DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2011-082 
 
Xxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxx 

FINAL DECISION 

This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.  The Chair docketed the case upon receipt of the applicant’s 
completed application on January 24, 2011, and assigned it to staff member J. Andrews to pre-
pare the decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

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

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  correct  his  record  by  removing  an  officer  evaluation 
report  (OER)  covering  his  service  as  a  deck  watch  officer,  Law  Enforcement  Officer,  and 
Assistant  Operations  Officer  (AOO)  of  a  cutter  from  February  1  to  June 30,  2009;  replacing  it 
with a Continuity OER; removing his non-selection for promotion to lieutenant (LT) by the LT 
selection board that convened in September 2010; awarding him back pay and allowances; and 
placing his record before a special selection board for consideration for promotion.  He alleged 
that the disputed OER contains marks and comments that are prohibited because they are based 
on  performance  that  occurred  before  the  reporting  period  for  the  disputed  OER  began1  and  is 
thus an inaccurate assessment of his performance during the reporting period.  He alleged that he 
was  not  selected  for  promotion  in  2010  by  the  promotion  year  (PY)  2011  LT  selection  board 
because of the erroneous marks and comments in the disputed OER. 
 

The disputed OER, which is attached, shows that the applicant received high marks of 5 
and 6 in many performance categories.2  However, from his supervisor,3 the Operations Officer 

                                                 
1 Articles 10.A.4.c. and 10.A.4.f.11. of the Personnel Manual prohibit marks and comments based on performance 
that occurred outside of the reporting period for the OER. 
2  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.   

 

 

(OO) of the cutter, the applicant received an average mark of 4 for “Directing Others” and a low 
mark of 3 for “Workplace Climate” supported by the comment, “Contributed to unauth[orized] 
writings & actions led to diminished respect & professionalism on watch, clouded senior/junior 
relationships.”    And  from  his  reporting  officer,  the  Executive  Officer  (XO)  of  the  cutter,  he 
received  average  marks  of  4  for  “Judgment”  and  “Professional  Presence,”  a  low  mark  of  3  for 
“Responsibility,”  and  a  low  mark  of  3  on  the  Comparison  Scale.4    The  reporting  officer  sup-
ported these marks with the following negative comments: 
 

  “Despite  lapse  in  human  relations  sensitivity  through  unacceptable  conduct  on  watch, 
[the  applicant]  performed  his  duties  admirably  with  a  fervor  that  encouraged  others  to 
strive to contribute in increased roles of responsibility.” 

 

 

  “Responsibility  was  in  doubt;  participated  in  inappropriate  behavior  containing  vulgar 
writings/actions  on  bridge,  failed  to  follow  through  on  initial  recognition  of  problem; 
when counseled, sought corrective actions by meeting w/ watchstanders, department head 
& command chief; shared lesson learned with other afloat junior officers.” 
 

  “[The applicant] demonstrated great potential early in this period.  Unfortunately, his set-

back in responsibility has overshadowed his upward trend in performance.” 

The  applicant  stated  that  when  he  reported  aboard  the  cutter  in  June  2007,  there  was  a 
“quote book” on the bridge where people had written down entertaining quotations of statements 
made on the bridge for many years.  In the spring of 2008, he consulted his supervisor, the OO, 
about  issues  he  was  having  with  a  fellow  junior  officer  and  he  handed  the  OO  the  quote  book 
because  it  contained  examples  of  the  problems  that  were  causing  him  concern.    The  applicant 
told  the  OO  that  he  had  removed  the  quote  book  from  the  bridge  because  of  its  questionable 
content, but that someone took it from him without his consent at the direction of the other junior 
officer and returned it to the bridge.  The applicant gave the quote book to the OO so he could 
review it and then consulted members of the Chiefs’ Mess about how to handle the matter.  As a 
result of the consultation with the Chiefs, he told the OO that he thought the quote book should 
be  removed  from  the  bridge  and  quotations  could  be  recorded  on  the  back  of  the  wake-up  log 
book  for  a  while.    The OO  agreed,  and  the  applicant  took  the  quote  book  since  he  intended  to 
create a new one without the offensive content. 

 
The applicant noted that he mentioned his removal of the quote book in his OER input for 
the reporting period that ended on September 30, 2008,  as an example of his  work in the cate-
gory “Workplace Climate” and that the following comment in that OER was based on his efforts 

                                                                                                                                                             
3  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. 
4  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 “a distinguished officer” for a mark in the seventh spot.  A mark in the third, 
fourth (middle), or fifth spot on the scale denotes the officer as “one of the many competent professionals who form 
the majority of this grade.”   

 

 

regarding the quote book:  “Actively sought advice from CPO mess to defuse potential mission 
degrading situation; allowed all parties involved to reestablish effective communication vital to 
shipboard duties.” 

 
The applicant  stated that he retained the old  quote book, intending to  create a new one, 
and  in  April  2009  while  he,  the  head  of  the  Deck  Department,  and  several  others  were  away, 
involved in  the boarding of a fishing vessel for five days,5 someone again took  the quote book 
and  returned  it  to  the  bridge  without  his  knowledge.    The  commanding  officer  (CO)  found  the 
quote  book  on  the  bridge  and  held  him  accountable  for  its  content  in  his  OER  for  the  period 
February 1 to  June 30, 2009, even though he had been the  first officer to  object  to  the  content 
and had twice removed it from the bridge.  The applicant stated, “I, as a first tour Ensign, was the 
one member of the crew of the [cutter] with  knowledge of the contents of the quote book who 
took positive, affirmative action to remove offensive comments and correct and longstanding—
almost a decade long—sequence of conduct by scores of ships personnel; yet the OER indicates 
that I was the cause of the problem, rather than the solution.” 
 
 
The applicant  noted that his  OER marks declined in  ten categories from  his  prior  OER, 
for the period ending January 31, 2009.  He alleged that his performance did not actually decline 
but  that  the  CO’s  anger  about  the  contents  of  the  quote  book  overshadowed  his  rating  chain’s 
assessment  of  his  performance.    He  noted  that  the  only  negative  comments  supporting  the 
decline in so many of his marks were comments concerning the quote book.  He alleged that he 
was wrongly held accountable for the vulgar comments other members made over the course of a 
decade and all outside of the reporting period for the disputed OER. 
 
 
With regard to the OER comments, the applicant alleged that they are erroneous because 
“[t]here is NO evidence to support any allegation that I actually engaged in ‘unacceptable con-
duct on watch,’ and I specifically deny that I did so.”  He stated that his only “participation” in 
the “inappropriate behavior” on the bridge was his attempt to improve the working environment 
by removing the quote book from the bridge, and he did that long before February 1, 2009—the 
start of the reporting period for the disputed OER.  The applicant stated that he had removed the 
quote book from the bridge before the reporting period for the disputed OER began and had zero 
involvement in its return to the bridge while he was away from the cutter.  He did not make any 
entries in the book or direct anyone else to do so during the reporting period.  He argued that the 
comment that he “failed to follow through” after recognizing the problem ignores the fact that he 
removed  the  quote  book  from  the  bridge  and  that  someone  else,  without  his  knowledge  or 
approval, returned it to the bridge. 
 
 
The  applicant  also  alleged  that  the  CO,  who  served  as  the  OER  Reviewer,  improperly 
directed his supervisor, the OO, and reporting officer, the XO, to assign him lower marks in sev-
eral categories than they otherwise would have based solely on the CO’s discovery of the quote 
book on the bridge in April 2009.  The applicant stated that because the full effect of that impro-
per pressure cannot be known, the entire OER should be removed from his record.  In support of 

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

 

 

his allegations, the applicant submitted several statements signed by crewmembers of the cutter, 
which are summarized below. 
 
Statement of an LTJG Y, a Deck Watch Officer 
 

LTJG Y stated that he stood a 1 in 3 watch on the bridge of the cutter and was often on 
watch  with  the  applicant.    He  stated  that  knowledge  of  the  quote  book  was  widespread  among 
the watchstanders and the crew, but the applicant removed it from the bridge in the summer of 
2008 “because it contained some entries from past years that were inappropriate.”  Not everyone 
agreed with his decision, but the applicant discussed it with some of the cutter’s leadership and 
kept  the  quote  book  in  his  stateroom.    LTJG  Y  claimed  that  a  new  quote  book  was  put  on  the 
bridge, and all the entries made in it were “in no way offensive or degrading.”  However, in the 
spring  of  2009,  someone  returned  the  old  quote  book  to  the  bridge,  where  it  was  found  by  the 
CO.  Although the applicant was not on board when this happened, he immediately admitted to 
the CO that he knew about the quote book. 
 
Statement of LTJG Z, a Deck Watch Officer 

 
LTJG Z stated that he stood several watches on the bridge with the applicant, and he con-
sistently  displayed  expertise  and  professionalism.    The  applicant  “never  engaged  in  inappro-
priate, unprofessional behavior while on watch.”  He stated that the presence of  the quote book 
was well known, and it “had some entries from  past  years that were inappropriate.”  However, 
the applicant removed the quote book from the bridge during a patrol in 2008 and kept it in his 
stateroom while he consulted other deck watch officers and his supervisor about it.  A new quote 
book  was  started  on  the  bridge,  and  all  of  the  entries  were  appropriate.    However,  while  the 
applicant was serving as the Law Enforcement Officer and boarding a fishing vessel, the original 
quote  book  was  brought  back  to  the  bridge  and  discovered  by  the  CO.    “Understanding  the 
severity of the situation, [the applicant] took ownership of his knowledge of the quote book.”  
 
Statement of CWO X, the Supply Officer 
 
 
CWO X stated that he reported aboard the  cutter  for duty as the Supply  Officer  in  July 
2008  and  sometime  thereafter,  the  applicant,  LTJG  X,  and  the  head  of  the  Deck  Department 
came  to  his  stateroom  to  discuss  the  quote  book  with  him  and  another  CWO,  which  they  had 
already  removed  from  the  bridge  because  of  some  offensive  content.    CWO  X  told  them  that 
having  a  quote  book  was  a  common  tradition  and  suggested  that  they  discuss  it  with  the  OO.  
CWO X stated that he believes that they did discuss the quote book with the OO, who had it in 
his possession for a while.  However, in 2009, the CO found the old quote book on the bridge.  
She called a meeting with the wardroom and dressed down all of the officers, including five who 
had never stood a bridge watch and were unaware of the quote book.  CWO X stated that  
 

[f]rom that moment on, everyone was walking on eggshells. … I do know that she did not really 
want to hear what anyone had to say, and she asked generic questions  such as, “How did we get 
here  and  how  do  we  proceed?”   [The  applicant]  spoke  up  first  and  apologized  to  the  group  as  a 
whole, “stepping up” as it were.  Although I know he was not alone in this, he was the one to man 
up and the CO did not seem impressed with this and actually looked even more upset with him for 
doing it, but that’s just my opinion.  When [the other CWO] spoke, she shut him down with a neg-
ative comment, after which not much else was said that had any relevance to the book specifically. 

 

 

… [M]ost of the bad ‘quotes’  were  years old.  Of the recent entries, the  worst things  were some 
“F” bombs.  I certainly did not feel that the quotes from 3 to 7 years ago were the “Failure” of this 
current wardroom nor should that failure be put on specific personnel.  I also don’t feel that trying 
to  hold  someone  accountable  today  for  the  indiscretions  of  someone  from  3  to  7  years  ago  is 
appropriate.    [The  applicant]  took  the  issue  to  his  immediate  supervisor,  [the  OO],  and  properly 
used his chain of command. 

 
Statement of a Gunner’s Mate, Second Class (GM2) 
 
 
A GM2 stated that he frequently stood watch with the applicant on the bridge, sometimes 
twice  a  day,  from  June  2007  to  June  2009,  and  that  the  applicant  consistently  displayed  great 
professionalism and had “a positive influence on the bridge watch’s professionalism.”  The GM2 
stated that knowledge and use of the quote book on the bridge was widespread until the summer 
of  2008.    However,  the  applicant  found  the  quote  book  unprofessional  and  removed  it  despite 
others’ objections.  The applicant kept the quote book in his stateroom and discussed its disposi-
tion with more experienced officers.  After the applicant removed the old quote book, someone 
started a new one, but all of the entries were appropriate.  However, during the spring patrol  in 
2009, someone put the old quote book back on the bridge.  While the GM2 was standing watch, 
the CO came looking for it and took the old quote book. 
 
PRRB Decision on LTJG X’s OER for February 1 to May 28, 2009 
 
 
In support of his allegations, the applicant submitted a decision of the Personnel Records 
Review Board (PRRB) concerning the OER of LTJG X, one of the other officers held account-
able after the CO discovered the quote book.   LTJG  X, who was selected for promotion  to  LT 
after the PRRB removed his OER in 2010, provided the applicant a copy of the PRRB’s decision 
for his BCMR application.  The PRRB’s decision shows that based on statements solicited from 
LTJG  X’s  rating  chain  about  his  low  marks  for  Directing  Others,  Responsibility,  and  Profes-
sional Presence, which are summarized below, the PRRB concluded that LTJG X’s OER for the 
period February 1 to May 28, 2009, should be removed from his record because the XO had been 
improperly directed by the CO to lower the mark he assigned for Directing Others based on per-
formance not related to the quote book and because the low marks for Responsibility and Profes-
sional Presence were based on LTJG X’s contributions to the quote book, which occurred before 
the start of the reporting period for the OER.  The PRRB found that prior to the reporting period 
for the OER, several officers who served on the bridge as Officer of the Day discussed the offen-
sive content of the quote book, gave the quote book to the AOO “for disposition,” and “rightfully 
assumed the issue was resolved.”   
 

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

 

 

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

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

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

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

 
The  CO  of  the  cutter  served  as  LTJG  X’s  OER  reviewer  (and  the  applicant’s  reporting 
officer).    She  stated  that  she  supported  LTJG  X’s  mark  of  2  for  “Responsibility”  based  on  his 
participation in the quote book, which she discovered on the bridge during the reporting period.  
She stated that the quote book contained “references to perverted, disgusting, and at best unpro-
fessional  behavior  that  took  place  on  the  bridge  and  elsewhere  aboard  the  [cutter].    The  quote 
book was not routinely stored in open view. … The book was stopped and counseling given only 

 

 

after I discovered it.  [LTJG X] seems to take refuge in the fact that the book existed for several 
years.  [He] had  ample  opportunity to  stop  the offensive behavior  and the documentation of it.  
[He] did not speak up and he did not get involved in the solution.”  The CO also supported LTJG 
X’s mark of 3 for “Professional Presence” because of his implicit condoning of the quote book 
during the reporting period. 
 

VIEWS OF THE COAST GUARD 

 
 
On  June  2,  2011,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard  submitted  an 
advisory opinion in which he recommended that the Board grant relief by removing the disputed 
OER, replacing it with a Continuity OER, removing the applicant’s non-selection for promotion 
to LT in 2010 by the PY 2011 LT selection board, and, if he is selected for promotion by the PY 
2012 LT selection board after his record is correct, backdating his date of rank to what it would 
have  been  had  he  been  selected  for  promotion  in  2010  and  awarding  him  back  pay  and  allow-
ances.  In making this recommendation, the JAG adopted the findings and analysis provided in a 
memorandum on the case prepared by the Personnel Service Center (PSC). 
 
PSC’s Memorandum 
 
The PSC submitted sworn declarations signed by the applicant’s rating chain, which are 
 
summarized  below,  and  in  light  of  those  declarations  concluded  that  the  rating  chain  did  not 
carry  out  its  duties  properly  under  the  Personnel  Manual.    The  PSC  stated  that  the  OO’s  and 
XO’s declarations show that they were improperly directed by the CO, who reviewed the OER, 
to  lower  marks  they  had  assigned  to  the  applicant  when  drafting  the  disputed  OER.    The  PSC 
stated that  
 

[t]he  Reviewer  directing  any  documentation  in  sections  three,  four,  five,  seven,  or  eight  of  the 
OER was not consistent with policy as those portions of the evaluation were the responsibility of 
the Supervisor and Reporting Officer.  The Reviewer has the authority and duty to return an OER 
for  correction  or  reconsideration;  however  returning  an  OER  with  specific  outcome  direction  is 
not within policy.  Having reviewed the Applicant’s package and the rating chain’s declarations, 
CG PSC believes that the Supervisor and Reporting Officer were directed by the Reviewer to align 
their  assessment  with  her  view  of  the  Applicant’s  performance  in  at  least  six  particular  dimen-
sions, thus resulting in lower marks than would have been assigned. 

 
 
The PSC found that the applicant “provided sufficient evidence to prove, by a clear and 
convincing standard, that the disputed OER inaccurately documents his performance during the 
period”  and  agreed  with  the  applicant  that  the  entire  OER  should  be  removed.    Because  the 
applicant’s other OERs are significantly better, the PSC stated that it would be “prudent to err on 
the  side  of  the  applicant  and  grant  relief  for  [his]  non-selection  duty  the  PY  2011  ADPL  LT 
selection board.” 
 
Declaration of the OO of the Cutter 
 
 
The OO, who prepared the supervisor’s portion of the disputed OER, stated that he does 
not  have  a  copy  of  the  original  OER  he  prepared  but  he  knows  that  it  included  significantly 
higher marks in several categories.  However, he stated,  
 

 

 

[f]ollowing my initial submittal, I was advised by the Executive Officer that I needed to edit those 
sections  with  more  emphasis  placed  on  the  effects  the  Commanding  Officer  felt  the  quote  book 
had on morale, and the performance of the bridge team.  Although I believed that [the applicant’s] 
overall performance in Directing Others, Teamwork and Workplace Climate were well above the 
marks assigned, it was made clear to me that anything other than the marks submitted in the con-
tested OER would not be approved by my chain of command and therefore I should make the edits 
as advised.   
 
The OO further stated that the applicant “had taken positive steps to remedy the situation 
and along with several of his shipmates, was wrongly made an example of.”  The applicant “had 
taken steps to remove the book from the bridge and one of his shipmates, unbeknownst to him, 
took it back to the bridge.”  The OO stated that although the entries read aloud from the quote 
book  by  the  CO  were  offensive,  he  is  not  convinced  “that  those  aware  of  the  book  when  the 
commanding officer found it had indeed read through it or were aware of the specific unprofes-
sional quotes within.” 
 
Declaration of the XO of the Cutter 
 
 
The XO of the cutter, who prepared the reporting officer’s portion of the disputed OER, 
stated  that  the  CO  “insisted  that  [the  applicant’s]  participation  [in  the  quote  book]  was  “career 
altering”  and  that  it  must  be  documented  in  his  OER.    I  complied  with  her  assessment  by 
addressing her account of his participation in the quote book in his OER.”  However, the XO was 
never allowed to read any of the entries, and the CO was very vague about the dates and nature 
of  specific  entries,  so  he  had  to  prepare  the  OER  marks  and  comments  without  knowing  what 
unprofessional  conduct  the  applicant  was  accused  of  committing  in  the  quote  book.    The  XO 
never actually saw the applicant engage in any unauthorized behavior while on watch or at any 
other  time  while  assigned  to  the  cutter.    The  XO  concluded  that  he  would  have  assigned  the 
applicant  significantly  higher  marks  in  several  categories  if  he  had  not  had  to  satisfy  the  CO’s 
expectations.  The XO also stated that he advised the OO of the CO’s position on the applicant’s 
OER and believes that the OO lowered the marks he assigned to the applicant accordingly. 
 
 
The XO stated that the applicant told him at the time that he had shown the quote book to 
the OO.  The XO supported the applicant’s claim that he had removed the book from the bridge, 
consulted some of the command leadership, and “took action to remove offensive content” from 
it.  Moreover, the XO stated that, based on his conversation with several members of the crew, 
he believes that the applicant did not know that the quote book had been returned to the bridge. 
 
Declaration of the CO of the Cutter 
 
 
The  CO,  who  served  as  the  reviewer  for  the  disputed  OER,  stated  that  contrary  to  the 
applicant’s  claim,  she  knows  that  his  involvement  with  the  quote  book  took  place  during  the 
reporting  period  for  the  disputed  OER  because  she  discovered  the  book  in  April  2009  and  had 
several conversations with the applicant about the book during which he  
 

4.  …  acknowledged the book’s existence, its inappropriate content, and his role surrounding the 
book to me during the reporting period. …   
 

a.    However  lighthearted  [the  applicant]  and  witnesses  attempt  to  portray  the  book,  the 
nature of the book and behavior detailed in the book are neither witty nor appropriate.  The quote 

 

 

 

book contains references to perverted, disgusting, and unprofessional behavior directly in opposi-
tion to Coast Guard core values that took place on the Bridge and elsewhere.  The book details sex 
acts, including … .  The book documents disrespect from officers to enlisted members (“How’s it 
goin [m.f.] Petty Officer”).  Name withheld.  During the marking period references to “my black 
ass” and “fuckin” are recorded as well as a reference to the male sexual organ.  In addition, during 
the period disrespect from enlisted members to officers (“Sir, I could definitely see you being sold 
into sex trafficking”) is recorded.  During the period, [the applicant] was in a position to stop this 
behavior….  
 

b.  I know that the book was active and located on the bridge during the marking period.  
I  found  the  book  on  the  bridge  during  the  marking  period.    I  know  that  unprofessional  behavior 
and the documentation of unprofessional behavior happened during the period of report because of 
specific  dates  written  in  the  book  and  next  to  entries.    A  sample  page  of  the  quote  book  is 
included.    One  title  of  entries  is  labeled  “Mar-May  ‘09”.    [The  applicant]  was  an  Officer  of  the 
Deck during the period and stood that watch on the bridge.  Watchstanders, referred to as BMOW 
or  QMOW  or  by  their  rank  and  first  initial,  made  entries  on  several  different  days  during  the 
period.  I knew that [the applicant] knew about the book when just days after my discovery of the 
book,  he  requested  an  audience  with  me  to  discuss  the  book.    [He]  clearly  indicated  to  me  his 
knowledge of the book, its location, its content, his participation in it and the inappropriateness of 
it.  [His] name is listed several times in the book. 

 
c.  [The applicant] discusses the history of the quote book aboard [the cutter] as if to offer 
him  relief  from  his  conduct  during  the  period.    The  failings  of  others,  however  egregious  and 
many, are not germane.  The history of the book prior to the marking period does not excuse [his] 
poor behavior during the marking period. … A commissioned officer, [he] should have recognized 
the inappropriateness of the book and should not have joined in.  He had a duty to take action even 
if it were to stop the book himself.  [He] offers an explanation that he provided the book to several 
people and that he had a plan to “improve the practice”.  He sought out crewmembers, often sub-
ordinates,  as  if  to  receive  permission  and  concurrence  for  maintaining  the  book.    He,  in  fact, 
maintained the book himself for some time.  He did not destroy the book or disavow himself from 
the  unprofessional  behavior  contained  in  the  book.    Even  after  my  discovery  of  the  book,  [he] 
referred to the book as a tradition to be continued. 
 

d.  I do not believe [the applicant’s] statement that he did not know that the quote book 
was on the bridge during the marking period.  During the marking period, after I had discovered 
the  book,  I  can  recall  at  least  four  conversation  with  [him]  concerning  the  book.    Most  of  these 
conversations were held with his supervisor and reporting officer present.  Not once, during any of 
those conversations, did he contest his knowledge of the book, his chain of command’s interpreta-
tion of his involvement in the book, or his lack of action to stop it.  He never told me that he had 
not seen the book on the bridge.  In fact, he told me that during a recent period the book was in his 
personal  possession.    During  his  last  patrol  aboard  the  [cutter],  during  the  marking  period,  the 
book was active and on the bridge.  There was recent information in the book.  An entry was made 
by bridge watchstanders on 09 Apr 09.  The book had not been dormant.  When presented with the 
[disputed OER, the applicant] never raised any issue refuting the marks or comments he received, 
and rather to the contrary, he continued to acknowledge his role.  
 

e.  During the period [the cutter] conducted a boarding of a xxxxxx fishing boat.  It was 
routine  operations  to  conduct  boardings  while  underway.    [The  applicant]  was  often  involved  in 
boardings and would sometimes be aboard another vessel for short periods of time.  I do not recall 
the exact amount of time [he] was onboard the fishing boat.  During the period [he] was not away 
from  the  unit  for  any  length  of  time  so  as  to  absolve  him  of  his  actions  concerning  the  book.  
During the period, while underway, [the applicant] stood watch on the bridge and while inport he 
made regular rounds of the bridge.  His subordinates and watchstanders made entries in the book.  
After  confiscating  the  book  I  discovered  that  the  book  and  its  location  was  common  knowledge 
among senior bridge watchstanders, including [the applicant].  It is not credible to believe that  the 
book was dormant or not on the bridge during the marking period and that [he] did not know about 

 

 

it.    It  is  unlikely  that  as  a  frequent  watchstander  and  as  Assistant  Operations  Officer  during  the 
period he would not know about the book’s current [continued] existence.  Furthermore, based on 
his reaction when I discovered the book, it was and still is clear to me that [he] was a willing par-
ticipant in the  unprofessional behavior and the recording of the unprofessional behavior and that 
he knew the location of the book. 
 
5.    [The  applicant]  and  witnesses  refer  to  an  “original”  and  “new”  quote  book.    There  was  one 
book.  [The applicant] told me his attempt to start a “new” book was to skip pages in the book and 
to start recording quotes again at the end of the book.  This fact  was confirmed by my inspection 
of the book.  The book I confiscated contained all previous period quotes as well as quotes from 
this period.  These is no visible effort to remove objectionable and inappropriate material from the 
book.  During the period the inappropriate and unprofessional behavior continued.  As a relatively 
senior member of command cadre and an Officer of the Deck, [he] had a duty to stop the book and 
the inappropriate behavior.  He failed to do so. 
 
6.  The marks and comments assigned by the Supervisor are administratively authorized, accurate, 
justified,  and  reflective  of  [the  applicant’s]  performance  during  the  period. …  Additionally,  [he] 
failed  to  hold  subordinates  accountable  for  their  own  participation  in  unprofessional  behavior.  
[His]  attempt  to  shirk  responsibility  for  his  own  actions  further  validates  that  he  was  not  forth-
coming about his knowledge of the book prior to me finding it and further validates the accurate 
evaluation of him. 
 

a.  [The applicant] states, “I did everything possible to bring an end to what could be con-
sidered inappropriate comments in the quote book.”  He did not do everything possible.  [He] did 
not stop the inappropriate behavior and the documentation of the behavior, as was his duty to do 
so.  [His] chain of command marked him according to his actions and conduct during the period, 
not the actions or conduct of others.  [He] point to the four witness statements as validation of his 
points.  He, again, sought out witnesses, all subordinates, as if to receive permission and concur-
rence for his actions surrounding the book.  All witnesses directly participated in the inappropriate 
and  unprofessional  behavior  or  had  knowledge  of  it  and  took  no  action.    They  have  provided 
mischaracterizations of the quote book.  I do not recall [the GM2] on the bridge when I discovered 
the book. … [The applicant’s] failure to remove the book and to stop the behavior condoned the 
inappropriate  conduct  of  his  watchstanders  and  subordinates.    [He]  failed  to  meet  a  standard  of 
behavior that would show his subordinates that he could be trusted to lead and respect all of them, 
not just some. … 
 
7.    The  marks  and  comments  assigned  by  the  Reporting  Officer  are  administratively  authorized, 
accurate, justified, and reflective of [the applicant’s] performance during the period.  During sev-
eral  conversations  with  [the  applicant]  during  the  marking  period  he  expressed  to  his  Reporting 
Officer and me an understanding of the impact of his actions and inaction.  He also expressed sor-
row for his conduct.  In every discussion with [him] he confirmed that he participated in the book.  
He  called  the  book  a  “[cutter  name]  tradition”  as  he  refers  to  it  several  times  in  his  statement.  
Following my discovery of the book [he] told me that he wanted  to ask me to return the book to 
him  so  that  the  tradition  could  continue.    [He]  did  not  effectively  execute  a  corrective  plan  to 
remedy the situation.  [He] failed to take appropriate action.  He was given the benefit of the doubt 
after  the  discovery  of  the  book  by  seeking  corrective  actions  and  did  nothing  to  prove  that  he 
should  receive  any  higher  marks.    I  now  believe  that  benefit  given  to  [him]  by  his  Reporting 
Officer was based on false words. 
 

a.    During  the  period,  while  underway,  [the  applicant]  stood  watch  on  the  bridge  and 
while  inport  he  made  regular  rounds  of  the  bridge.    His  subordinates  and  watchstanders  made 
entries in the book.  After confiscating the book I discovered that the book and its location were 
common knowledge among senior bridge watchstanders including [the applicant].  Is it not credi-
ble to believe that inappropriate behavior written in the book did not take place during [his] watch.  
Quotes  are  often  listed  by  bridge  watch  positions.    I  have  provided  a  sample  entry  in  the  quote 
book  that  appears  to  refute  [the  applicant’s]  claim  that  “I  did  not  engage  in  ANY  inappropriate 

 

behavior,  at  any  time,  on  or  off  watch,  during  this  reporting  period  or  outside  of  this  reporting 
period. 

 
b.    …  [The  applicant’s]  claim  that  an  “unidentified  individual”  was  responsible  for  the 
location of the book is not credible and is an attempt to deflect his own responsibility.  The fact is 
the book  was on the bridge during the  marking period.  The book contained vulgar  writings and 
actions  contrary  to  Coast  Guard  core  values.    In  all  conversations  with  [him]  he  told  me  that  he 
knew the location of the book and  was  fully aware of  its  content.   [He] lacked commitment and 
failed to act ethically when he had the opportunity to stop the book and the unprofessional beha-
vior occurring.  He, instead, allowed the book and behavior to continue. … 

 

9.  [The applicant] accuses me of impermissible actions concerning his [OER].  During the period 
and in the execution of his [OER] dated 30 June 2009 I was fully aware of my duties and respon-
sibilities  concerning  my  role  as  Commanding  Officer  and  Reviewer  of  [the  applicant].    I  per-
formed my duties in accordance with COMDTINST M1000.6A.  In an email sent to me dated 02 
June 2010, [the applicant] asks me to commit the very impermissible action that he accuses me of.  
(Email enclosed)  In the fourth paragraph of the mail he asks me to “modify the marks”.  I did not 
comply with nor respond to [his] inappropriate and presumptive request. 
 
 
The  CO  stated  in  her  20  years  of  active  duty  and  tours  on  four  cutters,  the  applicant’s 
“performance, conduct,  and lack of responsibility  [are] some of the most disturbing  and appal-
ling I have ever witnessed.”  In support of her declaration, the CO submitted photocopies of two 
pages  out  of  the  quote  book  and  an  email.    The  first  page  she  submitted  contains  quotations 
entered in the book in early 2008 before she took command of the cutter: 
 

During  G.E:  SN  [name]  is  explaining  that  he  never  gets  in  trouble  when  he  gets  drunk.    Mr. 
[name] asks “What about getting anybody pregnant?”  [SN]: “Well, I got a … .” 
 
During  flight  quarters:    Captain:  “What  do  you  call  it  when  you  have  meridian  passage  of  the 
moon?”  Nobody answers, so he says, “Local apparent moon.”  A few chuckle.  BM [name] says:  
“Captain, those were sympathy laughs.” 
 
29  Feb.  [The  applicant]  enters  the  bridge  and  quotes  BM3  [name]:  “How’s  it  goin  …  “[m.f.] 
[name]?”  BM3: “Alright but I gotta get a relief soon so I can go take a shit.”  [LTJG X]: “Why 
wait BM3?”  BM3 [name]: “Eh, I’ll go when it hits the crack of that ass … that’s when I know it’s 
time.” 
 
01 MAR 08 – Mid watch 
LTJG [name] to ENS [name]: “I’m not trying to impress you, [name].  I’m trying to break world 
records here.” 

 
 
The second page that the CO submitted bears the heading “MAR – MAY ‘09” and con-
tains the following quotations, which appear to have been entered by just two people, one who 
wrote the heading and made the first four entries and another who made the last two entries: 
 

  BM1 [name]: “[name] was … and praying.” 
 
  BM3 F: “Man,  you try to find someone to help  me out, so I can go to this  meeting, and no 
one is around.  But, if someone needs a relief to go to something, they  come find my black 
ass.” 

 
  CIC [name]: “Chupacabra, Shark 01, I have you soft and broken.”  OOD:  “Ouch that sucks.” 
 

 

 

  BM2 H: (Answers phone on bridge.) “Hello.  You want to do what with the boom?”  (Hands 

phone to OOD.)  “It’s [name], I don’t know what he is saying.” 

 
  ENS [name]: “I [unreadable word] at the chart.” 
 
14  APR  ’09:  BM2  H:  “Sir,  I could  definitely  see  you  being  sold  into  sex  trafficking.”    ENS  W: 
“Quote book.” 

 
The email that the CO submitted is dated June 2, 2010, almost a year after the disputed 
 
OER was completed, and was sent to her by the applicant.  The applicant advised her that he had 
recently learned that the OER would be more than a “speed bump” in his career and would likely 
end  his  career  by  preventing  his  selection  for  promotion.    Therefore,  he  had  decided  that  he 
needed to seek correction of the OER.  He noted that he would appreciate it if she herself would 
“modify the marks,” but in the absence of a modification, he would be presenting his case to a 
board.  He noted that he had passed on “lessons learned” to others and that, as a result, several 
other  cutter  crews  had  gotten  rid  of  their  quote  books.    He  also  pointed  out  that  as  an  ensign 
aboard the cutter he had  
 

recognized  and  brought  an  issue  to  light  that  had  been  skipped  over  for  quite  a  while.    Despite 
definite disagreements, I tried to handle the issue the way I was taught, at the lowest level.  I first 
discussed it with my peers, then the Chief’s mess, after which, bringing it to the next person in my 
chain of command, [the OO].  After this, without any further guidance (still amongst criticism), I 
created a new book to make the best out of the old tradition.  The old book that I removed from the 
bridge  was  even  taken  from  my  possession  without  my  consent.    When  its  existence  was  ques-
tioned last year, I took responsibility while most of those who knew about it did not stand up and 
be  noticed.    After  you  said  I  needed  to  sit  down  with  you  and  explain  the  book,  I  entered  the 
meeting with you believing I needed to brief you on  how the old book made it to the bridge, and 
make  sure  you  understood  what  had  been  done  to  alter  the  old  book.    I  was  confident  that  the 
actions I had taken, whether needing alteration or not, were at the very least sanctioned, especially 
since the Operations Officer was not there.  After our meeting, you gave me a lasting and definite 
understanding of why even the presence of a book is not desirable and why it was my fault to have 
been part of it; an understanding I did not have in all conversations prior  and one I have taken to 
heart. 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

 

On July 8, 2011, the applicant responded to the views of the Coast Guard.  He stated that 
he agrees with the recommendation for relief except that, if he is not selected  for promotion in 
September 2011 by the PY 2012 LT selection board, he wants the Coast Guard to convene a spe-
cial  selection  board  for  him.    He  also  took  exception  to  some  of  the  statements  in  the  CO’s 
declaration.  He stated that “she has taken comments or statements made by or clearly attributed 
to  other  individuals  and  erroneously  labeled  them  as  originating  from  me.    Additionally,  at  no 
point  from  my  discovery  of  the  quote  book  to  this  present  date  have  I  failed  to  take  full 
ownership of my actions.  It is apparent that the facts and the validity of my actions have never 
fully  been  recognized  by  the  reviewing  officer.    Therefore,  I  submit  that  the  factually  flawed 
conclusions of the Commanding Officer may have clouded her judgment,  ultimately leading to 
the challenged OER.” 

 

 

 

 

 

SUMMARY OF THE REGULATIONS 

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

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

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

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

●  ●  ● 

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

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

●  ●  ● 

 

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

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

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

FINDINGS AND CONCLUSIONS 

 
 
military record and submissions, the Coast Guard’s submission, and applicable law: 

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

 

 

1. 

2. 

4. 

3. 

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

 
 
The application was timely filed.  
 
 
The applicant asked the Board to correct or remove from his record his OER for 
the period February 1 to June 30, 2009, and also to expunge his non-selection for promotion to 
LT and award him back pay and allowances.  The Board begins its analysis by presuming that a 
disputed  OER  in  an  applicant’s  military  record  is  correct  and  fair,  and  the  applicant  bears  the 
burden  of  proving  by  a  preponderance  of  the  evidence  that  the  OER  is  erroneous  or  unjust.6  
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.7  
To be entitled to relief, the applicant cannot “merely allege or prove that an [OER] seems inaccu-
rate,  incomplete  or  subjective  in  some  sense,”  but  must  prove  that  the  disputed  OER  was 
adversely affected by a “misstatement of significant hard fact,” factors “which had no business 
being in the rating process,” or a prejudicial violation of a statute or regulation.8 
 
 
The applicant has alleged and proved by a preponderance of the evidence that the 
disputed OER was prepared in violation of Article 10.A.2.e.2.c. of the Personnel Manual because 
his  reviewer,  the  CO,  directed  his  supervisor  and  reporting  officer  to  assign  him  lower  marks 
than  they  thought  should  be  assigned.    The  OO  and  the  XO  have  executed  sworn  statements 
admitting this fact, and the CO did not deny it. 
 
 
The applicant also alleged that the disputed OER is inaccurate as an assessment of 
his performance during the reporting period because the low marks and negative comments are 
based on performance that occurred outside of the reporting period for the OER—February 1 to 
June  30,  2009.    He  alleged  that  long  before  the  reporting  period  began,  he  removed  the  quote 
book  from  the  bridge  and  that  someone  else  took  it  and  returned  it  to  the  bridge  without  his 
permission  or knowledge while he was occupied with  a vessel boarding in  April 2009.   Rating 
chain officials must base their marks and comments in an OER  only  on a reported-on officer’s 
performance during the reporting period, and they may not comment on “performance or conduct 
which occurred outside the reporting period.” 9  Therefore, if the applicant was unaware that the 
quote book had  been  returned to  the bridge during the  reporting period for the OER until  after 
the CO discovered it, any  marks and comments  based on his  involvement  with  the quote book 
were prohibited in his regular OER.10   
 

                                                 
6 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002, approved by the Deputy 
General Counsel, May 29, 2002) (rejecting the “clear and convincing” evidence standard recommended by the Coast 
Guard and adopting the “preponderance of the evidence” standard for all cases, including disputes over OERs, prior 
to the promulgation of the latter standard in 2003 in 33 C.F.R. § 52.24(b)).   
7 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
8 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). 
9 Personnel Manual, Articles 10.A.4.c. and 10.A.4.f.11. 
10  Poor performance  discovered  after  the  end  of  a  reporting  period  is  properly  reported  in  an  exception  or  special 
OER under Article 10.A.3.c. of the Personnel Manual, not a regular OER. 

 

 

5. 

The PRRB has concluded, in removing the OER of LTJG X from his record, that 
the quote book was removed from the bridge by the AOO—the applicant in this case—before the 
reporting  period  began.    The  applicant  has  submitted  statements  signed  by  two  other 
commissioned  officers,  a  chief  warrant  officer,  and  a  petty  officer  supporting  his  claim  that  he 
removed the quote book from the bridge in the summer of 2008 because of its offensive content, 
consulted with and showed it to the Chief’s mess and his supervisor, retained the book with the 
intention  of  establishing  a  new  one,  and  was  serving  as  a  boarding  officer  on  a  fishing  vessel, 
rather than standing watches on the bridge, when an unknown person returned the quote book to 
the bridge in April 2009.  In their declarations for the Coast Guard’s advisory opinion, both the 
OO  and  the  XO  support  the  applicant’s  claim  that  he  had  removed  the  quote  book  from  the 
bridge and that someone else returned it to the bridge without his knowledge.   

 
6. 

The  applicant’s  CO  stated  in  her  declaration  that  she  discovered  the  quote  book 
on the bridge during the reporting period, that the applicant stood watches during the reporting 
period and so must have known that the quote book was there, that there was no evidence of any 
editing  of  offensive  comments  in  the  book,  and  that  someone  had  simply  skipped  a  few  pages 
before making new entries in the quote book during the reporting period.  She submitted a page 
of  entries  that  were  made  during  the  reporting  period  as  evidence  that  the  quote  book  was  not 
“dormant.”    She  also  said  that  during  at  least  four  conversations  about  the  book,  the  applicant 
acknowledged  having  had  the  book  in  his  possession  recently  and  never  specifically  denied 
awareness of the book’s presence on the bridge during the reporting period.  CWO X, however, 
stated that after establishing that the applicant and others knew about the book, the CO “did not 
really want to hear what anyone had to say, and she asked generic questions such as, ‘How did 
we get here and how do we proceed?’” 

 
7. 

The  reporting  period  began  on  February  1,  2009,  and  the  record  shows  that  the 
CO discovered quote book on the bridge about ten weeks later, in mid April 2009, during or soon 
after the boarding of a fishing vessel in which the applicant was heavily involved as the desig-
nated  Law  Enforcement  Officer.    An  investigation  might  have  revealed  when  the  book  was 
returned to the bridge and who knew it had been returned, but none was conducted.  If the quote 
book had been on the bridge throughout those ten weeks, the applicant would presumably have 
known because it would have been missing from his stateroom and he might have seen it while 
standing watches.  However, the Board is persuaded by the finding of the PRRB and the state-
ments  of  the  OO,  the  XO,  and  the  other  officers  that  the  quote  book  was  not  on  the  bridge 
throughout those ten weeks and that someone returned the book to the bridge shortly before the 
CO discovered it, during the week-long boarding of a fishing vessel, when the applicant was not 
standing  watches.    The  page  of  the  quote  book  submitted  by  the  CO  actually  supports  this 
finding  because  the  handwriting  of  only  two  persons  appears  on  the  page,  the  applicant  is  not 
mentioned on the page, and the first and only dated entry on the page is April 14, 2009. 

 
8. 

The Board finds that the applicant has proved by a preponderance of the evidence 
that his only involvement with the quote book during the reporting period for the disputed OER 
was his retention of the book in his stateroom, which does not reflect negatively on him.  He has 
proved by a preponderance of the evidence that  the quote book was  returned to  the bridge and 
used again during a period when he was not standing watches on the bridge and shortly before 
the  CO  found  it.    Therefore,  the  Board  finds  that  marks  and  comments  in  the  disputed  OER 

 

 

assess performance that occurred before the reporting period began and that, moreover, did not 
occur  during  the  reporting  period.    In  particular,  the  Board  notes  that  the  comment  that  the 
applicant “participated in inappropriate behavior containing vulgar writings/actions on bridge”11 
is  not  supported  by  the  contents  of  the  quote  book  and  the  XO,  who  wrote  that  comment,  has 
admitted that he has no knowledge that the applicant ever participated in inappropriate behavior 
on the bridge during the reporting period. 
 

9. 

The Board finds that the applicant has proved by a preponderance of the evidence 
that the disputed OER should be removed from his record because it was adversely  affected by 
prejudicial  violations  of  Articles  10.A.2.e.2.c.,  10.A.4.c.,  and  10.A.4.f.11.  of  the  Personnel 
Manual in that (a) his CO directed his supervisor and reporting officer to assign a lower marks 
than they considered to be accurate and (b) his rating chain based certain marks and comments 
on performance that occurred outside of the reporting period.12  In  BCMR Docket  No. 151-87, 
the Board found that an  OER should “not  be ordered expunged unless the Board finds that the 
entire  report  is  infected  with  the  errors  or  injustices  alleged;  unless  the  Board  finds  that  every 
significant comment in the report is incorrect or unjust; or unless the Board finds it impossible or 
impractical to sever the incorrect/unjust material from the appropriate material.”  In this case, it 
is  not  clear  exactly  how  the  CO’s  directions  affected  each  of  the  marks  in  the  disputed  OER.  
Therefore, the  Board finds that the  OER should be removed from  his  record in  its entirety and 
replaced with a Continuity OER. 

 
10. 

The applicant asked the Board to remove his failure of selection for promotion to 
LT in 2010 by the promotion year (PY) 2011 LT selection board because the erroneous OER was 
in  his  record  when  it  was  reviewed  by  that  board.    When  an  applicant  proves  that  his  military 
record contained an error or injustice when it was reviewed by a selection board, this Board must 
determine whether the applicant’s non-selection for promotion should be removed by answering 
two questions:  “First, was [the applicant’s] record prejudiced by the errors in the sense that the 
record appears worse than it would in the absence of the errors?  Second, even if there was some 
such  prejudice,  is  it  unlikely  that  [the  applicant]  would  have  been  promoted  in  any  event?”13  
When an officer shows that his record was prejudiced before a selection board by error, “the end-
burden of persuasion falls to the Government to show harmlessness—that, despite the plaintiff’s 
prima facie case,[14] there was no substantial nexus or connection” between the prejudicial error 
and the non-selection for promotion.15  To void a non-selection, the Board “need not find that the 
officer  would  in  fact  have  actually  been  promoted  in  the  absence  of  the  error,  but  merely  that 
promotion was not definitely unlikely or excluded.”16 

 

                                                 
11 The Board assumes that the CO would have submitted a copy of the pertinent page of the quote book if there were 
such evidence. 
12 See Lindsay, 295 F.3d at 1259. 
13 Engels v. United States, 678 F.2d 173, 176 (Ct. Cl. 1982). 
14  A  “prima  facie  case”  is  one  in  which  there  is  sufficient  proof  to  support  a  finding  in  the  plaintiff’s  favor  if  the 
evidence to the contrary is disregarded.  BLACK’S LAW DICTIONARY, Rev’d 4th ed. (1968), p. 1353. 
15 Christian v. United States, 337 F.3d 1338, 1343 (Fed. Cir. 2003), citing Engels, 678 F.2d at 175; Quinton, 64 Fed. 
Cl. at 125.   
16 Engels, 678 F.2d at 175. 

 

 

11. 

The  applicant’s  record  definitely  appears  worse  because  of  the  low  and  average 
marks and negative comments in the disputed OER.   The marks of  3 for  “Workplace Climate” 
and “Responsibility” and the mark in the third spot on the Comparison Scale are the only below-
average marks he has ever received on an OER.  Therefore, the first prong of the Engels test is 
clearly met. 

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

13. 

The  Board  notes  that  the  applicant  asked  the  Board  to  order  the  Coast  Guard  to 
convene  a  special  selection  board  for  him  pursuant  to  10  U.S.C.  §  628.    However,  10  U.S.C.  
§  628  authorizes  only  the  Secretaries  of  “military  departments”  to  convene  special  selection 
boards, and, for the purposes of Title 10 U.S.C., neither the Coast Guard nor the Department of 
Homeland  Security  is  a  “military  department.”17    Therefore,  the  Coast  Guard  lacks  statutory 
authority to convene a special selection board, and the Board will not order it to do so. 

 
14. 

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

 

15. 

Accordingly,  the  relief  described  in  findings  9,  12,  and  14,  above,  should  be 

granted. 

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

                                                 
17 10 U.S.C. § 101(8) (defining “military departments” as the Departments of the Army, Navy, and Air Force). 

 

 

ORDER 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

 
 
military record is granted as follows: 
 
 
The Coast Guard shall remove from his record his OER for the period February 1 to June 
30,  2009,  and  replace  it  with  an  OER  prepared  for  continuity  purposes  only  with  the  same 
description of duties in block 2.  The Coast Guard shall also remove from his record his failure 
of selection by the PY 2011 LT selection board.   
 

 
 

 
 

 
 

 
 

 

 
 

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

 
 Ashley A. Darbo 

 
 
 Lillian Cheng 

 

 
 
 Katia Cervoni