DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2012-059 
 
XXXXXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXXXXX 
  

FINAL DECISION 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section  425  of  title  14  of  the  United  States  Code.    The  Chair  docketed  the  application  upon 
receipt of the applicant’s completed application on January 14, 2012, and subsequently prepared 
the final decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  September  7,  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  an  officer  evaluation 
report (OER) for the period from June 1, 2009 to May 31, 2010 (disputed OER) and by replacing 
it with an OER for continuity purposes. 
 
 
The applicant asserted that the disputed OER should be removed from his military record 
due  to  what  he  “perceived  to  be  a  hostile  working  environment.”    He  stated  that  in  November 
2009  he  submitted  a  special  request  for  reassignment  within  his  command  to  remedy  the 
perceived  hostile  work  environment  that  allowed  little  opportunity  for  his  professional  growth.  
He  argued  that  his  supervisor  denied  his  request  without  any  investigation  or  the  “external 
notification” required by COMDTINST M5350.4C.1  According to the applicant, this provision 
requires that  the  District  Equal Employment Opportunity Officer be notified of all requests for 
transfer due to an alleged “hostile working environment.”   
 
The applicant alleged that his hostile work environment experience began after he made a 
 
verbal  request  to  his  supervisor  that  a  fellow  crewmember  receive  treatment  for  abuse  (the 
applicant did not describe the abuse).  He alleged that after reporting the situation as required by 

                                                 
1    The  applicant  did  not  cite  to  a  specific  provision  of  this  instruction  and  the  staff  could  not  identify 
which provision he intended to reference.   

 

 

Chapter  20  of  COMDTINST  M6200.1A,2  his  working  environment  quickly  deteriorated.    He 
stated that after he left the command, there were “multiple investigations due to the actions of the 
same crew member.”   
 

The  applicant  submitted  three  letters  from  other  officers  (none  in  his  reporting  chain) 

The applicant alleged that the disputed OER resulted from his rating chain’s inaction on 
his  request  for  reassignment.    He  also  asserted  that  the  disputed  OER  failed  to  capture  an 
accurate  account  of  his  contributions  and  it  significantly  decreased  his  upward  career  mobility.  
He  stated  that  his  supervisor  did  not  provide  any  mid-period  counseling  or  verbal  feedback, 
which led him to believe that his performance was satisfactory.   
 
 
who spoke highly of his skill, competence and character as an officer.   
 
The Disputed OER 
 
 
The disputed OER lists the applicant’s primary duty as “enforcement division duty.”  The 
only below standard mark (4 is the standard) the applicant received was a “3” in the “workplace 
climate”  dimension  of  the  supervisor’s  portion  of  the  OER.    The  “3”  was  supported  by  the 
following  comment:    “Exhibited  inappropriate  &  degrading  behavior  &  poor  [leadership]  to 
subordinates  &  was  removed  from  [the  subordinate’s]  chain  of  command;  counseled  & 
monitored,  [reported-on  officer]  made  improvements  in  behavior,  no  reoccurrences  of 
inappropriate behavior.”   
 
 
The applicant received a mark in the middle block on the comparison scale in section 9 of 
the  disputed  OER  that  described  him  as  a  “Good  performer;  give  tough,  challenging 
assignments.”  In block 10, the reporting officer described his potential as follows: 
 

Solid performer; outstanding skills in tactical operations, innovative solutions, & 
completing  missions  safely.    Unique  skills  at  developing  partnerships  and  in 
building  rapport  w/partner  agencies  at  all  levels  as  seen  in  joint  ops.    Excellent 
selection  &  strongly  recommended  for  MSST  Ops  &  Enforcement  Div  Chief  at 
large  sector.    Demonstrated  skills  and  performance  excellence  w/cmd  &  control 
make [the applicant] extremely strong candidate for District or higher [level] Cmd 
Center  Controller  or  Sector  Cmd  Center  Supervisor  position;  also  strong 
candidate for Intel field assignment.  Good choice & recommended for Homeland 
Security graduate school prgm.  Recommended for promotion to LCDR.   

 

VIEWS OF THE COAST GUARD 

 
 
On May 15, 2012,  the Judge Advocate General  (JAG) of the Coast  Guard submitted an 
advisory opinion recommending that the Board deny relief.  The JAG, citing Germano v. United 
States, 26 Cl. Ct. 1446, 1460 (1992), stated that the threshold issue is whether the disputed OER 
was  prepared  in  violation  of  a  statute  or  regulation  or  contained  a  misstatement  of  significant 

                                                 
2   There is no Chapter 20 to this instruction.  Chapter 2 sets policy and procedures for the Coast Guard 
Substance Abuse Prevention and Treatment Program. 

 

 

hard fact.  In addition, the JAG argued that the applicant must overcome the presumption that his 
rating  officials  acted  correctly,  lawfully,  and  in  good  faith  in  making  their  evaluations  of  his 
performance under the Coast Guard’s Officer Evaluation System.   
 
 
The  JAG  stated  that  the  evidence  shows  that  the  rating  chain  evaluated  the  applicant’s 
performance  in  accordance  with  the  Personnel  Manual.    The  JAG  stated  that  an  October  2009 
investigation revealed that the applicant had made inappropriate comments to a subordinate.  As 
a result of that investigation, the applicant was removed from his position as Assistant Response 
Department Head.  The JAG stated that the applicant was given a non-punitive letter of censure 
and  was  advised  that  although  the  letter  of  censure  would  not  be  documented  in  his  official 
record,  his  conduct  would  be  documented  in  his  OER.    The  JAG  stated  that  based  upon  the 
investigation and letter of censure, the applicant (and not any other officer) was responsible for 
the conflict that existed in the workplace climate during the period covered by the disputed OER.   
 
The JAG concluded his comments by stating that the evidence submitted by the applicant 
  
was insufficient to rebut the presumption that his rating chain carried out  their duties correctly, 
lawfully,  and  in  good  faith.    The  JAG  also  stated  that  the  applicant  failed  to  prove  that  the 
disputed  OER  was  prepared  in  violation  of  the  Personnel  Manual  or  that  it  contained 
misstatements of fact.   
 
 
The JAG attached comments from the Commander, Personnel Service Center (PSC) as a 
part  of  the  advisory  opinion.    PSC  agreed  with  the  JAG  that  the  applicant  did  not  provide 
evidence  that  the  disputed  OER  was  prepared  in  violation  of  the  Personnel  Manual  or  that  it 
contained  misstatements  of  fact.    PSC  also  noted  that  affidavits  from  the  rating  chain  for  the 
disputed  OER  confirmed  the  accuracy  of  the  OER.    The  supervisor’s  and  reporting  officer’s 
affidavits are discussed below. 
 
Supervisor’s Affidavit 
 
The  supervisor  stated  she  was  the  applicant’s  supervisor  from  June  23,  2008  to  July  2, 
 
2010.    She  stated  that  in  March  2009  she  counseled  the  applicant  on  his  lack  of  positive 
leadership  and  advised  him  to  stop  disparaging  others  and  to  encourage  his  subordinates, 
particularly  a  LTJG  for  whom  he  was  the  direct  supervisor.   The  supervisor  confirmed  that  an 
investigation was conducted into alleged inappropriate comments by the applicant covering the 
period  from  November  1,  2008  to  November  1,  2009.    The  supervisor  stated  that  the 
investigation  confirmed  that  on  October  18,  2009,  the  applicant  made  derogatory  remarks 
regarding a subordinate’s male anatomy and those remarks did not foster a healthy, positive work 
environment.  The supervisor stated that the applicant was given a letter of censure by the Sector 
Commander, in which the applicant was  told that “he would not currently be recommended for 
promotion  to  the  next  higher  pay  grade,  but  since  he  was  at  the  mid-point  of  his  evaluation 
period,  he  could  still  salvage  the  period  and  earn  a  positive  command  recommendation  for 
promotion.”  The applicant was also removed from his position as Assistant Response Chief and 
as  the  direct  supervisor  for  the  LTJG.    The  supervisor  stated  that  after  receiving  the  letter  of 
censure, the applicant requested reassignment, but that request was denied in order to allow him 
the  opportunity  to  demonstrate  his  changed  behavior,  while  contributing  to  the  mission  of  an 
already short-staffed department.   

 

 

 
 
The  supervisor  stated  that  in  preparing  the  applicant’s  OER  she  compared  his 
performance to the given OER standard.  She stated that his documented behavior failed to meet 
expectations in the “workplace climate” category.  The supervisor stated that the applicant failed 
to  demonstrate  actions  that  enhanced  overall  quality  of  life,  to  serve  as  a  strong  advocate  for 
others,  to  encourage  respect,  and  to  promote  an  environment  which  values  dignity.    The 
supervisor stated that the disputed OER is not in error or unjust.  
 
Reporting Officer’s Affidavit      
 
 
The reporting officer agreed with the supervisor’s comments.  He stated that the applicant 
received  a  “3”  in  “workplace  climate”  from  his  supervisor  for  exhibiting  inappropriate  and 
degrading  behavior  and  poor  leadership.    He  stated  that  based  on  his  knowledge  of  the 
applicant’s  performance  and  conduct  during  the  marking  period,  he  fully  supported  the 
supervisor’s  decision.    The  reporting  officer  stated  that  the  applicant  created  the  hostile  work 
environment.  He stated that he is convinced that the applicant made inappropriate comments on 
repeat occasions and behaved in a manner inappropriate for a professional workplace.   
 
Letter of Censure 
 
 
On November 23, 2009, the Sector Commander gave the applicant a letter of censure for 
his  inappropriate  conduct  from  November  1,  2008  to  November  1,  2009  and  specifically  for 
inappropriate comments he made to a subordinate on October 16, 2009.  The Commander stated 
that  the  applicant  conducted  himself  “in  a  boisterous,  obnoxious,  and  annoying  manner, 
frequently displaying a lack of maturity and professionalism expected of a Coast Guard officer.”  
The Commander also stated that the applicant engaged in “immature practical jokes and childish 
game  playing,  used  offensive  language,  degraded  and  humiliated  peers  and  subordinate 
personnel,  and  failed  to  set  a  positive  example  expected  of  someone  with  your  rank  and 
position.”    The  Commander  gave  the  applicant  steps  to  complete  if  he  wanted  to  obtain  a 
promotion  recommendation.    The  Commander  also  told  the  applicant  that  his  actions  and 
performance  during  the  period  may  be  documented  in  his  OER,  although  the  letter  of  censure 
would not be a part of his OER or official record.     
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
response.  The Board did not receive a response from the applicant.   

On May 18, 2012, a copy of the Coast Guard’s views was mailed to the applicant for his 

 

FINDINGS AND CONCLUSIONS 

 

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

military record and submissions, the Coast Guard's submission and applicable law: 
 
 
of the United States Code.   The application was timely. 
 

1.  The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

 

 

2.    The  applicant  alleged  that  the  disputed  OER  is  the  result  of  a  hostile  work 
 
environment and is not an accurate assessment of his performance for the period under review.  
The preponderance of the evidence shows that the applicant created or contributed to conflict in 
the  workplace  by  making  inappropriate  comments  to  subordinate  personnel  during  the  period 
under review.  To hold the applicant accountable for his conduct, he was given a below standard 
mark of 3 in the “workplace climate” dimension of the disputed OER.  The applicant submitted 
three statements from Coast Guard officers attesting to his skill, competence, and character, but 
those  statements  do  not  dispute  the  comment  in  the  OER  that  the  applicant“[e]xhibited 
inappropriate  &  degrading  behavior  &  poor  [leadership]  to  subordinates  &  was  removed  from 
[member’s]  chain  of  command;  counseled  &  monitored,  [reported-on  officer]  made 
improvements in behavior, no reoccurrences of inappropriate behavior,” which supports the mark 
of “3.”  Therefore, the applicant has not presented sufficient evidence to prove that the disputed 
OER is inaccurate. 
 
3.    The  applicant  alleged  that  his  supervisor  violated  COMDTINST  M5350.4C  by  not 
 
investigating his request for reassignment due to an alleged hostile work environment and by not 
providing  notification  to  the  District  Equal  Employment  Opportunity  Officer  that  he  had 
requested  reassignment  on  that  basis.    The  applicant  did  not  cite  the  specific  provision  of  the 
instruction that required his request for reassignment to be investigated and to be reported to the 
District Equal Employment Officer and the Board was not able to identify the specific provision 
mentioned by the applicant.  Nonetheless, even if such a provision existed, the Board finds that 
the  applicant  was  not  prejudiced  by  the  manner  in  which  his  command  handled  the  situation.  
The command had investigated the matter and determined that the applicant was the cause of the 
unfavorable  work  environment.    The  applicant  has  not  presented  evidence  that  a  further 
investigation  would  have  reached  a  different  conclusion  or  that  referral  of  his  request  for  a 
transfer would likely have been approved since under the circumstances he was the problem and 
the  command  had  taken  action  to  fix the  problem  by  removing  him  from  the  victim’s  chain  of 
command.    The  Board  notes  that  the  command  was  generous  toward  the  applicant  by 
admonishing him for his conduct through a non-punitive letter of censure and by giving him the 
opportunity  to  redeem  himself  during  the  OER  period.    He  received  only  one  below  standard 
mark and he was recommended for promotion.  The OER speaks highly of the applicant’s skills 
and  abilities,  except  for  in  the  performance  category  “workplace  climate.”   The  disputed  OER 
reflects the applicant’s achievements while holding him accountable for his shortcoming.   
 
 
Accordingly, his application should be denied.     
 

4.    The  applicant  has  failed  to  prove  an  error  or  injustice  in  the  disputed  OER.  

  
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 
 
 

 

 

The  application  of  XXXXXXXXXXXXXXXXXXXX  for  correction  of  his  military 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Peter G. Hartman 

 

 

 
 Dana Ledger 

 

 

 
 Adam V. Loiacono 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

record is denied.