DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2011-064 
 
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 29, 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  September  8,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant,  a  retired  lieutenant  commander  (LCDR),  asked  the  Board  to  correct  his 
record by removing an officer evaluation report (OER) covering his service as the Senior Inves-
tigating Officer and Chief of the Investigations Division for a Coast Guard Sector from May 1, 
2008,  through  June  30,  2009.    He  asked  the  Board  to  replace  the  disputed  OER  with  one  pre-
pared for continuity purposes only with an explanatory note about the lack of a substantive OER.  
He  also  asked  the  Board  to  remove  his  non-selections  for  promotion  in  2009  and  2010,  to 
remove the documentation of his retirement from his record, and to reinstate him on active duty. 
 

The applicant alleged that the OER was prepared extremely late; that his first Supervisor 
during the evaluation period failed to provide a draft OER to his new Supervisor, who completed 
the  OER;  that  the  marks  he  received  were  caused  by  a  poor  command  climate  created  by  the 
commanding officer (CO) of the Sector; that the OER fails to show that he received a Commen-
dation Medal; that the marks and comments in the disputed OER are inconsistent and inaccurate; 
and that the OER unjustly caused him to be passed over for promotion to commander (CDR).   
 
 
Regarding the timing of the OER, the applicant alleged that he reminded his first Super-
visor, who left  the Sector  in  April 2009, that it was due at  the end of April pursuant  to  Article 
10.A.3.a.1.b(2) of the Personnel Manual.  However, because of the poor command climate, his 
first Supervisor opted to transfer early and did not want to prepare the applicant’s annual OER 
before  he  left.    Instead,  his  first  Supervisor  “set  the  expectation”  that  the  applicant’s  incoming 

 

 

Supervisor would prepare a Detachment of Officer OER for the applicant when he left the Sector 
on June 30, 2009.  The applicant stated that he also believes that his old Supervisor failed to pro-
vide  a  draft  OER  to  his  new  Supervisor,  as  required  by  Article  10.A.2.d.2.j.  of  the  Personnel 
Manual.  Therefore, the applicant alleged, the disputed OER was prepared by an officer who had 
observed  his  performance  for  only  two  months,  which  was  an  inadequate  time  to  evaluate  his 
performance  accurately  and  fairly.    The  applicant  submitted  documentation  showing  that  he 
initiated his OER on June 26, 2009, and that as of July 14, 2009, the Personnel Service Center 
had not yet received the completed OER. 
 
 
Regarding  the  command  climate  at  the  Sector  and  its  effect  on  his  OER,  the  applicant 
stated  that  “morale  was  very  low  and  the  CO  had  created  an  atmosphere  of  fear  and  mistrust.  
The  CO  regularly  belittled  and  intimidated  junior  and  senior  officers  as  well  as  senior  civilian 
employees for minor mistakes and frequently lost her temper.  This irrational public treatment of 
officers  created  a  dysfunctional  command  climate  for  officers  and  crew  alike.”    The  applicant 
noted that the CO was relieved of command in  April 2010 and that the poor command climate 
was  cited  as  a  reason.1    The  applicant  alleged  that  the  CO’s  “prejudicial  attitude  that  officers 
junior to  her could  not  be trusted … translated into lower performance marks on my OER that 
were  a  direct  result  of  the  personal  and  biased  opinion.    Her  capricious  attitude  towards  the 
[OER] submission schedule and content of my OER must be questioned.”  The applicant com-
plained that the CO failed in her responsibility to ensure that he received a timely and accurate 
OER even though he was up for promotion.  The applicant alleged that the fact that he received 
“relatively mediocre marks” in comparison to the marks he had received on prior OERs should 
have  caused  the  CO  to  return  the  OER  to  his  Supervisor  and  Reporting  Officer  for  further 
consideration and correction of inconsistencies and inaccuracies. 
 
Regarding  his  Commendation  Medal,  the  applicant  stated  that  it  was  an  end-of-tour 
 
award  and  that  the  CO  initially  approved  only  an  Achievement  Medal  for  him.    However,  the 
applicant  requested  reconsideration  of  the  medal  and  submitted  additional  information  “that 
reflected  regional  impact  and  sustained  leadership.”    The  CO  then  raised  the  award  to  a  Com-
mendation Medal, but because the Commendation Medal was approved after the OER was sub-
mitted to Headquarters, it was not listed as an attachment on the OER.  The applicant submitted 
emails  showing  that  his  CO  apologized  to  Headquarters  for  the  untimeliness  of  the  applicant’s 
OER and forwarded the Commendation Medal to Headquarters on July 24, 2009.  He also sub-
mitted a copy of a two-page email with the additional information reflecting regional impact and 
sustained leadership, which he submitted to support the higher award. 
 
Regarding the alleged inconsistency and inaccuracy of the OER, the applicant stated that 
 
the laudatory comments in the OER support higher numerical marks.  He submitted a copy of his 
four-page bulleted input describing his achievements for the OER and copies of his past and sub-
sequent OERs, which contain somewhat higher marks.  He argued that the laudatory comments 
on  the  certificate  for  his  Commendation  Award  prove  that  his  OER  marks  should  have  been 
higher. 

 

                                                 
1 In support of this allegation, which is not disputed by the Coast Guard, the applicant submitted a news article about 
the CO’s relief for cause dated April 16, 2010.  The article cites a poor command climate as one of the reasons for 
the CO’s relief. 

 

 

SUMMARY OF THE RECORD 

 
The applicant enlisted in the Coast Guard in 1986 and attended Officer Candidate School 
to receive his commission as an ensign in 1992.  He was promoted to lieutenant junior grade in 
1994, to lieutenant in 1997, and to lieutenant commander in 2003.  The applicant’s primary field 
was vessel inspections and investigations.  From 2000 through 2006, the applicant was assigned 
to  the  Marine  Safety  Division  of  a  Coast  Guard  District,  where  he  served  first  as  Chief  of  the 
Flag State/Port State Compliance Section and then as Chief of the Investigation/Analysis/Perfor-
mance Section.  He received excellent OERs with mostly marks of 6 and 7 in the performance 
categories2 and marks in the fifth spot on the comparison scale.3  Upon his departure, he received 
a Commendation Medal for his service at the District from 2000 through 2006. 

 
In 2006, the applicant was assigned to serve as the Senior Investigating Officer and Chief 
of  the  Investigations  Division  for  a  Coast  Guard  Sector.    On  his  first  OER  at  this  assignment, 
dated April 30, 2007, the applicant received five marks of 5, eleven marks of 6, and two marks of 
7 in the various performance categories and a mark in the fifth spot on the comparison scale.  His 
Reporting Officer, the Deputy Sector Commander, “[h]ighly recommended [him] for promotion 
[with] best of peers.”  On his second OER at this assignment, dated April 30, 2008, the applicant 
received five marks of 5, twelve marks of 6, and one mark of 7 in the various performance cate-
gories  and a  mark in  the fifth  spot on the  comparison  scale.  His  Reporting Officer “[s]trongly 
recommended [him] for promotion to O-5 [CDR].”  Despite these excellent OERs, the applicant 
was  not  selected  for  promotion  to  CDR  in  2007  or  2008.    Although  twice  failing  of  selection 
normally causes an officer’s discharge or retirement, the applicant was selected for continuation 
on active duty as a LCDR through June 30, 2011. 

 
The third and final OER that the applicant received at the Sector is the disputed OER in 
this case.  Because of personnel transfers in the spring of 2008 and April 2009, it was prepared 
by an entirely new rating chain4 upon the applicant’s own transfer from the Sector on June 30, 
2009.    The  applicant  received  eight  marks  of  5  and  ten  marks  of  6  in  the  various  performance 
categories  and  another  mark  in  the  fifth  spot  on  the  comparison  scale.    More  specifically,  the 
applicant’s  new  Supervisor,  who  arrived  in  April  2009,  assigned  him  nine  marks  that  were  the 
same as the marks he had received on his 2008 OER, three marks that were one point lower, and 
one mark that was one point higher, while his Reporting Officer, who had served as the Deputy 
Sector  Commander  since  May  1,  2008,  assigned  him  three  marks  that  were  the  same  as  the 
marks  he  had  received  on  his  2008  OER,  two  marks  that  were  one  point  lower,  and  the  same 
comparison scale mark.  The Reporting Officer wrote that the applicant “is an excellent perfor-

                                                 
2  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.   
3  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 on the scale to a high of “Best officer of this grade” for a mark in the seventh spot.  A mark in the fifth 
spot denotes an “excellent performer.”   
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 the Supervisor’s Supervisor, who completes the rest of the 
OER; and an OER Reviewer, who reviews the OER for consistency and comportment with regulations. 

 

 

mer  [with]  the  necessary  technical  expertise,  management  ability  &  leadership  skills  to  be  rec-
ommended  for  promotion  to  O-5.”    The  OER  was  completed  on  July  15,  2009,  and  does  not 
show any medal attached.   

 
On July 24, 2009, the Sector Commander awarded the applicant a Commendation Medal 
for  his  service  at  the  Sector  since  2006.    The  citation  for  the  medal  commends  the  applicant’s 
“highly accomplished managerial skills,” “substantial subject matter expertise,” “superior team-
work,” “insightful analysis,” and “exceptional professional competence.” 

 
On July 28, 2009, the CDR selection board convened, but the applicant was passed over 
for  promotion  a  third  time.    ALCGPSC  036/09,  which  announced  the  results  of  the  selection 
board,  shows  that  114  of  the  249  LCDRs  in  or  above  the  zone  for  promotion  were  selected, 
including 61 percent of those in the zone and 27 percent of those above the zone. 

 
On August 3, 2009, the applicant reported for duty to a different Sector office to serve as 
Chief  of  the  Contingency  Planning  and  Force  Readiness  Staff.    On  his  OER  dated  April  30, 
2010,  the  applicant  received  three  marks  of  5,  thirteen  marks  of  6,  and  two  marks  of  7  in  the 
various  performance  categories  and  a  mark  in  the  fifth  spot  on  the  comparison  scale.    His 
Reporting Officer wrote that he was “[h]ighly recommended for promotion to CDR.”  This OER 
lists the applicant’s July 24, 2009, Commendation Medal as an attachment since it was awarded 
during the reporting period for this OER. 

 
On July 27, 2010, the CDR selection board convened, but the applicant was passed over 
for  promotion  a  fourth  time.    ALCGPSC  087/10,  which  announced  the  results  of  the  selection 
board,  shows  that  135  of  the  275  LCDRs  in  or  above  the  zone  for  promotion  were  selected, 
including 69 percent of those in the zone and 17 percent of those above the zone. 

 
On September 23, 2010, the applicant submitted a Request  for Voluntary Retirement  as 
of July 1, 2011.  The Personnel Service Center approved his request and issued retirement orders. 
 

VIEWS OF THE COAST GUARD 

 
 
On May 13, 2011, the Judge Advocate General  (JAG) of the Coast Guard submitted an 
advisory opinion in which he recommended that the Board deny relief in this case.  In so doing, 
he adopted the findings and analysis provided in a memorandum on the case prepared by the Per-
sonnel Service Center (PSC). 
 
 
 
The  PSC  stated  that  because  the  applicant  was  in  or  above  the  zone  for  promotion  in 
2009,  his  rating  chain  should  have  completed  an  annual  OER  dated  April  30,  2009,  instead  of 
waiting  to  prepare  the  OER  until  his  departure  from  the  unit  on  June  30,  2009.    However,  the 
PSC stated, it is not clear whether the CO knew in April 2009 that the applicant was up for pro-
motion, and the OER was not received from the command until July 21, 2009.  The PSC stated 
that  the  OER  was  placed  in  the  applicant’s  record  on  July  23,  2009,  before  the  CDR  selection 
board convened on July  28, 2009.   In addition,  the Commendation Medal  awarded on July 24, 
2009, was received and placed in his record the same day, before the CDR selection board met.  
Therefore,  both  documents  were  in  the  applicant’s  record  when  it  was  reviewed  by  the  CDR 

 

 

selection board.  The PSC also noted that an officer is supposed to initiate his own OER by sub-
mitting his input 21 days before the end of the reporting period and that  the applicant  failed to 
submit his input until June 26, 2009. 
 

The  PSC  submitted  sworn  declarations  signed  by  the  rating  chain  members,  which  are 
summarized below, and argued that the declarations show that the new Supervisor did seek and 
receive input—whether oral and/or written is unclear—from the first Supervisor before complet-
ing  the  disputed  OER;  that  the  CO  did  not  influence  the  Supervisor  and  Reporting  Officer  in 
their preparation of the OER; and that all of the rating chain members maintain the OER’s accu-
racy. 
 
 
 
Regarding  the  applicant’s allegation that the  written comments  supported higher marks, 
the PSC stated that the comments are consistent with the positive numerical marks and noted that 
the applicant did not file an OER Reply to be entered in his record with the OER.  Regarding his 
allegation that the promotion recommendation is awkward, the PSC stated that Reporting Offic-
ers are expected to use their own judgment when writing comments about an officer’s potential 
for taking greater responsibility and leadership roles. 
 
The  PSC  concluded  that  although  the  disputed  OER  was  prepared  two  months  after  it 
 
should have been, it did not  contain any substantive errors, was not  influenced by the CO, and 
was present in the applicant’s record when it was reviewed by the CDR selection board that con-
vened  on  July  29,  2009.    Therefore,  the  PSC  argued,  the  applicant  has  not  proved  that  he  was 
harmed by any error in the preparation of the OER.  The PSC also disagreed with his claim that 
the  disputed  OER  prevented  his  selection  for  promotion  in  2009  because  the  applicant  had 
already been passed over for promotion in 2007 and 2008 before the disputed OER was entered 
in his record. 
 
Declaration of the Applicant’s Supervisor 
 
The applicant’s Supervisor stated that he supervised the applicant from April 24 through 
 
June 30, 2009, and so personally prepared the marks and comments for the Supervisor’s portion 
of the disputed OER.  However, before doing so, he contacted and communicated with the appli-
cant’s first Supervisor to discuss the applicant’s performance.  He stated that in his opinion, the 
applicant’s performance was “solid but not superlative” and he did not adjust his part of the OER 
in any way due to any influence by the CO. 
 
The  Supervisor  agreed  with  the  applicant  that  under  the  Personnel  Manual,  his  OER 
 
should not have been delayed past  April 30, 2009, and so his  first Supervisor should have pre-
pared  it  before  his  departure.    He  noted,  however,  that  the  OER  was  prepared  in  time  to  be 
reviewed by the CDR selection board in 2009. 

 
Regarding the applicant’s end-of-tour medal, the Supervisor stated that he initially consi-
dered  drafting  the  award  for  a  Commendation  Medal,  but  after  consulting  the  applicant’s 
Reporting  Officer,  first  Supervisor,  and  other  senior  civilian  personnel  who  were  familiar  with 
the applicant’s performance, the Supervisor drafted the award for an Achievement Medal, which 
was  approved  by  the  regional  Awards  Board  and  then  signed  by  the  CO.    However,  after  the 

 

 

applicant  protested  the  level  of  his  medal  and  submitted  documentation  of  previously  undis-
closed accomplishments during his tour of duty at the Sector, the award was revised to a Com-
mendation Medal, which was entered into the applicant’s record on July 24, 2009. 

 
Regarding the command climate, the Supervisor stated that the applicant “may not have 
reached  his  full  performance  potential  at  [the  Sector]  due  to  the  poor  command  climate  which 
somewhat  diminished  his  enthusiasm  for  the  job.”    Nevertheless,  the  Supervisor  stated  that  he 
believes  that  the  disputed  OER  “captured  [the  applicant’s]  performance  during  the  marking 
period.” 
 
Declaration of the Applicant’s Reporting Officer 
 
 
The Deputy Sector Commander served as the applicant’s Reporting Officer from May 1, 
2008, to June 30, 2009.  The Reporting Officer, who assigned the applicant four marks of 5 and 1 
mark of 6 in the performance categories and a mark in the fifth spot on the comparison scale in 
the  disputed  OER,  stated  that  before  completing  the  OER,  he  consulted  the  applicant’s  first 
Supervisor,  new  Supervisor,  and  a  civilian  employee  about  the  applicant’s  performance.    The 
Reporting  Officer  stated  that  “[d]ue  to  [the  applicant’s]  slightly  above  average  performance,  I 
made  the  conscious  decision  to  recommend  him  for  O-5,  but  not  strongly  recommend  him  for 
that promotion.”  The Reporting Officer also wrote that he “stands by” the marks and comments 
in  the  OER.    He  stated  that  the  OER  was  the  work  of  the  Supervisor  and  himself  and  was  not 
influenced by the CO.  He also claimed that the poor command climate that caused the CO to be 
relieved of command in 2010 was at the Sector/Deputy Sector Commander level only. 
 
 
Regarding  the  lateness  of  the  disputed  OER,  the  Reporting  Officer  stated  that  while  it 
could have been submitted earlier, his priority was to ensure that it was submitted in time for the 
CDR selection board, which it was. 
 
Declaration of the CO 
 
 
The  CO,  who  served  as  the  Reviewer  for  the  disputed  OER,  stated  that  as  an  OER 
Reviewer,  her  role  was  to  ensure  that  the  marks  assigned  by  the  Supervisor  and  Reporting 
Officer  were  substantiated  in  the  comments  and appropriate.    She  did  not  direct  them  to  lower 
any marks and she cannot recall making any comment to them about the applicant’s OER.  With 
regard to the applicant’s actual performance, the CO stated that she can recall two private con-
versations she had with the applicant’s Supervisor about  
 

the apparent reluctance of [the applicant’s] division personnel to respond to investigation reports 
per the Commandant’s guidance.  I also believe I mentioned during these discussions that [the ap-
plicant] did not seem involved in a leadership role within the unit, similar to other LCDRs, which 
surprised me based on his seniority.  It should be noted that this OER reflected a complete change 
in the rating chain for [him] and slightly different marking perspectives would be expected. 

 
 
The CO strongly disputed the applicant’s claim that she was lackadaisical about his OER 
and  medal.    She  stated  that  she  had  procedures  in  place  to  remind  the  Deputy  and  Department 
Heads to get evaluations in on time and that the Deputy Sector Commander routinely reminded 
the  Department  Heads  to  do  so.    When  she  realized  that  the  applicant’s  OER  was  late,  she 

 

 

reminded his Supervisor about it.  She noted that in July 2009, she personally interacted with the 
Officer Personnel Management Branch to ensure that the Commendation Medal was entered in 
the  applicant’s  record  before  the  CDR  selection  board  convened.    In  addition,  she  noted  that 
when she first received the award drafted for an Achievement Medal, she questioned the appli-
cant’s  Supervisor  and  Reporting  Officer  about  the  level  of  the  award,  and  both  “recommended 
the Achievement Medal level to be consistent with the write up of the award and general award 
policies  of  the  command.”    When  the  applicant  challenged  the  level  of  his  medal,  she  “atten-
tively  listened  and  openly  agreed  to  his  request  for  a  resubmission.”    She  gave  his  Supervisor 
only  a  short  time  to  rewrite  the  award  at  the  Commendation  Medal  level  so  that  she  would  be 
able to get it in his record in time. 
 
 
The  CO  stated  that  based  on  her  knowledge  of  the  applicant,  his  Supervisor,  and  his 
Reporting Officer and after reviewing all of the  materials  he submitted for his  BCMR applica-
tion, she “believe[s] the OER comments reflect and support the marks given and are consistent 
with [his] performance during the period.” 
 
JAG’s Conclusions 
 
The  JAG  noted  that  the  PSC  had  admitted  that  the  disputed  OER  should  have  been  an 
 
annual OER dated April 30, 2009, instead of a detachment of officer OER dated June 30, 2009.  
Nevertheless,  the  JAG  stated,  “it  is  evident  that  the  applicant’s  rating  chain  carried  out  their 
duties  fairly  and  objectively  by  accurately  marking  the  applicant  in  accordance  with  the  Coast 
Guard Personnel Manual.”  The JAG noted that the declarations show that the disputed OER was 
“not  influenced  in  any  way  by  the  Reviewer  [the  CO].”    Therefore,  the  JAG  concluded,  the 
applicant  has  not  proved  that  the  marks  and  comments  in  the  OER  were  adversely  affected  by 
any legal error.  He alleged that the late preparation of the OER constitutes harmless error since 
lateness per se is not a prejudicial error. 
 
 
The  JAG  argued  that  the  applicant  has  not  proved  that  any  of  the  numerical  marks  or 
comments in the disputed OER are inaccurate.  The JAG concurred with the PSC that even if one 
believed that the OER were erroneous or unjust, one could not conclude that the OER caused the 
applicant’s non-selection for promotion in  2009  because the  applicant  had already been passed 
over for promotion in 2007 and 2008 and was passed over again in 2010.  The JAG argued that 
since  the  applicant  has  not  proved  that  his  record  was  adversely  affected  by  a  misstatement  of 
fact or a prejudicial violation of a regulation, there are no grounds for removing his non-selection 
for promotion. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On June 16 and 21, 2011, the Board received the applicant’s responses to the views of the 
Coast  Guard.    The  applicant  repeated  many  of  his  allegations  but  primarily  challenged  his 
Reporting Officer’s claim that the command climate problem existed only above the applicant’s 
level.  The applicant alleged that the Reporting Officer’s claim is false and noted that his Super-
visor  admitted  in  his  declaration  that  the  poor  command  climate  may  have  “somewhat  dimi-
nished [the applicant’s] enthusiasm for his job,” and he alleged that a command climate survey 

 

 

conducted at the Sector showed that the problem affected “not only the command cadre but had 
negative impacts on every member of the crew down to the deck plate level.”  

 
To  support  his  allegations  about  the  command  climate,  the  applicant  submitted  several 
work-related  documents  and  described  one  incident  in  which  he  had  a  “heated  exchange”  with 
his  first  Supervisor  in  private.    The  applicant  stated  that  in  September  2008,  this  Supervisor 
asked him to obtain information that the CO wanted about a speed boat incident.  The applicant 
“played devil’s advocate” and explained that the requested information was not relevant.  How-
ever, his Supervisor directed him to continue trying to contact the speed boat owner “for the next 
two weeks at all hours.”  The applicant responded that such persistence would border on harass-
ment and that it would not be “a good use of my investigative resources.”  When his Supervisor 
told him to do it anyway, the applicant responded, “Yes, sir.”  The applicant said that there “may 
have been some dismay in my tone of voice,” and his Supervisor lost his temper.  The applicant 
suggested  that  his  Supervisor  tell  the  CO  to  “come  to  me  directly”  for  an  explanation,  but  the 
Supervisor said  that that “was not  the way it worked” and was upset that the applicant  seemed 
annoyed by the order.  The applicant replied that he knew the military was not a democracy and 
that he would follow orders but that a subordinate does not have to “show blind enthusiasm for 
every order given by a superior.”  The applicant stated that his Supervisor’s reaction was unpro-
fessional and unwarranted “given that I would follow his orders.”  The applicant concluded that 
his first Supervisor might “have developed a negative opinion of my performance … due to the 
fact that the entire Prevention Department was micro-managed and criticized by [the CO], which 
may have caused him to take-it-out on his subordinates due to intolerable embarrassment, stress 
and frustration caused by the negative command climate.” 

 
Also in 2008, the applicant stated, his division was offered “fall-out funds at the end of 
the  fiscal  year”  by  the  District  Prevention  office.    He  accepted  the  funds  because  his  division 
needed new scanners, but the CO instructed him to return the funds.  The applicant attributed her 
decision to  “mistrust and paranoia of [the District  command]” because she “did  not  want  to  be 
beholden  to  them  whatsoever.”    In  March  2009,  the  applicant  alleged,  after  he  described  at  a 
morning brief how a subordinate had investigated a fire on a tugboat, the CO criticized his deci-
sion-making  “in  front  of the entire command  cadre at  the brief.”   He  alleged that the CO typi-
cally  criticized  and  embarrassed  subordinates  in  public  and  praised  them  in  private.    After  the 
meeting, his  Supervisor  told him, “we  are all in  survival  mode  and we need to  keep our heads 
down,” so he should contribute nothing at future staff briefs unless specifically requested to do 
so.  Thereafter, the applicant spoke to the CO only when spoken to.  Thus, the applicant alleged, 
the poor command climate suffered by his Supervisor also affected him and ultimately his OER. 

 
Responding  to  the  CO’s  claim  that  she  twice  discussed  the  apparent  reluctance  of  the 
applicant’s division  to  respond to  investigation reports in  accordance with  policy, the applicant 
stated that “there were several instances whereby [the CO] directed my division to conduct rec-
reational boating accident investigations in [a large lake and state waters].”  The applicant stated 
that State and local agencies have the responsibility to respond to and investigate such accidents.  
He argued that “having my division, which was short-staffed due to retirements, medical issues 
and  inexperienced  personnel,  conducting  recreational  boating  accident  investigations  would  be 
the equivalent of having the NTSB investigating a fender-bender involving private automobiles 
on  a  country  road.”    Moreover,  assuming  this  issue  was  the  basis  for  her  discussions  with  his 

 

 

Supervisor, his Supervisor never counseled him about it.  Her criticisms in this regard “may also 
explain  why  [his  first  Supervisor]  was  developing  a  less  than  favorable  opinion  of  my  perfor-
mance.” 
 
The  applicant  argued  that  the  Coast  Guard’s  claim  that  the  CO  did  not  influence  the 
marks in the disputed OER is unrealistic because the CO prepared his Supervisor’s and Report-
ing Officer’s OERs.  Moreover, he argued, the CO must have noted the inconsistencies between 
the disputed OER and his 2008 OER, which pursuant to Sector policy was a part of the package 
she reviewed as his OER Reviewer, and she should have returned the OER to his Supervisor and 
Reporting Officer because of the differences.  She did not do so, the applicant alleged, because 
“[i]t was a foregone conclusion that I, as the Investigations Division Chief, would not receive a 
career enhancing OER that would strengthen my chances for promotion to O-5.  Because of [the 
CO’s] prejudice regarding the Prevention Department, she would not carry out her OES [Officer 
Evaluation  System]  responsibilities  as  Reviewer  and  ask  any  questions  regarding  the  [disputed 
OER] and allowed it to stand as written.” 

 
Regarding the preparation of his OER, the applicant alleged that his first Supervisor told 
him that it should be a Detachment of Officer OER.  After his first Supervisor assured him that 
the  OER  would  still  be  entered  in  his  record  in  time  for  the  CDR  selection  board,  despite  the 
delay,  the  applicant  “unwisely  agreed  to  this  so  no  waiver  to  extend  this  OER  was  sought”  as 
provided in Article 10.A.3.b. of the Personnel Manual.  The applicant stated that he “was not in a 
position to compel [his first Supervisor] to do an OER and it appeared that the command tacitly 
approved of this maneuvering” because his Reporting Officer and CO did not intervene and re-
quire them to initiate an OER.  He also stated that, contrary to the PSC’s speculation, his CO was 
or should have been aware that he was up for promotion in 2009 because the CO and Reporting 
Officer personally informed him of his second non-selection for promotion in August 2008. 

 
The applicant stated that the declarations of his rating chain prove that his first Supervisor 
failed  to  submit  a  draft  OER  for  him,  as  required,  and  that  his  new  Supervisor  and  Reporting 
Officer only discussed his performance with his first Supervisor orally.  The applicant stated that, 
in the absence of a draft OER prepared by the first Supervisor, their discussions alone “could not 
construct an OER that was accurate, fair and objective.”   

 
The applicant submitted a copy of the draft OER comments he submitted to his Supervi-
sor on June 26, 2009, as well as his bulleted list of achievements.  He noted that there are very 
few differences between the OER comments  he wrote for himself and the OER comments  that 
his new Supervisor included in his OER; indeed, most of the comments in the disputed OER are 
identical to those he drafted.  The applicant stated that, as most reasonable people drafting their 
own OERs would do, he wrote the comments to support superb numerical marks, rather than the 
merely above-average marks he received.  Therefore, the applicant argued, the marks and com-
ments in the OER are clearly inconsistent with each other as the comments support higher marks.  
The  applicant  argued  that  if  he  truly  deserved  the  marks  assigned,  the  comments  he  drafted 
should have been significantly edited. 

 
The  applicant  alleged  that  the  disputed  OER  falsely  indicates  that  his  performance 
declined  significantly  during  the  evaluation  period  when  in  fact  it  did  not  decline  at  all  and,  if 

 

 

anything, improved.  If, as the rating chain alleged, his performance was declining, he argued, he 
was entitled to counseling.  The applicant stated that it was unfair for his OER marks to decline 
because he was completing his tour of duty, had previously received progressively higher marks, 
and did not receive any official counseling during the evaluation period that his performance was 
perceived to be declining.  The applicant noted that his 2010 OER was also much better than the 
disputed OER even though he was assigned to entirely new duties at a new command. 

 
The applicant stated that he did not file an OER Reply because he was “exhausted by the 
negative command climate … and my morale was at a low point after the Commendation Medal/ 
Achievement  Medal  reconsideration.”    In  light  of  his  rating  chain’s  declarations,  he  does  not 
believe that filing an OER Reply would have helped his OER in any case. 
 
The  applicant  argued  that  the  fact  that  he  was  passed  over  for  promotion  in  2007  and 
 
2008  is  irrelevant  to  his  application.    He  alleged  that  in  the  past  some  officers  in  his  situation 
have ultimately been selected for promotion after having been non-selected multiple times.  He 
argued that he has proved by a preponderance of the evidence that his 2009 OER was adversely 
affected by prejudicial errors and that, because it was in his record when it was reviewed by the 
CDR selection board in 2009 and 2010, those non-selections should be removed from his record 
and he should be reinstated and have more opportunities for selection for promotion. 
 

SUMMARY OF THE REGULATIONS 

 
 
Article  10.A.1.b.1.  of  the  Personnel  Manual  in  effect  in  2009  states  that  COs  “must 
ensure  accurate,  fair,  and  objective  evaluations  are  provided  to  all  officers  under  their  com-
mand.” 
 

Article 10.A.3.a. states that LCDRs normally receive an annual OER every April 30th but 
that the OER may be delayed up to 182 days if within that period another occasion for a regular 
OER  arises,  such  as  the  LCDR’s  departure  from  the  unit  or  the  departure  of  his  Reporting 
Officer.  However, Article 10.A.3.a.1.b.(2) states that “[t]hose officers above zone, and in zone, 
for  promotion  as  specified  by  ALCGOFF  promulgated  by  Commander  (CGPC-opm)  shall  not 
delay their regular annual or semiannual OER past the scheduled due date.” 
 

Article 10.A.2.c.2.d. states that an officer initiates his own OER by preparing the admin-
istrative data section and forwarding “the OER with proposed OER attachments to the Supervi-
sor not later than 21 days before the end of the reporting period.”  Article 10.A.2.d.2.i. states that 
the Supervisor “[i]nitiates an OER if the Reported-on Officer is unavailable, unable, or unwilling 
to  perform  in  a  timely  manner  [and]  [f]orwards  the  OER,  the  OSF  worksheet  (if  used  or 
required),  OER  attachments,  and  any  other  relevant  performance  information  to  the  Reporting 
Officer not later than 10 days after the end of the reporting period.” 
 
 
Article  10.A.2.d.2.j.  states  that  a  departing  Supervisor  “[p]rovides  the  new  Supervisor 
with a draft of OER sections (3-6) when the Supervisor changes during a reporting period.  The 
draft may be handwritten and shall include marks and comments (bullet statements are accepta-
ble)  for  the  period  of  observation.  It  shall  be  prepared  and  signed  by  the  departing  Supervisor 
prior to departure.” 

 

 

 

Article  10.A.4.c.4.  provides  the  following  instructions  for  Supervisors  completing  the 
first 13 marks on an OER (similar instructions are provided for Reporting Officers for complet-
ing 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.  

●  ●  ● 

d. In the “comments” block following each evaluation area, the Supervisor shall include comments 
citing specific aspects of the Reported-on Officer’s performance and behavior for each mark that 
deviates from a four. The Supervisor shall draw on his or her observations, those of any secondary 
Supervisors, and other information accumulated during the reporting period.  
 
e. Comments should amplify and be consistent with the numerical evaluations. They should iden-
tify specific strengths and weaknesses in performance. … 

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.4.c.9. states that in  commenting on an officer’s potential in block 10 of an 
OER,  the  Reporting  Officer  “shall  comment  on  the  Reported-on  Officer’s  potential  for  greater 
leadership roles and responsibilities in the Coast Guard” and that these comments “may include, 
but are not limited to, the following:  Qualification to assume the duties of the next grade.  Spe-
cialties or types of assignment, such as command, for which the Reported-on Officer is qualified 
or shows aptitude. Recommendations for selection to a senior service school. Special talents or 
skills (or lack of) such as military readiness and warfare skills, seamanship or airmanship, etc., as 
applicable.” 

 
Article 10.A.4.c.3.a.(1) states that block 2 of an OER shall cite as an attachment any mil-
itary decoration awarded during the evaluation period for the OER  whether or not the achieve-
ment for which it was awarded occurred during the evaluation period. 

 
Article 10.A.2.f.1.a. states that an OER “Reviewer … has a definite OES administrative 
function and may perform an evaluative function.”  Article 10.A.2.f.2. states that the Reviewer 
“[e]nsures the OER reflects a reasonably consistent picture of the Reported-on Officer’s perfor-
mance  and potential” and “[e]nsures the Supervisor and the Reporting  Officer have adequately 
executed their responsibilities under the OES. The Reviewer shall return an OER to the Report-
ing Officer to correct errors, omissions, or inconsistencies between the numerical evaluation and 

 

 

written comments.  However, the Reviewer shall not direct in what manner an evaluation mark 
or comment be changed (unless the comment is prohibited under Article 10.A.4.f.).” 
 
 
Regarding  performance  counseling,  Article  10.A.1.b.2.  states  that  “[i]ndividual  officers 
are  responsible  for  managing  their  performance.    This  responsibility  entails  determining  job 
expectations,  obtaining  sufficient  performance  feedback,  and  using  that  information  to  meet  or 
exceed standards.”  Article 10.A.2.d.2.e. states that a Supervisor “[p]rovides timely performance 
feedback to the Reported-on Officer upon that officer’s request during the period, at the end of 
each  reporting  period  and  at  such  other  times  as  the  Supervisor  deems  appropriate.”    Article 
10.A.1.c.5. states that “[n]o specific form or forum is prescribed for performance feedback.  Per-
formance  feedback  occurs  whenever  a  subordinate  receives  advice  or  observations  related  to 
their performance in  any evaluation  area.  Performance  feedback can take place formally  (e.g., 
during  a  conference)  or  informally  (e.g.,  through  on-the-spot  comments).    Regardless  of  the 
forum, each officer should receive timely counseling and be clear about the feedback received. If 
the feedback is not fully understood, it is the Reported-on Officer’s responsibility to immediately 
seek clarification and the rating chain’s responsibility to provide it.” 
 

FINDINGS AND CONCLUSIONS 

1. 

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

2. 

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

 
 
military record and submissions, the Coast Guard’s submission, and applicable law: 
 
 
The application was timely filed.  
 
The applicant asked the Board to remove from his record his OER for the period 
 
May  1,  2008,  through  June  30,  2009;  to  expunge  his  non-selections  for  promotion  to  CDR  in 
2009 and 2010; to expunge his retirement; and to reinstate him on active duty to allow him more 
chances to compete for promotion with a corrected record.  The Board begins its analysis by pre-
suming 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.5    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.6  To be entitled to relief, the applicant cannot “merely allege or prove that an [OER] 
seems inaccurate, incomplete or subjective in some sense,” but must prove that the disputed OER 
was adversely affected by a “misstatement of significant hard fact,” factors “which had no busi-
ness being in the rating process,” or a prejudicial violation of a statute or regulation.7 
 

                                                 
5 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, first 
to the promulgation of the latter standard in 2003 in 33 C.F.R. § 52.24(b)).   
6 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
7 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). 

 

 

4. 

5. 

3. 

The applicant alleged that the disputed OER is erroneous because the evaluation 
 
period  should  have  ended  on  April  30,  2009,  instead  of  upon  his  detachment  from  the  unit  on 
June 30, 2009.  The evaluation period for the OER should have ended on April 30, 2009, because 
the applicant was up for promotion that summer.8  However, the OER’s delayed preparation, in 
and of itself, did not prejudice the applicant’s record before the CDR selection board because the 
OER  was  entered  in  his  record  before  that  board  convened  on  July  28,  2009.    This  Board  has 
long held that delay per se is insufficient to justify removal of an otherwise valid OER.9 
 
 
The applicant alleged that the OER’s delayed preparation resulted in lower marks 
in the OER because it was prepared in part by his new Supervisor, rather than his prior Supervi-
sor, who departed the unit in April 2009.  The applicant’s own statements and his delayed initia-
tion of the OER on June 26, 2009, show, however, that he and his prior Supervisor discussed the 
timing  of  the  OER  and  agreed  to  delay  the  OER  until  June  30,  2009,  in  violation  of  Article 
10.A.3.a.1.b.(2).  The Board notes that some officers opt for such delays, despite the regulation, 
so that as many achievements as possible can be noted in the OER before the officer’s record is 
reviewed by the selection board and so that the OER might cite the officer’s end-of-tour medal as 
an attachment.10 
 
The applicant alleged that the disputed OER is inaccurate and based on just two 
 
months of the 14-month evaluation period because his prior Supervisor failed to provide his new 
Supervisor with a draft OER as required by Article 10.A.2.d.2.j. of the Personnel Manual.  The 
record is unclear on this point, but it is clear from their declarations that both the new Supervisor 
and the Reporting Officer sought and received the prior Supervisor’s input on the marks before 
preparing the disputed OER.  The new Supervisor’s marks in the disputed OER are very similar 
to  those  assigned  in  the  applicant’s  prior  OER:    nine  marks  are  identical,  three  marks  are  one 
point  lower,  and  one  mark  is  one  point  higher.    Although  the  applicant  alleged  that  his  marks 
would have been higher had his prior Supervisor prepared the Supervisor’s section of the OER, 
he also repeatedly admitted that his prior Supervisor’s opinion of his performance had apparently 
declined during the evaluation  period.  Therefore and in  light  of the applicant’s agreement  that 
the OER be prepared by his new Supervisor upon his detachment from the unit, the Board finds 
that the applicant  has not  proved by  a preponderance of the evidence that  the disputed OER  is 
inaccurate,  erroneous,  or  unjust  because  of  the  proven  violation  of  Article  10.A.3.a.1.b.(2)  and 
the possible violation of Article 10.A.2.d.2.j. of the Personnel Manual. 
 
 
The  applicant  alleged  that  his  record  was  prejudiced  before  the  CDR  selection 
boards in 2009 and 2010 because the disputed OER did not show an attached end-of-tour medal.  
He alleged that the medal would have been an attachment to the OER if his Supervisor had prop-
erly  recommended  him  for  a  Commendation  Medal  rather  than  an  Achievement  Medal.    The 
applicant’s  new  Supervisor  stated  that  he  originally  considered  drafting  the  award  for  a  Com-
mendation Medal but that, after consulting the prior Supervisor and others, he recommended the 
applicant for an Achievement Medal.  The record further shows that the Achievement Medal was 
approved by the regional Awards Board and that the applicant ultimately received the Commen-

6. 

                                                 
8 Personnel Manual, Article10.A.3.a.1.b.(2). 
9  See,  e.g.,  CGBCMR  Docket  Nos.  2005-053,  2003-110,  2002-015,  43-98,  183-95  (Concurring  Decision  of  the 
Deputy General Counsel Acting Under Delegated Authority), and 475-86. 
10 See e.g., BCMR Docket No. 2007-027; Personnel Manual, Article 10.A.4.c.3.a.(1). 

 

 

 
7. 

dation  Medal  only  after  he  submitted  additional  information  showing  how  his  work  reflected 
sustained leadership and a regional impact.  Under these circumstances, the Board finds that the 
applicant  has  not  proved  by  a  preponderance  of  the  evidence  that  the  lack  of  a  notation  of  the 
medal on the disputed OER constitutes an error or injustice.  In this regard, the Board notes that 
the medal was not awarded until July 24, 2009, after the evaluation period for the disputed OER 
ended, and only those medals awarded during an evaluation period may be attached to an OER.11  
The medal is correctly listed as an attachment to the OER for the evaluation period that began on 
July  1,  2009.    More  importantly,  as  the  CO’s  emails  show,  the  Commendation  Medal  was 
entered in the applicant’s record on July 24, 2009, before it was reviewed by the CDR selection 
board. 
 
 
The  applicant  alleged  that  the  disputed  OER  is  inaccurate  and  should  not  have 
been approved by the CO because the marks are inconsistent with the comments and the citation 
for his Commendation Medal and with marks he has received on other OERs.  The applicant has 
not submitted any evidence to show that the comments are inaccurate and admitted that he him-
self  drafted  the  comments,  most  of  which  the  rating  chain  adopted  word  for  word.    Not  every 
accomplishment listed in the applicant’s bulleted OER input appears in the OER, but space on an 
OER  form  is  quite  limited  and  the  applicant  presumably  included  the  accomplishments  he 
wanted to include when he drafted the comments.  In arguing that the comments support higher 
marks, the applicant is misconstruing how an OER is prepared.  As stated in Articles 10.A.4.c.4. 
and 10.A.4.c.7., rating officials do not assign marks based on the level of performance reflected 
in the comments.  Instead, they read the performance standards for the marks printed on the OER 
form,  assign  marks  by  comparing  the  officer’s  performance  to  the  written  standards,  and  then 
include a written comment or two to support their decision to assign any mark other than a mark 
of 4.  Moreover, contrary to the applicant’s assertions, the Board finds that the OER comments 
are not so superlative that they are inconsistent with the assigned marks.  While it is true that the 
applicant received higher marks in prior and subsequent OERs, the fact that an officer has “had 
better ratings before and after the challenged OER is of no legal moment nor of probative value 
as to  the rating period covered by the one  OER with  which he is  dissatisfied.”12  Nor does the 
laudatory language on the citation for the applicant’s Commendation Medal, which was based on 
his performance throughout his tour at the Sector, persuade the Board that the numerical marks 
or comments in the disputed OER are inaccurate. 
 
 
The  applicant  complained  that  the  promotion  recommendation  in  the  disputed 
OER is  awkward.  The Reporting Officer’s comment  that the applicant  “is  an excellent perfor-
mer  [with]  the  necessary  technical  expertise,  management  ability  &  leadership  skills  to  be  rec-
ommended for promotion to O-5” is slightly indirect and thus lukewarm compared to more direct 
promotion recommendations stating that the officer is highly or strongly recommended for pro-
motion.  However, under Article 10.A.4.c.9. of the Personnel Manual, officers are not entitled to 
any particular promotion recommendation, and whether to include one at all is left to the discre-
tion  of  the  Reporting  Officer.    The  applicant’s  Reporting  Officer  had  served  in  that  capacity 
throughout the evaluation period, and the recommendation that he opted to make after observing 
the applicant’s performance for 14 months was not an abuse of his discretion.   
 

8. 

                                                 
11 Personnel Manual, Article 10.A.4.c.3.a.(1). 
12 Grieg v. United States, 640 F.2d 1261, 1269 (Ct. Cl. 1981). 

 

 

9. 

10. 

The applicant alleged that he received no counseling during the evaluation period 
 
and argued that he was entitled to counseling if his performance was deteriorating.  However, the 
applicant’s marks in the disputed OER are only slightly lower overall than in his prior OER, and 
his own statements show that he did receive feedback about his performance from time to time 
during the evaluation period.  Article 10.A.1.c.5. of the Personnel Manual states that “[n]o spe-
cific form or forum is prescribed for performance feedback.  Performance feedback occurs when-
ever a subordinate receives advice or observations related to their performance in any evaluation 
area.    Performance  feedback  can  take  place  formally  (e.g.,  during  a  conference)  or  informally 
(e.g.,  through  on-the-spot  comments).”    The  Board  is  not  persuaded  that  the  applicant  was 
unjustly denied performance feedback during the evaluation period. 
 
 
The applicant alleged that the CO was hostile and prejudiced against him because 
he was  a member  of the Prevention Department  and that her hostility and prejudice  caused his 
Supervisor and Reporting Officer to lower his marks in the disputed OER, in violation of Article 
10.A.2.f.2.  of  the  Personnel  Manual,  which  states  that  the  Reviewer  “shall  not  direct  in  what 
manner an evaluation mark or comment be changed.”  However, the applicant has failed to sub-
mit evidence to prove that the CO was particularly hostile toward him or prejudiced against all 
the members of the Prevention Department, and both the Supervisor and Reporting Officer have 
strongly  denied  that  the  CO  influenced  the  disputed  OER.    The  fact  that the  CO  served  on  the 
Supervisor’s  and  Reporting  Officer’s  rating  chains  is  not  persuasive  of  his  claim  given  the 
absence of any evidence that the CO was prejudiced against him or instructed them to lower his 
marks. 
 
 
The applicant alleged that the OER should be expunged because during the eval-
uation period he was subject to a hostile command climate, which caused his marks to be lower 
than  they  would  have  been  in  a  less  hostile  working  environment.    As  a  military  officer,  the 
applicant  is  not  protected  from  a  hostile  work  environment  under Title  VII  of  the  Civil  Rights 
Act of 1964,13 and even if a civilian, he would not be protected unless he were alleging that the 
CO  was  prejudiced  against  him  because  of  his  gender,  race,  ethnicity,  or  religion,  which  he  is 
not.    However,  Chapter  3.A.1.a.  of  the  Equal  Opportunity  Manual  states  that  every  member  of 
the  Coast  Guard  deserves  to  be  treated  with  honor,  dignity,  and  respect,  and  it  is  theoretically 
possible that a CO could treat a subordinate so horribly that the subordinate could not reasonably 
be expected to perform his duties well even if the CO’s abuse was not based on gender, race, eth-
nicity, or religion.  Thus, the legal criteria for a hostile work environment are instructive as to the 
type of evidence needed to prove that a command climate is so abusive that a competent officer 
cannot reasonably be expected to perform his duties well.  The caselaw on this issue shows that 
occasional hostile or humiliating words and actions are insufficient to prove a hostile work envi-
ronment.14  Factors that courts consider, aside from  bias, include the frequency of the conduct; 

11. 

                                                 
13 42 U.S.C. § 2000e-16; see Roper v. Dep’t of the Army, 832 F.2d 247, 248 (2nd Cir. 1987) (finding that “the Feres 
doctrine prevents members of the military from challenging military decisions through actions brought under Title 
VII”).  However,  “it  is  the  Coast  Guard’s  policy  to  apply  the  same  protections  [in  Title  VII]  to  the  military 
workforce.”  Equal  Opportunity  Manual,  Chap.  3.A.5.b.    “To  meet  the  definition  of  a  hostile  environment,  the 
harassment  must  be  so  severe  and  pervasive  that  a  reasonable  person  would  view  the  environment  as  hostile, 
offensive, or abusive.”  Id. at Chap. 3.A.5.d. 
14 See Overton v. New York State Division of Military and Naval Affairs, 373 F.3d 83, 99 (2nd Cir. 2004) (Pooler, J., 
concurring)  (noting  that  a  handful  of  racist  comments  spread  out  over  several  years  was  insufficient  to  create  a 
“hostile work environment”). 

 

 

the  severity  of  the  conduct;  whether  the  conduct  is  physically  threatening  or  humiliating  or 
merely offensive; and whether the conduct unreasonably interfered with an employee’s work per-
formance.15   A  hostile  work  environment  in  the  civilian  sector  exists  “[w]hen  the  workplace  is 
permeated  with  ‘discriminatory  intimidation  ridicule,  and  insult’  that  is  ‘sufficiently  severe  or 
pervasive to alter the conditions of the victim’s employment and create an abusive working envi-
ronment.’”16   
 

12. 

The  only  evidence  supporting  the  applicant’s  claim  that  his  OER  is  unjust  and 
should be removed because of a hostile command climate is the fact that the CO was relieved for 
cause in part because of a poor command climate in April 2010; his Reporting Officer’s conten-
tion that a poor command climate existed but did not affect the applicant; and his new Supervi-
sor’s  statement  that  the  applicant  “may  not  have  reached  his  full  performance  potential  at  [the 
Sector]  due  to  the  poor  command  climate  which  somewhat  diminished  his  enthusiasm  for  the 
job.”    Even  assuming  the  verity  of  the  applicant’s  claim  that  the  CO  criticized  his  decision-
making  about  the  investigation  of  a  tugboat  fire  “in  front  of  the  entire  command  cadre  at  the 
brief,” the Board finds the evidence of record to be considerably inadequate to prove that that the 
command  climate  was  so  hostile  that  he  could  not  have  performed  his  duties  to  meet  the  stan-
dards for higher OER marks. 
 
 
In light of the above findings, the Board finds that the applicant has not proved by 
a  preponderance  of  the  evidence  that  the  disputed  OER  was  adversely  affected  by  a  “misstate-
ment of significant hard fact,” factors “which had no business being in the rating process,” or a 
prejudicial violation of a statute or regulation.17  The Board finds no basis for removing the dis-
puted OER. 
 

 
13. 

14. 

The applicant made numerous allegations with respect to the actions and attitudes 
of  his  rating  chain.    Those  allegations  not  specifically  addressed  above  are  considered  to  be 
unproven and/or not dispositive of the case.18   

 
15. 

The applicant asked the Board to remove his non-selections for promotion in 2009 
and 2010, void  his voluntary retirement, and reinstate him on active duty.   The Board finds no 
grounds for awarding such relief because the applicant has not proved by a preponderance of the 
evidence that his military record was prejudiced by any error or injustice when it was reviewed 
by the CDR selection boards in 2009 and 2010.19 
 

16. 

Accordingly, the application should be denied.   

 

                                                 
15 Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 
16 Id. (citations omitted). 
17 Hary, 618 F.2d at 708; Lindsay, 295 F.3d at 1259. 
18 See Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997) (noting that the Board need not address arguments that 
“appear frivolous on their face and could [not] affect the Board’s ultimate disposition”). 
19  Engels  v.  United  States,  678  F.2d  173,  175-76  (Ct. Cl.  1982)  (noting  that  before  the  BCMR  removes  a  non-
selection  for promotion  from  an officer’s record, it should first determine that the officer’s record appeared worse 
because of a prejudicial error and then determine that if no error had prejudiced the officer’s record, it is not unlikely 
that the officer would have been promoted). 

 

 

 

 

ORDER 

The application of xxxxxxxxxxxxxxxxxxxxxxxxx, USCG (Retired), for correction of his 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Julia Andrews 

 

 

 
 
 Robert S. Johnson, Jr. 

 

 

 
 James H. Martin 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 
 
military record is denied.