DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2012-032 
 
Xxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxx 
   

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  after receiving the applicant’s 
completed application on December 2, 2011, and assigned it to staff member J. Andrews to pre-
pare the decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 

This  final  decision,  dated  August  3,  2012,  is  approved  and  signed  by  the  three  duly 

 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

The applicant asked the Board to correct his record by removing two derogatory officer 
evaluation reports (OERs)—one regular (ROER) and one special (SOER)—that he received as a 
temporary  officer  (lieutenant  junior  grade;  LTJG)  in  2005,  when  he  was  the  officer  in  charge 
(OIC) of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.  As the OIC, he supervised 19 petty officers 
and was responsible for xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.  However, he was removed from 
this assignment  after  a subordinate accused him  of harassment  and assault.  The  applicant  also 
asked  the  Board  to  remove  from  his  record  a  related  CG-3307  (“Page  7”)  documenting  his 
involvement in an “alcohol incident”1 and his treatment for alcohol abuse.   

 

                                                 
1 Article 20.A.2.d.1. of the Coast Guard Personnel Manual (COMDTINST M1000.6A) (hereinafter Personnel Man-
ual) defines an “alcohol incident” as “[a]ny behavior, in which alcohol is determined, by the commanding officer, to 
be  a  significant  or  causative  factor,  that  results  in  the  member’s  loss  of  ability  to  perform  assigned  duties,  brings 
discredit upon the Uniformed Services, or is a violation of the Uniform Code of Military Justice, Federal, State, or 
local  laws.  The  member  need  not  be  found  guilty  at  court-martial,  in  a  civilian  court,  or  be  awarded  non-judicial 
punishment  for  the  behavior  to  be  considered  an  alcohol  incident.”    Article  20.B.2.g.  requires  that  an  alcohol 
incident be documented in the member’s record on a Page 7.  Article 20.B.2.h. states that following a second alcohol 
incident, officers must be discharged and enlisted members “will normally be processed for separation.” 
 
 

 

 

The applicant alleged that the investigation of the incident that resulted in this derogatory 
documentation showed that he did not sexually harass a subordinate.  He also alleged that he was 
not  punished  for  sexual  harassment  when  he  was  awarded  non-judicial  punishment  (NJP)  at 
mast.2  However, his commanding officer (CO) “decided to place hearsay into an official record” 
by  including  allegations  of  sexual  harassment  in  the  disputed  OERs  to  ensure  that  he  was  not 
selected for promotion and did not receive a permanent commission. 

 
The applicant alleged that the Page 7 documenting his treatment for alcohol abuse should 
be removed from his record because it indicates that he would begin rehabilitation treatment on 
October 21, 2005, when in fact he voluntarily began treatment in June 2005. 

 
Regarding the timing of his application, the applicant stated that in 2005 he was unaware 
that  the  derogatory  documents  would  continue  to  negatively  affect  his  career  after  he  lost  his 
temporary  commission  and  reverted  to  enlisted  status.    However,  he  was  recently  told  that  the 
derogatory documents prevented his selection for an appointment as a chief warrant officer. 

 

 
In support of his allegations, the applicant submitted the following documents: 
 
In the disputed ROER, which covers the applicant’s service from February 1 to June 30, 
2005, he received several good and average marks but a low mark of 2 for “Workplace 
Climate”;  below-average  marks  of  3  for  “Judgment,”  “Responsibility,”  “Professional 
Presence,” and “Health and Well-Being”; and a low mark in the second spot on the Com-
parison Scale, denoting him as “a qualified officer.”  The ROER contains many negative 
comments,  including  a statement in  block 2 that  it “is  a derogatory Officer Evaluation” 
and supporting comments that he “[e]xhibited disregard for equal & respectful treatment 
of female subordinate while deployed as ‘in-charge’ superior”; that he failed to maintain 
sobriety, exercise good judgment and self-control; that he “consumed alcohol in the pres-
ence of enlisted forces to the point of memory loss, then engaged in questionable male-
female interaction; destroyed camaraderie amongst [members]; and that he was “relieved 
of  OIC  duties  for  abusive  alcohol  consumption  during  ‘liberty’  &  subsequent  failure  to 
uphold  fair  treatment  standards  of  juniors.    Strongly  recommend  revocation  of  [mem-
ber’s]  commission.    Not  recommended  for  promotion  to  O-3.”    In  an  addendum  to  the 
ROER,  the  applicant  stated  only  that  he  was  “aware  of  the  performance  report  and 
decline  to  comment.    I  have  been  counseled  on  the  contents  of  Article  10.A.4.h.  of  the 
Coast Guard Personnel Manual.”  

 

In the margins  of this ROER, the applicant  wrote notes complaining that the “date sub-
mitted,” June 9, 2005, precedes the dates of signature by the officers on his rating chain, 
July 22 and 27, 2005,3 and that the ROER was labeled “derogatory” in block two “with-
out an inquiry or NJP.” 

                                                 
2  Under  Article  15  of  the  Uniform  Code  of  Military  Justice  (UCMJ),  commanding  officers  may  hold  a  hearing 
(“mast”) to investigate  members’  minor offenses against the UCMJ and  may award nonjudicial punishment (NJP) 
instead of seeking a felony conviction by court-martial. 10 U.S.C. § 815. 
3  The  applicant  apparently  misunderstands  that  the  “date  submitted”  in  block  1.n.  of  an  OER  is  not  the  date  the 
rating  chain  submits  the  OER  to  the  Personnel  Command  but  the  date  whoever  initiates  the  OER—normally  the 

 

 

  The disputed SOER covers two days from May 31 to June 1, 2005.  It states that it is a 
derogatory OER prepared pursuant to Articles 10.A.3.c.1.b. and 10.A.4.h. of the Person-
nel  Manual  to  document  his  NJP  for  assault  and  conduct  unbecoming  an  officer  and  a 
gentleman.    A  Punitive  Letter  of  Reprimand,  which  was  the  applicant’s  punishment  at 
mast, is cited as an attachment to the SOER.   
 
In  the  SOER,  the  applicant  was  assigned  the  lowest  possible  mark—a  mark  of  1  on  a 
scale of 1 to 7—in the performance categories “Looking Out for Others,” “Teamwork,” 
“Workplace  Climate,”  “Judgment,”  “Responsibility,”  and  “Professional  Presence”;  a 
mark of 2 for “Health and Well-Being”; and the lowest possible mark (“Unsatisfactory”) 
on the Comparison Scale, in which a CO compares an officer with all other officers of the 
same rank whom the CO has known throughout his career.  All other performance cate-
gories  are  marked  “not  observed.”    The  low  marks  in  the  SOER  are  supported  by  the 
following written comments: 
 
Consumed  alcoholic  beverages,  with  subordinates,  to  the  point  of  memory  loss.    Subsequently 
invited an E-X in his chain of command to his private quarters where he proceeded to make sexual 
advances and briefly attempted to prevent the  subordinate’s egress.  Following the  subordinate’s 
departure, he pursued her further through numerous phone calls to her room.  Significant abuse of 
leadership authority resulted in removal from primary duties as a Team Leader.  Derogatory beha-
vior divided members of his xxxxxxxx, served as a catalyst for the E-X’s early release from Coast 
Guard  service,  and  added  significant  leadership  burdens  to  the  Xxxxxxxx’s  senior  enlisted 
member.  Actions demonstrated complete disregard for COMDT’s Human Relations Policy. 
 
Failed  to  uphold  the  CG  Core  Values,  in  particular  Respect.    Demonstrated  exceptionally  poor 
judgment  and  responsibility  while  leading  a  xxxxxxxx  on  deployment.    Became  intoxicated  and 
subsequently harassed and assaulted a Petty Officer under his command. Actions brought discredit 
upon the Coast Guard and the Officer Corps.  In addition, he caused extreme unnecessary stress on 
his  subordinate  which  led  to  her  request  for  early  release  from  Extended  Active  Duty.    Member 
was awarded a Letter of Reprimand at Non-Judicial Punishment. 
 
Member was on track to be an exceptional officer but his actions demonstrated a significant Core 
Values flaw.  Recommend revocation of  member’s commission.  Alcohol was a major contribut-
ing factor in this incident. 
 
In the margins of this SOER, the applicant has written claims that the comments are erro-
neous  because  the  inquiry  found  no  evidence  that  he  had  “pursued  her  further  through 
numerous phone calls to her room” and the E-X is “still a part of the Coast Guard.” 
 
In  the  Punitive  Letter  of  Reprimand,  dated  October  17,  2005,  the  applicant’s  CO  noted 
that the applicant had received NJP at mast on October 13, 2005, for one specification of 
assault and one specification of conduct unbecoming an officer and a gentleman, which 
are violations of Articles 128 and 133 of the Uniform Code of Military Justice (UCMJ), 
respectively.  The CO stated that “[a]fter a night of fraternizing and excessive drinking in 
the  presence  of  enlisted  personnel  from  your  crew,  you  called  [a  female,  subordinate 
xxxxxxxxxxxxx (XXX)] to  come to  your motel  room.   Upon entering  your room, [she] 
witnessed  obscene  movies  on  your  television,  became  uncomfortable,  and  attempted  to 

 

                                                                                                                                                             
reported-on  officer—completes  the  personal  information  in  block  1  and  submits  the  OER  to  his  rating  chain  for 
completion. 

 

 

 

 

 

leave.  At that point, you wrongfully and dishonorably grabbed her, closed the door and 
told her she needed to stay.”  The letter states that the subordinate was eventually able to 
leave the motel room but was significantly affected by the incident.  The CO reprimanded 
the  applicant  for  his  “reprehensible  behavior”  and  poor  judgment,  leadership,  and 
professionalism.  He noted that the applicant’s consumption of alcohol was not an excuse 
and  wrote,  “That  said,  I  understand  you  are  undergoing  alcohol  rehabilitation  and  I 
strongly encourage you to continue that program over the long haul.” 

  A Page 7 that the applicant signed on October 21, 2005, notes that the applicant had been 
involved in an “alcohol incident” on May 31, 2005, when his abuse of alcohol led to his 
NJP for assault and conduct unbecoming an officer and a gentleman.  The Page 7 notes 
that  the  applicant  had  been  counseled  on  the  Coast  Guard’s  alcohol  policies  and  “the 
serious nature of this incident.”  The Page 7 states that the “unit CDAR [Command Drug 
and Alcohol Representative] will arrange an appointment with [a hospital clinic to] deter-
mine  the  nature  of  your  relationship  with  alcohol.    It  is  recommended  that  you  abstain 
from the use of alcohol until your screening and assessment is completed.”  The Page 7 
further states that a second alcohol incident would result in his separation from the Coast 
Guard. 

VIEWS OF THE COAST GUARD 

On April 18, 2012, the Judge Advocate General (JAG) of the Coast Guard submitted an 

advisory opinion recommending that the Board deny the applicant’s request. 

 
The JAG argued that the applicant has not proved that his rating chain erred by including 
comments  regarding  sexual  harassment  in  the  disputed  OERs.    The  JAG  noted  that  the  phrase 
“sexual harassment” does not appear anywhere in the OERs and that his arguments in this regard 
are  without  merit.    The  JAG  argued  that  the  applicant  has  failed  to  rebut  the  presumption  of 
regularity or to prove by a preponderance of the evidence that his rating chain failed to properly 
carry out their duties with respect to the disputed OERs. 

 
The JAG noted that because the disputed OERs are not erroneous because of any prejudi-
cial error, there are no grounds for removing the applicant’s failures of selection for promotion to 
lieutenant or for appointment to chief warrant officer. 

 
Regarding the disputed Page 7, the JAG stated that the applicant had not proved that his 
CO erred in finding that his conduct constituted an alcohol incident and should be documented as 
such in his record. 

 
The JAG also adopted the findings and analysis provided in a memorandum on the case 
prepared by the Personnel Service Center (PSC) and agreed with PSC that certain administrative 
errors in the disputed OERs should be corrected.  PSC noted that  

 

  Article 10.A.3.c.1.b. of the Personnel Manual in effect in 2005 requires preparation of an 
SOER  whenever  an  officer  receives  NJP  and  that  the  SOER  should  show  the  nature  of 

 

 

 

 

the proceeding, the punishment imposed, and “other information necessary to reflect the 
performance evaluated.” 

  Article 10.A.3.c.1.a. stated that an OER documenting the removal of an officer from his 

primary duties “is derogatory and must be submitted per Article 10.A.4.h.” 

  Article 10.A.4.h.1. states that a “derogatory OER” is any OER that contains at least one 
lowest possible mark of 1 in any performance category or a mark of “Unsatisfactory” on 
the Comparison Scale and documents “adverse performance or conduct which results in 
the removal of a member form his or her primary duty or position.” 
   
PSC  stated  that  the  disputed  OERs  were  properly  prepared  as  “derogatory”  reports  in 
accordance  with  these  requirements  and  denied  that  the  disputed  OERs  state  that  the  applicant 
sexually harassed his subordinate.  PSC noted that while the SOER uses the word “harassed,” not 
all harassment is sexual harassment, and the comment does not refer to the gender of the victim.  
PSC alleged that the disputed OERs fairly and accurately represent the applicant’s performance 
as an officer during the period in question. 
 
PSC  noted  that  the  applicant  failed  to  provide  a  substantive  addendum  to  the  OERs,  to 
 
file  OER  Replies,  and  to  seek  correction  of  the  disputed  OERs  through  the  Personnel  Records 
Review Board. 
 

PSC  also  noted  three  harmless,  administrative  errors  in  the  disputed  OERs  and  recom-

mended that the Board correct them:   
 

  The ROER should be marked in block 1.l. as an SOER, instead of in block 1.k. as a regu-
lar OER and that block 2 of the ROER should contain a citation to the article of the Per-
sonnel Manual under which it was prepared.   

  The period of report for the SOER should not be the two days on which the applicant’s 

misconduct occurred but the day he was awarded NJP, instead. 

 

 

The PSC made no comment on the applicant’s allegations about the Page 7.  However, in 
support of PSC’s claims, all three members of the applicant’s rating chain submitted declarations 
regarding the applicant’s case, which PSC submitted: 
 
Supervisor’s Statement 
 
 
The applicant’s Supervisor was the Operations Officer of the XXXXXX.  The Supervisor 
stated  that  the  applicant’s  team  was  deployed  when  the  incident  occurred  and  that  the  CO’s 
standing  orders  required  the  team  to  abstain  from  alcohol  during  a  deployment.    However,  the 
applicant disobeyed this order and drank alcohol with his team to the point of not being able to 
remember  anything.    The  Supervisor  stated  that  the  OERs  and  Punitive  Letter  of  Reprimand 
were prepared primarily based on the testimony of the female XXX since the applicant could not 
remember anything. 
 

 

 

Regarding his use of the word “harassment,” the Supervisor stated that multiple witnesses 
 
reported that the applicant had either slapped or tried to slap the  XXX’s butt earlier in the eve-
ning.    He  noted  that  he  thinks  the  order  of  events  in  the  SOER  might  be  wrong  because  he 
remembers  that  the  applicant  made  numerous  phone  calls  to  the  room  where  the  XXX  and  a 
crewmate were staying in order to try to get the XXX to come to his room, not after she left his 
room.  Moreover, the XXX only went to his room after the applicant issued her a direct order to 
do  so.    The  Supervisor  stated  that  the  crewmate  corroborated  the  XXX’s  statements  about  the 
multiple phone calls. 
 
 
Regarding  the  Page  7,  the  Supervisor  noted  that  it  should  have  been  prepared  in  June 
2005  but  was  overlooked  and  so  prepared  late.    The  Supervisor  stated  that  the  applicant  knew 
that  he  had  failed  as  an  officer  by  drinking  to  excess  and  “then  acting  with  disregard  to  the 
Commandant’s Sexual Harassment Policy.”  He noted that the applicant had signed all the doc-
uments without challenging them. 
 
Reporting Officer’s Statement 
 
 
The  Executive  Officer  (XO)  of  the  XXXXXX  served  as  the  applicant’s  Reporting 
Officer.  The XO stated that when the applicant’s xxxxxxxx returned from a deployment, a XXX 
reported that the applicant had consumed alcohol, touched her, followed her to the hotel, grabbed 
her, and proceeded to call her room continuously.  The XO stated that the applicant voluntarily 
underwent alcohol rehabilitation and that the disputed OERs and Page 7 resulted from his mis-
conduct. 
 
Commanding Officer’s Statement 
 
 
The CO of the XXXXXX served as the Reviewer of the applicant’s OERs.  He stated that 
he followed the guidelines in the Personnel Manual when reviewing the OERs.  The CO stated 
that as a LTJG with an upcoming selection board, the applicant was due a regular OER at the end 
of  June  2005.    Therefore,  they  prepared  the  ROER  and  labeled  it  derogatory  because  the 
applicant had been relieved of his primary duty since “the totality of the circumstances led me to 
lose confidence in his ability to lead his xxxxxxxx.”  The CO stated that the SOER was required 
because the applicant received NJP at mast.   
 
 
Regarding the applicant’s complaint about comments about the sexual nature of his mis-
conduct, the CO stated that such comments were “derived from the accusations, statements, and 
conversations at the time.” 
 
 
The CO stated that the Page 7 was required under the Personnel Manual to document the 
applicant’s  alcohol  incident  and  the  need  for  alcohol  screening  and  assessment  but  noted  that 
when the Page 7 was prepared, the applicant had previously entered alcohol rehabilitation treat-
ment “on his own initiative.” 
 
 

 

 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On May 1, 2012, the applicant responded to the views of the Coast Guard by stating that 

 
 
he has no objection to the recommendation in the advisory opinion.   
 

APPLICABLE REGULATIONS 

 
OER Regulations 
 

Article  10.A.1.b.1.  of  the  Personnel  Manual  in  effect  in  2005  (Change  39)  states  that 
“Commanding officers  must ensure accurate,  fair, and objective evaluations are  provided to  all 
officers  under  their  command.”    Under  Article  10.A.3.a.,  LTJGs  receive  a  regular,  semiannual 
OER (ROER) on June 30th when they are eligible for selection for promotion.     
 

Article  10.A.4.c.4.  of  the  Personnel  Manual  provides  the  following  instructions  for 
Supervisors completing their section of an OER (similar instructions are provided for Reporting 
Officers 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.  …  After  determining 
which block best describes the Reported-on Officer’s performance and qualities during the mark-
ing 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. … 
 
e. Comments should amplify and be consistent with the numerical evaluations. They should iden-
tify specific strengths and weaknesses in performance. Comments must be sufficiently specific to 
paint a succinct picture of the officer’s performance and qualities which compares reasonably with 
the picture defined by the standards marked on the performance dimensions in the evaluation area.  

 

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.4.h.1. defines “derogatory” OERs as follows:  “Derogatory reports are OERs 
that indicate the Reported-on Officer has failed in the accomplishment of assigned duties. Dero-
gatory  reports  are  only  those  OERs  which:  a.  Contain  a  numerical  mark  of  one  in  any  perfor-
mance dimension, or b. Contain an “unsatisfactory” mark by the Reporting Officer in section 9 
[which  contains  the  Comparison  Scale].  c.  Documents  adverse  performance  or  conduct  that 
results in the removal of a member from his or her primary duty or position.” 

 
Article 10.A.4.h.2 states that when an officer receives a derogatory OER, he may respond 
to  the  marks  and  comments  in  an  addendum  before  the  OER  is  passed  to  the  Reviewer.    The 
Supervisor  and  Reporting  Officer  may  add  comments  to  the  addendum  before  forwarding  it  to 

 

 

the Reviewer, who ensures that the information in the OER is consistent and that the derogatory 
information is substantiated. 
 

Article  10.A.3.c.1.  provides  the  occasions  on  which  a  member  may  receive  a  type  of 

“Exception OER” known as a special OER (SOER).  It states that for SOERs, 

 
[t]he  Commandant,  commanding  officers,  higher  authority  within  the  chain  of  command  and 
Reporting Officers may direct these reports. The circumstances for the Special OER must relate to 
one  of  the  situations  described  in  subsections  a.  through  e.    The  authorizing  article  listed  below 
should be cited in Section 2 of the OER along with a brief description of the circumstances which 
prompted the OER’s submission. 
 
a. A special OER may be completed to document performance notably different from the previous 
reporting  period,  if  deferring  the  report  of  performance  until  the  next  regular  report  would  pre-
clude  documentation  to  support  adequate  personnel  management  decisions,  such  as  selection  or 
reassignment. This report should not normally reflect performance that is reportable under Article 
10.A.3.c.1.b.  Notably changed performance is that which results in marks and comments substan-
tially different from the previous reporting period and results in a change in the Section 9 compari-
son or rating scale. This OER counts for continuity. 
 
b. …  A special  OER is also required  when an officer receives  non-judicial punishment  which is 
not subject to appeal or when the final reviewing authority’s action on an investigation includes 
direction  that  a  Special  OER  shall  be  prepared  because  the  evidence  established  that  the  officer 
was criminally culpable. … 
 

(1) The  reporting  period  for  this  special  report  will  be  the  time  frame  during  which  the 
officer’s conduct prompting the report occurred. The report shall clearly state: (1) the nature of the 
proceeding  prompting  the  report  and  the  result  of  the  proceeding,  e.g.  criminal  conviction,  non-
judicial punishment, or final reviewing authority’s action directing a special OER due to criminal 
culpability; (2) any punishment imposed as a result of criminal conviction or non-judicial punish-
ment;  and  (3)  other  information  as  necessary  to  accurately  reflect  the  performance  being  evalu-
ated. Information about the proceeding may be included in the report even if the proceeding took 
place  outside  of  the  reporting  period.  The  evaluation  shall  be  limited  to  those  areas  affected  by 
such  conduct,  since  all  other  dimensions  will  be  evaluated  in  the  regular  OER.  Any  dimension 
which  is  not  evaluated  shall  be  marked  "not  observed."  A  Section  9  comparison  or  rating  scale 
mark and Section 10 comments on the officer’s potential are required. This OER does NOT count 
for continuity. … 
 
c. Special OERs  may be submitted  for officers being considered by selection panels or selection 
boards for promotion, extension, or continuation … 
 
d.  To  document  significant  historical  performance  or  behavior  of  substance  and  consequence 
which  was  unknown  when  the  regular  OER  was  prepared and  submitted.  This  report  should  not 
normally reflect performance reportable under Article 10.A.3.c.1.b. 
 
e.  When  specifically  directed  by  another  article  in  this  manual,  e.g.,  Article  4.F.6.,  Relief  for 
Cause. This OER  may count  for continuity, depending  upon the circumstances  which prompt  its 
submission. 
 
Article 10.A.4.f.1. states that an OER comment shall not “[m]ention the officer’s conduct 
is  the  subject  of  a  judicial,  administrative,  or  investigative  proceeding,  including  criminal  and 
non-judicial punishment proceedings under the Uniform Code of Military Justice, civilian crimi-
nal  proceedings,  PRRB,  CGBCMR,  or  any  other  investigation  (including  discrimination  inves-

 

 

tigations) except as provided in Article 10.A.3.c.   Referring to the fact conduct was the subject 
of a proceeding of a type described above is also permissible when necessary to respond to issues 
regarding  that  proceeding  first  raised  by  an  officer  in  a  reply  under  Article  10.A.4.g.  These 
restrictions do not preclude comments on the conduct that is the subject of the proceeding. They 
only prohibit reference to the proceeding itself.” 

 
Article 10.A.4.g. allows an officer to  file an OER Reply to  any OER within 21 days of 

receiving it to “express a view of performance which may differ from that of a rating official.” 
 
Alcohol Abuse Regulations 
 

Article 20.B.2.g. of the Personnel Manual states that following a member’s first involve-
ment in an alcohol incident,4 the member shall be counseled about Coast Guard policy on alcohol 
abuse  and  the  counseling  shall  be  documented  in  the  member’s  record  with  a  warning  that  a 
second alcohol incident will result in their separation from the Coast Guard. 
 

Article 20.B.2.e.1. of the Personnel Manual states that any member involved in an alco-
hol  incident  must  be  screened  for  alcohol  abuse  or  dependency,  and  the  results  of  the  alcohol 
screening  must  also  be  documented  in  the  member’s  record  along  with  a  statement  of  the  rec-
ommended treatment, if any. 

 
Article 14.B.2.a. of the Personnel Manual allows a member to appeal a Page 7 or similar 

documentation through his chain of command. 
 

FINDINGS AND CONCLUSIONS 

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

 
 
military record and submissions, the Coast Guard’s submissions, and applicable law: 
 
The Board has jurisdiction over this matter under 10 U.S.C. § 1552.  Although the 
 
application was not filed within three years of the applicant’s discovery of the allegedly errone-
ous documents, it is considered timely because the applicant has remained on active duty as an 
enlisted member.5   
 

1. 

2. 

The  applicant  alleged  that  his  2005  ROER  and  SOER  are  erroneous  and  unjust 
because  they  state  that  he  committed  sexual  harassment  and  that  the  Page  7  documenting  an 
alcohol incident is erroneous and should be removed because it indicates that in October 2005 he 
had not yet begun alcohol rehabilitative treatment whereas in fact he had begun treatment volun-
tarily in June 2005.  The Board begins its analysis in every case by presuming that the disputed 
documents in an applicant’s military record are correct and fair, and the applicant bears the bur-
den of proving by a preponderance of the evidence that the documents are erroneous or unjust.6  

                                                 
4 See footnote 1, above, for definition of “alcohol incident.” 
5 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). 
6 33 C.F.R. § 52.24(b). 

 

 

3. 

Absent  specific  evidence  to  the  contrary,  the  Board  presumes  that  Coast  Guard  officers  have 
acted  “correctly,  lawfully,  and  in  good  faith”  in  preparing  OERs  and  other  documents.7    With 
regard to his request to expunge the OERs in particular, to be entitled to relief, the applicant can-
not  “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 sig-
nificant  hard  fact,”  a  prejudicial  violation  of  a  statute  or  regulation,  or  factors  “which  had  no 
business being in the rating process.”8   
 
 
The Board finds that the applicant’s claim that the disputed OERs erroneously and 
unjustly accuse him of “sexual harassment” lacks merit.  The phrases “sexual harassment” and/or 
“sexually harass” do not appear in either OER.  Nor has the applicant proved that the inclusion of 
such a phrase in an OER would be erroneous or unjust even if he was not punished at mast for 
sexual harassment.  Nothing in the Personnel Manual requires an officer to be found guilty of a 
UCMJ violation at NJP or court-martial before misconduct can be mentioned in an OER.  In fact, 
Article  10.A.4.f.1.  of  the  Personnel  Manual  expressly  allows  rating  chains  to  make  comments 
about an officer’s misconduct even if it is still the subject of an ongoing proceeding, such as an 
investigation,  as  long  as  the  proceeding  itself  is  not  mentioned  (except  when  an  SOER  is 
required  to  document  such  proceedings  pursuant  to  Article  10.A.3.c.).    The  applicant  has  not 
proved by a preponderance of the evidence that any of the marks or comments about his miscon-
duct  in  the  disputed  OERs  are  false  or  misleading,  that  they  constitute  or  contain  a  prejudicial 
violation of any law, or that they were adversely affected by bias or some other “factor that had 
no business being in the rating process.”9  Therefore, the Board finds no grounds for removing 
the disputed OERs from the applicant’s record. 

 
4. 

The  applicant  asked  the  Board  to  remove  the  Page  7  documenting  his  alcohol 
incident  from  his  record because the wording of the Page 7 does not  show that he had already 
voluntarily begun  alcohol  rehabilitation treatment.  However, the documentation  of the alcohol 
incident is required by Article 20.B.2.g. of the Personnel Manual and nothing in Article 20.B.2.g. 
requires the Page 7 to include any comment at all about past or future screening, though it is not 
prohibited  either.    The  Board  finds  that  the  applicant  is  not  entitled  to  have  the  Page  7  docu-
menting  his  alcohol  incident  state  that  he  had  already  voluntarily  begun  alcohol  rehabilitation 
treatment in June 2005.  The applicant alleged that the disputed comment—“The unit CDAR will 
arrange an appointment with [a hospital clinic to] determine the nature of your relationship with 
alcohol.    It  is  recommended  that  you  abstain  from  the  use  of  alcohol  until  your  screening  and 
assessment is completed.”—is erroneous, but aside from the applicant’s own claim, no evidence 
in the record directly refutes this statement of what the CDAR was tasked to do in October 2005.  
Because the applicant had already voluntarily begun treatment, as noted in the Punitive Letter of 
Reprimand,  it  seems  somewhat  unlikely,  although  certainly  not  impossible,  that  the  CDAR 
arranged  for  a  second  alcohol  screening.    However,  regardless  of  whether  the  CDAR  followed 
through, the Board finds that the error, if any, would be harmless10 because Article 20.B.2.e.1. of 
                                                 
7 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
8  Hary v. United States, 618 F.2d 704, 708 (Ct. Cl. 1980), cited in Lindsay v. United States, 295 F.3d 1252, 1259 
(Fed. Cir. 2002). 
9 Id. 
10 See FED. R. CIV. P. 61 (“Harmless Error: … At every stage of the proceeding, the court must disregard all errors 
and defects that do not affect any party’s substantial rights.”) 

 

 

5. 

the Personnel Manual requires alcohol screening following an alcohol incident and  documenta-
tion of that screening in the member’s record.  Therefore, the discussion of the screening in the 
Page 7 documenting the applicant’s alcohol incident is not per se prejudicial since all members 
involved in an alcohol incident must be screened and the screening must be documented in their 
records. 
 
 
The Board notes that the disputed comment in the Page 7 erroneously implies, but 
does not state, that the applicant did nothing to seek rehabilitation treatment between the date of 
his alcohol incident, May 31, 2005, and the date he signed the Page 7, October 21, 2005.  The 
applicant argued that this erroneous implication is unjust.  The Board, however, is not convinced 
that a mere implication requires correction especially when  the prejudice caused by the  errone-
ous implication, if any, is not noticeable given the prejudice resulting from the alcohol incident 
documented on the Page 7.  In addition, the Board notes that the applicant signed the Page 7 and 
could  have  appealed  the  wording  pursuant  to  Article  14.B.2.a.  of  the  Personnel  Manual  if  he 
found  it  to  be  erroneous  or  prejudicially  misleading.    Therefore,  the  Board  finds  insufficient 
grounds in the record for removing the Page 7 from the applicant’s record. 
 
 
The Coast Guard recommended that the Board change the reporting period for the 
SOER  from  May  31  to  June  1,  2005,  when  the  misconduct  occurred,  to  the  date  of  the  appli-
cant’s mast.  However, Article 10.A.3.c.1.b.(1) of the Personnel Manual states that for an SOER 
documenting  NJP,  “[t]he  reporting  period  for  this  special  report  will  be  the  time  frame  during 
which the officer’s conduct prompting the report occurred.”  Since the applicant’s (mis)conduct 
occurred on May 31 and June 1, 2005, rather than the date his command held the mast, the Board 
finds that the period of report for the disputed SOER is not erroneous and needs no correction. 
 
The  Coast  Guard  recommended  that  the  Board  change  a  mark  on  the  disputed 
 
ROER  to  show  that  it  was  not  a  regular  OER  but  a  special  OER  prepared  pursuant  to  Article 
10.A.3.c.1.a.  of  the  Personnel  Manual  to  document  the  applicant’s  reassignment  from  his  pri-
mary duty as an OIC.  The preponderance of the evidence shows that the applicant’s command 
prepared  this  derogatory  OER  both  because  the  applicant’s  semiannual  OER  was  due  and 
because the applicant had been reassigned/removed from his primary duty.  The OER itself states 
that it is derogatory and that the applicant was removed from his primary duty.  Although noth-
ing in the Personnel Manual prevents a regular OER from being derogatory, it is not clear from 
the regulations where that status is supposed to be shown on a semiannual OER.  The applicant’s 
OER  identifies  it  as  derogatory  in  block  2,  as  required  by  Article  10.A.3.c.1.    Therefore,  the 
Board finds that a mark in block 1.l., denoting the OER as “special,” would be more consistent 
with the rest of the OER than the mark in block 1.k., which denotes the “occasion for report” as 
“annual/semiannual.”  Moreover, the applicant stated that he has no objection to the recommen-
dation  of  the  Coast  Guard.    Accordingly,  the  Board  will  direct  the  Coast  Guard  to  make  this 
change.   
 

6. 

7. 

8. 

The Board agrees with the Coast Guard that the mark in block 1.k., denoting the 
occasion for the report as “annual/semiannual” is not prejudicial to the applicant.  If it is error, it 
is a harmless  administrative error, and the mark is not clearly erroneous because “annual/semi-
annual”  OERs  may  be  derogatory  pursuant  to  Article  10.A.4.h.1.  of  the  Personnel  Manual.  

 

 

9. 

The applicant has not proved by a preponderance of the evidence that the two dis-

Therefore, the correction of this mark does not warrant any further corrections of the applicant’s 
record.  
 
 
puted  OERs  or  the  Page  7  documenting  his  alcohol  incident  contain  any  prejudicial  errors.  
Therefore,  his  request  for  relief  should  be  denied,  but  the  mark  in  block  1.k.  of  the  disputed 
ROER should be removed or struck out and a mark of “special” in block 1.l. should be entered, 
instead. 
 

 
  

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
 
 

 

 

 

 

ORDER 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 
military record is denied, except that his OER for the period February 1 to June 30, 2005, shall 
be corrected by removing or striking out the mark in block 1.k., which shows the occasion of the 
report  to  be  “annual/semiannual,”  and  marking  block  1.l.  to  show  that  the  OER  is  a  “special” 
one, instead. 

 
 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 
 

 
 

 
 

 

 
 
 

 
 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

 

 
 
 Troy D. Byers 

 

 
 Francis H. Esposito 

 

 

 
 Donna A. Lewis