DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2011-125 
XXXXXXXXXXXXXX 
XXXXXXXXXXXXXX 

 

 

 
 

FINAL DECISION 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section  425  of  title  14  of  the  United  States  Code.    The  Chair  docketed  the  application  upon 
receipt of the applicant’s completed  application  on March 18, 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 December 22, 2011, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATION 

 

The  applicant,  who  is  a  Reserve  officer,  asked  the  Board  to  correct  his  record  by 
removing an officer evaluation report (OER) for the period from May 1, 2006 to April 30, 2008 
(disputed  OER).    Alternatively,  he  requested  that  certain  language  be  removed  from  the 
comments in sections 7 and 8 of the disputed OER, and that the mark of 3 in the “evaluations” 
category  be  raised  to  4  and  the  mark  of  3  in  the  “initiative”  category  be  raised  to  5.    He  also 
asked  his  mark  on  the  comparison  scale  (block  9)  be  moved  to  the  right  one  block  from  “fair 
performer;  recommended  for  increased  responsibility”  to  “Good  performer;  give  tough, 
challenging assignments.”  

 
 In addition to removing or modifying the disputed OER, the applicant asked that his non-
selections for promotion  to  commander (CDR) before the promotion  year (PY) 2009  and 2010 
selection boards be removed from his record  and that his corrected record be placed before the 
next CDR selection board convened to consider officers of that grade.  Additionally, he requested 
that  if  selected  by  the  first  selection  board  to  consider  him  for  promotion  to  CDR  with  a 
corrected  record  that  his  date  of  rank  once  promoted  be  the  date  he  would  have  had  if  he  had 
been selected by the 2009 CDR selection board. 
 
 
disputed OER are inaccurate: 
 

The applicant alleged that the following underlined comments in the blocks 7 and 8 of the 

 

 

interests, 

[The  applicant]  met  the  minimum  requirements  of  a  reserve  Sector  Command 
Center assignment.  Stood situation unit watch w/minimal effort extended beyond 
these  watches.    An  affable  &  cooperative  mid-grade  officer,  [the  applicant’] 
intentions  are  good,  however,  competing  personal 
lack  of 
communication  w/active  duty  supervisor,  cancelled  drills  &  little  productivity 
during  this  2-year  period  suggest  the  CG  is  a  low  priority  at  this  time.   
[Comments in block 7] 
 
Showed willingness to contribute to SCC msn.  Waited for direction/little follow 
up.  Supported development of new situation unit PQS . . .  minimal visibility of 
final  product.    While  not  selected,  volunteered  for  professional/command 
development  courses  &  active  duty  assignments.    Sought  new/future  reserve 
assignment  w/increased  ADSWC  &  deployment  opportunities,  showed 
commitment to improving own skills & competencies.  Used sound judgment on 
watch  during  UN  General  Assembly  security  events,  shifted  other  Government 
Agency assets for better coverage.  Maintained composure, portrayed confidence, 
a  very  proud  member  of  Team  CG.    Participated  in  SEC  NY  outreach,  Incl. 
marched  in  parade  and  education  partnership  program,  attended  grade-school 
during professional outreach day.  Extremely active, avid athlete.   [Comments in 
block 8] 

 
 
The  supervisor  gave  the  applicant  a  mark  of  3  in  the  “evaluations”  category  of  the 
leadership section of the disputed OER.  The comment related to this mark reads:  “[Prepared 3 
OERs  [including]  own,  all  [required]  guidance  &  revisions;  [Reported-on  officer’s]  own  OER 
documentation minimal & tardy.” 
 
 
The  reporting  officer  [RO]  gave  the  applicant  a  mark  of  3  in  “initiative”  which  he 
supported by writing the disputed comments in blocks 7 and 8.  He also marked the applicant in 
the  third  block  to  the  right  on  the  comparison  scale  as  a  “fair  performer;  recommended  for 
increased responsibility”   
 
 
and responsibilities in block 10 of disputed OER, as follows: 
 

The RO officer described the applicant’s potential  for assuming  greater leadership roles 

[The applicant] performed required number of drills & ADT-AT time during this 
2-year evaluation period.  Officer could have been a significant contributor to the 
SCC during period.  Experience gained supporting the CAT 1 SCC in Tier 1 port 
for [Coast Guard’s] largest east cost command is of value to a future assignment.  
Potential of success w/change in  environment upon next assignment; well-suited 
for field/response-related assignments where fire/rescue/response background will 
be  extremely  valuable;  anticipate  future  assignments  to  strike  team.    With 
increased  initiative  &  responsibility  expected  of  O4,  could  potentially  earn 
recommendation for promotion to O5.   

 

Block 2 of the disputed OER describes the applicant’s primary duty for the period under 

review as follows:  

 

 

 

SCC  [Sector  Command  Center]  Watch  &  staff  member.    Coordinates 
operational  efforts  of  multi-agency  assets  in  execution  of  OPERATION 
NEPTUNE  SHIELD  in  port  of  NY/NJ.    Managers  daily  patrols,  monitors 
critical infrastructure, security zones, maintains Maritime Domain Awareness, 
keeps  Command  Duty  Officer  informed.    Coordinates  vessel  boardings  & 
escorts.    Develops  &  produces  process-improvement  &  job-aid  products  for 
SCC.  Manages 10 reserve enlisted & 1x   O2 assigned to SCC.  Ensures all 
readiness  requirements  current.    Tracks  drilling  schedules  &  completion.  
 

 

APPLICANT’S ALLEGATIONS AND ARGUMENTS 

 

The applicant  argued that it was erroneous to  include the comment  “cancelled drills” in 
block 7 because it was a misstatement of significant hard fact, and he argued that he was passed 
over  for  promotion  as  a  result  of  the  comment.    The  applicant  stated  that  he  was  required  to 
complete 48 drills per year for a total of 86 drills for the two-year period covered by the disputed 
OER (however 2x48=96).  He stated that he completed a total  of 86 drills during the two-year 
period.  He denied that he ever canceled or rescheduled any drills.  In support of this contention, 
the applicant submitted his own affidavit and a document from Direct Access reflecting the dates 
on which he drilled.   

 
The  applicant  argued  that  his  record  before  the  PY  2009  and  PY  2010  CDR  promotion 
boards was prejudiced by the erroneous “canceled drills” error.  In this regard, he argued that any 
reservist  record  that  states  that  the  reservist  “cancelled”  drills  because  he  considered  the  Coast 
Guard to be a low priority makes that record appear worse than it would in the absence of that 
comment.    He  argued  that  the  comment  left  the  selection  board  with  the  erroneous  impression 
that  he  failed  to  fulfill  his  Coast  Guard  obligations.    This  erroneous  impression  permitted  the 
selection  board  to  draw  an  adverse  conclusion  about  the  applicant’s  commitment  to  the  Coast 
Guard that could have impacted their decision not to select him for promotion.   

 
The applicant next argued that it was erroneous and unjust to include, not just the words 
“canceled drills,” but the  entire  sentence “competing personal  interests, lack of communication 
w/active duty supervisor, cancelled drills & little productivity during this 2-year period suggest 
the CG is a low priority at this time.”  The applicant contended that neither he nor the selection 
board  has  any  idea  what  the  reporting  officer  meant  by  “competing  personal  interests.”  
Therefore, he argued that the selections boards were left to engage in impermissible speculation 
about  the  meaning  of  “competing  personal  interests.”      The  applicant  denied  that  he  had  any 
competing  personal  interests  that  affected  his  performance.    In  this  regard,  he  stated  that  he 
scheduled  the  majority  of  his  drills  (70  out  of  86)  during  the  week  days,  at  the  expense  of  his 
civilian employment, to be of increased value to the Coast Guard.  He also stated that in addition 
to  his  civilian  employment,  he  owned  a  restaurant,  which  he  sold  because  he  did  not  have  the 
time  to  devote  to  it.    He  argued  that  selling  the  restaurant  showed  that  the  Coast  Guard  was  a 
high priority for him.    

 
The  applicant  denied  that  he  failed  to  communicate  with  his  active  duty  supervisor  and 
argued  that  that  portion  of  the  comment  that  there  was  a  “lack  of  communication  with  [his] 

 

 

active  duty  supervisor’  was  a  misstatement  of  significant  hard  fact.    He  stated  that  he  saw  his 
supervisor  almost  every  time  he  came  in  to  work.    He  stated  that  he  repeatedly  asked  his 
supervisor for tasking, but she often did not have any work for him and at one point, attempted to 
farm him out to another division.  He argued that if his productivity was lacking it was because 
he  wasn’t  given  any  work  to  do,  despite  his  repeated  requests  for  work.    In  this  regard,  the 
applicant also denied the comment in block 8 of the disputed OER that he “waited for direction” 
and  asserted  that  the  comment  is  a  misstatement  of  fact  in  light  of  his  repeated  requests  for  
tasking.  The applicant stated the following:  

 
Given  the  obligation  of  supervisors  to  “provide[]  direction  and  guidance  to  the 
reported-on  officer  regarding  specific  duties  and  responsibilities”  [footnote 
omitted] and the fact that all officers, including supervisors and reporting officers, 
are  evaluated  in  the  area  of  “looking  out  for  others,”  “Developing  others,” 
“directing  others,”  and  “teamwork,”  it  “shocks  the  sense  of  justice”  that 
applicant’s rating chain failed to give him any meaningful work to do, especially 
in the face of repeated requests for taking.  And it is particularly shocking to then 
blame him for a lack of productivity.    
 
The  applicant  next  alleged  that  it  was  erroneous  and  unjust  to  include  the  comment 
 
“While not selected” in block 8 of the disputed OER because it violates Article 10.A.4.f.3. of the 
Personnel Manual, which states that members of the rating chain shall not “mention or allude to 
the  fact  that  the  reported-on  officer  was  not  selected  by  a  board  or  panel.”    The  applicant 
acknowledged that he did not appear before any “board or panel” for consideration of training or 
active duty assignments, although he did appear before panels to consider whether he should be 
assigned  to  a  PAL  (personnel  Allowance  list)  position  or  to  an  unbudgeted  position.    The 
applicant  argued  that  the  rationale  behind  prohibiting  comments  on  non-selection  is  no  less 
applicable to his situation even if no panel or board was involved in his non-selection for training 
or active duty assignments.  He argued that the fact that he was not selected was irrelevant to his 
performance, particularly where the reason for his non-selection for some training was the Coast 
Guard’s hesitancy to expend a training quota on a reservist, of which the selection board had no 
knowledge.  Therefore, the selection board was left to speculate as to why the applicant was not 
selected  for  training.    “And  in  the  context  of  [the  disputed  OER],  which  describes Applicant’s 
performance as lacking in certain respects, the promotion board was more likely to consider that 
the  non-selection  was  based  on  applicant’s  performance  rather  than  the  [actual  reason  for  his 
non-selection].”    The  applicant  argued  that  the  challenged  comment  suggests  that  he  was  not 
selected for any new or future reserve assignments, which was not his situation. 
 

The applicant argued that even if the comment that stating that he had not been selected 
for  training  or  active  duty  assignments  was  not  error,  it  was  “nevertheless  unjust  because  the 
selection board was left to speculate why he was not selected for training and was not aware that 
the Coast Guard did not want to expend a quota on a reservist.  

 
Last,  the  applicant  argued  that  the  disputed  OER  was  a  product  of  bias  against  him 
because he was a reservist, which is a factor adverse to the rating and that had no business in the 
rating process.      The applicant stated the following:  

 

 

 

to  meet  unrealistic  or  non-existent  expectations. 

[The]  applicant  does  not  suggest  that  an  officer  bears  no  obligation  to  take 
initiative in carrying out his duties— indeed, he is marked in that category.  But it 
is  singularly  unjust  to  assign  a  reserve  officer  to  an  unbudgeted  position—one 
which by definite is not a “quality of match” for the officer [footnote omitted]  – 
and provide him with no meaningful work to do, and then blame him because he 
failed 
  And  applicant 
acknowledges  that  a  member  of  the  SELRES  is  “expected  to  obtain  and/or 
maintain  the  competence  required  of  that  position.”    But  his  assignment  to  the 
Command Center staff was different from his assignment to the SCC watch.  On 
watch,  his  responsibility  was  to  respond  to  incidents  as  they  were  happening  in 
real  time,  under  the  direction  of  Command  Duty  Officer.   As  a  member  of  the 
Command  Center  staff,  other  than  .  .  .    two  projects  he  completed,  he  had  no 
responsibilities despite his repeated efforts to gain some.   
 
Applicant  believes that  his  superiors could  not  be bothered with  him because he 
was  a  reservist.    He  found  CDR  [G],  originally  his  supervisor  and  later  his 
reporting  officer  to  be  unapproachable.    When  he  went  to  his  superiors  for 
guidance  or  tasking,  he  was  treated  as  though  he  was  a  burden,  and  what  the 
command wanted was a reservist who was already fully trained, and not one who 
was  not  a  “quality  of  match”  who  would  require  additional  training.   And  when 
Applicant  sought  additional  training,  his  request  was  refused  because  the 
command  was  not  going  to  expend  any  of  its  limited  training  quotas  on  him 
because he was a reservist.   

 
 
The  applicant  argued  that  any  negative  OER  that  is  the  product  of  bias  against  the 
reported-on  officer’s  status  as  a  reservist  is  not  “fair  and  objective.”        He  stated  that  he  has 
submitted sufficient evidence to overcome the presumption that the rating chain performed their 
duties correctly, lawfully and in good faith.  
 
The  applicant  argued  that  the  disputed  OER  contains  both  error  and  injustices,  that  his 
 
record  was  prejudiced  by  errors  or  injustices  in  that  it  appears  worse  than  it  would  absent  the 
errors and injustices, and that it is not unlikely that he would have been promoted in any event 
with a correct record.  See Engels v. United States, 678 F.2d. 173, 175 (1982).    
 
Applicant’s other LCDR OERs 
 
The  applicant  earned  two  other  OERs  while  assigned  to  Coast  Guard  Activities  New 
 
York.  He was assigned to primary duty as the Unified Command Center Watch Officer for one 
reporting period  and  as the Sector Command Center Controller for the subsequent  period.  His 
marks for these two OERs were mostly 4s, with some 5s, and an occasional 6.  He was marked in 
the 4th block on the comparison scale on both OERs, which described him as a “Good performer, 
give tough, challenging assignments.”   
 
In his subsequent assignment to Coast Guard District Seven following the disputed OER, 
 
the applicant earned two regular OERs and one concurrent OER.  His primary duty on the first 
District Seven OER was the Assistant to the Chief of Operational Planning and on the next OER 

 

 

he was assigned to duty as the Planning Force Readiness-Duty officer.  His marks on both OERs 
were 4s, 5s, some 6s, and an occasional 7.  On the first OER for this command, the applicant was 
marked in the fourth block on the comparison scale which described him as a “Good performer; 
give tough, challenging assignments.”  On the second regular OER, the applicant was marked in 
the  fifth  block  on  the  comparison  which  described  him  as  an  “Excellent  performer;  give 
toughest,  most  challenging  leadership  assignments.”    On  the  concurrent  OER,  the  last  of  his 
LCDR  OERs  of  record,  the  applicant  received  marks  of  5s,  6s,  and  an  occasional  7.    He  was 
marked in the fifth block on the comparison scale.    
 

VIEWS OF THE COAST GUARD 

 
 
On August 25, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion recommending that the Board grant partial relief to the applicant by removing 
the  following  two  phrases  from  the  challenged  comments:  “cancelled  drills”  from  the  block  7 
comments and “while not selected” from the block 8 comments.   With respect to the remainder 
of the disputed comments, the JAG argued they should not be removed because the applicant has 
not  overcome  the  presumption  that  his  rating  chain  officials  acted  correctly,  lawfully,  and  in 
good  faith  in  making  their  evaluations  under  the  officer  evaluation  system.    Arens  v.  United 
States, 969 F.2d 1034, 1037 (1992.  
 

On the issue of removing the applicant’s failures of selection for promotion to CDR, the 
Coast  Guard  relied on Engels  v. United States, 678 F. 2d.  173 (Ct.  Cl.  1982), which states  that 
before addressing a failure of selection “an applicant must first show that the service committed 
a  legal  error.”    After  which,  the  next  question  is  whether  the  error  is  causally  linked  with  the 
passover, i.e. whether it is harmless or prejudicial.  According to Engels, if the applicant meets 
his burden of proving a causal connection between the alleged error and the failure  of selection 
for  promotion,  the  “end-burden  of  persuasion  falls  to  the  government  to  show  harmlessness  – 
despite the applicant’s prima facie case, there was no substantial nexus or connection.” Id.    
 
The  JAG  stated  that  with  respect  to  the  first  step  under  Engels,  which  is  proving  the 
 
existence  of  an  error,  the  applicant  has  met  his burden  by  proving  that  block  7  of  the  disputed 
OER  contains  the  inaccurate  phrase  “canceled  drills.”    The  JAG  also  agreed  that  the  comment 
“while not  selected”  qualifies as a restricted  comment  under Article 10.A.4.F. of the Personnel 
Manual  and  should  not  have  been  included  in  the  OER.    However,  the  JAG  argued  that  the 
erroneous comments are at best harmless, that they can and should be administratively corrected, 
and they have no substantial nexus to the applicant’s passovers for promotion.  The JAG stated 
that  the  applicant  has  not  made  a  prima  facie  showing  of  a  substantial  connection  between  the 
improper comments and his failure to be selected by the PY 2009 and PY 2010 CDR selection 
boards.  In support of this conclusion, the JAG offered the following analysis: 
 

The disputed OER as a whole portrays the performance of a marginal/at standard 
officer with potential to improve.  The OER contains 13 marks of (4) or standard 
performance; 2 marks of (3) or below standard; 3 marks of (5) or above standard; 
and on the comparison scale, marked as a fair performer.  Apart from  the errors 
previously  noted,  it  is  evident  that  the  applicant’s  rating  chain  carried  out  their 
duties  fairly  and  objectively  by  accurately  marking  the  applicant  in  accordance 

 

 

with  the  Coast  Guard  Personnel  Manual.    .  .  .    The  primary  responsibility  for 
completing a fair and accurate evaluation of the applicant rested [with the rating 
chain].  All three rating chain members provided declarations in support of their 
evaluation of the applicant.  Of major significance regarding the disputed OER is 
block 10 (Potential) . . . 
 
In  block  10  .  .  .  the  [RO]  stated;  “With  increased  initiative  &  responsibility 
expected  of  04,  could  potentially  earn  recommendation  for  promotion  to  O5. 
This  is  a clear indication that the RO felt as though the applicant’s performance 
was below the level expected of an O4.  Moreover, this is also a clear indication 
that  the  applicant  did  not  have  the  RO’s  recommendation  to  be  considered  for 
promotion  to  O5.    Although  the  deliberation  process  with  respect  to  promotion 
boards  are  kept  secret,  it  would  appear  more  reasonable  than  not  that  the 
applicant’s  failures  of  selection(s)  were  not  caused  or  due  to  the  administrative 
errors  noted  above  –  but  because  the  applicant  did  not  have  the  RO’s 
recommendation for promotion.  {Emphasis in advisory opinion.] 
 
  The  court  in  Engels  placed  the  burden  of  establishing  a  prima  facie  case  of 
showing  a  substantial  connection  between  the  error  and  the  passover  on  the 
applicant.  The court explained this step of the analysis by breaking it down into 
“two  separate  but  interrelated  standards:    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  errors?    Second,  even  if  there  was  some  prejudice,  is  it  unlikely 
that  [he]  would  have  been  promoted  in  any  event?    Id  at  176.    Although  an 
argument  can  be  made  that  the  applicant’s  record  may  have  been  prejudiced  by 
the  administrative  errors  .  .  .  it  is  clear  that  the  applicant  would  not  have  been 
promoted in any event because he lacked the critical promotion recommendation 
from  the RO.  Thus we  can conclude that  even if we  assume, arguendo  that  the 
applicant’s OERs were prejudiced by the errors as indicated, it is highly unlikely 
that he would have been promoted in any event based on the RO’s comments in 
block 10 [of the disputed OER].    

The Coast Guard obtained declarations under penalty of perjury from each member of the 

 
  
applicant’s rating chain for the disputed OERs. 
 

1.  The supervisor wrote that the disputed OER is a very accurate report of the applicant’s 
performance.    She  stated  that  the  OER  identifies  the  applicant’s  best  intentions  and  strengths 
while  honestly  depicting  an  officer  who  rarely  showed  the  initiative  or  professional  growth 
commensurate with the rank of 04.  She denied that the OER was a product of bias because of 
the applicant’s status as a reservist.  She stated the following: 

 
I have served as a reservist and have supervised a number of other reservists and 
can  assure  you  I  understand  very  well  the  challenges  of  maintaining  consistent 
productivity and communicating with supervisors. The 1) flexibility in scheduling 
and 2) patience with qualification and project delivery afforded [the applicant] by 

 

 

me and by my supervisor (. . . RO for the subject OER) was commensurate with 
his role as a reserve officer assigned to the SCC.     

2.    The  RO  stood  by  his  assessment  of  the  applicant’s  performance  and  denied  that  he 

 
 
was biased against the applicant because he was a reservist.  The RO stated the following: 
 

I will not change my assessment of [the applicant’s] performance while assigned 
to Sector New York.  [The applicant] told me in an after-hour’s discussion on my 
home phone he was having difficulty managing his job as a fire fighter, member 
of  the  Fire  Fighter  football  team,  ownership  of  a  bar  (that  was  in  jeopardy  of 
losing its liquor license at the time due to police involvement), family issues and 
Coast Guard Reserve requirements.  I told him if the Coast Guard was not in his 
top  three  priorities  [--]  and  according  to  the  [the  applicant]  it  wasn’t  at  the  time    
[--]  he  move  into  the  IRR  [Individual  Ready  Reserve].    I  had  frequent  meetings 
with  Capt  [L],  the  Senior  Reserve  Officer  for  Sector  New  York  [who  was  the 
reviewer for the disputed OER] on finding a better fit for [the applicant] at Sector 
New York and [his] performance.  
 
I  disagree  with  [the  applicant’s]  accusation  of  bias  because  of  his  status  as  a 
reservist.    I  served  in  the Army  IRR  and  was  activated  during  Desert  Storm.    I 
know from personal experience the many sacrifices of a Reserve officer.  As such 
I gave [the applicant] every opportunity to succeed.  I even removed the difficult 
requirement he had been given by the previous Chief, Sector Command Center to 
qualify  as  a  Sector  Duty  Officer  (SDO).    This  was  due  to  the  lack  of  [the 
applicant’s]  progress  towards  qualifying  as  a  SDO.    I  don’t  have  any  issue  with 
striking  the  statement  ‘while  not  selected.”    Other  than  that  this  OER  is  an 
accurate statement of [the applicant’s] performance.    

 
 
3.    The  reviewer  wrote  that  he  was  the  senior  reserve  officer  at  Sector  New York.    He 
stated  that  he  had  little  direct  contact  with  the  applicant  and  was  more  familiar  with  the 
applicant’s  RO  and  supervisor,  each  of  whom  was  supportive  of  the  Reserve  program.    The 
reviewer described two telephone conversations that he had with the applicant as follows: 
 

To the best of my recollection the timing of the first call was approximately when 
he was detaching from Sector New York for transfer to CG District 7.  He told me 
he was going to get a “bad OER” because they had not given him any work to do.  
That  was  the  first  time  I  was  aware  that  he  was,  in  his  opinion,  being  under-
utilized  and  that  his  performance  was  in  the  opinion  of  others,  sub-par.   At  that 
time  [the  applicant]  and  I  discussed  the  fact  that  as  a  senior  O-4  he  should  not 
need someone to tell him what to do, that he should show the initiative and drive 
expected  of  a  senior  O-4  and  do  whatever  it  took  to  make  himself  invaluable  to 
his supervisor; or in the alternative, he should have raised the issue higher up the 
chain of command to seek a more meaningful assignment.  We discussed the fact 
that  his  career  needed  greater  breadth  of  experience  to  be  competitive  for 
promotion – he had been at Sector New York for a very long time.  We discussed 
the  fact  that  he  could  possibly  overcome  what  he  called  a  “bad  OER”  and  I 

 

 

offered the advice that he should make himself so invaluable at his new command 
that  when  he  transferred  from  that  assignment  “they  would  beg  him  to  stay  and 
demand 3 people to replace him.   
 
The  second  relevant  conversation  with  [the  applicant],  again,  initiated  by  him, 
was  after  he  had  received  his  copy  of  the  OER  at  the  heart  of  this  matter.    He 
asked what he could do about his OER at this time.  In as much as by the time he 
called me seeking my advice it was well past the allowable time frame for a reply 
to the OER, we discussed the fact that he was in fact past the deadline to make an 
official  reply  to  his  OER  and  further,  that  as  a  senior  O-4,  (a)  he  should  have 
either  known  the  reply  requirements  or  (b)  he  should  have  researched  the 
appropriate  regulation  prior  to  calling  me  and  not  to  have  asked  me  to  tell  him 
how he could rebut his OER.  From the outset of my time at Sector New York, it 
was repeatedly emphasized that all officers were to be intimately familiar with the 
relevant  portions  of  the  Coast  Guard  Personnel  Manual  pertaining  to  Officer 
Evaluation Reports.  Resultantly, in my experience, [the applicant] showed a level 
of knowledge about OERs that was far below what was expected of a senior O-4 
and further showed a lack of initiative to research the issue for his own good.  We 
again discussed that with exceptional performance in his new assignment he could 
overcome the OER in question.   
 

  # 

 

# 

# 

 

 
In reviewing [the applicant’s OER] as part of my duties, using the CG PERSMAN 
as  a  guide,  a  “4”  is  the  expected  standard  of  performance  expected  of  a  Coast 
Guard  officer.    Relative  to  the  assigned  mark  of  “3”  in  block  5.f.  (Evaluations), 
based on the comments in the OER, in my experience, the assigned mark does not 
warrant  an  upward  elevation.    Further,  relative  to  the  mark  of  “3”  in  Block  7.a. 
(initiative)  the  documented  performance  of  [the  applicant],  as  a  senior  O-4, 
clearly does not warrant an upward elevation.   
 
Relative to the Comparison Scale which requires a comparison to other officers of 
the  same  grade  whom  you  have  known  in  your  career,  in  my  experience,  [the 
applicant’s]  documented  performance,  clearly  does  not  warrant  anything  higher 
than  the  current  grading  as  a  “fair  Performer;  Recommended  for  increased 
responsibility.”   

 
Memorandum from the Commander, Personnel Service Center (PSC) 
 
 
The JAG attached comments from PSC as a part of the advisory opinion.  PSC stated that 
satisfactory participation in the Selected Reserve includes completing 90% of the 48 scheduled 
drills per year.  PSC stated that the applicant met this requirement by completing a minimum of 
43 drills for each of the two years covered by the disputed OER.  PSC stated that the applicant’s 
drill  history  does  not  indicate  that  he  ever  canceled  drills  and  therefore  the  words  “canceled 
drills” should be stricken from the comments in block 7 of the disputed OER. 

 

 

 
PSC  stated  that  although  the  italicized  words  in  the  following  quotation  “While  not 
 
selected,  volunteered 
for  professional/command  development  courses  &  active  duty 
assignments” are not prohibited as defined in Chapter 10.A.4.f.3. of the Personnel Manual, they 
do not speak to the applicant’s performance and could invite speculation about the reason for his 
non-selection  for  training  courses  and  active  duty  assignments.    Therefore,  they  should  be 
removed.   PSC also stated the following with regard to unbudgeted positions: 
 

Being  assigned  to  a  Reserve  unbudgeted  position  in  Direct  Access  is  not  a 
reflection  of  quality  of  match,  as  alleged.    Rather,  it  describes  an  allocation  of 
funding  for  pay  purposes  for  individuals  in  over-billeted  positions.    Each  Coast 
Guard  unit  is  allotted  billets  coded  as  “Reserve  unbudgeted.”    When  writing 
OERs, members who have a “Reserve unbudgeted” position as a job description 
in Direct access were required under policy in effect at the time the disputed OER 
was completed to list their primary duties in block 2.   

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On September 26, 2011, the Board received the applicant’s response to the views of the 
 
Coast  Guard.    He  noted  the  Coast  Guard’s  agreement  that  the  words  “canceled  drills”  was 
inaccurate and the phrase “while not selected” was a prohibited comment under Article 10.A.4.f. 
of the Personnel Manual.  However, the applicant disagreed with the Coast Guard’s description 
of the errors as administrative errors.  He argued that the erroneous comments were intentionally 
added  to  the  disputed  OER  to  convey  a  specific  message  and  the  words  had  the  effect  of 
preventing him from being selected for promotion to O-5.  He argued that he has met his burden 
of  proving  a  substantial  connection  between  the  admitted  errors  and  his  non-selection  for 
promotion to O-5.   
 
 
The  applicant  disagreed  with  the  Coast  Guard’s  contention  that  the  probable  reason  for 
his non-selection for promotion was the lack of an affirmative recommendation for promotion to 
the  next  higher  rank  in  block  10  of  the  disputed  OER.    In  this  regard,  the  applicant  stated  the 
following:   
 

While  it  would  have  been  obvious  to  the  promotion  board,  as  the  Coast  Guard 
argues, that applicant did not have his [RO’s] recommendation for promotion, the 
board likely concluded that the reason he did not have his [RO’s] recommendation 
was due to [the RO’s] belief that participation in the Coast Guard Reserve was a 
“low priority” for applicant because he had “cancelled drills”  – a belief that had 
no basis in fact.  

 
The applicant stated that a selection board is likely to consider an OER in its entirety rather than 
parsing sections as the Coast Guard suggests.     
 
The applicant argued that the comment ‘[w]hile not selected” left the promotion board to 
 
speculate about the reasons for his non-selection.  He stated that given the OER as a whole, the 
promotion  board  likely  concluded  that  the  reason  applicant  was  not  selected  for  these 

 

 

opportunities  was  because  of  his  performance  and  they  likely  considered  that  factor  in 
determining that the applicant was not among the best qualified.    The applicant argued that the 
two admitted errors by themselves were sufficiently egregious to result in his non-selection.   
 
 
The applicant also restated his argument that the entire following comment is inaccurate:  
“intentions  are  good,  however,  competing  personal  interests,  lack  of  communication  w/active 
duty  supervisor  .  .  .    &  little  productivity  during  this  2-year  period  suggest  the  CG  is  a  low 
priority at this time.”  He denied that he ever told the RO that the Coast Guard was not in his top 
three priorities.  However, he admitted that he had a conversation with the RO in which he stated 
that his schedule with the New York Fire Department was not very flexible.  He argues that he 
showed  his  commitment  to  the  Coast  Guard  by  selling  his  interest  in  a  restaurant  instead  of 
transferring  to  the  IRR.    He  also  stated  that  scheduling  the  majority  of  drills  during  the  work-
week which was more beneficial to himself and the Coast Guard also shows that the Reserve was 
not a low priority for him.   
 
 
With  respect  to  the  communication  aspect  of  the  challenged  comment,  the  applicant 
stated that neither the supervisor nor the RO denied that he made repeated requests for tasking. 
He  argued  that  as  his  supervisors,  they  were  required  to  provide  him  with  “direction  and 
guidance regarding specific duties and responsibilities.”  He stated that instead of fulfilling their 
responsibilities, they put all the responsibility on him.   
 
 
The applicant also restated his allegation that the rating chain for the disputed OER was 
biased  against  him  because  he  was  a  Reservist.    He  argued  that  because  the  members  of  his 
rating chain were Reservists early in their careers does not disprove his allegation that they were 
biased  against  him  because  he  was  a  reservist.    He  claims  that  he  asked  the  RO  for  a  training 
quota for CDO training and was told that “the Coast Guard was not going to expend a training 
quota on a reservist,” which he stated was not denied by the RO.   
 
 
 

The applicant maintained his request for relief as discussed earlier in this decision.   

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 asked that the disputed OER be removed from his record because it is 
inaccurate and because the rating chain was biased against him.  In the alternative, he asked that 
certain  comments  be  removed  from  the  disputed  OER.    He  also  asked  that  certain  marks  be 
raised.   The JAG recommended only partial relief by removing the underlined words from the 
following  sentences  in  the  block  7  and  8  comments  of  the  disputed  OER  because  they  were 
either erroneous or unjust, and the Board agrees.   
 

 

 

[The applicant’] intentions are good, however, competing personal interests, lack 
of communication w/active duty supervisor,  cancelled drills & little productivity 
during this 2-year period suggest the CG is a low priority at this time.   
 
While  not  selected,  volunteered  for  professional/command  development  courses 
& active duty assignments.  Sought new/future reserve assignment 

 
3.    However,  the  applicant  argued  that  not  only  should  the  words  “canceled  drills”  and 
 
“while  not  selected”  be  removed  but  that  the  entire  sentences  should  be  removed  from  the 
disputed  OER.    The  Board  disagrees  and  finds  that  the  applicant  has  submitted  insufficient 
evidence  to  prove  that  the  entire  sentences  are  erroneous.    In  this  regard,  the  applicant  argued 
that the portion of the sentence that refers to his having competing personal interests is vague and 
open to speculation by a promotion board.   He denied that he had competing personal interests 
that  affected  his  performance  or  that  the  Coast  Guard  Reserve  was  a  low  priority  for  him.    He 
stated that selling his interest in his restaurant to have more time for the Coast Guard, as well as 
scheduling  his  drills  during  the  week  days  to  make  more  of  a  contribution  to  the  Coast  Guard 
demonstrates that the Coast Guard was not a low priority for him.  In contrast to the applicant’s 
statement,  the  reporting  officer  wrote  in  his  declaration  that  he  had  a  conversation  with  the 
applicant in which the applicant admitted that he was having difficulty managing his civilian job, 
sports activity, ownership of a bar, family  and the Coast  Guard.  Although  the applicant  denies 
that he told the reporting officer that the Coast Guard was not one of his top three priorities, he 
admits that he had a conversation with the RO about this subject matter, after which he sold his 
ownership  interest  in  a  restaurant.      The  RO  officer  had  the  opportunity  to  speak  with  and 
observe the applicant’s performance for a two year period.  His comments about the applicant’s 
performance  and  personal  and  professional  qualities  are  judgments  that  he  is  entitled  to  make 
based on his observations, conversations with the applicant, and any reports from the supervisor 
or  others.    The  applicant  has  the  burden  of  proving  that  the  “competing  personal  interests” 
comment  is  an  inaccurate  statement.    He  has  offered  only  his  statement  disagreeing  with  the 
comment  as  proof  of  inaccuracy.    His  statement  is  insufficient  to  prove  that  the  comment  is 
inaccurate, particularly in light of the rating chain’s affirmation of the OER.   
 
 
4.    The  applicant  denied  that  portion  of  the  sentence  which  states  that  he  lacked 
communication  with  his  active  duty  supervisor.    He  stated  that  he  saw  his  supervisor  almost 
every  time  he  came  to  work.    However,  the  question  is  not  whether  he  saw  the  supervisor  but 
whether he communicated with her about work assignments, processes, and problems.   Although 
the supervisor did not directly address the comment about the applicant’s lack of communication 
with her, she stated that the disputed OER “identifies the applicant’s best intentions and strengths 
while  honestly  depicting  an  officer  who  rarely  showed  the  initiative  or  professional  growth 
commensurate  with  the rank of O4.”  As stated above, the applicant  has the burden of proving 
that  comment  about  his  lack  of  communication  with  his  active  duty  supervisor  is  inaccurate.  
Other than his statement, he has offered no other evidence to prove that the subject criticism is 
inaccurate.  His uncorroborated statement is insufficient to prove that the comment is inaccurate. 
 
5.      With  regard  to  that  portion  of  the  sentence  that  states  that  the  applicant  had  little 
 
productivity during the two-year period, the applicant stated that if his productivity was lacking, 
it  was  the  supervisor’s  fault  because  she  failed  to  give  him  work  to  do,  despite  his  repeated 

 

 

requests for work.  However, the comment does not state that the applicant lacked productivity 
because he did not have assigned duties, but states that he had low production for the two-year 
period  covered  by  the  disputed  OER.      The  applicant  offers  no  evidence,  other  than  his  own 
statement, to  prove  that  his production  in  his  assigned duties was at  a higher level.     He stated 
that he asked his supervisor for more tasks, but none was offered.  The applicant did not present 
any  evidence  to  support  his  contention  that  he  repeatedly  asked  his  supervisor  for  more  tasks.     
Both the supervisor and RO officer stood by the disputed OER as an accurate assessment of the 
applicant’s performance.   
 
 
6.  The applicant denied that he “waited for direction” as written in the block 8 sentence 
“Waited  for  direction/little  follow-up.”  He  asserted  that  the  comment  is  a  misstatement  of  fact 
because  he  repeatedly  asked  for  tasking  and  none  was  given.    He  argued  that  it  was  the 
obligation of his supervisors to provide him with direction and guidance regarding specific duties 
and  responsibilities.  However,  in  contrast  to  the  applicant’s  argument,  block  2  of  the  disputed 
OER shows that he was assigned a specific primary duty.  The disputed OER reflects how well 
he  performed  his  duty  in  that  assignment  and  not  how  well  he  performed  in  some  unassigned 
tasks.    In  addition,  as  an  O4  the  applicant  should  not  have  waited  to  be  told  what  to  do.    He 
should have been a self-starter. The applicant has the burden of proof and he has not submitted 
sufficient evidence to prove that the comment “waited for direction” is inaccurate.    
 
 
7.    With  regard  to  the  allegation  that  the  rating  chain  was  biased  against  him  in  their 
evaluation  of  his  performance  because  he  was  a  reservist,  each  member  of  the  rating  chain 
denied this assertion.  There simply is no evidence of bias except for the applicant’s allegation, 
which  is  insufficient  to  prove  bias.    Even  if  there  were  some  bias,  that  alone  would  be 
insufficient to cause removal of the OER.  In BCMR No. 1999-085, The Secretary’s Delegate for 
the  Department  of  Transportation,  stated  that  case  precedents  are  clear  that,  absent  legal  error, 
personal  bias  or  animosity  alone  in  the  rating  process  is  insufficient  to  void  an  OER.    See 
Germano v. United States, 26 Ct. Cl. 1446, 1461 (1992), citing Guy v. United States, 221 Cl. Ct. 
427, 433 (19799).   
 
 
8.  The applicant has not proved that the marks of 3 in “evaluations” and “initiative” are 
inaccurate.  The comments in the disputed OER amply support the below standard marks.   Nor 
has the applicant  shown  that his  mark in  the third block on the comparison scale is  inaccurate.  
The comparison scale mark is where the RO compares an officer with others of the same  grade 
the RO has known throughout his career.  The applicant has not shown the mark fails to represent 
the RO’s honest assessment of the applicant when compared to other LCDRs he has known.   
 
 
9.  To  summarize,  the  applicant  has  shown  only  that  the  disputed  OER  contained  two 
erroneous comments:    “canceled  drills” and “While not  selected,” which can be removed from 
the  OER  without  removing  the  entire  OER.    Correcting  the  disputed  OER  to  remove  the 
erroneous  comments  does  not  require  the  removal  of  the  entire  OER  or  any  of  the  other 
comments in the disputed OER unless it is impossible or impractical to sever the incorrect/unjust 
material from the appropriate material.  See Final Decision in BCMR Docket No. 151-87.  The 
Board  can  easily  strike  the  erroneous  phrases  from  the  surrounding  OER  comments  without 
removing the entire OER or remaining comments.   
 

 

 

10.    Since  the  applicant  has  established  that  two  comments  in  the  disputed  OER  are 
 
erroneous, the next question is whether his failures of selection for promotion to CDR should be 
removed.  To be successful  in  obtaining  the  removal  of his  failures of selection  for promotion, 
the  applicant  must  prove  a  substantial  connection  between  the  errors  and  his  passovers.    In 
determining whether  a nexus existed between the error and the applicant’s failures of selection 
for promotion, the Board applies the standards set out in Engels v. United States, 230 Ct. Cl. 465 
(1982).  In Engels, the United States Court of Claims established two "separate but interrelated 
standards"  to  determine  the  issue  of  nexus.    The  standards  are  as  follows:    "First,  was  the 
claimant'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  he  would  have  been  promoted  in  any  event?”  Id.  at  470.  The  burden  of  proof  on  the  first 
prong  of  the  standard  belongs  to  the  applicant  and  if  he  is  successful  that  burden  shifts  to  the 
Coast Guard to prove that he was unlikely to be promoted in any event.    
 
11.  With regard to the first prong of the Engels test, the Board finds that the  erroneous 
 
words “canceled drills” make the applicant’s record appear somewhat worse because they imply 
that he missed drills and did not reschedule them.  The Board would also agree with the applicant 
that performing drills (inactive duty training) is a significant responsibility for a Reserve officer, 
and  the  words  canceled  drills  could  be  interpreted  as  suggesting  a  lack  of  commitment  by  the 
applicant.    
 
 
12.  The Board also finds that the inappropriate comment “While not selected” makes the 
applicant’s record appear worse because the comment suggests that when competing with other 
officers before a board or panel for professional training and/or active duty assignment, he was 
not  one  of  the  more  qualified.  Mentioning  or  suggesting  that  an  officer  was  not  selected  by  a 
board or panel is prejudicial per se, which is why its use is restricted in OERs by the Personnel 
Manual.      
 
 
13.    The  Board  notes  that  except  for  the  disputed  OER,  the  applicant  has  an  otherwise 
good record.  He has performed substantial periods of active duty and none of his other LCDR 
OERS contain any marks below the standard grade of 4 or any comments that would suggest that 
he should not be promoted to CDR.  Therefore, the Board finds that the erroneous comments in 
the disputed OER make the applicant’s record appear somewhat worse, and therefore, the burden 
shifts to the Coast Guard to show that it is unlikely that the applicant would have been promoted 
in any event.   
 
14.  The Coast Guard argued, and the Board agrees, that the errors were not prejudicial 
 
because  it  is  unlikely  that  the  applicant  would  have  been  promoted  in  any  event.    As  the  JAG 
noted, the reporting officer did not recommend the applicant, a LCDR for promotion.  In fact the 
RO  stated  in  block  10  that  “[w]ith  increased  initiative  &  responsibility  expected  of  O4,  could 
potentially earn recommendation for promotion to O5.”   In addition to the non-recommendation 
for promotion to CDR, the lackluster comments, the marks of 3 in “evaluations” and “initiative,” 
and the mark in the third block on the comparison scale, also make it unlikely that the applicant 
would have been promoted in any event.   
 

 

 

14.  The comments “canceled drills” and “While not selected” should be removed from 
 
the disputed OER.  However, he has failed to prove any other errors with respect to the disputed 
OER  and  he  has  failed  to  prove  that  his  failures  of  selection  for  promotion  to  CDR  should  be 
removed.   
 
 
 
 
 
 

15.  Accordingly, the applicant should be granted partial relief as discussed above.   

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

 

 

ORDER 

 

The  application  of  XXXXXXXXXXXXXXXX,  for  correction  of  his  military  record  is 
granted, in part.  The OER for the period May 1, 2006, to April 30, 2008, shall be corrected, as 
follows: 
 

  The words “canceled drills” shall be removed from the last line of the comments 

in block 7. 

 

  The  words  “While  not  selected”  shall  be  removed  from  the  second  line  of 
comments in block 8.  The word volunteered shall be capitalized as the beginning 
of a new sentence.   

 

 
 Bruce D. Burkley 

 

 

 

 
 
Christopher M. Dunne 

 

 

 
 Barbara Walthers 

 

 

 

 

 

 

 

 

 

 

 

No other relief is granted.