DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2011-126 
 
Xxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxx 

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 March 18, 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  January  12,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, a lieutenant (LT/O-3) on active duty, asked the Board to correct his record 
by  removing  an  officer  evaluation  report  (OER)  covering  his  service  as  from  May  23,  2008, 
through  January  31,  2009.    During  this  period,  he  was  a  lieutenant  junior  grade  (LTJG/O-2) 
serving as the Operations Officer on a XXX patrol boat in the Arabian Gulf.  In the alternative, 
the applicant asked the Board to raise two below-standard performance marks of 3 he received 
on the disputed OER to at least standard marks of 4.1   
 

The applicant alleged that the low marks he received on the disputed OER were a matter 
of retribution by the commanding officer (CO) of his cutter.  The applicant alleged that his CO 
was the subject of a command climate investigation he helped to instigate and that as a result of 
the investigation, she was relieved of command.  The applicant noted that the disputed OER is 
much poorer than his other OERs.   

 
With regard to the command climate, the applicant alleged that when he reported aboard 
on May  24, 2008, he noticed the crew’s  frightened and solemn demeanor.  The CO had only 
been aboard a couple of weeks and yet the “degradation in morale, motivation to work and to 

                                                 
1  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 and a middle mark of 4 being “the expected 
standard of performance.”  Personnel Manual, Art. 10.A.4.c.4.g. 

sustain  the  mission  was  immediately  apparent.”    The  CO  belittled  the  outgoing  Operations 
Officer and the XO in front of subordinates and accused them of being lazy and “running a ‘shit 
show.’”  When the applicant and chief petty officer assumed their roles, they received “similar 
unprofessional verbiage.”  The CO also displayed “seemingly indecisive decision making  and 
unpredictable temper tantrums, sometimes swearing and throwing objects.”  In July, the appli-
cant “made the decision to inform shore staff of her actions, emphasizing the danger this ‘fear’ 
factor was subjecting the crew to in the precarious Arabian Gulf.”  The command climate inves-
tigation ensued and he believes that the low marks in the disputed OER were a “retributive act 
for revealing her actions to the attention of our parent command.”  The applicant noted that his 
request for a copy of the command climate investigation under the Freedom of Information Act 
had been denied.   

 
In support of these allegations, the applicant submitted his own OER input and copies of 
documents  from  his  military  record  and  from  his  case  before  the  Personnel  Records  Review 
Board (PRRB), which are included in the summary of the record below.  He also submitted the 
following statements from subordinate crewmembers: 
 

 

•  A first class petty officer, XXXX, who served on the cutter from May to December 2008, 
and reported directly to the applicant, stated that he was immediately impressed with the 
applicant’s style of leadership and “his ‘hands off’ approach to running the [Operations 
Department].”  XXXX stated that he and others noticed “a growing tension between [the 
applicant] and our Commanding Officer.”  Others told him that the CO had “been very 
hard on [the applicant for] as long as they [could] remember but they couldn’t say why.”  
XXXX  stated  that  he  witnessed  the  CO  reprimanding  the  applicant  on  administrative 
matters in front of junior crewmembers, which was inappropriate.  He further stated that 

[a]s the abuse kept ensuing towards [the applicant] from the Captain, I admired him for not losing 
his control of the [Operations Department].  He was able to maintain a great deal of professional-
ism with us even though it felt like the Captain had it out for him.  When the situation with the 
Captain became so abusive and overwhelming for the crew, he had a meeting with the rest of the 
first classes and ask[ed] us how we were doing and if we thought that the situation with the Cap-
tain was something we should report.  We all agreed that it would be in the best interest of the unit 
to report these incidents through the appropriate chain of  command.  Needless  to say  when the 
investigation wrapped up and the Captain returned to command, we felt she had a great deal of 
animosity towards us.  I believe the verbal abuse and ridicule towards [the applicant] was consis-
tent with that before the investigation.  As a testament to his leadership, he remained professional 
and kept a sense of calm with[in] the [Department].  He would always try and put together morale 
events for the crew underway and inport.  This helped the crew stay focused and relaxed during 
the arduous schedule we maintained.  I do believe [the applicant] was the only officer I was able to 
approach on board who I didn’t feel uncomfortable with. 
 

•  A third class petty officer, XXX, who served on the cutter from May 2008 to May 2009, 
stated that the CO’s demeanor fluctuated violently and without warning, and that it was 
especially  frightening  to  stand  watch  on  the  bridge.    She  would  instantly  dress  down 
crewmembers who did not meet her expectations by, for example, not following perfect 
radio  procedures  or  not  adhering  to  verbal  standing  orders,  which  sometimes  changed 
overnight. In addition, she would throw objects, such as pens, staplers, file folders, and 
three ring binders, across the bridge in anger. 
 

XXX stated that in July 2008 the crew brought the CO’s conduct to the attention of the 
Area Command Master Chief and Executive Officer, which resulted in a command cli-
mate investigation.  The results of the investigation improved the CO’s conduct but only 
temporarily.    Thereafter,  her  “verbal  tirades  [were]  slightly  ‘tongue-in-cheek,’  as  she 
attempted  to  downplay  (and,  in  fact,  flaunt)  her  disdain  for  the  performance  of  those 
around her.”  XXX stated that when new crewmembers arrived in December 2008, they 
immediately said that the working climate was unacceptable even though it had improved 
from being frightening to just undesirable. 
 
XXX stated that the CO’s attitude affected his performance marks in November 2008.  
The XO did not recommend him for advancement even though XXX received no below-
standard  marks  and  good  marks  for  his  professional  knowledge  as  a  gunner’s  mate.  
However,  XXX’s  supervisor  protested  the  XO’s  failure  to  recommend  him  for 
advancement, and XXX was then recommended for advancement. 

 

SUMMARY OF THE RECORD 

 
The applicant enlisted in the Coast Guard in 2004 and attended Officer Candidate School 
to receive his commission as an ensign in the Reserve on March 1, 2006.  He was first assigned 
as a deck watch officer aboard a xxxxxxxxxxxx cutter patrolling xxxxxxxxxxxxxxxx.  On his 
first semi-annual ensign OER in this position, he received marks of 4 and 5 in the various perfor-
mance categories and a mark in the fifth spot on the comparison scale.  On his second OER, he 
received marks of 5 and 6 in the various performance categories and a mark in the fifth spot on 
the comparison scale.  The applicant was promoted to LTJG on September 1, 2007.  On his third 
OER as a deck watch officer, dated October 31, 2007, he received primarily marks of 6 and a 
mark in the sixth spot on the comparison scale, denoting “an exceptional officer.”  His reporting 
officer  recommended  the  applicant  for  command  afloat  or  for  a  position  as  the  Operations 
Officer  or  Executive  Officer  (XO)  of  a  patrol  boat  in  the  Arabian  Gulf,  and  the  applicant 
received  orders  to  serve  as  the  Operations  Officer  of  a  patrol  boat  in  the  Arabian  Gulf  the 
following spring.  On his fourth and last OER as a deck watch officer, dated May 22, 2008, the 
applicant received primarily marks of 5, a mark in the fifth spot on the comparison scale, and a 
recommendation for promotion “with peers” from the same rating chain that completed his prior 
OER.  The applicant’s knowledge of law enforcement and skills as a boarding officer were par-
ticularly praised.  He received an Achievement Medal for his tour aboard the cutter. 

 
On May 22, 2008, the applicant transferred to the patrol boat.  His first OER in this posi-
tion, covering his performance through January 31, 2009, is the disputed OER in this case.  It 
shows that the XO of the patrol boat, who assigned the first 13 performance marks as the appli-
cant’s supervisor, was also a LTJG.  The XO assigned the applicant one below-standard mark of 
3 for “Professional Competence,” eleven standard marks of 4, and one above-standard mark of 5 
for “Looking Out for Others.”  The marks of 4 and 5 are supported by positive written comments 
that summarize the applicant’s accomplishments during the reporting period as described in the 
applicant’s own OER input.  The below-standard mark of 3 for “Professional Competence” is 
supported  by  the  comment,  “Requires  cont’d  improvement  in  implementing  of  NAVRULS  & 
CO’s Standing Orders.”   

 

The CO of the patrol boat, serving as the applicant’s reporting officer,2 assigned the last 
six  performance  marks  on  the  disputed  OER,  including  the  comparison  scale  mark.    The  CO 
assigned the applicant one below-standard mark of 3 for “Responsibility,” two marks of 4 for 
“Judgment” and “Professional Presence,” and two marks of 5 for “Initiative” and “Health and 
Well-Being.”   The CO included many positive  comments to support these marks but also the 
following comments:  “Mbr has shown significant improvement [in regard to] timeliness/com-
pletion of work projects.  Continues to work long hours to complete tasking.  Has shown willing-
ness  to  learn  and  follow  ship  specific  instructions.  …  Continues  to  improve  w/  delegation  & 
follow through. … Needs continued improvement on supporting command decisions/policies.” 

 
The CO assigned the applicant a comparison scale3 mark in the fourth spot, indicating 
that the applicant was “one of the many competent professionals who form the majority of this 
grade.”  In describing the applicant’s “potential” or “ability to assume greater leadership roles 
and responsibilities,” the CO wrote the following: 

 
Demo’d  significant  improvements  and  steady  professional  growth  during  period.    With  strong 
desire to lead, has greater potential  for follow-on billets  with greater responsibility. Highly rec-
ommended for Executive Officer ashore billet at South East Regional Fisheries Training Center or 
future afloat assignments including [Operations Officer] of buoy tender.  Possesses in-depth oper-
ational knowledge, personal drive and physical requirements for Law Enforcement duties, strong 
candidate for position at Maritime Law Enforcement Academy as an Instructor.  Now capable of 
succeeding in high op-tempo command cadre position.  Rec’d for post-graduate program selection. 
Rec’d for advancement w/ peers. 
 
The disputed OER is signed by the XO, as supervisor; the CO, as reporting officer; and a 

Coast Guard captain serving as Commodore of the patrol forces in the region, as reviewer. 

 
The applicant’s second OER aboard the patrol boat covers the three months from Febru-
ary 1, 2009, until he transferred stateside on May 27, 2009.  The XO assigned him six marks of 5 
and seven marks of 6 in the various performance categories with very positive comments, such 
as  “Superior  foresight!  Meticulous  preparation  for  …  Anticipated  and  promptly  responded  … 
earned trust of CO to safely conn ship.”  The new CO assigned the applicant three marks of 5 
and two marks of 6 in the various performance categories and a mark in the fifth spot on the 
comparison scale.  The new CO wrote that the applicant had “demonstrated steady growth”; had 
an “excellent work ethic, operational experience and aspiration to lead”; and was a “strong can-
didate for future command cadre positions with increasing responsibility including XO WTGB 
[tugboat] & OPS WMEC/WHEC [medium and high endurance cutters] w/ follow-on Command 
Afloat opportunities including WPB & WTGB [patrol boat and tugboat].”  He also praised the 
applicant’s in-depth knowledge of law enforcement and experience as a boarding officer.  The 

                                                 
2 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. 
3 On a LTJG 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 
third, fourth, or fifth spot on the scale denotes “one of the many competent professionals who form the majority of 
this grade.” 

new CO recommended the applicant for post-graduate studies and for “advancement with peers.”  
The applicant received an Achievement Medal for his service aboard the patrol boat. 

 
For his next tour, the applicant was assigned to serve as a xxxxxxxxxxxxxxxxxxxxxxxx 
at the xxxxxxxxxxxxxxxxxx.  He was selected for promotion to LT in September 2009.  On his 
semi-annual LTJG OER dated January 31, 2010, the applicant received primarily marks of 5 and 
a mark in the fifth spot on the comparison scale, as well as a recommendation “for continued 
promotion w/ peers.” 

 
The applicant applied to the PRRB for correction of the disputed OER, but his request 

was denied. 
 

VIEWS OF THE COAST GUARD 

 
On July 11, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted an 
 
advisory opinion in which he recommended that the Board deny relief in this case.  The JAG 
stated that the applicant has not submitted convincing evidence that the rating chain violated its 
duty  to  prepare  the  OER  fairly  and  accurately.    In  recommending  denial  of  relief,  the  JAG 
adopted the findings and analysis provided in a memorandum on the case prepared by the Per-
sonnel Service Center (PSC). 
 
 
 
The PSC submitted sworn declarations from the applicant’s rating chain for the disputed 
OER, including the XO, CO, and Commodore.  Based on those declarations, which are summa-
rized below, the PSC found that the rating chain members had “carried out their duties in accor-
dance  with  Coast  Guard  policy.”    The  PSC  stated  that  while  assigned  to  the  patrol  boat,  the 
applicant reported to the XO daily for his administrative and departmental duties and reported to 
the CO “for day to day operation duties as Officer of the Deck and Operations Officer.”  The 
PSC stated that the declarations show that the CO had significant concerns about the applicant’s 
job  performance  before  the  command  climate  investigation  was  initiated  and  suspended  his 
qualification as underway Officer of the Deck and that the applicant was counseled numerous 
times about his performance as Officer of the Deck and about repetitive mistakes in administra-
tive reports.   
 
 
The PSC noted that the Commodore stated that the applicant’s allegation of retribution 
based on the CO’s removal following the command climate investigation is misleading because 
the investigation had no bearing on her removal from command.  The PSC found that the decla-
rations “refute the applicant’s assertion that the numerical evaluations were given in retribution.”  
The PSC concluded that the disputed OER was prepared accurately and in accordance with pol-
icy and that the applicant had submitted insufficient evidence to overcome the presumption of 
regularity. 
 
Declaration of the XO as the Applicant’s Supervisor 
 
The XO, who is currently the CO of another patrol boat, stated that the marks assigned to 
 
the applicant in the disputed OER “are consistent with his performance as subjectively evaluated 
by myself and [the CO] throughout the period and, in my opinion, were not given in retribution 

for his role in initiating the command climate investigation.”  Regarding the applicant’s perfor-
mance, the XO stated the following:  
 

4. … Most cases of poor performance involved [the applicant’s] actions and decisions while on 
watch  as  Officer  of  the  Deck  that  [the  CO]  believed  placed  [the  patrol  boat]  and  her  crew  in 
danger.    Other  instances  of  poor  performance  included  consistent  mistakes  in  administrative 
ammunition reports released on the  message board and unit  morale fund reports, both of  which 
[the applicant] was responsible for.  [The CO] suspended [the applicant’s] qualification as under-
way Officer of the Deck before the command climate investigation was ever initiated and did not 
reinstate [his] qualification until after the command climate investigation. 
 
5.    The  command  climate  investigation  conducted  by  PATFORSWA  in  November/December 
2008 did not result in [the CO’s] relief for cause.  Other events in late January 2009 that did not 
directly involve [the applicant] and of which [the CO] was not made aware of until late February 
2009 – well after [the applicant’s] OER had been submitted to PATSFORSWA for review – led to 
[the CO’s] relief for cause. 
 
6.  Based on the counseling and with the support of [the Commodore], [the CO] tasked me with 
drafting a non-punitive letter of censure in December 2008/January 2009 in which I detailed, with 
input from [the CO], specific deficiencies in [the applicant’s] performance while assigned to [the 
patrol boat], as well as specific corrective actions expected of [him].  In my opinion, this compre-
hensive  letter  of  censure  that  referenced  specific  instances  of  poor  performance  and  gave  [the 
applicant] clear guidance on what would be considered an improvement of his performance is evi-
dence that the evaluation of [his] performance in his OER dated 31 Jan 09 was based on specific 
observations throughout [the] reporting period. 
 
7.  During the command climate investigation, I was briefly investigated for a violation of Article 
92, Dereliction of Duty, for failing to report an infraction.  Subsequent to three or four questions 
on the subject by the preliminary investigating officer for the command climate investigation, I 
received no further word on the investigation and believe the charges were dropped. 
 
8.  The applicant’s role in initiating the command climate investigation did not play a role in my 
evaluation of his performance and the OER marks I forwarded as [his] supervisor to [the CO], the 
reporting officer.  I incorporated [the CO’s] observations of [the applicant’s] performance in his 
OER marks, taking into account that [she] directly supervised [the applicant] in many of his day-
to-day responsibilities. 

 
Declaration of the CO as the Applicant’s Reporting Officer 
 
 
The CO, currently the xxxxxxxxxxxxxxxxxxxxxxx, a xxxxxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  stated 
that the command climate investigation occurred in late August and early September 2008 and 
did not cause her relief for cause.  However, she was relieved for cause in May 2009.  The CO 
stated that the applicant 
 

3.  …  was  counseled  several  times  in  regards  to  discussing  command  concerns/issues  with  the 
crew, for example, departing awards.  [He] constantly undermined [the XO] by making comments 
to the PATFORSWA shore staff and [patrol boat] crew about having to work for someone he out-
ranked.[4]  [The applicant] was reminded the Executive Officer was his Supervisor in accordance 
with [the patrol boat’s] chain of command.  While [the applicant] was breaking in as Deck Watch 

                                                 
4 Apparently, the XO had less seniority as a LTJG than the applicant did but was assigned to the superior position of 
XO. 

Officer, there were numerous occasions when he did not follow standard operating procedures or 
navigation rules of the road placing the cutter in danger.  He was counseled immediately.  I kept 
[the  Commodore]  apprised  of  [his]  performance  and  discussed  having  [him]  relieved  as  Opera-
tions Officer.  I received permission to send [him] underway with another cutter for performance 
evaluation  and  based  off  his  performance  he  was  not  relieved  as  Operations  Officer  with  [the 
Commodore’s] concurrence.  When [the applicant] was preparing for a Navy Seal application he 
asked me to make a false report on his physical fitness test results.  During his third attempt of the 
physical  fitness  test  in  Kuwait,  he  failed  to  measure  the  1.5  mile  run  as  directed  and  after  we 
realized  the  run  was  two  tenths  less  than  a  mile  and  a  half,  he  asked  me  to  report  that  he  had 
passed the complete test.  I refused to.  The OER dated 01 February 2009 was discussed with [the 
Commodore] as  well as calling  the detailer resulting in the removal of [the applicant’s] recom-
mendation for command afloat based off his performance during the marking period.  I constantly 
and  continually  counseled  [him]  on  his  lack  of  honesty,  his  failure  to  meet  deadlines,  and  his 
inability to follow standard operating procedures as a Deck Watch Officer. 
 
4.    [XXXXX]  approached  me  a  few  weeks  after  the  command  climate  investigation  and 
apologized to me.  I told [XXXXX] as long as he felt what he did was right at the time then he had 
no reason to apologize.  [He] contacted me a few months after he had transferred from [the patrol 
boat] requesting I write a letter on his behalf for his NJP.  I did write the letter for [him]. 
 
5.  [XXX] reported to [the patrol boat] after having blatantly failed to report accurate information 
in regards to his security clearance.  His lack of honesty resulted in his mid-tour marks.  His lack 
of  clearance  resulted  in  his  inability  to  fill  the  billet  he  was  assigned  for  his  first  6  months  on 
board. 

 
Declaration of the Commodore as the Applicant’s OER Reviewer 
 
 
The Commodore of the patrol forces, who is currently captaining a 378’ high endurance 
cutter, stated that the applicant was the Operations Officer of one of eleven patrol boats under his 
control.  The Commodore stated that the applicant’s application is misleading.  He stated that 
although a command climate investigation was conducted after the applicant complained, it was 
completed several months before the CO was relieved for a loss of confidence.  The Commodore 
stated that the command climate investigation was taken into consideration, but “it had no bear-
ing on the reason/cause to remove [the CO] from operations in the Arabian Gulf … [which] dealt 
with xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx and therefore [were] not related.”  Regarding 
the applicant’s performance, the Commodore stated the following: 
 

4.  As I recall, the topic of [the applicant’s] performance was the subject of several conversations I 
had with [the CO].  She had expressed concern on a number of occasions on two specific points, 
professionalism and responsibility, even before I initiated the investigation of the command cli-
mate.  So much so was her concern in his abilities to perform as an underway Officer of the Deck, 
she had to pull his qualification letter for failing to call her in accordance with her standing orders 
on more than one occasion.  Two specific examples were maneuvering the cutter in accordance 
with the rules of the road and reporting to her upon changes to tasking and sector location. 
 
5.  In efforts to establish a positive leadership environment, [the CO] was directed by me to draft a 
memo to [the applicant] addressing his deficiencies and noted areas for improvement.  I’m sorry I 
don’t have a copy of this letter, but I did help proofread the document which had seven different 
areas  addressed.    In  fact,  part  of  this  leadership  plan  included  [temporary  active  duty  aboard 
another cutter] for a “second look” under a different chain of command. 
 
6.  In my opinion, the counseling done by the Supervisor and Reporting Officer, the interactions 
the [applicant] had with my Command Master Chief, and the reinforcement of expected perfor-

mance while aboard [the other cutter] were extremely effective at pointing this Junior Officer in 
the right direction.  To that end, [the CO] reinstated his underway Officer of the Deck qualification 
and the subsequent/relieving Commanding Officer recorded improvements in his professionalism 
on his final evaluation at the unit. 
 
7.  His overall performance earned him an Achievement Medal upon his departure from the unit.  
His  Supervisor and the Reporting Officer in question [the CO]  were both consulted by  me and 
concurred  with the award; no animosity  was present or  warranted.  [The applicant] appeared to 
take stock of his shortcomings, developed a plan to meet the expectations of his rating chain and 
made the necessary corrections required to earn the higher marks. 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On August 9, 2011, the Chair sent the applicant a copy of the views of the Coast Guard 

and invited him to respond in writing.  No response was received.   
 

SUMMARY OF THE REGULATIONS 

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

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

 

 

 

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

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

●  ●  ● 

●  ●  ● 

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

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

 

 
Article 10.A.2.g.2. of the Personnel Manual states that a rating chain member may be dis-
qualified from evaluating a subordinate if the rating chain member has been “relie[ved] for cause 
due to misconduct or unsatisfactory performance, [is] an interested party to an investigation or 
court of inquiry, or any other situation in which a personal interest or conflict on the part of the 
Supervisor,  Reporting  Officer,  or  Reviewer  raises  a  substantial  question  as  to  whether  the 
Reported-on Officer will receive a fair, accurate evaluation. … If not already  determined by the 
commanding officer, it is incumbent on the Reported-on Officer to identify to the next senior 
officer in the chain-of-command that an exception to the designated rating chain may exist. This 
issue should be raised by the Reported-on Officer during the reporting period 
or within 30 days after the end of the reporting period.” 
 

1. 

2. 

3. 

FINDINGS AND CONCLUSIONS 

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

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

 
 
military record and submissions, the Coast Guard’s submission, and applicable law: 
 
 
The application was timely filed.  
 
 
The applicant asked the Board to remove from his record his OER for the period 
May 23, 2008, through January 31, 2009, or to raise the two below-standard marks he received.  
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 evi-
dence that the OER is erroneous or unjust.5  Absent specific evidence to the contrary, the Board 
presumes that the members of an applicant’s rating chain have acted “correctly, lawfully, and in 
good faith” in preparing their evaluations.6  To be entitled to relief, the applicant cannot “merely 
allege or prove that an [OER] seems inaccurate, incomplete or subjective in some sense,” but 
must prove that the disputed OER was adversely affected by a “misstatement of significant hard 
fact,” factors “which had no business being in the rating process,” or a prejudicial violation of a 
statute or regulation.7 
 
 
The applicant alleged that the disputed OER was prepared in retribution for his 
complaint to the parent command about the CO’s allegedly abusive conduct, which triggered a 
command  climate  investigation.    The  applicant’s  evidence  shows  that  the  CO  sometimes 
expressed her frustration with errors on the bridge by throwing objects and verbally criticized 
errors in operations immediately rather than waiting to criticize the performance of the applicant 
and  other  subordinates  in  private.    However,  the  record  shows  that  the  applicant’s  complaint 
about  the  CO  in  July  2008,  approximately  two  months  after  he  and  the  CO  reported  aboard, 
occurred soon after the CO removed the applicant’s qualification as the Officer of the Deck.  The 
command climate investigation in 2008 did not  result in the CO’s removal, although she  was 
apparently counseled because she stopped expressing her frustration with errors on the bridge by 
                                                 
5 33 C.F.R. § 52.24(b).   
6 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
7 Hary v. United States, 618 F.2d 704, 708 (Ct. Cl. 1980), cited in Lindsay v. United States, 295 F.3d 1252, 1259 
(Fed. Cir. 2002). 

4. 

throwing things.  The following year, the CO was relieved of command, but the Commodore has 
stated  that  the  command  climate  investigation  in  2008  had  no  bearing  on  the  CO’s  relief  for 
cause, which occurred after the disputed OER was prepared. 
 
 
The entire rating chain has supported the validity of the assigned marks, including 
the XO who assigned most of the marks on the disputed OER, including the mark of 3 for “Pro-
fessional Competence.”  The fact that the CO removed the applicant’s Officer of the Deck quali-
fication soon after they reported aboard, discussed his performance with the Commodore, and 
delivered an administrative letter of censure to him during the reporting period also supports the 
assigned  marks.    The  fact  that  the  applicant  had  received  higher  marks  previously  as  a  deck 
watch officer on a XXX cutter and received higher marks after he was given the non-punitive 
letter of censure, assigned temporarily to another patrol boat, and counseled by the Command 
Master Chief does not prove that the marks in the disputed OER do not accurately reflect his per-
formance during the reporting period.   
 

The applicant has not submitted sufficient evidence to overcome the presumption 
of regularity accorded his rating chain and the disputed OER.  He has not proved that the CO 
was or should have been disqualified from serving on his rating chain just because he instigated 
or  helped  to  instigate  the  command  climate  investigation.    The  Board  finds  that  he  has  not 
proved  by  a  preponderance  of  the  evidence  that  the  CO  should  have  been  disqualified  from 
serving on his rating chain pursuant to Article 10.A.2.g.2. of the Personnel Manual. 
 
 
Accordingly, relief should be denied because the applicant has not proved by a 
preponderance of the evidence 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 pre-
judicial violation of a statute or regulation.8 
 
 

5. 

6. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

                                                 
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). 

The  application  of  xxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his  military 

ORDER 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 
 Philip B. Busch 

 

 
 Reagan N. Clyne 

 

 

 
 Dorothy J. Ulmer 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 
record is denied.