Search Decisions

Decision Text

CG | BCMR | OER and or Failure of Selection | 2011-179
Original file (2011-179.pdf) Auto-classification: Denied
DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2011-179 
 
Xxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxx 

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 June 1, 2011, and assigned it to staff member J. Andrews to prepare 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  March  16,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The applicant, a lieutenant commander (LCDR/O-4) on active duty, asked the Board to 
correct his record by removing an officer evaluation report (OER) covering his service as from 
June 7, 2007, through April 30, 2008, as the Executive Officer (XO) of a cutter, and replacing it 
with an OER prepared for continuity purposes only.  He alleged that the OER is a product of bias 
and tremendous hostility on the part of the commanding officer (CO) of the cutter, who prepared 
the disputed OER.1 
 
 
The applicant alleged that in May 2007, after he had served as XO for about a year, the 
commanding officer of his cutter “was involved in an alcohol-related incident and was imme-
diately relieved for cause.”2  The applicant served as acting commanding officer until the new 
CO reported aboard on July 11, 2007.  This new CO had previously been the XO of the same 
cutter and he constantly compared the applicant’s performance to his own past performance as 
XO.  Initially, the CO told the applicant that he wanted things done “by the book,” but he repeat-

                                                 
1  An  officer  is  normally  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.  However, the commanding officer of a cutter normally serves as both Supervisor and Reporting Officer 
for the XO and thus prepares all of the marks and comments in the OER.  Personnel Manual, Article 10.A.2.e.1.e. 
2 This first CO was xxxxxxxxxxxxxxxxxxxxxxxxxx. 

edly  questioned  why  policies  that  the  CO  had implemented  when  he  was  XO  were  not  being 
implemented even if they were no longer in effect.   
 

For example, the applicant alleged, whereas previously, canvas banners known as “brow 
dodgers” would be embroidered with not only the name and number of the cutter but also with 
the CO’s name, the MLC Inspection Compliance Team had announced that personalized brow 
dodgers would no longer pass inspection.  Therefore, he did not have the cutter’s brow dodger 
personalized with the new CO’s name.  However, even though he advised the CO of the new 
policy,  the  CO  repeatedly  raised  the  matter  whenever  they  saw  another  cutter’s  personalized 
brow dodger and told the applicant that “there are regulations and then there are regulations” and 
that he was “ruining a longstanding Coast Guard tradition.” 
 
 
The applicant alleged that the CO blamed him for the discontinuance of other traditions 
as  well,  even  if  they  had  been  discontinued  before  the  applicant  reported  aboard,  such  as  the 
tradition of giving knives to departing officers and having black canvas deck coverings instead of 
blue.    In  addition,  the  CO  insisted  on  having  the  cook  prepare  a  monthly  birthday  cake  with 
crewmembers’ names and required the applicant to “drag crowds to the messdeck” even though 
“the crew absolutely hated the birthday cakes.” 
 
 
The applicant stated that the CO’s leadership style was “confrontational.”  The CO set 
either unrealistic expectations or none at all and then “violently erupted when his expectations 
were not met.”  Many of the crewmembers complained about the command climate at the local 
Work Life office.  The applicant alleged that because of these complaints, including some about 
how the CO treated the applicant, the Work Life counselor alerted the local Integrated Support 
Command,  and  the  Chief  of  Cutter  Forces  visited  the  cutter  to  inquire  about  the  command 
climate.    The  applicant  alleged  that  the  Chief  was  very  displeased  with  what  he  found  and 
ordered the CO, who was very defensive, to develop a plan to improve the command climate.  
However, the command climate became much worse, instead. 
 
 
The applicant alleged that the CO called the applicant and the Operations Officer to his 
stateroom to discuss the command climate, but when the applicant tried to explain the effect of 
the CO’s conduct on the crew, the CO became angry and refused to listen.  The applicant also 
alleged that the CO’s behavior became erratic and paranoid.  The CO was paranoid about the 
crew  “going  behind  his  back  to  his  superiors”;  about  “an  oversight  in  processing  a  medical 
waiver [being a possible] excuse to end [the CO’s] career”; and about the District’s failure to 
send a “Bravo Zulu” message when the cutter left the region.  The applicant alleged that the CO 
“would frequently interrupt discussions to address perceived slights” and publicly reprimand the 
applicant and others for these perceived slights.  In addition, the CO often “vented” to the appli-
cant about the scrutiny he was thought he was under and began to require the crew to get his 
approval for even mundane tasks.  The applicant stated that the CO would “stew continuously” 
over personnel issues, such as crewmembers who claimed they could not mentally handle sailing 
on the cutter, a crewmember who wanted a humanitarian transfer to another region, and another 
who appealed his performance marks.  In September 2007, when advised that there would be a 
civil rights climate assessment, the CO told him that they should try to stop people from “nosing 
around the ship” to find trouble, but it turned out that the assessment was of every unit in the 
region.  The applicant stated the following: 

 

Issues  like  these  occurred  on  occasion  at  every  unit  I’ve  ever  served  at,  and  in  my  experience 
commanding officers generally took them in stride, as part of the job,” but the CO “appeared to 
take strong, personal offense to all these criticisms, and would obsess over them.  Ultimately, … 
his  disproportionate  responses  to  what  were  essentially  routine  personnel  issues  created  a  self-
fulfilling prophesy, inasmuch as many of the crew did begin to complain, and [the CO’s] leader-
ship came under scrutiny.  In the meantime, he would call me into his cabin to discuss and pick 
apart the details of his e-mails, his logic and reasoning, and why his superiors were ignoring him.  
I grew to hate going into his cabin about anything. 

 
 
The applicant alleged that the CO’s expectations constantly shifted, which made deter-
mining  them  very  difficult,  especially  when  they  conflicted  with  policy  and  with  past  orders 
issued  by  the  CO.    For  example,  the  CO  directed  him  to  investigate  a  potential  inappropriate 
relationship  and  then  accused  him  of  “running  [his]  mouth  about  this  investigation.”    And  in 
September  2007,  the  CO  asked  him  to  record  the  CO’s  weight  falsely  during  the  semiannual 
weigh-in  and  said  he  would  lose  the  few  excess  pounds  by  the  end  of  the  month.    When the 
applicant  hesitated,  the  CO  said,  “You  are  clearly  uncomfortable,”  and  “stormed  out”  of  the 
applicant’s stateroom.  The applicant stated that although the CO met his weight standard prior to 
the deadline and never mentioned the incident again, the CO’s request that he falsify an official 
record per se disqualifies the CO from preparing the applicant’s OER.  The applicant argued that 
a superior officer making an unlawful request of a subordinate for his own benefit raises a sub-
stantial question as to whether the superior can prepare a fair OER for the subordinate and so 
disqualifies the superior under Article 10.A.2.g. of the Personnel Manual.3 
 
 
Moreover, the applicant argued, the CO should have been disqualified from preparing his 
OER because the CO was frequently openly hostile to him even in front of the crew.  The appli-
cant  alleged  that  this  hostility  stemmed  from  his  refusal  to  break  Coast  Guard  regulations  by 
buying a personalized brow dodger and falsifying the CO’s weight in the database and his failure 
to carry on traditions that the CO had instituted when he was the XO.  On the other hand, the 
applicant stated, it is possible that the CO was simply irrationally hostile toward him. 
 
 
The applicant alleged that the CO’s hostile and erratic behavior continued until the appli-
cant transferred from the cutter in June 2008.  He stated that when he asked the CO about the 
disputed OER, which was dated April 30, 2008, the CO stated that he had not recommended the 

                                                 
3 Article 10.A.2.g. of the Personnel Manual states the following: 

   1. In instances where a Supervisor, Reporting Officer, or Reviewer is unavailable or disqualified 
to carry out their rating chain responsibilities, the commanding officer or the next senior officer in 
the chain of command shall designate an appropriate substitute who is capable of evaluating the 
Reported-on Officer. … 
   2. As used within this subparagraph: … 

b.  “Disqualified”  includes  relief  for  cause  due  to  misconduct  or  unsatisfactory 
performance,  being  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. 

c. 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. 

applicant for command afloat because the applicant had once told the CO that his wife did not 
want him to take another afloat assignment, and the CO considered this a weakness.  In addition, 
the CO told him that he “could not count on him.” 
 
 
The  applicant  also  noted  that  Article  10.A.2.g.  of  the  Personnel  Manual  states  that  a 
rating official is disqualified from preparing an OER if he is “relie[ved] for cause due to miscon-
duct or unsatisfactory performance.”  The CO was relieved of command for cause on June 16, 
2009.  The applicant alleged that the CO was relieved for cause because of the hostile command 
climate he created and which the applicant had endured during the reporting period for the dis-
puted  OER.    Therefore,  applicant  argued  that  the  CO’s  relief  for  cause  is  another  basis  for 
removing the disputed OER from his record although it did not occur until about a year after the 
OER was prepared. 
 
 
The applicant alleged that he was subjected to a “hostile work environment” aboard the 
cutter and that the OER was a result of this treatment and so should be expunged.  In this regard, 
the applicant noted that in a previous BCMR case, Docket No. 2008-174, the Board stated that 
“it is theoretically possible that a CO could treat a junior officer so horribly that the junior officer 
could  not  reasonably  be  expected  to  perform  her  duties  well  even  if  the  CO’s  abuse  was  not 
based on gender, race, or religion” and that an OER “resulting from such treatment might con-
stitute  an  ‘injustice’  in  the  officer’s  record  and  so  be  removed  by  the  Board.”    The  applicant 
stated  that  “even  taking  into  account  the  military  environment,”  his  CO  “was  so  hostile  and 
abusive that no competent executive officer could have expected to perform his duties well.”  He 
stated that the CO directed “berating, belittling, and demeaning comments [toward him] in front 
of the crew almost daily.”  The applicant alleged that the CO once “raise[d] his fist to him as if to 
strike, but lowered it.”   Otherwise, the CO’s offensive conduct was all  verbal but  it was  also 
humiliating and abusive, and it interfered with his work performance.  He “was hesitant to send 
so much as an e-mail or make a phone call without somehow violating [the CO’s] subjective and 
constantly changing paradigm for how the ship should be run and what a proper XO would so.”  
He alleged that the CO’s treatment “negatively impacted his effectiveness in dealing  with the 
crew, which may have led [the CO] to come to the conclusions about [the applicant’s] job per-
formance that he did.”  However, the CO did not recognize this cause and effect.  The applicant 
stated that he did not complain about the CO to the Area staff because he thought his concerns 
would be dismissed and might result in his own dismissal. 
 
 
The applicant argued that because the disputed OER is the product of a hostile work envi-
ronment and the bias of a CO who should have been disqualified from preparing the applicant’s 
OER, the OER is erroneous and unjust and should be removed from his record.  The applicant 
further argued that the disputed OER clearly made his record worse, especially the CO’s com-
ment that he was not recommended for another afloat tour, and that because the disputed OER 
was in his record when it was reviewed by the CDR selection boards in 2008, 2009, 2010, and 
2011, his non-selections for promotion by those boards should be removed from his record, and 
if he is selected for promotion in 2012, his date of rank should be backdated to what it would 
have been had he been selected for promotion in 2008, and he should receive corresponding back 
pay and allowances. 
 

 
The applicant asked the Board to request the report of the command climate investigation 
under 33 C.F.R. § 52.43(b) and to provide him with a copy.  The applicant stated that he believes 
that  some  of  the  incidents  that  were  investigated  and  that  led  to  the  CO’s  relief  for  cause 
occurred while he was assigned to the cutter because he himself was questioned by the investi-
gator.  In support of his allegations, the applicant submitted several statements, which are sum-
marized below. 
 
Chief of Area Cutter Forces and Operation Forces 
 
 
CAPT  B,  the  CO’s  supervisor,  stated  that  he  visited  the  cutter  twice  during  the  CO’s 
command.  His first visit occurred soon after the CO arrived, and CAPT B was concerned about 
the morale and lack of professionalism of the crew because the cutter’s prior commanding officer 
had been relieved for cause.  CAPT B stated that the CO “seemed very receptive to our discus-
sions on bringing the professionalism up to standards.”  CAPT B’s second visit occurred in 2008 
in  response  to  complaints  that  the  CO  was  very  hostile  to  the  applicant  and  the  entire  crew.  
Crewmembers reported that the CO had demeaned the applicant in public.  During his second 
visit, CAPT B expressed his displeasure with the command climate and told him to draft a plan 
of action to improve it.  CAPT B stated that sometime after he transferred to Headquarters in the 
summer of 2008, he received a call from a crewmember stating that “the command climate had 
gotten much worse.”  CAPT B informed the officer who had replaced him as Chief of Cutter 
Forces and he heard that a subsequent investigation resulted in the CO’s relief for cause “due to 
the hostile work environment he had created onboard.” 
 
Work Life Supervisor 
 
Ms. T, the regional Work Life Supervisor, stated that in 2008 crewmembers of the appli-
 
cant’s cutter began to complain to her about the CO’s “dramatic mood swings, irrational beha-
vior and unexplained fits of rage.”  Some of them refused to reveal their identities for fear of 
retribution.  Ms. T stated that she was told that the atmosphere aboard the cutter was tense and 
that “everyone felt like they were walking on eggshells.”  A gunner’s mate told her that the CO 
“consistently  belittle[d]  the  XO  on  the  messdeck  and  bridge.”    Another  reported  that  the  CO 
would “freak out” when things went wrong and curse at the  XO or the  Operations Officer in 
front of subordinates.  Some reported that the CO had thrown objects at people.  One reported 
seeing the CO jump up and down on the washers and dryers.  An unnamed officer told her that 
he was afraid of the CO; that he had been ordered off the bridge after making a mistake in a 
navigation brief; and that he feared he would receive a negative OER. 
 
 
Ms. T stated that because of such reports, an Area team was sent aboard to interview the 
crew, but she heard later that they did not voice their concerns for fear of retribution.  She stated 
that “[i]f anything the investigation simply made matters worse by coming onboard, interviewing 
and finding ‘no problems.’  This further empowered [the CO].”  Ms. T noted that the crew made 
no negative comments about the applicant but instead praised his performance and professional-
ism. 
 
 

 

Supply Officer 
 
 
CWO  C,  the  cutter’s  Supply  Officer,  stated  that  the  CO  disrespected  the  applicant  by 
criticizing the Coast Guard Academy and its graduates, of which the applicant was one.  CWO C 
also saw the CO belittling the applicant in front of junior officers and failing to praise him for 
things that went well.  CWO C stated that the CO had “frequent, drastic mood swings” and set no 
expectations but “blamed [the applicant] for things that occurred along the way that he did not 
like.” 
 
Senior Chief Petty Officer 
 
 
A senior chief, BMCS W, stated that the applicant was in an unenviable and untenable 
position as the XO but “did his utmost to delicately balance the operational requirements of a 
Coast Guard cutter and the needs of its crew with a very difficult and … unbalanced command-
ing officer.”  BMCS W stated that he saw the CO belittling and berating the applicant during 
Officers’ Calls and on the bridge.  BMCS noted that during a special training event with a “full 
special sea detail” of all rates  and  ranks on the  bridge, the CO came to  the bridge,  asked the 
applicant if he had completed certain paperwork, and then relieved him and sent him below to 
complete the paperwork “in such a manner as to diminish and demoralize [him].” 
 

SUMMARY OF THE RECORD 

 
The applicant graduated from the U.S. Coast Guard Academy in 1994 and served at vari-
ous shore units and on four cutters as a junior officer, including service as the CO of a patrol boat 
from March 2002 to July 2004.  The applicant received two annual OERs for his service on the 
patrol boat.  On the first, he received six marks of 4, nine marks of 5, and three marks of 6 in the 
performance categories, a mark in the 4th spot on the comparison scale, a recommendation “for 
promotion with peers,” and merely consideration for “future afloat opportunities” if he showed 
“additional  personal  and  professional  growth/experience.”    On  the  second  OER,  he  received 
three marks of 4, twelve marks of 5, and three marks of 6 in the performance categories, another 
mark in the 4th spot on the comparison scale, and remarks that he had already been selected for 
promotion to LCDR, that he had shown considerable personal and professional growth, and that 
he was “well-suited for continued afloat opportunities.”  He received an Achievement Medal for 
this service and was promoted to LCDR in November 2004. 

 
From July 2004 to June 2006, the applicant served as a liaison officer coordinating the 
training of Coast Guard and Navy personnel at a Navy training command.  His first reporting 
officer in this position was the same person who served as his first CO at his next command, who 
was relieved  for  cause after being arrested for assaulting a bartender.  The applicant received 
high marks—primarily 6s—on his two OERs at this assignment and marks in the 5th spot on the 
comparison scale.  He was strongly recommended for promotion and received a Commendation 
Medal for this service. 

 
On June 29, 2006, the applicant reported aboard the cutter as the XO.  His first OER as 
XO covers his service through June 6, 2007, and was prepared by the  Chief of Cutter Forces 
because the commanding officer had just been relieved of command.  The Chief assigned the 

applicant eight marks of 5 and ten marks of 6 in the various performance categories4 and sup-
ported them with very positive comments.  He assigned the applicant a mark in the 5th place on 
the comparison scale,5 which denotes an “Excellent performer; give toughest, most challenging 
leadership assignments.”   In  assessing the applicant’s potential for future leadership roles, the 
Chief stated that following: 
 

Strongly recommended for promotion to O5 with his peers.  He is already performing at the O5 
level  &  clearly  ready  for  increased  responsibility  &  authority.    He  consistently  produced  note-
worthy  results  both  administratively  &  operationally.    Fine  leader,  trainer  &  fiscal  manager  w/ 
strong work ethic.  Understands joint operations, international issues & is a strong candidate for 
senior  service  schools.    Naval  War  College  ideal.    Strong  desire  to  transition  to  the  Sector 
Response career path & his recent afloat experience combined w/ his overall operational expertise 
& Command Center experience make him an ideal candidate for any Sector Response assignment. 
 
The disputed OER is the applicant’s second and last as XO of the cutter and covers his 
service through April 30, 2008.  The new CO assigned the applicant six marks of 4, seven marks 
of 5, and five marks of 6 in the various performance categories and a mark in the 4th spot on the 
comparison scale, denoting a “Good performer, give tough, challenging assignments.”  All of the 
comments in the OER are positive except one, as shown below: 
 

Intelligent, hardworking officer managing extremely demanding O4 afloat assignment.  Recom-
mended for promotion to O5 w/ peers.  [The applicant] has expressed a strong desire to transition 
to  the  Ops  Ashore  community;  does  not  seek  to  return  afloat  &  is  not  recommended.    Recom-
mended for assignment as Chief/Asst. Chief, Sector Response Dept.  Demonstrated solid grasp of 
operational  fundamentals.    Ideal  candidate  for  challenging  staff  assignments  involving  program 
analysis  or  oversight;  demonstrated  keen  understanding  of  budget  &  other  processes  &  then 
applied to unit’s best advantage.  Currently in receipt of orders to CG-751 (Cutter Forces).  I fully 
expect he will thrive there. 
 
The  CO  also  awarded  the  applicant  an  Achievement  Medal  for  his  service  aboard  the 
cutter upon the applicant’s departure in July 2008.  However, the applicant was not among the 
241 of 387 eligible LCDRs selected for promotion to CDR by the selection board that convened 
in 2008.  In his subsequent assignment as a division chief in Cutter Forces, the applicant received 
OERs in 2009 and 2010 with high marks in the performance categories and marks in the 5th spot 
on the comparison scale and, in 2011, an OER with marks of all 6s and 7s in the various perfor-
mance  categories  and  a  mark  in  the  6th  spot  on  the  comparison  scale,  indicating  that  he  was 
“Strongly recommended for accelerated promotion.”  However, he was not selected for promo-
tion to CDR by the selection boards that convened in 2009, 2010, or 2011.  The opportunity for 
selection by those boards was 114 out of 250 eligible candidates, 135 out of 278 eligible candi-
dates, and 143 out of 261 eligible candidates, respectively. 
 
 
 
                                                 
4  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. 
5 On a LCDR OER comparison scale, the Reporting Officer assigns a mark by comparing the reported-on officer to 
all other LCDRs whom the Reporting Officer has known throughout his 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 1st spot on 
the scale to a high of “Best officer in this grade” for a mark in the 7th spot.    

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 declarations from the CO and the OER Reviewer, which are summa-
rized below, show that the disputed OER was properly prepared, accurate, and fair.  The JAG 
summarized the applicant’s arguments for expunging the OER as claims that the CO asked him 
to engage in unlawful behavior; was irrationally biased against him; and created a hostile work 
environment for him. 

 
Regarding the applicant’s claim that his CO asked him to engage in unlawful behavior by 
falsely documenting his weight, the JAG noted that the applicant has submitted no evidence to 
support his self-serving allegation and that the CO denied the accusation in his declaration.  The 
JAG noted that the applicant had a duty to report the CO’s alleged unlawful request but failed to 
do so. 

 
Regarding the applicant’s claim that his CO was irrationally biased against him, the JAG 
stated that documentation submitted by the CO shows that the applicant’s performance was poor 
during the CO’s first two months aboard and that the CO was very displeased with his perfor-
mance.  The JAG stated that the applicant’s poor performance as XO caused the constant con-
frontations between him and the CO and that the XO failed to perform his basic duties as second 
in command of the cutter as described in Coast Guard Regulations.  The JAG concluded that the 
applicant’s allegations of irrational bias are unfounded and without merit. 

 
Regarding the applicant’s claim that the CO created a hostile work environment for him 
and  should  be  disqualified  from  his  rating  chain  because  he  was  relieved  for  cause,  the  JAG 
stated that the CO’s relief for cause occurred after the disputed OER was prepared and the appli-
cant left the cutter.  The JAG alleged that the applicant has not shown that the OER is not fair 
and accurate and the CO “has provided ample evidence that clearly explains the CO’s discontent 
when  the  applicant’s  performance  as  XO,  which  clearly  justifies  the  CO’s  evaluation  of  the 
applicant.”    The  JAG  noted  that  although  the  applicant  compared  his  situation  to  that  of  the 
applicant in BCMR Docket No. 2004-115, the cases are clearly distinguishable because in that 
case the Personnel Command had already  found that the applicant’s CO had created a hostile 
work environment, was  biased against the  applicant, and treated the  applicant in an unprofes-
sional manner.  However, the Personnel Service Center has made no such findings regarding the 
applicant and the CO. 
 

The JAG stated that the applicant has not submitted convincing evidence that the rating 
chain violated its duty to prepare the disputed OER fairly and accurately and that he had not met 
his burden of proof. 

 
Regarding the applicant’s non-selections for promotion, the JAG stated that because the 
applicant has failed to prove that the disputed OER is erroneous, it is “logically impossible” for 
him  to  show  a  causal  nexus  between  the  alleged  error  and  the  non-selections.    Therefore,  the 
JAG concluded, there is no basis for removing the applicant’s non-selections for promotion.    

 

In recommending denial of relief, the JAG adopted the findings and analysis provided in 
a memorandum on the case prepared by the Personnel Service Center  (PSC).  PSC submitted 
sworn declarations from the applicant’s CO and the OER Reviewer.  Based on those declara-
tions, which are summarized below, the PSC concluded that the applicant “has not provided suf-
ficient evidence to overcome the presumption of regularity with respect to the construction of the 
disputed OER.” 
 
 
PSC  stated  that  the  applicant’s  four  witnesses’  statements  constitute  speculation.    PSC 
stated that the Board should presume that the CO prepared the OER based on his observations of 
the applicant’s performance during the reporting period unless there is specific evidence to the 
contrary.  PSC stated that there is no evidence that the CO did not fulfill his duties as prescribed 
by the Personnel Manual in evaluating the applicant.  PSC argued that there are no grounds for 
removing the applicant’s non-selections for promotion from his record. 
 
 
PSC stated that the CO’s relief for cause in June 2009 is not evidence that the applicant’s 
OER was not prepared properly in May 2008.  PSC pointed out that it was incumbent on the 
applicant to request disqualification of the CO in April or May 2008 if the CO was biased against 
him, but he did not do so.  PSC noted that the applicant also failed to submit an OER Reply to 
dispute  the  OER  and  “express  views  about  performance  that  may  differ  from  that  of  a  rating 
chain official.”  In addition, the applicant did not apply to the Personnel Records Review Board 
to correct the OER within a year of receiving it.  PSC recommended that the BCMR deny the 
applicant’s requests for relief. 
 
Declaration of the CO 
 

The CO stated that he never asked the applicant to falsify his weight in the records.  He 

The CO stated that he stands by the accuracy of the OER and that many of the applicant’s 
allegations are fabricated or incredibly exaggerated.  For example, the CO stated that he would 
joke and tease the applicant whenever they saw a personalized brow dodger and the applicant 
would laugh with him.  However, the applicant now describes this running joke between them as 
a terrible ordeal that he had to endure. 
 
 
stated that the applicant’s application constitutes perjury in this regard. 
 
 
The CO denied ridiculing or chastising the applicant in public.  In fact, the CO stated, he 
had  to  fend  off  complaints  about  the  applicant  doing  this  to  others  and  sometimes  heard  the 
applicant yelling down passageways.  The CO claimed that the only time he spoke harshly to a 
crewmember in public was when it was “required due to emergent safety of the ship, such as 
bridge operations, etc.”  The CO stated that he did not recommend the applicant for command 
afloat because of “his inability to handle the XO position, his absolute horrid ship handling and 
his dangerous inattention to details.” 
 
The  CO  stated  that  the  crewmembers  who  wrote  statements  for  the  applicant  are  “a 
 
couple of disgruntled sailors” who “had been held accountable for [poor performance] and now 
saw a chance to get even as they did during my investigation.”  The CO noted that the wardroom 

of the cutter was full of Academy graduates, but only CWO C alleges that he repeatedly insulted 
them. 
 
 
The CO stated that although he did not find the applicant suited to his position, he had 
always liked him and thought him to be honest until he read the applicant’s sworn statement in 
his application, which is “complete perjury.”  He alleged that if the atrocious behavior the appli-
cant describes had occurred during the applicant’s tenure aboard the cutter, the applicant would 
have taken the opportunity during the investigation in 2009 to make these allegations but he did 
not.  The CO pointed out that it is only after the applicant has been passed over for promotion 
multiple times that he challenges the accuracy of the disputed OER. 
 
 
The  CO  stated  that  he  is  shocked  that  CAPT  B  has  supported  the  application  because 
about the time the CO took command, CAPT B told him that the cutter was “a ship without a 
rudder” and a “floating party boat” and that the wardroom was “spoiled” and overly concerned 
about their leave time.  In addition, CAPT B told him that he was disgusted with the applicant’s 
failure to lead and take responsibility and his decision to take leave and attend training when the 
prior CO had just been relieved of command.  CAPT B told him that he was already debating 
firing the applicant and told the CO he could fire the applicant if he had any reason.  Therefore, 
the CO began writing down the applicant’s shortcomings in case he had to fire him.  (This doc-
ument  is  summarized  below.)    However,  when  the  CO  finally  concluded  that  the  applicant 
should be fired because of safety and leadership issues and his lack of organizational abilities, 
CAPT B told him to “keep mentoring the lad.”  The CO noted that this conversation occurred 
shortly before CAPT B transferred and that CAPT B may not have wanted to go to the trouble of 
finding a replacement XO. 
 
The CO alleged that he had to work hard to make up for the applicant’s shortcomings and 
 
that he had to be “CO and XO at the same time.”  He stated that the applicant was incapable of 
handling most personnel and disciplinary issues and that “[i]t was all [the applicant] could do 
just to clear his inbox and not be late with OERs, correspondence, daily paperwork, being late 
with most” anyway.  The CO stated that the applicant could not delegate or train junior officers, 
and the CO had to show him how to make a “to do” list and organize items on a dry erase board.  
The CO stated that his command was harmed by the applicant’s incapability and a lack of sup-
port from CAPT B as he “went about changing a party boat culture into a military vessel.” 
 
 
The CO stated that when CAPT B visited the cutter again, he told the CO, “I did not do 
you any favors by keeping the XO aboard, did I?”  CAPT B pointed out the applicant’s lack of 
leadership on the bridge and a “need to reign in the XO.”  The CO alleged that CAPT B may be 
vengeful because during the administrative proceedings that led to the CO’s relief for cause, the 
CO reported the lack of support he received from Cutter Forces. 
 
 
The CO alleged that the disputed OER is “overly generous and fair.”  He alleged that he 
“spent a year holding [the applicant’s] hand while he would apologize for being a poor XO, cry, 
explain how he only went back to sea because he failed as a 110’ [patrol boat] CO,” which the 
applicant blamed on the Group Commander.  The CO stated that he is now retired and so does 
not care if the applicant is promoted, but he will not stand by while his name and character are 
assassinated.   

 
CO’s July 2007 Notes About the Applicant  
 

In support of his allegations, the CO submitted a copy of notes he made about the appli-
cant’s performance during the CO’s first few weeks aboard the cutter and a screen shot of the 
folder showing that the document was last modified on July 27, 2007.  The CO wrote that CAPT 
B  had  told  him  he  was  very  disappointed  in  the  applicant  because  when  the  prior  CO  was 
relieved for cause, the applicant “did not step up and take charge but instead pushed for taking 
his leave as scheduled” and “failed to inform Area that he would be attending an ICS course the 
week after his leave.  He effectively left the cutter in the hands of the LT Engineer Officer.” 

 
The  CO  wrote  that  the  applicant  made  no  preparations  for  the  CO’s  arrival,  such  as 
ensuring that briefing binders were completed by the department heads.  The CO stated that he 
had to ask the applicant for documents repeatedly or retrieve them himself when he was about to 
take command.  The CO advised the applicant to make a “to do” list but this idea “does not seem 
to have sunk in.  The same issues arise regularly.”  The CO noted that he had to ask the applicant 
about five times to have the prior CO’s dirty linen and garbage removed from the CO’s cabin 
and to have the cabin cleaned.  The applicant apparently tasked people to clean the cabin but 
never followed up and so the CO had to clean it himself.  In addition, the CO stated that he had 
to repeatedly tell the applicant to contact another District about a burial at sea that needed to be 
rescheduled.  The applicant was putting it off to the last second, which would have caused the 
family to make travel arrangements for a date when the burial could not occur.  The CO wrote, “I 
have  no  confidence  that  if  I  tell  the  XO  to  do  something  that  it  will  get  done  without  repeat 
tasking.    He  fails  to  do  the  simple  tasks  of  organization,  tasking,  delegation,  follow  up,  and 
reporting back.  He can only handle one simple task at a time.”   

 
The CO wrote that after he told the applicant that he would not condone a port call in 
Jamaica  and  that  the  applicant  should  “change  it,”  he  heard  the  applicant  and  the  Operations 
Officer discussing the country clearance message for Jamaica.  When he reminded the applicant 
that he had vetoed a stop in Jamaica, the applicant replied that he had not believed the CO was 
serious about not going there.  The applicant told him that he had had to counsel a female junior 
officer about inappropriate relationships several times, but when the CO asked to see the docu-
mentation, the applicant told him there was none. 

 
The CO wrote that a week before his assumption of command ceremony, he instructed 
the applicant to have the ship cleaned for the arrival of CAPT B to officiate and to have the crew 
dressed “in clean, pressed ODUs for the ceremony.”  Although the applicant acknowledged this 
direction, no cleaning was done until the day before the ceremony and the 3 hours of cleaning 
that occurred was not sufficient.  The applicant asked the CO to inspect the ship, but he refused 
because it was still very dirty and most of the crew were in wrinkled uniforms.  The CO wrote 
that the applicant “fails to show leadership or the character to make difficult decisions.” 
 

The  CO  noted  that  just  days  before  going  on  patrol,  he  had  to  press  the  applicant  to 
ensure that they had AMIO supplies on board.  In addition, a week before sailing, the applicant 
gave the crew a “stand down” leave schedule.  The CO told him he was not comfortable granting 
so much leave because he had yet to see up to date completed work lists from the department 

heads,  “a  Nav  brief,  track  lines,  tides  and  currents,  or  any  item  whatsoever  that  indicated  we 
were ready to sail.”  The applicant stated that he would “hold up all stand down” if the cutter was 
not ready to sail.  The CO stated that this was an example of the applicant’s inability to track 
work.  He reported that soon after he assumed command, he asked the applicant how he tracked 
and coordinated the departments’ inport work lists.  The applicant told him that he did not track 
or coordinate the work but “left that to each department.”  When the CO asked him how he knew 
what  was  going  on  in  each  department  and  how  issues  were  coordinated,  the  applicant  “just 
looked at me with a blank stare.”  The CO wrote that he asked the applicant to document the 
status of the inport work lists but some of the lists were for the quarter or the whole year.  The 
CO still did not know the status of the work lists and, he wrote, “I am sure I will have to request 
it a 4th time.” 

 
The CO wrote that it was evident that the applicant “fails to take a leadership role on the 
cutter” and “he does not have the respect of the CPOs and Officers.”  He noted that the applicant 
could not name the cutter’s legal officer even though the legal officer is one of an XO’s most 
important contacts for handling disciplinary matters.  The CO wrote that he was having to repeat 
himself several times or carry out the applicant’s duties himself. 

 
The CO wrote that the applicant had told him that his wife would not allow him to take 
another tour afloat and when the CO asked him why he had taken the XO assignment, the appli-
cant said “to get promoted to O-5.  He also stated that he did not do well on his last afloat tour 
(CO 110) so he wanted to prove to himself that he could do the job at sea.”  The CO wrote that 
he appreciated the applicant’s honesty but did not consider either reason valid. 

 
The CO wrote that the prior CO had told him that the applicant was a poor XO.  In addi-
tion, the commander who sailed the cutter back to homeport after the prior CO’s relief for cause 
told him that “he had little confidence in the XO after observing him for his brief time aboard.  
[The commander] stated that [the applicant] was unorganized and failed to do his basic job as 
XO.”  He also advised the CO “to watch that guy” since he did not believe the applicant was 
competent. 

 
The CO wrote that he counseled the applicant on July 23, 2007, about his lack of prepa-
ration for getting underway.  Many issues that should have been handled during the cutter’s two 
months at pier were not handled until the last couple of days.  The CO wrote that he told the 
applicant that he “was documenting his failure to perform his duties and that he needed to greatly 
improve or I would need to find a replacement.”  In response to this counseling, the applicant 
“visibly pouted and moped in front of the wardroom and has continued down that path.”  The CO 
concluded his notes by saying that he would “continue to monitor [the applicant’s] performance 
during this next patrol.  I will give him every chance to succeed; however if he fails to do his 
duties, I will seek a replacement.  At this time, I have no confidence in his abilities to carry out 
his duties as the Executive Officer.”  
 
Declaration of the OER Reviewer 
 
 
The OER Reviewer, who was the Assistant Branch Chief for Area Cutter Forces, wrote 
that  he  never  directly  observed  the  applicant’s  performance  and  that  his  interactions  with  the 

applicant “consisted of working on issues pertaining to the cutter, such as budget, training, patrol 
planning, etc.”  As OER Reviewer, he checked the OER for “technical and grammatical accu-
racy.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On November 30, 2011, the applicant responded to the views of the Coast Guard.  He 
noted that he is disputing not only the comment about not being recommended for duty afloat, 
but the entire OER, which was a “product of irrational animus and hostility” toward him.  The 
applicant alleged that the CO’s declaration was  vitriolic and shows that the CO was trying to 
prevent the applicant’s promotion when he wrote that comment even though he recommended 
the applicant for promotion. 

 
Regarding his claim that the CO asked him to falsify his weight in an official record, the 
applicant stated that while it is a matter of his word against the CO’s, he believes that the pre-
ponderance of the evidence in the record shows that he is more credible than the CO “on this and 
just about every other point.”  He noted that the CO blamed both him and CAPT B for damaging 
his command.  In response to the JAG’s claim that he should have reported the CO’s solicitation 
of a crime, the applicant pointed out that he had no witnesses to support his claim and that the 
important point is not whether the applicant should have reported the incident but that the CO 
retaliated against him for refusing to falsify the record. 

 
In response to the JAG’s claim that there was no hostile work environment because PSC 
did not determine that there was one, the applicant argued that the CO’s hostility toward him is 
clearly documented in this case and was witnessed by his subordinates.  The applicant argued 
that  his  duties  as  XO  under  Coast  Guard  Regulations  did  not  deprive  him  of  the  right  to  a 
workplace free of hostility as the JAG suggested.  The applicant further argued that because he 
has  shown  that  the  disputed  OER  is  a  product  of  bias  and  a  hostile  work  environment  and 
because  the  comment  about  him  not  being  recommended  for  assignment  afloat  is  extremely 
damaging for an officer who has spent most of his career at sea, he has proved that his record 
was prejudiced by error before the CDR selection boards and so his non-selections should be 
removed  under  the  Engels  test.    The  applicant  noted  that  the  Coast  Guard  did  not  attempt  to 
refute a causal nexus between the alleged error in his record and his non-selections even though 
the Government bears the burden of proof on this point. 
 
Applicant’s Response to PSC 
 

In response to PSC’s claim that his witnesses’ statements are mere speculation, the appli-
cant pointed out that they only testified about matters they actually observed or had reported to 
them and did not speculate about why the applicant received a poor OER from the CO. 

 
In response to PSC’s claim that the applicant was required to raise the issue of the CO’s 
disqualification at the time, the applicant pointed out that there is no such requirement and that 
the regulation states only that an officer should report such matters during the reporting period or 
within 30 days of the end of the reporting period. 

 

Regarding his failure to submit an OER Reply, the applicant pointed out that he was still 
assigned to the cutter when the OER was completed and any such action on his part would have 
made an already tense situation unbearable.  He also noted that rating chain members can attach 
written responses to OER Replies, which can make matters worse if the rating  chain member 
chooses to include more negative comments.  The applicant noted that he is also not required to 
apply to the PRRB for correction of the OER even though that board had jurisdiction to correct 
the OER within the first year after it was entered in his record. 

 

Applicant’s Response to the CO’s Declaration 

 
The applicant stated that although he might have laughed out of cynical acknowledge-
ment  when  the  CO  mentioned  the  brow  dodgers,  it  “was  certainly  no  joke.”    The  applicant 
alleged that the XO who arrived to replace him immediately inquired about the lack of personali-
zation of the brow dodgers, which shows that the CO “had front loaded [the new XO] with this 
information and still bore ill will toward the applicant for refusing to purchase the personalized 
brow dodger.” 

 
The applicant stated that the CO’s claim that he never ridiculed the applicant in public is 
clearly false since the Work Life Supervisor, Ms. T, stated that crewmembers had told her that 
the CO “would consistently belittle the XO on the bridge.”  The applicant noted that Ms. T is not 
a  “disgruntled  sailor”  as  the  CO  characterized  his  witnesses  and  that  noticing  and  reporting 
command climate issues is part of her job.  The applicant stated that CAPT B is not a disgruntled 
sailor either and yet he admits that he visited the cutter specifically because of reports that the 
CO was being hostile and demeaning towards the applicant.  The applicant alleged that BMCS 
W and CWO C are not disgruntled sailors either because, while they were subordinate to the CO, 
they have since been assigned as the Officer in Charge of a small boat stations and to two com-
mand cadre positions, respectively.   

 
The applicant stated that the CO’s attacks against his witnesses were typical of the beha-
vior he was subject to daily.  “[W]henever anyone said anything even remotely critical of [the 
CO], rather than engage in honest self-reflection, his typical response was to become enraged 
and assail the other person’s motives.”  The applicant noted with regard to the CO’s claim that 
CAPT B did not approve the applicant’s removal because he was lazy that the record shows that 
CAPT B had just relieved the CO of the cutter and so would not have been shy about relieving 
the applicant.  The applicant stated that the CO’s habit of ascribing horrible motives to people 
supports his allegation that the CO was paranoid and convinced that people were out to get him. 

 
The applicant stated that the CO’s claims about his poor performance are belied by many 
of the marks and comments in the disputed OER.  For example, the CO’s claim that the applicant 
could not handle the XO position contradicts the OER comment that he had completed a success-
ful tour as XO.  The CO’s claim that his ship handling was horrid is contradicted by the mark of 
5  he  received  for  Professional  Competence  and  the  comments  about  his  assuming  “conn  to 
salvage mooring attempts in challenging conditions.”  The applicant also alleged that the CO’s 
claim that he showed a dangerous inattention to detail is contradicted by the lack of any such 
comment in the OER, the mark of 6 for Responsibility, his recommendation for promotion, and 
his Achievement Medal.  The applicant alleged that the CO’s claim that he could barely clear his 

inbox  is  contradicted  by  the  mark  of  4  he  received  in  Results/Effectiveness,  which  requires 
timely and high quality work, the mark of 6 he received for Evaluations, and the comment that 
the crew’s evaluations were all of high quality and on time. 

   
Regarding  the  CO’s  notes  about  his  performance  last  modified  on  July  27,  2007,  the 
applicant pointed out that they cover only the first 50 days of the CO’s tour of duty with the 
applicant, that the incidents in the notes are not mentioned in the disputed OER, and that the CO 
clearly stopped taking notes on July 27, 2007.  The applicant alleged that if his performance had 
continued to be poor, the CO would certainly have continued taking notes to support any future 
decision to fire him. 

 
Responding to the CO’s claim that CAPT B declared himself disgusted with the applicant 
for taking leave and attending training after the prior CO was relieved for cause, the applicant 
stated  that  the  Area  agreed  that  he  could  take  leave  since  he  had  taken  very  little  since  he 
reported aboard in 2006 and that the course he attended was required for XOs and COs, was not 
available online, and had to be completed by June 30, 2007.  Moreover, the course was held just 
two blocks from the cutter’s berth and he reported to the cutter each day for two hours before 
class and two hours after class.  Moreover, CAPT B attended the class with him and accompa-
nied the applicant to and from the cutter all three days of the course. 

 
Regarding the relief books, the applicant alleged that such books are usually presented to 
a CO during the “relief week” before the assumption of command ceremony, but the CO arrived 
six weeks early and demanded the books right away.  The applicant ensured that they were com-
pleted early in response to the CO’s request.  Moreover, this happened during transfer season, 
when the applicant had to process the turnover of one-third of the enlisted members and one-half 
of the officers.  The applicant alleged that the departments all had worklists, but the CO’s pre-
mature demands trumped and interfered with their work. 

 
Regarding the last-minute preparations for patrol, the applicant explained that the Supply 
Officer,  Navigator,  Assistant  Navigator,  and  Navigation  Leading  Petty  Officer  were  all  new 
arrivals in the summer of 2007 and so were familiarizing themselves with the cutter and their 
jobs  while  they  prepared  for  patrol.    Although  some  preparations  were  completed  at  the  last 
minute, this is not unusual for a cutter “trying to function in the middle of transfer season,” not to 
mention trying to deal with the relief for cause of the last CO and the very early arrival of the 
new CO.  In addition, the applicant denied the CO’s claim that he did not have an inport work-
list.  The applicant stated that the department heads sent him their worklists and he would make 
or recommend changes as necessary.  The applicant alleged that all preparations for patrol were 
completed by the time the patrol began. 

 
Regarding the potential port call in Jamaica, the applicant stated that he has “no specific 
recollection” of this incident but that the CO was not always clear in his tasking and was “prone 
to conflicting tasking.” 

 
The applicant alleged that the only reason he could not name the legal officer when the 
CO arrived is because the cutter’s previously assigned legal officer had just transferred and the 
legal office itself had reorganized so that the cutters did not have assigned legal officers, who 

instead  began  working  under  a  “duty  pager  system”  to  balance  the  workload.    The  applicant 
noted that this new system was explained to the CO. 

 
The applicant also stated that he never told the CO that he had failed as the CO of a patrol 
boat  although  he  felt  that  he  could  have  done  better  and  he  certainly  never  cried  aboard  the 
cutter. 

 
The  applicant  alleged  that  the  CO’s  lack  of  credibility  is  proved  by  his  claim  that  he 
never ridiculed or chastised the applicant in public, by the contradictions between the positive 
marks and comments in the disputed OER and the CO’s severe criticisms in his declaration, and 
by the tone and language of the declaration, which “devolves into a meandering screed in which 
he alternately assails the motivations of others and catalogues his grievances” against CAPT B 
and the applicant.  The applicant argued that if his performance was as poor as the CO painted it, 
he should not have received the OER that he did and that the CO’s own declaration proves his 
claim regarding the CO’s bias and the hostility of the work environment on the cutter. 

 
The applicant alleged that the OER Reviewer’s declaration shows that he failed to per-
form his duties properly since he only checked the disputed OER for technical and grammatical 
accuracy.    The  applicant  noted  that  an  OER  Reviewer  is  supposed  to  ensure  that  the  OER 
“reflects a reasonably consistent picture of the Reported-on Officer’s performance and potential” 
and that the Supervisor and Reporting Officer have adequately executed their responsibilities in 
preparing  the  evaluation.    The  applicant  alleged  that  the  OER  Reviewer  acted  as  a  “rubber 
stamp” for the disputed OER and so abdicated his responsibilities to the applicant.  The applicant 
alleged that if the OER Reviewer had performed his role correctly, he would have found that the 
CO’s recommendation against future assignments afloat, which suggest that the applicant was 
not qualified for duty afloat, was inconsistent with the numerical marks and comments showing 
that the applicant was qualified for sea duty. 

 
Finally,  the  applicant  alleged  that  the  CO’s  claim  that  he  was  “overly  generous”  in 
assigning marks and comments in the disputed OER and his claims in his declaration that the 
applicant’s  performance  was  much  worse  than  what  was  portrayed  in  the  OER  show  that  the 
OER as a whole is erroneous and should be removed.  The applicant argued that he has proved 
that the CO was irrationally biased against him, paranoid, and openly hostile.  Moreover, he has 
proved that his work environment was so hostile that no officer could expect to perform well.  
Therefore, the OER and his non-selections for promotion should be removed from his record. 

 

COMMAND CLIMATE INVESTIGATION 

 
In response to the applicant’s request, the Board opted to review certain parts of the cut-
ter’s 2009 command climate investigation, including the investigator’s report, any pages men-
tioning the applicant by name or title, and documentation of the 2008 climate assessment by the 
Civil Rights Office.  The Board sent a redacted copy to the applicant. 
 
 

 

2008 Civil Rights Office Assessment 
 

In his report of the 2009 investigation, the investigator reported that CAPT B told the CO 
to re-instill a military culture on the cutter when he assumed command on July 11, 2007.  During 
the  May  2008  climate  assessment,  the  Civil  Rights  Office  (CRO)  found  no  civil  rights  issues 
onboard the cutter but advised the CO that there were climate issues, as noted in the final report.   

 
The  report  of  the  2008  climate  assessment,  dated  June  2,  2008,  stated  that  the  junior 
enlisted members claimed that the junior officers were “scared to do their jobs in fear of making 
the  slightest  mistake  which  would  be  addressed  immediately  in  a  negative  way  by  the  Com-
manding Officer (CO).  The CO constantly yells at the crew and the JO’s no matter who is in the 
immediate area.”  There were no morale events and morale had decreased since the CO arrived.  
The enlisted members also noted that the applicant had made an inappropriate racial comment 
when he told an African American that he should put on a hard hat and jacket so that he could be 
distinguished from some Haitians who had been rescued and were on deck. 

 
Senior enlisted members told the CRO that they were afraid to ask questions in fear of 
retaliation and that the XO had told a YN that none of the junior officers would receive end-of-
tour awards.  They felt that the CO and XO were requiring them to conduct training at such a fast 
pace that safety was coming in second to mission success.  In addition, some members who had 
been injured had not reported their injuries because of how the CO and XO would react.   

 
The chief petty officers complained that the junior officers “were not doing their job and 
supporting  the  CO  the  way  they  should  as  the  majority  of  them  had  been  under  the  previous 
command and were reluctant to change which was gravely overdue.”  They told the CRO that 
“they support the CO and XO and the much needed change to a disciplined military environ-
ment.” 

 
The chief warrant officers and junior officers complained that the junior officers were “in 
fear for their careers,” which impeded their work, and were afraid to speak to the CO.  They also 
complained about the way they “were addressed in front of their subordinates; most of the time it 
is negative, belittling and embarrassing.”  One officer reported to the CRO that the CO and XO 
had told them that they all needed to be “on the same sheet of music when asked questions” by 
the CRO and that on the evening of the first day of the CRO’s two-day visit to the cutter, the 
applicant had gathered subordinate officers together to ask what questions the CRO had asked 
and what responses had been given.  Another officer reported that when the applicant learned in 
2007 who the new CO would be, he approached the new CO and asked to resign as XO. 

 
The CO and the applicant were interviewed together by the CRO.  The CO stated that he 
was unaware of any morale issues, and the applicant “had little if anything to say during the brief 
and  was  unfamiliar  with  any  specific  issues  on  the  cutter.”    The  applicant  denied  making  an 
inappropriate racial comment to an African American crewmember. 

 
In response to the CRO’s report, CAPT B ordered the CO to prepare a plan to address 
four areas of concern: “negative leadership practices including belittling or chastising members 
in  front  of  the  crew”;  crewmembers  being  fearful  of  voicing  concerns;  low  morale  and  poor 

mentoring of junior officers; and “inconsistent interactions with crewmembers, at times intimi-
dating and other times friendly and supportive.” 

 
CAPT B himself visited the cutter on June 17, 2008, and advised his superiors that he 
“witnessed a very professional unmooring with a 20 kts on the dock wind (even though the XO 
wasn’t very engaged).”  CAPT B stated that the CO’s “heart is in the right place” but he “needs 
to work on how he delivers the message.”  CAPT B stated that the junior officers were not as 
“beat down” as he had been led to expect and that the Chief’s mess fully supported the com-
mand.  CAPT B also stated that he met with the department heads, who stated that “they fully 
support the CO and are looking forward to some upcoming changes (they didn’t say it but I knew 
they were talking about the XO [the applicant] transferring). … With a new XO coming onboard 
at  the  end  of  this  patrol  and  full  support  from  the  wardroom  and  CPO’s  mess,  I  believe  [the 
cutter] can make positive climate changes.” 

 
On June 22, 2008, the CO submitted a draft plan in response to CAPT B’s direction, but 
it was rejected as too defensive.  The CO described highly unprofessional behavior that had been 
occurring on the cutter prior to his assumption of command and noted, inter alia, that the chal-
lenges he faced had been “exacerbated by the fact that I had to perform the function of both CO 
and XO. 
 
On  July  19,  2008,  the  CO  submitted  a  revised  plan,  which  was  less  defensive  and 
included more positive steps to improve the command climate, including a quarterly question-
naire about the climate.  However, the 2009 investigator reported that no such questionnaire was 
ever distributed because the CO “never felt those [four concerns] existed in the first place.”  The 
CO stated that he used the May 2008 climate assessment personally and could not recall sharing 
it with others. 

 

2009 Witnesses’ Statements About the Applicant 
 

following comments about the applicant: 
 

In  interviews  with  the  investigator  and  follow-up  statements,  the  crew  made  the 

•  The CO stated that he had appeared inconsistent with the crew because he had previously 
had to serve as both the CO (nice guy) and XO (enforcer) during the applicant’s time as 
XO. 

•  LT H reported that the applicant was upset after meeting with the CO, who had accused 
the applicant of deserting him by “leaving him out alone with the crew” while they were 
all on liberty. 

•  LTJG W stated that he had seen the CO drunk on the street the year before with the appli-

cant. 

•  A crewmember stated that the Operations Officer and the applicant “weren’t ever getting 

training from the CO on leadership, they were only ever publically humiliated.” 

 

 

 

 

•  CAPT D stated that the applicant “was considered a weak XO.  This had been noted by 
[CAPT D] personally during a program manager visit as well as by CAPT B, feedback 
from ISC XXXXX on the XO’s working relationship with his staff, as well as feedback 
from  [the  CO].    He  said  this  was  known,  and  that  is  why  he  supported  [the  CO]  by 
working with OPM to have a known high performer replace [the applicant].  He went on 
to say the comment of having to be both CO and XO meant that he had to play more of a 
disciplinary role than most CO’s.”   

•  The  applicant’s  own  interview  with  the  investigator  focused  on  matters  other  than  the 

 

command climate. 

 
2009 Findings About the Command Climate 
 
 
The  investigator  reported  that  the  junior  officers  he  interviewed  “used  words  such  as 
uncomfortable, hostile, tense, awkward, scared and roller-coaster to assess the climate on board 
and within the Wardroom.”  Both officers and chiefs reported “a continued propensity to repri-
mand  in  public  rather  than  private,  including  calling  out  officers  for  mistakes  in  front  of  the 
crew.”  The CO, they stated, continued to belittle and berate them and they dreaded speaking to 
him.  One officer reported sitting “in his stateroom for 20 minutes, sick to his stomach, knowing 
he was going to have to go in and brief the CO.”  The investigator reported that not everyone 
thought that the command climate was bad but that the four concerns noted in CAPT B’s letter to 
the CO following the 2008 assessment continued to exist. 
 
 
The CO was relieved of command on June 16, 2009, as a result of the investigation, but 
matters other than the command climate were investigated, and whether or how much the com-
mand climate weighed into the decision to relieve him is unclear.  
 

APPLICANT’S RESPONSE TO THE COMMAND CLIMATE INVESTIGATION 

 
 
The applicant stated that the investigation, even as redacted, strongly supports his claim 
that he was subject to a hostile work environment on a daily basis and so could not reasonably 
have been expected to perform his duties well.  He alleged that the investigation supports his 
claim of bias, and so the CO should be deemed disqualified from serving on his rating chain.  
The  applicant  stated  that  the  investigation  showed  that  the  CO  is  in  denial  about  his  habit  of 
belittling subordinates and the command climate he created on the cutter.  The investigation also 
shows that the CO blamed the applicant for not keeping him out of trouble.  The applicant argued 
that the CO’s continued denial of the hostile command climate and his improper behavior under-
cut the CO’s credibility generally and therefore supports his claim that the CO asked him to file a 
false report about the CO’s weight in September 2007.  He argued that the CO clearly should not 
have been on anyone’s rating chain and that the CO should have been charged with cruelty and 
maltreatment under Article 93 of the Uniform Code of Military Justice even though the investi-
gator recommended against it. 
 
The applicant argued that because the Area Cutter Forces already knew about the cutter’s 
 
command climate when the disputed OER was reviewed in 2008, the OER should have received 
a more careful review.   

Regarding  his  own  responses  to  the  investigations,  the  applicant  noted  that  the  CRO 
interviewed him and the CO together and so he dared not speak the truth.  In addition, he alleged 
that when CAPT B visited the cutter on June 17, 2008, he was the only member of the  crew 
CAPT B did not speak to.  And when he was interviewed for the 2009 investigation, he did not 
know that the investigation concerned the command climate and so only answered the questions 
the investigator posed, which were about certain events in Barbados. 

 
Regarding  descriptions  of  his  performance  as  “weak”  in  the  investigator’s  report,  the 
applicant stated that none of the officers who reported this ever told him about their views.  He 
noted that CAPT B was the OER Reviewer for  his first OER as XO, which was an excellent 
OER.  The applicant stated that the captains who deemed his performance to be weak apparently 
did not take into consideration the impact of the CO’s hostility and paranoia on his performance 
and reputation.  The applicant attributed his poor relations with ISC XXXXX to the fact that the 
crewmembers were desperate to leave the cutter or remain ashore when it sailed for medical or 
other reasons and that these requests from the crew resulted in escalating disputes with the ISC.  
However, but for the horrible command climate, his relationship with the ISC would not have 
deteriorated. 

 
The applicant stated that he does not claim to be perfect, but his career has been ruined 
because he had the misfortune of serving as XO on a cutter for two consecutive COs who were 
relieved for cause.  He asked the Board to grant relief. 
 

SUMMARY OF THE REGULATIONS 

 
Coast Guard Regulations 
 
 
sibilities: 
 

 

 

 

Chapter 6-2-1 of Coast Guard Regulations states the following regarding an XO’s respon-

In performing his duties, the executive officer shall conform to and effect the policies and orders 
of  the  commanding  officer  and  shall  keep  informed  of  all  significant  matters  pertaining  to  the 
command.  The executive officer shall be primarily responsible for the organization, coordination 
of  effort,  performance  of  duty,  and  good  order  and  discipline  of  the  entire  command.    While 
recognizing the right and duty of heads of departments and other officers to confer directly with 
the commanding officer on important matters relating to their duties, the executive officer must be 
responsible for keeping appropriately informed of such matters. 

Chapter 6-2-3 spells out the specific duties of an XO as follows: 

A.   The executive officer, subject to the orders of the commanding officer, and assisted by the 
appropriate subordinates, shall: 
 
(1) Generally supervise the administration of the business of the ship. 
(2) Perform the functions of personnel officer for the unit … 
(3) Prepare and maintain the bills and orders for the organization of the command as a whole. 
(4) Supervise and coordinate the work, exercises, and training of the personnel of the command. 
(5) Supervise and coordinate the procurement of supplies for the ship. 
(6) Have direct responsibility for medical matters when no medical officer is attached … 

(7) The executive officer shall exercise general supervision and control over the security and use 

(8) Prepare and promulgate a plan of the day and such other advance schedules as may serve to aid 

of the ship’s keys. 

subordinates in planning their work. 

(9) Make frequent departmental inspections with the responsible subordinates and take remedial 

action for the correction of any deficiencies. 

(10) Function as the safety officer of the command … 
(11) Ensure justice and consistency in exercising authority. 
(12) Endeavor to maintain high morale within the command. 

 
Personnel Manual 
 
Article  10.A.1.b.1.  of  the  Personnel  Manual  in  effect  in  2008  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.” 
 
 
of his performance for inclusion in his record. 
 

Article 10.A.4.g. allows an officer to submit a reply to an OER to express his own views 

1. 

3. 

FINDINGS AND CONCLUSIONS 

2. 

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

 
 
military record and submissions, the Coast Guard’s submission, and applicable law: 
 
 
The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  
The application was timely filed because the applicant has remained on active duty since the dis-
puted OER was entered in his record.6  
 
 
The applicant asked the Board to remove from his record his OER for the period 
June 7, 2007, through April 30, 2008, and his subsequent non-selections for promotion and to 
backdate his date of rank and award him back pay and allowances if he is selected for promotion 
with a corrected  record  in 2012.  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.7  Absent spe-
cific  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.8  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.9 
 
 
The Coast Guard pointed out that although the applicant now alleges that his CO 
should have been disqualified from serving on his rating chain in 2008 because of bias and that 
he was subject to a hostile work environment, the applicant failed to seek the CO’s disqualifica-
tion in 2008 pursuant to Article 10.A.2.g.2. of the Personnel Manual, failed to file an OER Reply 
as allowed by Article 10.A.4.g., and did not apply to the PRRB for removal of the disputed OER 
pursuant to Article 10.A.7.  The applicant’s decisions not to seek disqualification of his CO, not 
to file an OER Reply, and not to file a PRRB application do not constitute waivers of his right to 
apply to the BCMR for correction of the OER.  However, together these three choices constitute 
significant evidence that he considered the disputed OER to be a fair and accurate assessment of 
his performance at the time he received it.  The applicant’s delay in applying to this Board for 
                                                 
6 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that, under § 205 of the Soldiers’ and Sailors’ Civil 
Relief  Act  of  1940,  the  BCMR’s  three-year  limitations  period  under  10  U.S.C.  §  1552(b)  is  tolled  during  a 
member’s active duty service). 
7 33 C.F.R. § 52.24(b).   
8 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
9 Hary v. United States, 618 F.2d 704, 708 (Ct. Cl. 1980), cited in Lindsay v. United States, 295 F.3d 1252, 1259 
(Fed. Cir. 2002). 

4. 

5. 

6. 

expungement of the disputed OER until he had not been selected for promotion three times is 
also evidence that he accepted the OER as accurate and fair at the time. 
 
 
The applicant alleged that the CO should be deemed disqualified from serving on 
his rating chain because, more than a  year after  the disputed OER was prepared, the CO was 
relieved for cause.  The Board rejects the idea that if a CO has been relieved for cause, he is 
retroactively disqualified from serving on any officer’s rating chain under Article 10.A.2.g.2. of 
the  Personnel  Manual.    Article  10.A.2.g.2.  clearly  prohibits  a  CO  who  has  been  relieved  for 
cause  from  his  command  thereafter  or  contemporaneously  preparing  subordinates’  OERs 
because of the likelihood of prejudice.  Article 10.A.2.g.2. does not require unlimited retroactive 
disqualification.  The Board finds that applicant has not shown that the CO was disqualified from 
serving on his rating chain in 2008 because he was relieved for cause more than a year later. 
 
 
The applicant alleged that the CO should be deemed disqualified from serving on 
his rating chain because the applicant refused to obey an unlawful request by the CO to falsify a 
report of his weight in September 2007, which might “raise[] a substantial question as to whether 
the Reported-on Officer will receive a fair, accurate evaluation,” pursuant to Article 10.A.2.g.2.  
However,  the  applicant  was  unable  to  support  his  claim  with  evidence  of  the  alleged  request.  
Nor is there any evidence that, if the CO did make this request, he suffered any consequences 
from the applicant’s refusal that would cause him to take revenge through the applicant’s OER 
eight months later.  The Board finds this allegation to be unproved. 
 
 
The applicant alleged that the CO’s admission that the disputed OER is “overly 
generous” and certain inconsistencies between the CO’s characterization of his performance in 
his declaration and in the OER prove that the OER contains misstatements of fact and should be 
expunged for inaccuracy.  However, “retrospective reconsideration [by  a rating official] of an 
OER is not a basis for correction.”10  The CO’s recent criticisms of the applicant’s performance 
and his comment that the disputed OER is “overly generous” do not persuade the Board that the 
OER marks and comments do not accurately reflect the CO’s opinion of the applicant’s perfor-
mance at that time.  The fact that the applicant’s allegations may have caused the CO to regret 
some  positive  marks  and  comments  he  included  in  the  disputed  OER  does  not  persuade  the 
Board that those marks and comments are erroneous.  Even if the Board believed that the CO had 
erred by making the OER “overly generous,” which it does not, such errors would have benefited 
the applicant by improving his marks and comments. 
 
 
The applicant alleged that the CO should be deemed disqualified from serving on 
his rating chain because the CO was biased against him and pointed to the evidence that the CO 
belittled and berated him in his witnesses’ statements and the statements gathered by the com-
mand climate investigation.  The applicant alleged that the CO might have been biased against 
him because certain traditions that the CO had started or upheld when the CO was XO had been 
stopped either by policy or by the applicant’s predecessor.  However, substantial evidence in the 
record shows that the CO had sound reasons to criticize the applicant’s performance.  The record 
shows that the prior CO, the officer who sailed the cutter back to XXXXX after the removal of 
                                                 
10 Decision of the Deputy General Counsel in BCMR Docket No. 84-96; see also Paskert v. United States, 20 Cl. Ct. 
65, 75 (1990); Tanaka v. United States, 210 Ct. Cl. 712 (1976); and BCMR Docket Nos. 67-96, 189-94, 24-94, 265-
92, and 311-88. 

7. 

8. 

that CO, and CAPT B all warned the CO that the applicant was not a good XO, just as the marks 
and comments in his 2003 and 2004 OERs show that he was not a particularly good CO of a 
patrol boat.  CAPT D told the investigator that based on his observations, the applicant was “a 
weak XO.”  The notes that the CO made up until July 27, 2007, support the CO’s claim that the 
applicant’s performance as an XO was worthy of criticism.  Nor does the Board agree with the 
applicant that the CO’s failure to continue the notes after July 27, 2007, proves that the applicant 
was thereafter a good XO.  The Board finds that the applicant has not proved by a preponderance 
of the evidence that the CO was biased against him and should therefore be disqualified from his 
rating chain pursuant to Article 10.A.2.g.2. 
 
 
The applicant alleged that the OER Reviewer’s description of his work as “check-
ing OERs for technical and grammatical accuracy” proves that the OER failed to perform his 
duties correctly as prescribed by the Personnel Manual.  Article 10.A.2.f.2. of the manual states 
that  the  OER  Reviewer  “[e]nsures  the  OER  reflects  a  reasonably  consistent  picture  of  the 
Reported-on Officer’s performance and potential,” “[e]nsures the Supervisor and the Reporting 
Officer have adequately executed their responsibilities under the OES,” and “return[s] an OER to 
the  Reporting  Officer  to  correct  errors,  omissions,  or  inconsistencies  between  the  numerical 
evaluation and written comments.”  Absent evidence to the contrary, officers are presumed to 
have carried out their duties “correctly, lawfully, and in good faith.”11  The Board finds that the 
OER Reviewer’s statement that he checked the “technical and grammatical accuracy” of the dis-
puted OER does not prove that he did not know and perform his duties under Article 10.A.2.f.2.  
Ensuring the “technical accuracy” of an OER may well include checking that the OER marks 
and comments conform to the requirements for preparing OERs under Article 10.A.4.c., which 
include requirements that the marks and comments be consistent and that the comments identify 
the officer’s strengths and weaknesses and “paint a succinct picture of the officer’s performance 
and qualities.”   
 

The  applicant  alleged  that  the  disputed  OER  is  internally  inconsistent  because 
someone  who  has  spent  most  of  his  career  afloat  but  is  not  recommended  for  another  afloat 
assignment would not receive the other, positive marks and comments that the CO included for 
the applicant.  However, the block in which the recommendation against another afloat assign-
ment was made is the block in which the Reporting Officer is supposed to make comments about 
the Reported-on Officer’s potential for future service.  The Board finds that the rest of the marks 
and comments in the OER are not so positive that they are inconsistent with a recommendation 
against  another  afloat  assignment.    The  applicant  has  not  proved  by  a  preponderance  of  the 
evidence that the OER Reviewer failed to perform his role properly in accordance with the Per-
sonnel Manual when reviewing the disputed OER. 

9. 

 
10. 

Although  the  applicant  alleged  that  he  was  subject  to  a  “hostile  work  environ-
ment”12 during the reporting period for the disputed OER and so could not reasonably have been 
                                                 
11 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979); 33 C.F.R.§ 52.24(b). 
12 Military officers are not protected from “hostile work environments” under Title VII of the Civil Rights Act of 
1964.  42 U.S.C. § 2000e-16; see Roper v. Dep’t of the Army, 832 F.2d 247, 248 (2nd Cir. 1987) (finding that “the 
Feres doctrine prevents members of the military from challenging military decisions through actions brought under 
Title  VII”).  However,  “it  is  the  Coast  Guard’s  policy  to  apply  the  same  protections  [in Title VII]  to  the  military 

expected to perform his duties well, he has not shown that he was a member of a protected class 
or that the CO’s conduct toward him was based on racial, ethnic, religious, sexual or other irra-
tional  prejudice,  which  is  a  required  element  of  a  “hostile  work  environment.”13    However, 
Chapter 3.A.1.a. of the Equal Opportunity Manual states that every member of the Coast Guard 
deserves to be treated with honor, dignity, and respect.  As the Board found in BCMR Docket 
2008-174, it is theoretically possible that a CO could treat a subordinate officer so horribly that 
the subordinate  could not reasonably be expected to perform his duties well even if the CO’s 
abuse was not based on the subordinate’s gender, race, ethnicity, or religion.  An OER resulting 
from such treatment might constitute an injustice in the officer’s record and so be removed by 
the Board.14   

 
11. 

12. 

Although the applicant has not shown that his CO criticized him because of his 
gender, race, ethnicity, or religion, the legal criteria for a “hostile work environment” are instruc-
tive as to the type of evidence needed to prove that a command climate is so abusive that a com-
petent officer cannot reasonably be expected to perform his duties well.  Occasional hostile or 
humiliating  words  and  actions  are  insufficient.15    Factors  that  courts  consider  aside  from  bias 
include the frequency of the conduct; the severity of the conduct; whether the conduct is physi-
cally  threatening  or  humiliating  or  merely  offensive;  and  whether  the  conduct  unreasonably 
interfered with an employee’s work performance.16  A “hostile work environment” in the civilian 
sector exists “[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule, and 
insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment 
and create an abusive working environment.’”17  However, in assessing such matters, the Board 
must also take into account the distinctly different military, shipboard environment of the appli-
cant’s workplace, as well as the potential dangers incurred by poor performance. 
 

The reporting period for the disputed OER ended on April 30, 2008.  The record 
shows  that  sometime  in  spring  2008,  the  Work  Life  Supervisor  reported  receiving  numerous 
complaints about the command climate aboard the applicant’s cutter, including some complaints 
about how the CO treated the applicant.  An assessment by the Civil Rights Office in May 2008 
revealed  no  civil  rights  issues  but  significant  command  climate  issues,  in  particular  “negative 
leadership practices including belittling or chastising members in front of the crew”; crewmem-
bers being fearful of voicing concerns; low morale and poor mentoring of junior officers; and 
“inconsistent interactions with crewmembers, at times intimidating and other times friendly and 
supportive.”    CAPT  B  stated  that  sometime  after  he  transferred  in  the  summer  of  2008,  he 
received a call from a crewmember stating that “the command climate had gotten much worse.”  
A command climate investigation conducted in the spring of 2009 concluded that the CO had 

                                                                                                                                                             
workforce.”  EOM,  Chap.  3.A.5.b.    “It  is  incumbent  on  those  in  leadership  positions  to  create  a  workplace 
environment built on the core values of honor, respect, and devotion to duty, and to ensure that the workplace is free 
of discrimination or harassment on any prohibited basis.” Id. at Chap.1.d.  
13 Id. at Chap. 4.b.  
14 The Board may remove injustices from any Coast Guard military record.  10 U.S.C. § 1552(a).  For the purposes 
of  the  BCMRs,  injustice  is  sometimes  defined  as  “treatment  by  the  military  authorities  that  shocks  the  sense  of 
justice, but is not technically illegal.” Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976). 
15 See Overton v. N.Y. State Div. of Military and Naval Affairs, 373 F.3d 83, 99 (2d Cir. 2004) (Pooler, J., concur-
ring). 
16 Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 
17 Id. (citations omitted). 

continued to belittle and berate subordinates after the May 2008 assessment.  One witness stated 
that the CO had only “publically humiliated” the applicant, instead of modeling leadership, and 
another stated that the CO had once blamed the applicant for abandoning him in town when in 
fact the CO had chosen not to return to the cutter until the wee hours of the morning after he had 
drunk too much alcohol.  The Work Life Supervisor, Ms. T, reported that a gunner’s mate told 
her that the CO “consistently belittle[d] the XO on the messdeck and bridge” and that another 
reported  that  the  CO  would  curse  at  the  XO  when  things  went  wrong.    The  cutter’s  Supply 
Officer stated that he saw the CO belittling the applicant in front of junior officers and failing to 
praise him for things that went well.  BMCS W stated that he saw the CO belittling and berating 
the  applicant  during  Officers’  Calls  and  on  the bridge.    For  example,  BMCS W  reported  that 
during a special training event with a “full special sea detail” of all rates and ranks on the bridge, 
the CO came to the bridge, asked the applicant if he had completed certain paperwork, and then 
relieved him and sent him below to complete the paperwork “in such a manner as to diminish 
and demoralize [him].”   

 
13. 

 
14. 

The  Board finds that the applicant’s supporting evidence lacks sufficient speci-
ficity about dates, frequency, and the words used by the CO to prove that the applicant was sub-
ject to a work environment so humiliating and irrationally hostile that he could not have been 
expected to perform his duties well during the reporting period for the disputed OER.  Several 
crewmembers  have  characterized  the  CO’s  criticisms  as  belittling,  humiliating,  or  berating.  
However,  there  is  substantial  evidence  that  the  applicant’s  performance  frequently  warranted 
criticism, and the witnesses’ statements contain insufficient  detail concerning the wording and 
frequency of the CO’s public criticisms of the applicant and the problems and potential dangers 
to which the CO was reacting.  Therefore, the Board cannot conclude that the command climate 
was arbitrarily hostile and abusive, as the applicant alleged, or that he could not reasonably have 
been expected to perform his job to the CO’s satisfaction.  The Board in no way excuses the CO 
for not expressing his anger and  criticisms more appropriately.   However, the  evidence in the 
record is insufficient to prove that the attitude and actions of the CO during the reporting period 
for  the  disputed  OER  created  a  hostile  work  environment  that  warrants  expungement  of  the 
OER.  

The applicant has not proved by the preponderance of the evidence that any of the 
specific  examples  of  his  performance  cited  on  the  OER  are  inaccurate  or  unjust  or  that  the 
numerical marks are too low.  Statements by CAPT B and CAPT D support the CO’s claims that 
the applicant was a poor XO.  While the applicant described his circumstances aboard the cutter 
in a way that makes it appear that it would have been impossible for him to succeed or to please 
the  CO,  he  has  not  supported  his  claims  in  this  regard  with  sufficiently  detailed  evidence.  
Although the evidence shows that the CO was quick to criticize and insensitive to the impact of 
his public criticisms, the Board cannot determine, by the evidence presented, that another LCDR 
could not have performed substantially better and so received better marks and comments than 
the applicant.  The applicant has not proved by a preponderance of the evidence that he was sub-
ject to a hostile work environment during the reporting period.   
 

15. 

16. 

The applicant made numerous allegations with respect to the actions and attitudes 
of his CO, CAPT B, and CAPT D.  Those allegations not specifically addressed above are consi-
dered to be not dispositive of the case.18   
 
 
The applicant has not proved that he was a member of a protected class subject to 
bias  or  harassment,  that  the  command  climate  was  irrationally  hostile,  or  that  he  could  not 
reasonably have been expected to perform his duties to the satisfaction of the CO.   He has not 
proved that the CO should have been disqualified from serving on his  rating chain.  There is 
ample  evidence  that  the  CO  publically  criticized  his  performance,  but  the  applicant  has  not 
proved that he did not in fact perform in a way that warranted the CO’s criticisms.  The Board 
finds that the applicant has submitted insufficient evidence to prove by a preponderance of the 
evidence that the disputed OER was adversely affected by a “misstatement of significant hard 
fact,” a “clear and prejudicial violation of a statute or regulation,” or factors that “had no busi-
ness being in the rating process.”19  Therefore, the Board will not order the expungement of the 
OER. 

 
17. 

18. 

 
Because the applicant has not proved that the disputed OER is erroneous or unjust 
or that his record was erroneous or unjust when it was reviewed by the selection boards, there is 
no basis for removing his non-selections for promotion to CDR.20   
 
 
 
 
 
 
 

Accordingly, the applicant’s requests should be denied.   

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

                                                 
18 See Frizelle v. Slater, 111 F.3d 172, 177 (D.C. Cir. 1997) (noting that the Board need not address arguments that 
“could [not] affect the Board’s ultimate disposition”). 
19 Hary, 618 F.2d at 708. 
20  Engels  v.  United  States,  678  F.2d  173,  176  (Ct. Cl.  1982)  (noting  that  before  removing  a  non-selection  for 
promotion, the Board must find that the applicant’s record was prejudiced by error or injustice when it was reviewed 
by the selection board and that it is not unlikely that the applicant would have been selected for promotion in any 
event). 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

ORDER 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
Paul B. Oman 

 

 

 

 
Jeffrey E. VanOverbeke 

 

 

 

 
 Dorothy J. Ulmer 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 
military record is denied.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 



Similar Decisions

  • CG | BCMR | OER and or Failure of Selection | 2011-126

    Original file (2011-126.pdf) Auto-classification: Denied

    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. 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. 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...

  • CG | BCMR | OER and or Failure of Selection | 2005-053

    Original file (2005-053.pdf) Auto-classification: Denied

    This final decision, dated November 17, 2005, is signed by the three duly APPLICANT’S REQUEST AND ALLEGATIONS The applicant asked the Board to remove from his record an officer evaluation report (OER) covering his performance during a short tour as the Operations Officer of the Xxxxxx, a high-endurance cutter, from May 1, 1998, to April 27, 1999. The applicant argued that the CO vio- lated the Personnel Manual when he delayed the OER by a year, failed to include a comment on the applicant’s...

  • CG | BCMR | OER and or Failure of Selection | 2006-104

    Original file (2006-104.pdf) Auto-classification: Denied

    On his OERs, his commanding officer strongly recommended him for promotion and noted the applicant’s desire to serve as the XO or CO of a cutter. On his first OER in this position, the applicant received all marks of 4 and 5 and his CO’s recommendation for promotion. On his OERs for this work, he has received high marks of 5, 6, and 7 in the performance categories, marks of 5 on the comparison scale, and his reporting officers’ strong recommendations for command afloat and promotion to commander.

  • CG | BCMR | OER and or Failure of Selection | 2008-174

    Original file (2008-174.pdf) Auto-classification: Denied

    I am relieving this officer of responsibilities of the Operations Officer, Navigator and Tactical Action Officer. Since she was standing watch in the CIC during the transit, she could not see which chart the bridge team was using. 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...

  • CG | BCMR | OER and or Failure of Selection | 2009-029

    Original file (2009-029.pdf) Auto-classification: Denied

    He argued that these statements support a mark of at least 5 for “Workplace Climate.” Allegations about the Reporting Officer’s Comments in the Disputed OER The applicant alleged that the comment of the Reporting Officer about “issues” with the command climate leaving some members feeling alienated in block 7 of the disputed OER is vague, incomplete, and unduly prejudicial. He spoke with LT Y, the XO, who questioned the applicant’s decision- making; LT G, the outgoing Operations Officer,...

  • CG | BCMR | OER and or Failure of Selection | 2007-113

    Original file (2007-113.pdf) Auto-classification: Denied

    APPLICANT’S ALLEGATIONS In the Workplace Climate category (block 5e), the applicant disputed the mark of 3 supported by the following disputed comments: “Kept FN assigned to cutter months after being directed by D17 to ADASSIGN mbr for medical reasons, creating extra burden for the crew.” “Several minor human relations and work-life incidents on cutter indicative of low morale and lack of leadership role model.” “PO promotion delayed due to non-completion of enlisted marks.” In block 7 of...

  • CG | BCMR | OER and or Failure of Selection | 1998-038

    Original file (1998-038.pdf) Auto-classification: Denied

    The applicant alleged that six marks of 33 on the first disputed OER are inaccu- rate and inconsistent with the comments. Affidavit of the OO, the Operations Officer of the Xxxx The OO stated that the marks he gave the applicant in the first disputed OER were based on the applicant’s performance. The instructions state the following: (d) In the “Comments” sections following each evaluation area, the Re- porting Officer [or Supervisor] shall include comments citing specific aspects of the...

  • CG | BCMR | OER and or Failure of Selection | 2011-035

    Original file (2011-035.pdf) Auto-classification: Denied

    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 offensive 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...

  • CG | BCMR | Advancement and Promotion | 2004-115

    2003).” STATEMENTS SUBMITTED BY THE APPLICANT Statement by the Engineering Officer, LT D LT D, who served as the applicant’s supervisor for the marking periods of all three disputed OERs, stated that the applicant was a “very capable officer with great potential.” LT D stated that soon after arriving on board, the CO told him that the applicant was “a problem that needed to be fixed.” He stated that it was clear that the CO did not like the applicant “on a personal level” and “was incapable...

  • CG | BCMR | OER and or Failure of Selection | 2004-115

    Original file (2004-115.pdf) Auto-classification: Denied

    2003).” STATEMENTS SUBMITTED BY THE APPLICANT Statement by the Engineering Officer, LT D LT D, who served as the applicant’s supervisor for the marking periods of all three disputed OERs, stated that the applicant was a “very capable officer with great potential.” LT D stated that soon after arriving on board, the CO told him that the applicant was “a problem that needed to be fixed.” He stated that it was clear that the CO did not like the applicant “on a personal level” and “was incapable...