DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2011-073 
 
XXXXXXXXXXXXXXX 

 

 

 
 

FINAL DECISION 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section  425  of  title  14  of  the  United  States  Code.    The  Chair  docketed  the  application  upon 
receipt of the applicant’s completed application on January 13, 2011, and subsequently prepared 
the final decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  October  13,  2011,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The  applicant  asked  the  Board  to  correct  his  record  by  removing  an  officer  evaluation 
report  (OER)  for  the  period  from April  1,  2008,  to  January  31,  2009  (disputed  OER).    In  the 
alternative, he asked that the marks in blocks 3.a and 3.b. be raised from 3s to 4s and the section 
9  comparison  scale  mark,  be  raised  from  the  3rd  block  (which  placed  him  in  the  lowest  of  the 
three-block  category  described  as  “one  of  the  many  competent  professionals  who  form  the 
majority of this grade” when compared to other LTJG’s the reporting officer has known) to the 
4th (middle) block for this category.1    The applicant also requested the removal of his failure of 
selection  for  promotion  before  the  LT  selection  board  and  that  “an  appropriate  date  of  rank  be 
assigned  considering  his  likely  date  of  rank  were  he  to  have  been  selected  [for  LT]  at  the 
appropriate time.”   
 

                                                 
1      There  are  7  blocks  on  the  comparison  scale  in  section  9  of  the  OER  where  the  reporting  officer 
compares the reported-on officer with others of the same grade that he has known in his career. The first 
block describes an officer who is unsatisfactory when compared to others of the same grade.  The second 
block describes an officer who is “a qualified officer” when compared to others.  Blocks 3, 4, & 5 describes 
an  officer  as  “one  of  the  many  competent  professionals  who  form  the  majority  of  this  grade”  when 
compared  to  others.    The  sixth  block  describes  as  officer  as  “an  exceptional  officer”  when  compared  to 
others.  The seventh block describes an officer who is rated as “a distinguished offer” when compared to 
others.    

 

 

The applicant alleged that the disputed OER should be removed from his military record 

 
for the following reasons: 
 

 

It is aberrational and not consistent with [his] overall performance. 

  The OER does not reflect an evaluation of his performance for  the entire 
rating  period  because  the  supervisor  observed  him  for  only  4  months  of 
the reporting period. 

  The OER contains factually incorrect information. 

  The reporting officer and reviewer both acknowledged that the OER does 
not accurately represent their intentions regarding [the applicant’s] career. 

 

 

 

 

With regard to the argument that the disputed OER is an aberration, the applicant stated 
that he had a distinguished career as an enlisted member of the Coast Guard prior to becoming an 
officer.    After  attending  officer  candidate  school,  he  reported  to  the  Waterways  Management 
Division  of  the  Marine  Safety  Unit  Chicago  for  duty  as  an  ensign.    He  performed  well  in  this 
grade and noted that on the comparison scale for his first ensign OER he was marked in the 5th 
block (highest of the category described as “one of the many competent professionals who form 
the majority of this grade”).  His next ensign OER was in the same assignment and reflected the 
same level of success. 

 
The  applicant’s  first  LTJG  OER  is  the  disputed  OER.    During  this  reporting  period,  he 
had a new assignment as a “marine inspector division trainee.”   He stated that four months into 
the subject  reporting period,  he was promoted to  LTJG and that  for the last four months of the 
reporting period LT S became his rating chain supervisor (LT S or supervisor).   He stated that 
the supervisor was not satisfied with his performance and gave him marks of 3 in “planning and 
preparedness”  and  “using  resources.”    He  stated  that  the  3s  were  radical  departures  from  his 
previous OERs, in which he had received no marks lower than 4.  He argued that the following 
comments  supporting the 3s are vague and offer no quantifiable evidence that he deserved less 
than the “customary 4 or 5 rating” in these dimensions:   

 
Characteristic  project/time  management  difficulties  of  first  tour  junior  officer, 
strained to balance own [training] requirements w/high paced operational billet . . 
.  [and] supervisors were forced to repeatedly prompt [member] to meet deadlines 
and expectations.[2]   
 
The applicant also argued that the reporting officer’s comment “[member] has struggled 
to balance work-life issues w/high op-tempo of a dynamic field unit” in section 7 of the disputed 
OER  lacked  quantifiable  evidence  and  that  it  failed  to  cite  the  cause  for  his  work-life  balance 
issues.    In  this  regard,  the  applicant  stated  that  the  rating  chain  failed  to  take  into  account  that 

                                                 
2      The  supervisor  also  wrote  the  following  in  the  comments  to  section  5:    “For  OP  BIG  TOW,  awkwardly  built 
teams comprised from multiple unit divisions; new teams had to be identified on eve of operation, identifying lack 
of coordination & redundant tasking between divisions; work frequently returned for revision.”   

 

 

during  the  rating  period,  the  applicant  was  undergoing  an  extremely  difficult  time  because  his 
newly-born daughter’s illness required him to spend time away from work.  The applicant argued 
that  this  stressful  event  in  his  life  led  the  reporting  officer  to  write  the  comment  about  his 
difficulty in managing a proper work/life balance.     

 
The applicant asserted that the reporting officer’s mark in section 9 that placed him in the 
lowest of the three blocks that make up the category  “one of the many competent professionals 
who form the majority of this grade” is inconsistent with the reporting officer’s marks of 4s and 
5s in the “personal and professional qualities” section of the disputed OER.  He also argued that 
the  section  9  mark  is  inconsistent  with  the  reporting  officer’s  description  of  his  potential  in 
section 10.  The applicant argued that in describing his potential, the reporting officer noted no 
deficiencies  in  his  performance  and  stated  that  the  applicant  “possesses  standard  junior  officer 
promotion potential.”  The reporting officer actually described the applicant’s potential in section 
10 as follows: 

 
Charismatic JO & persuasive communicator who demonstrated good initiative in 
areas of interest.  Through continued participation in formal mentoring program, 
mbr  should  develop  into  productive  marine  safety  officer.    As  new  O2,  mbr 
demonstrated ability to succeed in all assigned areas.  LE expertise has proven to 
be a valuable asset to high profile unit.  Broad operational experience base makes 
mbr  a  uniquely  diversified  officer  with  a  well  rounded  perspective  on  CG  roles 
and  missions.    As  mbr  continues  to  broaden  quals  &  experience,  will 
unquestionably  develop  into  a  successful  JO.    Recommended  for  promotion  in 
accordance with normal advancement schedule.   
 
The  applicant  argued  that  his  receipt  of  the  Team  Commendation Award  for  Operation 
Big  Tow  and  the  Coast  Guard Achievement  Medal  upon  his  departure  from  the  unit  conflicts 
with the assessment of his performance in the disputed OER and supports his contention that his 
performance  was  excellent  for  the  period  under  review.      The  applicant  referred  to  comments 
from  both  award  citations  in  support  of  his  contention.    The  citations  are  in  the  applicant’s 
military record and reviewed for this decision.   

 
The applicant  alleged that  he received no verbal or written  counseling on the perceived 

deficiencies in his performance.3  

 
In  support  of  his  application,  the  applicant  submitted  a  letter  from  CWO2  P.    The 
applicant noted that CWO2 P’s statement indicates that the unit was dysfunctional  and that the 
applicant floated from division to division.  The applicant drew the following conclusions from 
CWO2 P’s statement: 

 

  The  CO  had  little  direct  interaction  with  the  applicant  and  expressed  doubt  in  the 

applicant’s supervisor’s ability to provide the applicant with mentoring and supervision. 
 

                                                 
3  The  reporting  officer  commented  on  counseling  in  section  7  of  the  disputed  OER.    In  this  regard  he  wrote 
“[Reported-on officer] counseled on the professional challenges ahead; while performance satisfactory, it is neither 
exceptional nor consistent.” 

 

 

  

 

 

 

  When provided with proper military leadership, the applicant excelled. 

 

  Some leaders were setting the applicant up for failure by giving him short-fuse tasks with 
little or no guidance.  In this regard, the following is a quote from the CWO2’s statement. 

It  has  come  to  my  attention  the  [the  applicant]  was  marked  harshly  for  his 
ability  to  utilize  resources  and  for  his  planning/preparedness  skills  during 
2008-2009.    .  .  .   As  was  the  pattern  within  the  department,  [the  applicant] 
was  often  handed  short-fused  projects  with  little  assistance  [or]  guidance 
from supervisors or peers, and consistently produced a quality, timely product  
. . .  [The applicant] became small passenger vessel qualified and was the first 
of CG District to become uninspected towing vessel examiner under the new 
qualification procedure  . . . [The applicant] . . . along with his teammates was 
awarded  for  successfully  spearheading  local  efforts  under  the  National 
Operation  Big  Tow  initiative,  in  which  MSU  Chicago  was  recognized  as  a 
District expert.   The unit would enjoy the fruits of this effort throughout the 
towboat examination process, continuing today.   

  CWO2 P’s statement presents a “picture of snarky, uncaring leadership who relished the 
ability  to  find  a  younger  officer  upon  whom  to  blame  and  utilize  as  the  proverbial 
‘whipping boy.’”  The following is quoted from CWO2 P’s statement: 

[The  applicant’s]  supervisor  and  immediate  senior  co-worker  often  criticized 
[the applicant] in my presence.  I cannot find a reason other than difference in 
work  styles  or  personalities.    Maybe  he  was  an  easy  scapegoat  for  his 
supervisor  within  the  department  as  a  way  of  deflecting  criticism  for  not 
meeting  expectations  .  .  .    [A]t  the  end  of  all  the  complaining,  all  the 
accusations,  and  all  the  negative  commentary,  [the  applicant]  remained  a 
spearhead  for  projects  in  the  department  and  continued  to  exhibit  strong 
growth through qualification and personal commendation.  

  The Achievement Awards given to the applicant during and upon his departure from the 
unit  as  well  as  his  record  demonstrate  that  the  disputed  OER  is  not  indicative  of  the 
applicant’s  overall  career,  and  in  fact  show  that  it  was  a  dramatic  departure  from  the 
applicant’s overall performance and potential.  

 
Applicant’s OER Reply and the CO’s Response 
 
 
The applicant’s military record contains the applicant’s reply to the OER dated April 17, 
2009.   In his reply to the disputed OER, the applicant specifically addressed the marks of 3 in 
“planning  and  preparedness”  and  “using  resources.”    He  stated  that  he  disagreed  with  his 
supervisor’s opinion of his abilities.  He further stated the following: 
 

The  basis  for  these  lower  than  average  marks  is  my  planning  of  Operation  Big 
Tow phase I and II, which was a surge operation for towboat safety and licensing 
that  District  Eight  and  Nine  conducted  in  early  December  2008.    Operation  Big 

 

 

Tow Phase I was planned and based on my limited knowledge at the time about 
the  towing  industry.    In  my  defense,  I  was  attempting  to  integrate  into  a  new 
department at the time and I was far from a good understanding of the regulations 
that  govern  the  towing  industry.    However,  after  the  first  operation,  I  began 
planning Operation Big Tow Phase II.  I worked very hard on this project, often 
developing the incident action plan at home and on weekends.  I turned in several 
rough drafts through my supervisor for help and ideas to make it better  . . .  Even 
though phase  I  may  not  have been up to  expectations, phase  II  was much better 
organized  and  met  the  intent  of  the  operation,  which  was  to  ensure  proper 
licensing and safety of towboats.   
 
 
The  supervisor  and  reporting  officer  forwarded,  without  comment,  the  applicant’s  reply 
to the reviewer, who was also the commanding officer (CO).  The reviewer wrote the following 
response to the OER reply, in pertinent part: 
 

While  [the  applicant’s]  current  level  of  performance  has  improved  from  the 
beginning of the marking period, it was never poor.   My overall opinion of this 
evaluation  is  that  consistently  good  results  observed  by  his  supervisor  were 
tarnished  by  periodic  difficulties  performing  a  very  demanding  job  during  the 
marking period.  Two marks of “3” are representative of his overall performance 
this period, but below his current level of work, and well below his capabilities.    
 
With  respect  to  the  impact  of  operation  Big  Tow;  the  final  product  was  not  the 
Command’s  concern,  it  was  the  lack  of  time  management.    The  second  phase 
deliverables were much better than the initial project; largely attributed to the last 
minute “crunch” work that went into the first phase.  Marine Inspections is a very 
complex job, which he is taking the opportunity to excel in.   
 
This  marking  period  was  an  education  for  [the  applicant],  working  for  a 
demanding  supervisor  and  learning  to  manage  expectations.    If  his  dedication 
continues,  I  am  confident  that  he  will  be  an  asset  to  the  Coast  Guard.    I  fully 
expect  [the  applicant’s]  next  OER  to  reflect  a  marked  improvement  and  look 
forward to working with him in the future.    

 

VIEWS OF THE COAST GUARD 

 
On  June  2,  2011,  the  Judge Advocate  General  (JAG)  of  the  Coast  Guard  submitted  an 
 
advisory  opinion,  with  a  memorandum  from  the  Commander,  Personnel  Service  Center  (PSC).  
The advisory opinion recommended that the Board deny relief.   
 
The JAG, citing Germano v. United States, 26 Cl. Ct. 1446, 1460 (1992), stated that the 
 
central  issue  in  this  case  is  whether  the  applicant  has  shown  that  the  disputed  OER  contains  a 
“clear  and  prejudicial  violation  of  a  statute  or  regulation,  or  alternatively,  a  misstatement  of  a 
significant hard fact.”  The JAG noted that the responsibility for completing a fair and accurate 
evaluation  of  the  applicant’s  performance  rested  with  the  rating  chain,  and  that  the  applicant 

 

 

failed to overcome the strong presumption that his rating chain officials acted correctly, lawfully, 
and in good faith in evaluating his performance.  
 

  The JAG stated that  the evidence suggests that the  rating chain properly  evaluated the 
applicant’s  performance  and  noted  that  each  member  of  the  rating  chain  submitted  a  statement 
attesting to the accuracy of the disputed OER.  The rating chain statements are discussed below.   
 
Supervisor’s Statement 
 
The  supervisor  stated  that  the  disputed  OER  is  a  true  and  accurate  record  of  the  applicant’s 
performance  for  the  period  under  review.    The  supervisor  denied  that  the  OER  was  hastily 
prepared.  He further stated the following: 
 

In  a  unit  of  approximately  27  active  duty  members  that  included  only  three 
lieutenants and three lieutenants junior grade, it is almost impossible not to know 
about  each  other’s  performance  and  lives.    I  witnessed  [the  applicant’s]  past 
performance  especially  since  his  desk  was  located  just  outside  my  office  and  in 
the  same  bullpen  as  all  of  my  inspectors.    I  found  [the  applicant’s]  performance 
documented in  the OER in  question, not  to  be in line with  his  past  performance 
just as he stated in his appeal.  As a result of this change in performance, we met 
regularly  in  my  office  to  discuss  this  change.    While  we  knew  of  his  family 
situation  .  .  .  at  no  time  did  [the  applicant]  indicate  that  his  performance  was 
affected  by  his  daughter’s  condition.    In  fact,  when  the  command  knew  of  any 
issue surrounding his daughter’s condition, the command allowed [the applicant] 
to  be  with  his  wife  and  daughter  at  the  doctor.   At  no  time  was  [the  applicant] 
required to obtain a special liberty chit and at no time did he request any chit or 
special consideration.  
 
.  .  .  [Re]gular  bullpen  meeting  with  the  staff  was  the  norm,  but  closed  door 
meetings with [the applicant] became compulsory.   
 
As a result of [the applicant] not managing his time well, duties had to  be taken 
from  him  and  completed  by  other  members  of  the  Marine  Safety  Unit.    I  had 
actually spent quite a bit of time working with [the applicant] and the inspections 
team on this Operation Big Tow, a Coast Guard wide towing vessel examination 
initiative.  [The applicant] was tasked to utilize his team to put together a plan for 
how the unit would randomly examine towing vessels on the Illinois River in the 
middle  of  winter.    He  had  the  civilian  Assistant  Chief  of  Inspections  and  two 
Warrant Officers to utilize for guidance and two petty officers to assist him with 
the  task.    He  assigned  his  enlisted  members  to  put  together  the  jobs  aids  as  he 
formulated  the  plan.   The  job  aids  were  well  thought  out  and  shared  throughout 
District 8 and District 9, however the towing vessel examination plan put together 
was  inherently  flawed  as  it  paired  two  non-vessel  inspectors  together  to  go  and 
examine vessels.  As a result, at the last minute the teams had to be adjusted and 
additional  unit  level  training  was  conducted  in  order  to  make  the  Operation  a 
success.   

 

 

 

 
After seeing [the applicant] struggle with the development and implementation of 
the Operation Big Tow plan, I felt that it would be good to provide him a chance 
to improve his performance and to provide him with additional assistance myself.  
So, [the applicant] was charged to write a team award to recognize the efforts of 
the unit members who implemented the Big Tow plan.  I personally met with [the 
applicant]  in  order  to  give  him  the  task,  a  timeline,  the  Awards  Manual  for 
guidance and a number of examples to follow in order to set him up for success.  
After  repeatedly  engaging  him  on  the  topic,  requesting  to  see  his  progress  and 
finally  obtaining  a  substandard  product  I  was  forced  to  take  this  task  from  him 
and  draft  the  award  myself.    The  Meritorious  Team  Commendation  that  [the 
applicant] included in his package was the award that was [assigned] to him, but 
instead it was completed by myself and the executive officer.   
 
Another project [the applicant] failed to properly handle was the coordination of a 
Federal-State-Local Law Enforcement tactical exercise.  During our tour, the State 
Troopers were called to  respond to a small boat and they requested Coast Guard 
assistance.  After the incident, the State Troopers indicated that they were not as 
comfortable  responding  to  any  law  enforcement  issues  on  vessels  since  they 
interacted with them so infrequently.  As a result, [the applicant] was tasked with 
coordinating  a  law  enforcement  training  exercise  for  multiple  law  enforcement 
agencies . . .  
 
With the date of the training event and field exercise approaching, the command 
requested to review the training and overall plan for the exercise.  Unfortunately, 
[the  applicant]  had  completed  very  little  on  the  operation.   As  a  result,  a  petty 
officer  who  was  the  assistant  law  enforcement  officer  and  on  leave  at  the  time, 
had to be recalled to the office to complete a significant number of work products 
for  the  exercise.   This  action  was  deemed  necessary  in  order  to  prevent  the  last 
minute  cancellation  of  the  training  event  and  would  reflect  poorly  on  the  Coast 
Guard . . .   
 
These  two  examples  clearly  reflect  why  the  two  marks  of  3  for  planning  and 
preparedness and for using resources were given.   

The  supervisor  stated  that  he  agreed  with  the  following  comments  in  the  reviewer’s 
response  to  the  applicant’s  OER  reply:    “’Two  marks  of  ‘3’  are  representative  of  his  overall 
performance  during  this  period,  but  below  his  current  level  of  work  and  well  below  his 
capability.”  The supervisor concluded his statement with the following: 
 

Since  the  OER  in  question,  I  noted  that  [the  applicant’s]  performance  improved 
until we departed MSU Chicago and I sincerely hope that it continues that trend.  
However, his allegations that I had not “observed” him long enough, that he was 
not  counseled  on  his  performance,  and  that  his  OER  supporting  marks  do  not 
match the marks of 3 [are] completely erroneous.   

 

 

 

Reporting Officer’s Statement 
 
 
The  reporting  officer  stated  that  the  disputed  OER  is  an  accurate  assessment  of  the 
applicant’s performance for the period under review.  He stated that on the comparison scale in 
block 9 the applicant was rated as one of the many professionals who form the majority of this 
grade;  however,  “any  perception  that  [the  applicant]  performed  unsatisfactorily  and  should  be 
rated  among  the  approximately  10%  of  his  peers  that  were  ‘passed-over’  for  promotion  is 
incorrect.”    He  stated  that  the  applicant  received  routine  informal  counseling  on  the  need  “to 
better  his  performance,  on  daily  project  management,  and  on  carrying  out  orders,  including  a 
scheduled meeting with the CO.”  The reporting officer stated that a mentor was assigned to the 
applicant.  He stated that he talked with the applicant almost every day at work and that he had 
designated  open  door  hours.    Therefore,  the  applicant  had  ample  opportunity  during  their 
discussions to explain any perceived deficiencies in his performance.   
 
The reporting officer stated that CWO2 P was not in the applicant’s rating chain and was 
 
not in a position to evaluate the quality or timelinesss of his projects.  He stated that the applicant 
did  not  obtain  any  professional  qualifications  during  the  period  covered  by  the  disputed  OER.  
He also commented that there is no basis for accusations that the applicant was set up for failure 
by  his  rating  chain.    He  stated  that  neither  the  inspections  department  nor  its  department  head 
was the subject of any disciplinary action or bad publicity.  “[T]here were no issues on which to 
blame anyone.”   
 
 
With  regard  to  the  applicant’s  daughter’s  illness,  the  reporting  officer  stated  that  “[t]he 
command  provided  a  lot  of  informal  consideration  to  [the  applicant’s]  allocation  of  time  away 
from work during his tour, including time off, adjustment of due dates, repeated edits to project 
deliverables, and flexible work hours.”    
 
Reviewer’s Statement 
 
The reviewer, who was also the CO, stated that the applicant is a good officer whom he 
 
likes and respects.  The reviewer stated that the OER in question was one in which the applicant 
was assigned a project, as all junior officers are.  The reviewer stated that the project was high 
profile  and  that  he  relied  on  his  department  head,  who  was  the  applicant’s  supervisor,  for 
completion of the project and for managing his department.  He stated that on many occasions, 
the  supervisor  would  mention  his  frustration  with  the  applicant’s  performance,  particularly  his 
lack of completion of assignments and follow-up.  The reviewer further stated the following: 
 

When  [the  applicant]  first  made  LTJG  I  counseled  him  and  one  of  his  fellow 
newly  promoted  LTJGs.    I  explained  my  expectations  of  an  O-2  and  assigned 
them a mentor from my Ward Room . . . [M]y selection of a CWO to mentor JO’s 
was unconventional, but I felt [the CWO’s] CG experience and Marine Inspector 
qualification would be the best fit I had in a very small office to offer these young 
JO’s  the  opportunity  to  succeed            .  .  .  The  Bull  pen  of  Inspectors  had  no 
qualified Marine Inspectors senior to [the applicant] other than the Dept. Head.     
 

 

 

 

When presented with [the applicant’s] OER, I reviewed for accuracy and fairness.  
I recommended to the [reporting officer] and [supervisor] that his marks seemed 
low  and  that  I  would  need  documentation  to  support  such  an  OER.    [The 
supervisor]  working  through  the  [reporting  officer]  rewrote  the  OER  as  it 
currently stands.  My counsel was as follows:  “He performed well as an Inspector 
Trainee  and  JO,  he  had  personal  challenges  that  we  need  to  be  sensitive  to,  but 
stumbled on several  assignments and  was weak in  following through.   I  felt this 
JO  deserved  a  chance  and  still  do  feel  he  will  be  an  asset  to  the  [Coast  Guard]. 
The marks assigned were accurate as per the OER system[.]  I stand behind them, 
or  never  would  have  signed  as  Reviewer.    My  endorsement  [to  the  applicant’s 
OER reply] dated 29 June 2009 clearly states my opinion and I would not change 
that statement.  

I also have concerns [about] the witness chosen to support [the applicant’s claim].  
CWO2  P  was  not  selected  for  promotion  having  earned  an  OER  that  accurately 
reflected his weak performance and unprofessional attitude.  I will not go into line 
by line details to rebut his letter but can assure you, he has a self serving interest 
in trying to show other than factual situations while at MSU.  One example is the 
number of persons leaving the command particularly junior officers.  Fact check; 
Two had letters submitted before reporting to MSU, the third had started a family 
and  chose  to  not  transfer  and  stay  in  the  area.    This  normal  turnover  does  not 
include  the  4  members  who  extended  or  returned  to  MSU  for  follow-on  tours.  
Not exactly demonstrating the poor morale CWO2 P is trying to demonstrate . . .   

 
PSC Memorandum  
 
 
opinions and conclusions based upon their review of the evidence: 
 

The  PSC  memorandum  was  a  part  of  the  advisory  opinion.    PSC  offered  the  following 

  The rating chain carried out its responsibilities in preparing and submitting the applicant’s 

OER in accordance with the Coast Guard Personnel Manual.   
 

  The  applicant  was  afforded  counseling  both  during  and  through-out  the  period  by  both 

the supervisor and reporting officer. 
 

  The member has provided no evidence that the marks in “planning and preparedness” and 

“using resources” were not supported. 
 

  The  applicant  has  failed  to  substantiate  any  error  or  injustice  with  regard  to  his  record.  
He has not provided evidence that overcomes the presumption of regularity with respect 
to  the  construction  or  submission  of  the  disputed  OER,  and  there  is  no  basis  for 
expunging  the  OER.    The  contested  OER  is  administratively  correct  and  prepared  in 
accordance with the applicable regulation.  
 

 
 

 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  July  12,  2011,  the  Board  received  the  applicant’s  response  to  the  advisory  opinion.  
He  disagreed  with  it.  The  applicant  stated  that  the  crux  of  the  advisory  opinion  is  the  JAG’s 
comment  that “[T]he applicant’s argument  that suggests his  record was negatively impacted by 
the  disputed  OER  with  regard  to  his  promotion  potential  is  unfounded  and  clearly  without 
merit.”  The applicant argued that this is a broad and sweeping statement, which is unsupported 
by any evidence proffered by the Coast Guard.  The statement fails to cite anything else in the 
applicant’s record which might result in non-selection for promotion to LT.  The applicant stated 
that a review of his record shows that the disputed OER is the only negative document existing 
in his record. 
 
 
With regard to the statement in the Coast Guard’s advisory opinion that the “Applicant’s 
argument  that  the  disputed  OER  is  aberrational  is  unfounded  and  without  merit”  the  applicant 
argues that it ignores the documentation he provided.  In particular, he argued that the statement 
does not address the fact that the disputed OER is markedly different from prior and subsequent 
OERs.   
 
The  applicant  argued  that  PSC’s  program  input  relies  too  heavily  upon  the  declarations 
 
obtained from the rating chain.  He also argued that the PSC input fails to address “the nuances 
of the OER system, human error, bias, or the inflated nature of the OER system.”   
 
 
The  applicant  argued  that  PSC  based  its  opinion  that  the  applicant  was  counseled 
throughout  the  reporting  period  on  the  rating  chain  declarations,  but  considered  none  of  the 
evidence  submitted  by  the  applicant.    He  argued  that  “[t]o  limit  one’s  opinion  to  only  a  few 
pieces of evidence . . .  is simply unfair to [the applicant].”   
 
 
With  respect  to  the  supervisor’s  declaration,  the  applicant  stated  that  the  supervisor 
offered no documentation or other records to support the statements made in his statement.  The 
applicant  argued  that  it  was  the  supervisor’s  responsibility  to  consider  the  impact  of  the 
applicant’s family emergency on his ability to do his job.  He denied that the supervisor routinely 
offered  guidance  and  stated  that  the  supervisor  relied  upon  events  that  occurred  outside  of  the 
reporting period (such as the federal-state-local law enforcement tactical exercise) to justify the 
marks and comments in the disputed OER.    
 
 
The  applicant  stated  that  the  reporting  officer’s  statements  that  “any  perception  that  the 
applicant  performed  unsatisfactorily  and  should  be  rated  among  the  approximately  10%  who 
were not selected is incorrect” is a clear indication that the actual affect of the OER did not meet 
his intent and that if the reporting officer understood then what he does now, his marks would be 
different.  The applicant also alleged that the reporting officer’s goal “to run a fair and efficient 
command  were  largely  disrupted  by  the  actions  of  junior  leaders”  such  as  the  supervisor.   The 
applicant argued that CWO2 P’s statement supports his contention in this regard.  He stated that 
despite  the  rating  chain  attempts  to  discredit  CWO2  P’s  statement,  he  has  nothing  to  gain  by 
supporting the applicant’s application.   
 

 

 

The  applicant  alleged  that  the  reviewer’s  opinion  about  the  applicant’s  performance 
 
during  the  reporting  period  “was  tainted  by  the  fact  that  most  of  his  information  regarding  the 
applicant came from the supervisor, and no one else.”  The applicant asked the Board to consider 
that “[the reviewer] has the most to lose if it were discovered that members of his command were 
not treated fairly or given due consideration.”  The applicant concluded his reply to the advisory 
opinion with the following comments:   
 

In writing their declarations, the three members of the chain of command had the 
benefit  of  reading  the  applicant’s  initial  submission  to  the  Board,  and  they 
appeared to not hesitate in providing statements to support their positions.  We ask 
that  the  Board  note  that  they  provided  nothing  in  the  way  of  documentary 
evidence in rebutting the assertions of the applicant—except documentation of an 
event with no bearing on the OER in question.  Logic dictates that, if the applicant 
were  truly  deserving  of  the  low  marks  he  received  on  his  OER,  at  least  one 
document could be produced to demonstrate his lack of aptitude.   
 
None were provided because none ever existed.  The negative comments  on this 
OER  are  the  result  of  the  supervisor  whose  own  shortcomings  were  projected 
upon his subordinates . . .  contrast the tone of the supervisor with those used by 
the other two officers.  The difference is striking, and we believe the board should 
take note of this.   
 
. . .  The OER cost the applicant one chance of being selected for promotion, but it 
was  never  intended  to  do  so.    In  the  interest  of  fairness,  the  intent  of  the  two 
senior rating officials, and the intent of the officer evaluation system, we ask that 
you remove this “career killer” from the official file of [the applicant]. 
 

 
Other Submissions from the Applicant 
 
On September 1, 2011, the Board received additional documents from the applicant that 
 
included his statement with endorsement to the PY 2010 LT selection board, his designation as 
suspension  and  revocation  investigator,  and  his  above  average  OER  for  the  period  February  1, 
2011 to June 30, 2011. 
 

FINDINGS AND CONCLUSIONS 

 

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

military record and submissions, the Coast Guard's submission and applicable law: 
 
 
of the United States Code.  The application was timely.   
 

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

2. The applicant requested an oral hearing before the Board.  The Chair, acting pursuant 
to  33  C.F.R.  § 52.31,  denied  the  request  and  recommended  disposition  of  the  case  without  a 
hearing.  The Board concurs in that recommendation. 
 

 

 

3.  For the reasons discussed below, the Board finds that the applicant has failed to prove 

an error or injustice in the disputed OER. 

 
4.    As  the  advisory  opinion  stated,  to  establish  that  the  disputed  OER  is  erroneous  and 
should  be  removed  from  his  record  or  modified,  the  applicant  must  prove  that  it  contained  a 
significant misstatement of hard fact or that it was prepared in violation of the law or regulation.  
The applicant’s argument that the OER is in error or unjust because it is allegedly “aberrational 
and not consistent with his overall performance” is not proof that the disputed OER is erroneous.  
In fact, the Personnel Manual states that in evaluating an officer, “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.”  In addition this provision states that 
the  supervisor  shall  review  the  reported-on  officer’s  performance  and  qualities  observed  and 
noted  during  the  reporting  period.  Therefore,  the  marks  on  the  applicant’s  prior  or  subsequent 
OERs are not a proper basis on which to decide whether the disputed OER is erroneous or unjust.   

 
5.  The applicant next alleged that the disputed OER does not include an evaluation of his 
performance  for  the  entire  reporting  period  because  the  supervisor  was  not  a  member  of  his 
rating  chain  until  the  last  4  months  of  the  reporting  period,  and  therefore,  only  observed  his 
performance  for  4  months.      The  Board  is  not  persuaded  by  this  argument.  Although  the 
Personnel  Manual  does  not  require  the  rating  chain  supervisor  to  be  in  place  for  any  specific 
portion  of  the  reporting  period,  it  provides  safeguards  to  ensure  that  a  reported-on  officer 
receives a thorough evaluation.  First, the regulation gives the reported-on officer the opportunity 
to  provide  the  supervisor  with  “a  listing  of  significant  achievements  or  aspects  of  [his] 
performance  which  occurred  during  the  reporting  period.”    See  Article  10.A.2.c.2.e.  of  the 
Personnel Manual.  There is no indication in the record whether the applicant took advantage of 
this  opportunity,  but  he  did  not  argue  that  any  of  his  accomplishments  during  the  reporting 
period were omitted from the disputed OER.    

 
Second, in preparing the disputed OER, the supervisor could draw from not only his own 
observations,  but  from  those  of  any  secondary  supervisors  and  other  information  accumulated 
during the reporting period. Article 10.A.4.c.4.d. of the Personnel Manual.  The supervisor could 
have obtained information on the applicant’s performance from his other supervisors during the 
reporting period, as well as from  the reporting officer.   In addition,  the supervisor stated in  his 
declaration that because the command had only 27 active duty members, it was impossible not to 
know about each other’s performance.  Therefore, while the supervisor may not have been on the 
applicant’s  rating  chain  for  the  entire  reporting  period,  the  evidence  of  record  is  that  he  was 
aware  of  the  applicant’s  performance  for  the  entire  reporting  period.  As  stated  above,  the 
applicant  has  not  argued  that  any  significant  accomplishment  during  the  reporting  period  was 
omitted from the disputed OER.   

 
Third,  the  applicant  had  the  right  to  submit  a  reply  to  the  OER,  which  he  did.    In  his 
reply, he explained his  view of his  performance for the period under review.  The OER, reply, 
and reviewer comments are available to all who review the applicant’s record.   

 
6.  The applicant  argued  that the comments supporting the marks of 3 in “planning and 
preparedness”  and  “using  resources”  are  vague  and  offer  no  quantifiable  evidence  that  he 

 

 

deserved less than a 4 or 5 in these dimensions.  The comments that support the marks of 3 read 
as  follows:      “Characteristic  project/time  management  difficulties  of  first  tour  junior  officer, 
strained  to  balance  own  [training]  requirements  w/high  paced  operational  billet  .  .  .  “  [and] 
“supervisors  were  forced  to  repeatedly  prompt  [member]  to  meet  deadlines  and  expectations.”  
The  comments  are  not  vague  and  they  are  sufficiently  clear  to  explain  why  the  applicant  was 
given a 3 in “planning and preparedness” and “using resources.”   In addition, the applicant did 
not explain what about the comments confused him or what about them he failed to understand.  
His  argument  that  the  comments  required  quantifiable  evidence  is  not  supported  by  the  OER 
regulation.    Article  10.A.4.c.4.d.  of  the  Personnel  Manual  states  that  after  marking  each 
evaluation  area,  the  supervisor  shall  include  comments  on    specific  aspects  of  the  reported-on 
officer’s    performance  and  behavior  for  each  mark  that  deviated  from  a  four.    The  supervisor 
complied  with  the  regulation  by  providing  comments  to  support  the  3s  in  “planning  and 
preparedness” and “using resources.”  Under the regulation, there is no set number of examples 
that must be given to support a mark.   

 
Moreover,  the  supervisor  explained  in  his  declaration  that,  in  addition  to Operation  Big 
Tow, there were at least two other instances in which the applicant failed to manage his time so 
that the assigned projects would be completed on time.  One involved the applicant’s writing of 
the  team  award  to  recognize  the  efforts  of  the  unit’s  members  for  Operation  Big  Tow  and  the 
other coordinating a federal-state-local law enforcement tactical exercise.  Although the applicant 
argued  that  federal-state-local  exercise  occurred  in  another  reporting  period,  the  disputed  OER 
indicates that it occurred during that reporting period because in the comment block to section 3. 
of  the  disputed  OER,  the  supervisor  wrote  the  following:    “[Reported-on  officer]  coord. 
Interagency  training  w/CBP,  state  &  fed.  LE  agencies  on  U.S.  Laker  to  increase  agencies 
familiarity  w/large  VSls  &  how  to  respond  in  case  of  issues  resulting  in  increased 
interoperability  among  several  LE  agencies.”  The  evidence  supports  concluding  that  the 
applicant was aware of the basis for the marks of 3.    

 
7.    Similarly,  the  applicant  argued  that  the  reporting  officer’s  comment  that  “[the 
applicant] has struggled to balance work-life w/high op-tempo of a dynamic field unit” in section 
7 was vague and not quantified. The comment is not vague and the regulation does not require 
that the rating chain produce any specific number of examples to support a comment evaluating 
an  officer’s  performance.  Furthermore,  section  7  is  where  the  reporting  officer  supplements  or 
amplifies the supervisor’s evaluation.   The reporting officer agreed with  the supervisor that the 
applicant  had  issues  with  balancing  his  work  and  life  in  a  high  tempo  environment.    As  the 
executive  officer  for  the  command,  the  reporting  officer  had  the  opportunity  to  observe  and 
become familiar with the applicant’s performance.  He affirmed the disputed OER as written.   

 
8.  The applicant has not submitted sufficient evidence to prove that the supervisor’s and 
reporting  officer’s  comment  about  difficulty  with  time  management  is  inaccurate.    CWO2  P’s 
statement  that  the  applicant  “was  often  handed  short-fused  projects  with  little  assistance  or 
guidance  from  supervisors  or  peers  and  consistently  produced  a  quality,  timely  product  for  the 
department  and  the  command”  is  not  persuasive.      CWO2  P  mentioned  Operation  Big Tow  as 
one of the high profile projects the applicant completed.  However, as the reviewer stated in his 
response  to  the  applicant’s  OER  reply,  the  issue  was  not  the  final  product,  but  the  applicant’s 
“lack of time management.”  CWO2 P’s statement contains no evidence, except for his assertion, 

 

 

that the applicant’s “time-management” was not a problem during the planning of Operation Big 
Tow or at other times during the reporting period.  Even the applicant tacitly admitted in his OER 
reply  that  he  had  issues  with  the  project.    In  this  regard,  he  wrote  in  that  reply  that  “I  was 
attempting  to  integrate  into  a  new  department  at  the  time  and  I  was  far  from  a  good 
understanding of the regulations that govern the towing industry. . . .  Even though phase I may 
not  have  been  up  to  expectations  Phase  II  was  much  better  organized.  .  .  .”    In  addition,  the 
supervisor  wrote  in  his  declaration  with  regard  to  Operation  Big  Tow  that  at  the  last  minute 
teams  had to  be adjusted and additional unit level  training was  conducted in  order to  make the 
operation a success.  He also stated that it became necessary for him to complete the citation for 
the  Team  Award  for  Operation  Big  Tow,  even  though  the  applicant  was  assigned  that  task.  
Evaluating  the  applicant’s  performance  was  the  responsibility  of  the  rating  chain,  and  each 
member has affirmed that the disputed OER is accurate.  CWO2 P’s statement is insufficient to 
prove that it is inaccurate.   

 
9.    Regarding  the  section  9  comparison  scale  mark,  the  applicant  argued  that  it  is 
inconsistent with the reporting officer’s marks of 4s and 5s and the description of his potential in 
section  10.    According  to  Article  10.A.4.c.8.  of  the  Personnel  Manual,  the  section  9  mark 
represents the reporting officer’s ranking of the reported-on officer relative to all other officers of 
the same grade the reporting officer has known.  This provision further states that the comparison 
scale  mark  represents  a  relative  ranking  of  the  reporting  officer  and  not  necessarily  a  trend  of 
performance.  Apparently, in evaluating the applicant for the period under review, the reporting 
officer rated the applicant in the lowest of the three blocks that formed the category “one of the 
many competent professionals who form the majority of this grade.” Since the mark represents 
the reporting officer’s evaluation of the applicant when compared to other LTJGs he has known, 
it is not rendered erroneous or inaccurate because the applicant may have had a different ranking 
in previous or subsequent OERs.  If support were needed for this mark, which it is not, the Board 
notes  that  both  the  supervisor  and  reporting  officer  commented  on  the  applicant’s  failure  to 
manage  his  time  in  the  disputed  OER,  which  supported  the  marks  of  3  in  “planning  and 
preparedness”  and  “using  resources.”    Therefore,  the  Board  finds  that  the  section  9  mark 
represents  the  reporting  officer’s  evaluation  of  the  applicant  compared  to  other  LTJGs  he  has 
known throughout his career; that it is not inconsistent with the remainder of the disputed OER; 
and that the applicant has not submitted sufficient evidence to prove that the mark is erroneous or 
unjust.    
 
10.    The  applicant’s  contention  that  he  received  no  written  or  verbal  counseling  is 
rebutted  by  members  of  the  rating  chain  and  the  disputed  OER.   The  supervisor  stated  that  he 
met regularly with [the applicant] in his office to discuss his performance.  The reporting officer 
wrote  that  “[a]lthough  no  formal  counseling  was  documented,  [the  applicant]  received  routine 
informal  counseling  on  the  need  to  better  his  performance  on  daily  project  management  and 
carrying out orders, including a scheduled meeting with the commanding officer . . . and a formal 
mentor  was  assigned  .  .  .”  The  reporting  officer  commented  on  counseling  provided  to  the 
applicant  in  section  7  of  the  disputed  OER.    In  this  regard  he  wrote  “[Reported-on  officer] 
counseled  on  the  professional  challenges  ahead;  while  performance  satisfactory,  it  is  neither 
exceptional  nor  consistent.”   The  reviewer,  who  was  the  CO,  stated  that  the  applicant  required 
numerous  counseling  sessions  in  order  to  complete  assigned  tasks  in  an  acceptable  manner.”  
Even CWO2 P wrote that the CO assigned him to mentor the applicant because the CO was not 

 

 

pleased with the speed at which the applicant was progressing.  Therefore, the record shows that 
the applicant did receive counseling or feedback on his performance.  According to 10.A.1.c.5. of 
the Personnel Manual, no specific form or forum is prescribed for performance feedback, which 
may occur whenever a subordinate receives advice or observations related to their performance 
in any evaluation area.  In addition, the reported-on officer is responsible for seeking clarification 
if the feedback he receives is not understood.   

 
11.    The  applicant  argued  that  the  reporting  officer’s  comment  that  the  applicant  had 
difficulty in managing a proper work/life balance in a high tempo environment is evidence that 
the  reporting  officer  failed  to  take  into  account  his  family’s  pressing  medical  issue  during  the 
reporting period.  The applicant’s family medical issue is something that the rating chain could 
have considered in evaluating the applicant’s performance, but there is nothing in the provisions 
of  the  Personnel  Manual  relating  to  OERs  that  require  the  rating  chain  to  take  family  medical 
issues  into  consideration.    The  Personnel  Manual  does  provide  guidance  with  respect  to  a 
reported-on officer’s inability to perform fully due to a medical condition or illness.  Even so, the 
reporting  officer  wrote  in  his  declaration  that  “[t]he  command  provided  a  lot  of  informal 
consideration  to  [the  applicant’s]  allocation  of  time  away  from  work  during  his  tour,  including 
time  off,  adjustment  of  due  dates,  repeated  edits  to  project  deliverables,  and  flexible  work 
hours.”    The  applicant  has  not  shown  that  adjustments  were  not  made  by  the  rating  chain  to 
accommodate his family illness for the period under review.    

 
12.  The  applicant  argued  that  the  OER  should  be  removed  or  modified  because  the 
reporting  officer  and  reviewer  comment  that  “any  perception  that  the  applicant  performed 
unsatisfactorily [during the reporting period] and should be rated among the approximately 10% 
of  his  peers  that  were  ‘passed  over’  for  promotion  is  incorrect”  shows  that  the  OER  does  not 
accurately represent their intention regarding the applicant’s career.  In contrast to the applicant’s 
interpretation  of  this  comment,  the  Board  interprets  it  as  meaning  that  the  OER  is  an  honest 
assessment of the applicant’s performance for the period under review and not an assessment of 
the  applicant’s  entire  career.    In  addition,  the  Board  finds  that  the  comment  expresses  the 
reporting  officer’s  and  reviewer’s  opinion  that  the  OER  is  not  an  evaluation  of  unsatisfactory 
performance.    The  Board  notes  that  each  member  of  the  rating  chain  stated  in  declarations  to 
PSC  that  the  OER  was  an  accurate  assessment  of  the  applicant’s  performance  for  the  period 
under review.  

 
13.    The  Board  is  not  persuaded  that  the  OER  is  erroneous  or  unjust  because  the 
applicant, along with  others, received a Team  Commendation Award for  Operation  Big Tow or 
because the applicant received the Coast Guard Achievement Award at the end of his tour.  The 
team award was not an individual award but recognized the members of the team for a job well 
done.   It does not  single out  the  applicant for the success  of Operation  Big Tow.  Therefore, it 
does  not  disprove  the  rating  chain’s  comment  that  the  applicant  encountered  time  management 
problems during the period under review.  The Achievement Medal covered the applicant’s entire 
tour at the unit from February 2007 to June 2010.  He had some notable achievements during the 
period, but  that does not  disprove  the rating chain’s  marks and  comments  in the disputed OER 
that  he  encountered  some  difficulty  managing  his  time.   The CO  recognized  in  his  response  to 
the  applicant’s    OER  reply  that  the  applicant’s  performance  during  the  period  covered  by  the 
disputed OER was below that of his capability and that he expected to see marked improvement, 

 

 

if the applicant remained dedicated.  Therefore, the fact that the applicant improved, as his CO 
expected,  and  was  rewarded  with  an  end  of  tour  Coast  Guard  Achievement  Medal  does  not 
disprove  that  for  the  specific  period  under  review  he  encountered  problems  as  noted  in  the 
disputed OER.  

 
14.  The applicant’s contention that he was deliberately given the disputed OER to deflect 
criticism  away  from  his  supervisor’s  shortcomings  is  not  supported  by  the  record.    The  only 
evidence offered in this regard is CWO2 P’s speculation that this occurred. However, he offered 
no specific evidence to support his allegation.  The reporting officer stated there was no need to 
deflect any criticism because neither the inspections department nor its department head was the 
subject of any disciplinary action or bad publicity.    

 
15.  The applicant’s argument that the supervisor had not presented any documentation to 
support  statements  made  in  his  affidavit  is  noted.    However,  the  rating  chain  members  are 
presumed to have performed their duties in accordance with the regulation.  It is the applicant’s 
responsibility to  prove error or injustice in  his  record by  a preponderance of the  evidence.  He 
has failed to do this.   

 
16.  The applicant has failed to prove an error or injustice in the disputed OER; therefore, 
there is no basis on which to consider removing the applicant’s failure of selection for promotion 
to  LT.  Before the Board can reach the issue  regarding the removal of a failure of selection  for 
promotion,  the  applicant  must  first  establish  a  prejudicial  error  or  injustice  in  the  OER.  See 
Engels v. United States, 678 F.2d 173, 175 (Ct. Cl. 1982).   The applicant had not done so.   

 
17.  Accordingly, the applicant’s request should be denied.     

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

 

 

 

ORDER 

 

The  application  of  XXXXXXXXXXXXXXXX,  for  correction  of  his  military  record  is 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 
 Anthony C. DeFelice 

 

 

 
 Frank E. Howard 

 

 

 
 Jeff M. Neurauter 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

denied.