 Ashley A. Darbo 

 
 
 Lillian Cheng 

 

 
 
 Katia Cervoni