DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2012-100 
 
Xxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxx 

FINAL DECISION 

This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.  The Chair docketed the case upon receipt of the applicant’s 
completed  application  on  March  15,  2012,  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  December  7,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S INITIAL REQUEST AND ALLEGATIONS 

 
 
The applicant asked the Board to remove or correct certain comments in his officer eval-
uation  report  (OER)  covering  his  service  as  the  commanding  officer  of  the  CGC  XXXX,  a 
seagoing buoy tender home-ported in Xxxxxx with a crew of 51 personnel, from May 1, 2009, to 
April  30,  2010.    The  disputed  comments  and  his  corresponding  allegations  and  evidence  are 
summarized  below.    He  asked  the  Board  to  correct  the  OER  before  the  CDR  selection  board 
convened in July 2012. 
 
OER Block 3: “Insufficient CMD oversight monitoring & directing activity of supply dept. per-
sonnel resulted in DX WLB fuel account going in the red at the end of FY-09.” 
 

The  applicant  alleged  that  this  comment  is  inaccurate.    He  stated  that  an  investigation 
showed that “commonly accepted district practice and insufficient district policy contributed to 
the result.”  However, he alleged, the successful results of a financial and procurement compli-
ance  inspection  conducted  earlier  and  the  cutter’s  receipt  of  an  Operational  Excellence  Award 
for its performance during training in October 2009 rebut this comment.  He alleged that “[t]here 
were no reasonably apparent indicators for me as Commanding Officer to dig into unit purchas-
ing practices until this one instance.” 
 

  A “Supplement to Investigation of CGC XXXX’s Routine Purchasing Procedures” dated 
February 19, 2010, notes that the investigation focused particularly on fuel purchases that 

 

 

occurred  on  August  11,  September  4,  and  October  27,  2009.    The  summary  states  that 
“cumulatively,  the  District  X  Budget  Office,  BSU  Xxxxxx’s  Reconcilers,  and  CGC 
XXXX are all to blame for the errors that took place on CGC XXXX’s fuel obligations.  
CGC XXXX was not completing the DD1149s to obligating their fuel purchases properly 
nor  were  they  submitting  them  in  a  timely  manner;  however,  there  was  also  little  to  no 
oversight  by  District  X  or  BSU  Xxxxxx’s  Reconcilers.    District  X  also  has  no  written 
policy  for  units  that  do  not  maintain  their  own  fuel  account,  which  is  required  by  the 
Supply Policy and Procedures Manual.” 
 

  A  policy  memorandum  dated  December  15,  2011,  regarding  the  issuance  of  an  Overall 
Operational  Readiness  Excellence  (“E”)  Award  state  that  “[e]ligibility  for  the  award 
demands  day-to-day  excellence  as  demonstrated  through  the  success  of  the  unit  during 
operations and periodic evaluations conducted between scheduled training cycles.”  The 
award  “is  intended to  recognize cutters that achieve and maintain an  exceptionally high 
degree  of  continuous  readiness  shipwide  throughout  the  eligibility  period  as  measured 
through  two  components:  (1)  performance  during  CART/TSTA  training  period  and  (2) 
assessments of other operational requirements from one TSTA until the next. 
 

  Two messages to the cutter congratulate the command for their outstanding performance 
and  “clean  sweep”  during  Tailored  Ships  Training  Availability  (TSTA)  from  Septem-
ber14 to October 2, 2009, and for receiving the “E” Award. 
 

  An Administrative and Financial Compliance Inspection Report for the cutter, dated Feb-
ruary  24,  2009  (two  months  before  the  start  of  the  reporting  period  for  the  disputed 
OER), states that the cutter was at least satisfactory or better and compliant in all areas.  
Being  “in  compliance”  means  that  “the  unit  meets  the  program’s  intent  and  statutory 
requirements.”  The report states that the cutter’s financial  and procurement administra-
tion  was  overall  “in  compliance.”  The  cutter  was  found  to  be  compliant  in  numerous 
respects and was complying with the Coast Guard’s spending rates of 50% by the end of 
the  second  quarter  and  75%  by  the  end  of  the  third  quarter,  but  a  few  negative  points 
were  noted.    The  report  stated  that  “[t]he  unit’s  obligations  or  expenditures  exceed  its 
annual  apportionment”;  “[u]nreconciled  transactions  over  30  days  old  listed  on  the 
“Transactions  Not  Yet  on  PES  Report”  are  not  being  reviewed  and  promptly  corrected. 
… An inaccurate ledger balance will impact the unit’s fiscal decisions”; and “PES errors 
and unresolved items are not recorded correctly in Finance and Procurement Desktop for 
timely  transmission  to  FINCEN.    Errors  are  not  identified,  analyzed  for  causes,  docu-
mented, and forwarded for action to FINCEN.” 

 
OER Block 4:   “Award recommendations frequently required additional work, did  not  support 
level of awards.” 
 

The applicant alleged that this comment is inconsistent with the mark of 4 he received for 
the performance category “Writing,”1 which requires that an officer’s writing be “clear, concise, 
                                                 
1 Coast Guard officers are evaluated in a variety of performance categories, such as “Teamwork” and “Judgment,” 
on a scale of 1 (worst) to 7 (best).  A middle mark of 4 means that the officer met the expected high standards of all 
Coast Guard officers for that category. 

 

 

and  logically  organized.    Proofread  conscientiously.    Correspondence  grammatically  correct, 
tailored to audience, and delivered by an appropriate medium.  Subordinates’ material reflected 
same high standards.”  In addition, the applicant alleged that the results of the various districts’ 
Awards Boards are too unpredictable for anyone to claim that any given award proposal  would 
not  be  successful.    He  noted  that  Awards  Boards  often  require  presenters  to  rewrite  the  award 
citations.  The applicant stated that he submitted nominations for five awards during the report-
ing period for the disputed OER.  Two were approved for the level of award proposed; one was 
approved for a lower level award than the one proposed; and two were denied without explana-
tion.  However, the applicant alleged that the decision-making by Awards Boards and the final 
approving authority is  too subjective to  warrant  the criticism he  received  in  this disputed com-
ment. 
 
 
In  support  of  these  allegations,  the  applicant  submitted  a  DX  Awards  Tracking  Form, 
showing  all  of  the  levels  of  approval  an  award  nomination  had  to  go  through;  a  copy  of  the 
award citation he submitted for his First Lieutenant to receive a Commendation Medal; and the 
final  memorandum  forwarding  an  Achievement  Medal,  which  is  the  next  lower  level  medal, 
instead, for the First Lieutenant with no explanation. 
 
OER Block 5:  “Req’d prodding to hold subordinates accountable for low stds or irresponsible 
actions (Xxxxxxx chart corrections & personnel actions).” 
 
 
The  applicant  alleged  that  this  negative  comment  contradicts  the  mark  of  4  he  received 
for “Directing Others,” which required him to “set high work standards.”  The applicant alleged 
that  as  CO,  he  “continuously  enforced  the  philosophy  to  take  immediate  action  to  correct  dis-
crepancies  when  discovered.”    He  alleged  that  the  Xxxxxxx  chart  problem  occurred  because 
when  the  navigation  division  was  noting  discrepancies  between  a  paper  navigational  chart  and 
actual conditions, they accidentally used an outdated chart and so found and reported many more 
discrepancies than existed when actual conditions were compared to the most recent chart.  The 
applicant stated that the mistake had no effect on operations and no disciplinary action was war-
ranted.  The applicant alleged that the comment is unwarranted in this regard because “[a]n hon-
est attempt to correct a discrepancy is not a demonstration of irresponsibility.” 
 
 
Board to his allegations about the disputed comment in block 8 (below). 
 
OER Block 5:  Requests removal of word “usually” from this comment:  “OER’s/EPEF’s sub-
mitted  on  time,  assigned  marks  usually  met  standards,  ensured  counseling  provided  required 
feedback.” 
 
 
The applicant alleged that the word “usually” makes this comment inconsistent with the 
mark of 4 he received for “Evaluations,” which requires that the evaluation marks assigned by an 
officer on his subordinates’ evaluations meet the written standards for those marks.  The appli-
cant complained that no justification for the word “usually” was included. 
 
OER  Block  8:    “Approach  to  personnel  actions  during  period  generally  indicated  disconnect 
between self & Senior leadership … correct decisions eventually reached.” 

Regarding the reference to “personnel actions” in this comment, the applicant referred the 

 

 

 
 
The  applicant  alleged  that  this  negative  comment  contradicts  the  mark  of  4  he  received 
for  the  category  “Responsibility.”    He  alleged  that  the  comment  suggests  as  the  CO,  he  is  not 
allowed  to  have  a  different  opinion  than  his  supervisors.    He  noted  that  no  specific  personnel 
action is mentioned.  The applicant alleged that only two personnel actions attracted the attention 
of  the  District  while  he  was  CO.    The  first  was  the  discharge  of  a  crewmember  whose  urine 
tested positive for marijuana use, and the second involved inappropriate behavior on the part of 
some junior officers.  The action stated that he took disciplinary action in accordance with policy 
in these cases and never conveyed any intention to do otherwise.  However, he noted that neither 
his  supervisor  nor  his  reporting  officer,  who  were  stationed  in  Xxxxxx,  were  ever  aboard  the 
XXXX during the two years he served as CO, even though the XXXX was in Xxxxxx for a two-
month  period  and  his  reporting  officer  did  fly  to  Xxxxxx,  the  cutter’s  homeport,  twice  during 
those two years.  Therefore, they never observed the crew on the cutter.  The applicant alleged 
that he meted out discipline based on his intimate knowledge of the crewmembers and their cir-
cumstances.  He called the disputed comment opinionated, unjustified, and not reflective of his 
actual performance. 
 
OER Block 10:  Requests removal of the underlined phrase from this comment:  “Based upon 
shiphandling and tactical operations skills, has high potential for future success as WMEC XO or 
WMSL OPS with mentoring on personnel and administrative details.” 
 
 
The  applicant  alleged  that  this  comment  is  unwarranted  and  rebutted  by  all  of  the 
evidence  he  submitted.    He  alleged  that  the  compliance  report,  “E”  Award,  and  “clean  sweep” 
during  TSTA  training  received  by  the  XXXX  during  his  tenure  demonstrate  his  excellent 
performance  in  personnel  and  administrative  matters  and  thus  contradict  the  comment.    The 
applicant alleged that the cutter received the “E” Award, denoting a full year of both operational 
and administrative excellence, through his leadership and attention to detail. 
 

VIEWS OF THE COAST GUARD 

 
 
On August 8, 2012, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory  opinion  in  which  he  recommended  that  the  Board  grant  only  partial,  minor  relief  by 
removing the word “usually” from the comments in block 5 of the disputed OER.  In so doing, 
he adopted the findings and analysis provided in a memorandum prepared by the Personnel Ser-
vice  Center  (PSC)  and  relied  on  sworn  declarations  from  the  three  members  of  the  applicant’s 
rating chain, who prepared and reviewed the OER. 
 
 
PSC recommended that the Board deny the requested relief except for the removal of the 
word “usually” from block 5.  PSC noted that the applicant did not file an OER Reply to accom-
pany  and  rebut  the  OER  in  his  record  or  apply  to  the  Personnel  Records  Review  Board  for 
correction of the disputed OER within a year of its validation. 
 
 
Based on the rating chain’s declarations, which are summarized below, PSC stated that it 
believes the rating chain performed their duties properly in accordance with policy.  PSC noted 
that the entire rating chain supports the accuracy of the disputed OER. 
 

 

 

Regarding the disputed comments in block 5, PSC stated that the first one is not incon-
 
sistent with the mark of 4 because it shows that the applicant did ultimately hold his subordinates 
accountable and thus met the standard.  Regarding the word “usually,” PSC noted that the appli-
cant’s supervisor, who wrote this comment, indicated in his declaration that he would not object 
to its removal.  Therefore, PSC would not object to its removal. 
 
 
PSC stated that it is clear from the application that the applicant has a different opinion of 
his  own  performance,  but  it  “believes  the  disputed  OER  reflects  a  succinct  picture  of  perfor-
mance as viewed by the rating chain during the period of report.” 
 
Declaration of the Applicant’s Supervisor 
 
 
The  applicant’s  supervisor,  who  as  the  chief  of  the  District’s  Waterways  Management 
Branch prepared the blocks 3, 4, and 5 of the disputed OER, stated that the XXXX’s fuel account 
did “go into the red” because the cutter’s DD-1149s were not timely submitted as stated in block 
3.  He alleged that when the DD-1149s were submitted, they contained “inconsistencies in dates, 
fuel quantity and signatures indicating they were not completed at the time of fuel purchase. … It 
is  fair  to  say  that  there  were  a  number  of  people  that  could/should  be  held  accountable  for  the 
fuel  account  going  into  the  red;  however,  I  cannot  speak  to  how  those  people  were  held 
accountable, only personnel under my supervision … A lack of published guidance was noted in 
the investigation, but it should be noted that there were a number of email and phone exchanges 
from  the  [District]  staff  to  all  three  [of  the  buoy  tenders  under  the  supervisor’s  supervision] 
requesting  fuel  estimates  and  the  importance  of  keeping  on  top  of  the  fuel  account  to  ensure 
adequate funds were available as we neared Fiscal Year close-out.  As I recall these exchanges 
began as once-a-month events in July and August, increasing in frequency … to weekly events in 
September.”  The other two buoy tenders complied with the requirements, but the applicant’s did 
not. 
 
 
Regarding the disputed comment in block 4, the supervisor stated that he received award 
nominations from the COs and XOs of the buoy tenders and provided feedback on the quality of 
their  submissions.    Most  took  the  feedback  to  heart  and  improved  the  quality  of  their  submis-
sions.    However,  for  the  applicant,  the  supervisor  “reworked  almost  every  award  nomination” 
and “provided feedback via phone and email several times, including emailing excerpts from the 
Coast Guard Medals and Awards Manual … describing the requirements and informing him how 
the DX Awards Board interpreted the criteria.”  However, when the applicant’s submissions did 
not improve, the supervisor became frustrated and ultimately delegated review of the applicant’s 
submissions  to  his  deputy  branch  chief  and  asked  him  “to  provide  an  objective  review  and  to 
return any packages that did not meet the requirements along with an explanation and a copy of 
the pertinent section of the Medals and Awards Manual.” 
 
 
Regarding  the  first  disputed  comment  in  block  5,  the  supervisor  stated  that  the  XXXX 
submitted  a  Patrol  Summary  with  comments  about  numerous  discrepancies  in  the  navigational 
charts  for  the  Xxxxxxx.    Two  weeks  later,  the  supervisor  received  a  list  of  38  or  39  dis-
crepancies.    His  office  compared  them  to  the  master  charts  and  determined  that  all  but  two 
“could be accounted for with Notice to Mariner chart corrections and the misreading of the lati-
tude and longitude of the insets  contained with Chart xxxxxxx.  Commandant  and unit naviga-

 

 

tion standards require that charts be corrected to the latest Notice of Mariners.”  The supervisor 
advised  the  applicant  of  their  findings  and  requested  “an  immediate  reply  in  case  we  were  in 
error  or  missing  critical  information.    After  repeated  prodding,  I  received  a  reply  from  the 
XXXX’s  Operations  Officer  stating  that  it  appeared  they  had  not  applied  any  of  the  NTM 
corrections.”  The supervisor stated that had the XXXX’s navigators either used an updated chart 
or  referred  to  an  Air  Positioning  Report  or  a  Federal  Identification  Document,  as  is  common 
practice, the XXXX would have resolved the “discrepancies” themselves.  The supervisor stated 
that the applicant “refused to hold any member of his bridge team accountable.” 
 
 
In  addition,  the  supervisor  stated  that  during  a  trip  to  Xxxxxx  for  routine  maintenance, 
the XXXX experienced a casualty to  one of the main diesel  engines.  Upon arrival, it was dis-
covered that the cutter “did not have enough lube oil to conduct a flush of the engine as the cutter 
had only sailed with a minimal amount of oil.”  The Executive Officer asked the supervisor for 
$26,000.00 to  purchase lube oil.   Further inquiry revealed that  the  cutter  had purchased seven-
teen 55-gallon drums of lube oil in Xxxxxx before its departure but “‘stored’ them at the Defense 
Reutilization  Marketing  Office”  on  shore.    The  drums  had  disappeared  when  the  crew  went  to 
retrieve them before getting underway.  The applicant “would not accept responsibility nor hold 
subordinates accountable.” 
 
 
Regarding the applicant’s complaint about the use of the word “usually” in block 5, the 
supervisor stated that he would not object to its removal.  He made no other comment about this 
complaint. 
 
 
Regarding the applicant’s allegations about the disputed comment in block 8, the super-
visor stated that the applicant, as CO, certainly had the right to disagree with his chain of com-
mand,  but  the  disputed  comment  accurately  reflects  the  relationship  between  the  applicant  and 
his chain of command.  The supervisor stated that on at least two occasions he and the reporting 
officer had a conference call with the applicant to convey the District’s concerns about “person-
nel actions or the lack of command responsibility and/or accountability with regard to personnel 
or administrative actions.  I did not make decisions in a vacuum, not without consulting my chain 
of command.  [The applicant] was informed that much of the tension could have been alleviated 
if he had kept  an open dialogue with  [the supervisor’s office] or the DX  staff, rather than wait 
until he was called by the Chain of Command either because of perceived inaction or to find out 
what course(s) of action he was going to propose.” 
 
 
comment because it was written by the reporting officer. 
 
Declaration of the Applicant’s Reporting Officer 
 
 
The applicant’s reporting officer (RO), who prepared blocks 7 through 10 of the disputed 
OER,  was  the  District  Chief  of  the  Prevention  Division.    Regarding  the  disputed  comment  in 
block 3 of the OER, the RO said that he thinks it is “accurate, reasonable and appropriate.”  He 
stated  that  the  three  buoy  tenders  “were  given  ample,  repeated  warning  by  their  DX  Program 
Manager to ensure their financial readiness for end of fiscal year closeouts, particularly for high 
cost  expenditures such as large fuel  purchases.”   The other two buoy tenders responded timely 

Regarding  the  disputed  comment  in  block  10,  the  supervisor  stated  that  he  would  not 

 

 

enough, but the XXXX’s response was too late to prevent obligating the funds prior to the end of 
the fiscal  year.  Specifically, the XXXX did not promptly submit documentation of a $103,509 
fuel  purchase  on  September  4,  2009,  and  the  District  had  to  scramble  to  obtain  permission  to 
reallocate funds to cover the purchase, which it did by reallocating multi-year funds from a buoy 
maintenance  contract,  which  affected  the  entire  District’s  Aids  to  Navigation  program.  
Furthermore,  the  RO  stated,  the  February  19,  2010  “Supplement  to  Investigation  of  CGC 
XXXX’s  Routine  Purchasing  Procedures,”  which  the  applicant  submitted,  shows  there  were 
long-standing,  systemic  procurement  process  problems  on  the  XXXX.    The  RO  stated  that  the 
document  shows  that  the  applicant’s  oversight  and  attention  to  detail  were  insufficient  in  this 
regard. 
 
 
The  RO  noted  that  the  applicant  was  given  credit  for  the  XXXX’s  receipt  of  the  “E” 
Award and “clean sweep” in TSTA in block 3 of the disputed OER.  “Receipt of this award for 
readiness in a broad range of criteria does not negate either the reality of persistent, serious pur-
chasing  irregularities  onboard”  the  cutter  or  the  impact  of  that  problem  on  the  District  as  a 
whole. 
 
 
Regarding the disputed comment in block 4, the RO stated that the comment is accurate, 
reasonable,  and  appropriate  because  the  award  recommendations  received  from  the  XXXX 
“were  frequently  very  poorly  written  and  at  an  inflated,  unrealistic  and  unsupported  level  of 
award” and the award citations did not significantly improve in response to the District’s feed-
back.  District staff had to rewrite the citations to ensure appropriate recognition of the cutter’s 
crewmembers. 
 
 
Regarding  the  first  disputed  comment  in  block  5,  the  RO  stated  that  on  multiple  occa-
sions, he and the applicant’s supervisor had to spend a considerable amount of time on the phone 
with  the  applicant  to  convince  him  of  the  serious  nature  of  some  of  his  subordinates’  actions.  
“Whether  [the  applicant]  was  erring  on  the  side  of  excessive  mercy  toward  his  shipmates  or 
whether he failed to grasp the seriousness of the actions of his crew, I cannot say.” 
 
 
The RO stated that one incident referred to indirectly in block 5 involved the sexual har-
assment of a female officer of another unit by male officers of the XXXX.  One male officer had 
made  repeated,  unwanted  physical  contact  with  the  female  officer  and  laughed  about  it  despite 
her  protestations.    At  the  time,  the  Service  “was  actively  communicating  and  enforcing  a  zero 
tolerance policy toward this unacceptable behavior.”  When asked how he was going to hold his 
subordinates  accountable,  the  applicant  repeatedly  argued  that  because  the  officers  had  apol-
ogized to the female officer and she did not intend to press charges, no action against them was 
warranted.  The RO stated that the applicant “failed to appreciate the seriousness of the offense 
and  voiced  his  reluctance  to  take  any  official  action  that  might  jeopardize  the  promotion  and 
assignment potential of the XXXX officers involved in this ugly event.”  The applicant “had to 
be told point blank” that his officers’ actions were unacceptable and that as their CO, he had an 
obligation to hold them accountable.  The RO concluded that this disputed comment is accurate, 
reasonable, and appropriate. 
 
 
Regarding the use of the word “usually” in block 5, the RO stated that whether the word 
makes  the  comment  inconsistent  with  a  mark  of  4  is  “a  matter  of  semantics.”    The  applicant’s 

 

 

“extreme reluctance” to hold his officers accountable for the sexual harassment described above 
in their own OERs “raised questions regarding [his] willingness to conform to the Coast Guard’s 
personnel evaluation processes and policies.” 
 
 
Regarding the disputed comment in block 8 of the OER, the RO stated that it is accurate, 
reasonable,  and  appropriate,  but  that  in  retrospect  he  would  reword  it  to  say  that  the  applicant 
“generally indicated disconnect between self and CG policies [instead of ‘Senior leadership’] … 
correct  decisions  eventually  reached.”    He  alleged  that  the  reference  to  Senior  leadership  was 
intended to refer to the “Coast Guard’s Flag leadership setting service policy direction, not to the 
applicant’s supervisor and reporting officer.”   
 

In  response  to  the  applicant’s  claim  that  he  took  correct  action  when  a  crewmember’s 
urine tested positive for marijuana use, the RO stated that the applicant delayed initiating the dis-
charge  proceedings  and  was  perceived  to  be  “foot  dragging”  by  the  District’s  Chief  of  Staff 
resulting from either a failure to recognize the seriousness of the offense or an unwillingness to 
hold the member accountable.  Both the RO and the applicant’s supervisor had to impress upon 
the  applicant  the  seriousness  of  the  offense  and  the  urgency  of  dealing  with  it.    The  applicant 
took action “only after vigorous, repeated prompting.” 

 
Regarding  the  applicant’s  complaint  that  his  supervisor  and  RO  were  too  remote  and 
never  boarded  the  cutter  while  he  was  in  command,  the  RO  stated  that  having  himself  com-
manded Sector Xxxxxx for three years, he is intimately aware of the challenges posed by having 
the District office located xxxxxxxxxxxxxx.  The RO stated that he told the applicant before the 
applicant  took  command  of  the  XXXX  that  because  of  the  distance,  “he  needed  to  take  the 
initiative to communicate early and often with the DX staff.”  The RO and the supervisor “would 
often remain in the office late into the evening to converse with [the applicant] by telephone as 
Xxxxxx’s local time is a relative four hours behind that in Xxxxxx.”  The RO stated that he and 
the applicant’s supervisor “often initiated dialog with [the applicant].”  He alleged that any claim 
or insinuation that they did not make themselves available to him has no merit. 

 
Regarding the disputed comment in block 10 of the OER, the RO stated that it is reason-
able and appropriate.  Although the XXXX’s operational performance was satisfactory under the 
applicant’s command, on administrative and personnel issues, he “required an inordinate amount 
of counseling and pointed task direction to (eventually) comply with Coast Guard policy and the 
expectations of senior operational commanders.  Many of these problems “were indicative of a 
lack of adequate command oversight and attention to detail.”  The RO alleged that the disputed 
OER  gives  credit  to  the  applicant  where  it  was  due  but  also  reflects  areas  in  which  his 
“performance was weak and might benefit from further coaching, counseling and mentoring.” 

 
Regarding  the  applicant’s  claim  about  inconsistencies  between  the  negative  comments 
and the marks of 4, the RO alleged that if there is any inconsistency it “raise[s] doubts about the 
validity  of  the  numerical  marks,”  rather  than  the  accuracy  of  the  disputed  comments.    The RO 
claimed that all of the OER comments are accurate and appropriate and any inconsistency found 
between  the  comments  and  the  numerical  marks  shows  that  the  rating  chain  “perhaps  erred  on 
the side of generosity” in assigning the numerical marks. 
 

 

 

Declaration of the OER Reviewer 
 
 
The OER Reviewer, who was the District Chief of Staff, stated that he visited the XXXX 
and had specific knowledge of some of the issues presented in the disputed OER.  He does not 
think the disputed comments in the OER are erroneous.  The reviewer stated that the applicant’s 
insufficient oversight of his supply personnel directly resulted in the deficit in the fuel account at 
the  end  of  fiscal  year  2009.    Although  the  investigation  identified  other  contributing  factors,  it 
does not refute the applicant’s own responsibility. 
 
 
The  reviewer  stated  that  he  was  the  Chair  of  the  Awards  Board  and  knows  that  several 
award packages had to be returned to the applicant to provide sufficient supporting justification 
for the level of award requested.  Therefore, the reviewer said, the disputed comment in block 4 
is accurate. 
 
The reviewer also supported the accuracy of the first disputed comment in block 5 based 
 
on  what  the  applicant’s  supervisor  and  RO  told  him  about  the  applicant’s  desire  not  to  take 
action against his subordinates despite very clear Commandant policy.  In one case, the reviewer 
himself  called  the  applicant  about  “adherence  to  policy  and  required  command  actions.”    The 
reviewer stated that the disputed comment in block 8 is also accurate because he “personally had 
to  engage  with  [the  applicant]  concerning  his  reticence  to  hold  a  member  of  his  crew  to  the 
requirements of very specific Coast Guard policy.  While he ultimately did process this member 
for discharge as required, it was not without significant engagement on the part of almost every 
level of his chain of command.” 
 
 
The reviewer stated that the purpose of block 10 is to provide an RO’s subjective opinion 
of the reported-on officer’s potential for future service.  The fact that the applicant’s operational 
performance was outstanding, did not negate the fact that his attention to detail and resistance to 
adhering to administrative policies and procedures “were somewhat lacking.”  
 
JAG’s Memorandum 
 
 
Based  on  PSC’s  memorandum  and  the  rating  chain’s  declarations,  the  JAG  concluded 
that the applicant has not provided any evidence to suggest that the disputed OER comments are 
erroneous or unjust.  The JAG noted that the rating chain strongly supported the accuracy of all 
but one (“usually”) of the disputed comments in their declarations with detailed examples of the 
applicant’s performance.   
 

Regarding the use of the word “usually” in block 5, the JAG stated that because the rating 
chain did not justify the use of the adverb, the JAG agrees with PSC that it should be removed.  
However, citing  Germano v. United States, 26 Cl.  Ct.  1446, 1460 (1992),  the JAG argued that 
the rating chain’s use of this word in the OER does not constitute a misstatement of a significant, 
hard fact and so did not render the OER erroneous or unjust. 

 
The JAG argued that the applicant has failed to meet his burden of proof and has submit-

ted  insufficient  evidence  to  rebut  the  presumption  of  regularity  accorded  the  disputed  OER.  
“While the supervisor and CG PSC did acquiesce to the redaction of the word ‘usually,’ this is a 

 

 

minor change and does not affect the OER.”  Therefore, the JAG stated that the redaction of the 
word does not justify  removal of the applicant’s failure of selection for promotion by the CDR 
selection board that convened in July 2012.  In addition, the JAG argued that because the appli-
cant failed to prove that the Coast Guard committed a legal error, it is “logically impossible for 
him  to  make  a  prima  facie  showing  of  a  substantial  connection,  or  nexus,  between  the  alleged 
errors and the [selection board’s] decision not to promote him …  Under these circumstances, it 
is unnecessary to conduct an analysis under the second prong of Engels or for the Government to 
show harmlessness.”2 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On August 24, 2012, the Chair mailed the applicant a copy of the advisory opinion and 

invited him to submit a written response within 30 days.  No response was received.  

 

 

SUMMARY OF THE APPLICANT’S RECORD 

The applicant received three annual OERs as the CO of the XXXX.  On the first, which 
covered  his  command  from  April  15,  2008,  to  April  30,  2009,  his  rating  chain  assigned  him 
fourteen marks of 5 and four marks of 6 in the various performance categories and a mark in the 
fifth  spot  on  the  officer  comparison  scale,  indicating  that  when  comparing  the  applicant  to  all 
other officers of the same grade the RO had known throughout his career, the RO considered him 
to be an “Excellent performer; give toughest, most challenging leadership assignments.”  The RO 
also “strongly” recommended the applicant for promotion “with peers.” 

 
The  disputed  OER  in  this  case  is  his  second  as  the  CO  of  the  XXXX  and  it  covers  his 
performance  from  May  1,  2009,  through April  30,  2010.    It  was  prepared  by  the  same  officers 
who prepared the first one and contains the disputed comments along with many positive com-
ments.  The rating chain assigned the applicant seven marks of 4, six marks of 5, and five marks 
of 6 in the various performance categories and a mark in the fourth spot on the officer compari-
son scale, indicating that the RO considered him to be a “Good performer; give tough, challeng-
ing assignments.”  The RO also recommended the applicant for promotion with his peers. 

 
The third OER that the applicant  received as the CO of the  XXXX was prepared by  an 
entirely new rating chain and covers his service through April 30, 2011.  In this OER, the appli-
cant received thirteen marks of 6 and five marks of 7 in the various performance categories and a 
mark  in  the  fifth  spot  on  the  officer  comparison  scale.    The  new  reporting  officer  “highly” 
recommended  the  applicant  for  promotion.   The  applicant  received  an Achievement  Medal  for 
his  performance as the  CO of the  XXXX.   The  citation  for the medal  describes numerous suc-
cessful operations. 

 

                                                 
2  Under  Engels  v.  United  States,  678  F.2d  173,  176  (Ct. Cl.  1982),  to  determine  if  an  applicant  is  entitled  to  the 
removal  of  a  non-selection  for  promotion,  the  Board  must  answer  the  following  two  questions:    “First,  was  the 
[applicant’s] record prejudiced by the errors in the sense that the record appears worse than it would in the absence 
of the errors?  Second, even if there was some such prejudice, is it unlikely that [he] would have been [selected for 
promotion]  in  any  event?”    Because  the  Coast  Guard  raised  the  issue,  the  Board  will  address  it  even  though  the 
applicant did not expressly request removal of the non-selection. 

 

 

Following  his  departure  from  the  XXXX,  the  applicant  began  serving  as  the 
xxxxxxxxxxx xxxxxxxx xxxxxxxxx of another Coast Guard district.  On his OER for the period 
ending April 30, 2012, the applicant received twelve marks of 6 and six marks of 7 in the various 
performance categories and a mark in the sixth spot on the officer comparison scale, indicating 
that his reporting officer “[s]trongly recommended [him] for accelerated promotion.”  However, 
according  to  ALCGPSC  110/132,  the  applicant  was  not  one  of  the  129  (out  of  187)  in-zone 
LCDRs selected for promotion by the CDR selection board that convened in July 2012. 

 

 

APPLICABLE REGULATIONS 

Article  10.A.1.b.1.  of  the  Personnel  Manual  in  effect  in  2010  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.4.c.9.  states  that  block  10  on  an  OER  should  contain  the  RO’s  comments 
regarding the reported-on officer’s “potential for greater leadership roles and responsibilities in 
the Coast Guard” and that the comments “reflect the judgment” of the RO. 
 
Article 10.A.4.g. allows an officer to submit a reply to an OER to express his own views 
 
of his performance for inclusion in his record.  Members of the rating chain may attach their own 
responsive comments to the OER Reply. 

 

 

 

FINDINGS AND CONCLUSIONS 

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

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

 
 
military record and submissions, the Coast Guard’s submission, and applicable law: 
 
 
The application was timely filed.  
 

1. 

2. 

The applicant  alleged that several comments in the disputed OER are erroneous, 
unjust, and inconsistent with the numerical marks he received.  The Board begins its analysis in 
every case by presuming that the disputed information in an applicant’s military record is correct 
as it appears in his record, and the applicant bears the burden of proving by a preponderance of 
the evidence that the disputed information is erroneous or unjust.3  Absent evidence to the con-
trary,  the  Board  presumes  that  Coast  Guard  officials  and  other  Government  employees  have 
carried out their duties “correctly, lawfully, and in good faith.”4  When challenging an OER, an 
applicant cannot “merely allege or prove that an [OER] seems inaccurate, incomplete or subjec-
tive  in  some  sense,”  but  must  prove  that  the  disputed  OER  was  adversely  affected  by  a  “mis-
statement of significant hard fact,” factors “which had no business being in the rating process,” 
or a prejudicial violation of a statute or regulation.5  The Board will address the disputed com-
ments in order as they appear in the OER. 

 
3. 

OER  Block  3:  “Insufficient  CMD  oversight  monitoring  &  directing  activity  of 

supply dept. personnel resulted in DX WLB fuel account going in the red at the end of FY-09.” 
 
The applicant alleged that this comment is inaccurate and unjust because an investigation 
 
showed  that  other  factors  contributed  to  the  problem.    He  also  alleged  that  the  XXXX’s 
Administrative  and  Financial  Compliance  Inspection  Report  dated  February  24,  2009,  and 
receipt of an “E” Award disprove the disputed OER comment and also misled him to feel confi-
dent about the cutter’s purchasing practices because “[t]here were no reasonably apparent indica-
tors for me as Commanding Officer to dig into unit purchasing practices until this one instance” 
at the end of fiscal year 2009.   
 
 
The  fact  that  the  investigation  into  the  XXXX’s  purchasing  procedures  identified  more 
than  one  contributing  cause  of  the  fuel  account  overdraft  does  not  mean  that  holding  the 
applicant accountable for the problem was erroneous or unfair.  The investigation revealed sev-
eral  shortcomings in the cutter’s Supply  Department  and concluded that  the usual procurement 
and  reconciliation  procedures  “broke  down”  because  the  cutter’s  DD-1149s  were  not  timely 
submitted.  As the CO, the applicant’s responsibility for the efficiency of the cutter was absolute 

                                                 
3 33 C.F.R. § 52.24(b). 
4 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
5 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). 

 

 

even if he had delegated duties to others.6  Holding him accountable for the significant shortcom-
ings in the Supply Department is neither erroneous nor unjust. 
 

The Board also finds that the compliance report that the applicant relied on raised several 
concerns about the cutter’s administrative and financial procedures, even though the cutter was 
found to be in overall compliance.  The compliance report included negative comments about the 
status  and  timeliness  of  the  cutter’s  financial  documentation.    Given  the  negative  comments  in 
the  compliance  report  and  the  repeated  warnings  the  XXXX  received  about  late  DD-1149s 
toward the end of fiscal  year 2009, the Board finds that the applicant’s rating chain reasonably 
concluded  that  he  should  have  known  that  more  oversight  and  direction  were  required  and  so 
ensured the prompt processing of the cutter’s DD-1149s. 
 

The  Board  disagrees  with  the  applicant  that  the  criteria  for  an  “E”  Award  and  the 
XXXX’s  receipt  of  that  award  because  of  its  “clean  sweep”  in  Tailored  Ships  Training 
Availability  in  October  2009  prove  that  his  oversight  and  direction  of  Supply  Department  per-
sonnel were not lacking or that better oversight and direction would not have prevented the fuel 
account  from  “going  into  the  red.”    The  award  is  issued  for  operational  excellence  and  not  for 
administrative or financial excellence.  Nothing in the criteria the applicant submitted or Chapter 
3.B.8. of the Medals and Awards Manual says anything about a requirement for administrative or 
financial excellence. 
 
 
The  declarations  of  the  rating  chain  member’s  also  contain  substantial  support  for  the 
accuracy of the disputed comment in block 3 of the OER as they show that the XXXX received 
repeated  warnings  about  filing  timely  DD-1149s.    The  Board  finds  that  the  applicant  has  not 
proved by a preponderance of the evidence that the disputed comment in block 3 is erroneous or 
unjust. 
 

4. 

OER  Block  4:    “Award  recommendations  frequently  required  additional  work, 

did not support level of awards.” 
 

The applicant alleged that this comment is inconsistent with the mark of 4 he received for 
the performance  category  “Writing”; that decisions about  what  level  of award members should 
receive  are  so  unpredictable  that  it  is  impossible  to  say  whether  any  particular  draft  citation  is 
insufficient  to  support  a  certain  level  of  award;  and  that  requiring  additional  work  on  awards 
citations is normal.   

 
On  an  OER  form,  the  written  standard  for  a  mark  of  4  for  “Writing”  requires  that  an 
officer’s writing be “clear, concise, and logically organized.  Proofread conscientiously.  Corre-
spondence grammatically correct, tailored to audience, and delivered by an appropriate medium.  
Subordinates’ material reflected same high standards.”  The Board finds that the disputed com-
ment, even though uncomplimentary, does not directly contradict the written standard for a mark 
of  4  and  so  is  not  erroneous.    The  Board  notes  that  block  4  also  contains  a  positive  comment 
about the applicant’s well written press releases.  Therefore, the Board finds that the comments 
in block 4 are sufficiently consistent with the assigned mark of 4 for “Writing” to comply with 
the requirement for consistency in Article 10.A.4.c.4.e. of the Personnel Manual. 
                                                 
6 Coast Guard Regulations, COMDTINST M5000.3B, section 4-1-2. 

 

 

 
The applicant has not submitted sufficient evidence to prove his claims that the approved 
levels of awards are so unpredictable or arbitrary that the criticism of his writing in this regard is 
unjust or that the amount of redrafting required for his submissions was not unnecessarily high.  
The declarations of the rating chain show that the applicant was repeatedly advised of the stand-
ards used by the District’s Awards Board  in  deciding the level  of award to recommend, but  he 
continued to  submit draft citations that did  not meet  those standards.   The Board  finds that the 
applicant has not proved by a preponderance of the evidence that the disputed mark in block 4 is 
erroneous or unjust. 
 

5. 

OER Block 5:  “Req’d prodding to hold subordinates accountable for low stds or 

irresponsible actions (Xxxxxxx chart corrections & personnel actions).” 
 
 
The  applicant  alleged  that  this  negative  comment  contradicts  the  mark  of  4  he  received 
for “Directing Others,” which required him to “set high work standards.”   Regarding the refer-
ence to “personnel actions” in this comment, the applicant noted that a CO is allowed to have a 
different  opinion  about  how  personnel  matters  should  be  handled  based  upon  his  intimate 
knowledge  of  his  crew  and  their  circumstances  and  so  his  different  opinion  on  such  matters 
should not have been criticized in the OER.  He alleged that his navigators’ use of an outdated 
navigational chart was a simple mistake that did not reflect irresponsibility or warrant any nega-
tive repercussions for them and that he complied with Coast Guard policy  by initiating the dis-
charge  of  a  member  whose  urine  tested  positive  for  marijuana  use  and  by  taking  disciplinary 
action against junior officers for their inappropriate behavior.  He alleged that he never refused to 
comply with applicable Coast Guard policies. 
 

The comment that the applicant had to be prodded into holding his subordinates account-
able does not directly contradict the written standard for a mark of 4 for “Directing Others” on an 
OER form, which states the following:  “A leader who earned others’ support and commitment.  
Set  high  work  standards;  clearly  articulated  job  requirements,  expectations  and  measurement 
criteria; held subordinates accountable.  When appropriate, delegated authority to those directly 
responsible for the task.”  The evidence before the Board does show that on one occasion—when 
his  navigators  used  the  wrong  chart  for  the  Xxxxxxx—the  applicant  refused  to  set  a  high 
standard  and  hold  subordinates  accountable—at  least  in  the  opinion  of  his  rating  chain.    The 
Board  does  not  believe  that  a  single  such  discrepancy  necessarily  proves  that  his  supervisor 
committed an error or injustice by assigning the applicant a mark of 4 for “Directing Others” or 
drafting the disputed comment.  The written standard for a mark of 4 does not use absolute lan-
guage  (such  as  “always”)  so  as  to  prohibit  the  assignment  of  the  mark  if  the  officer  did  not 
always meet the standards.  The rating chain’s declarations indicate that the applicant was usu-
ally prodded into holding his subordinates accountable for failing to meet high standards of per-
formance.  In addition, the mark of 4 for “Directing Others” is also supported in block 5 with a 
positive comment that his ability to motivate his crew resulted in “first-rate outcomes.”  There-
fore,  the  Board  is  persuaded  that  the  comments  in  block  5  are  sufficiently  consistent  with  the 
assigned mark of 4 to comply with the requirement for consistency in Article 10.A.4.c.4.e. of the 
Personnel Manual. 

 

 

 

The rating chain’s declarations amply support the accuracy and  fairness of this disputed 
comment.  The supervisor, RO, and reviewer can recall having to repeatedly “prod” the applicant 
to hold his subordinates accountable by taking action in accordance with policy when they com-
mitted  misconduct.    The  fact  that  the  applicant  ultimately  responded  to  their  prodding  by  fol-
lowing  the  prescribed  courses  of  action  does  not  contradict  the  disputed  comment.    The  Board 
finds that the applicant has failed to prove by a preponderance of the evidence that this comment 
is erroneous or unjust. 

 
6. 

 
“Usually”:    The  applicant  asked  the  Board  to  remove  the  word  “usually”  from 
this comment in block 5:  “OER’s/EPEF’s submitted on time, assigned marks usually met stand-
ards, ensured counseling provided required feedback.” 
 
 
The applicant alleged that the word “usually” is unsupported and makes this comment is 
inconsistent with the mark of 4 he received for “Evaluations.”  The written standard for a mark 
of 4 in this category requires that the officer submit his own and his subordinates’ evaluations on 
time; that he assign numerical  marks by applying the written standards; that the evaluations be 
fair and concise; that the assigned marks conform with the written standards; that the evaluations 
contain “specific observations” of performance; and that they require little revision.  
 

The  applicant’s  supervisor,  PSC,  and  the  JAG  stated  that  they  would  not  object  to  the 
removal of the word “usually.”  The supervisor did not  cite any specific examples of when the 
applicant assigned marks that did not meet the standards or claim that the word is inaccurate or 
misleading.  The RO argued that whether the inclusion of the word makes the comment incon-
sistent with the written standard for a mark of 4 is a matter of semantics.  The written standard 
for a middle mark of 4 does not require that an officer always assign marks perfectly in accord-
ance  with  the written standards; it requires the officer simply to  “assign[] marks against stand-
ards.” However, the written standard does not require an officer’s preparation of evaluations to 
be  perfect  but  allows  a  few  revisions.    Therefore,  the  Board  finds  that  the  supervisor’s  use  of 
“usually” in this comment is sufficiently consistent with the written standard for a mark of 4 to 
comply with the requirement for consistency in Article 10.A.4.c.4.e. of the Personnel Manual. 
 
 
The fact that two years after the supervisor wrote this disputed comment, he was appar-
ently  unable  to  recall  whether  the  applicant  had  always,  rather  than  just  usually,  “assign[ed] 
marks  against  standards”  does  not  persuade  the  Board  that  the  term  “usually”  is  misleading  or 
unjust.    The  Board  notes  in  this  regard  that  the  comment,  as  written,  is  presumptively  correct7 
and  that  inaccurately  assigned  evaluation  marks  would  be  quite  consistent  with  the  applicant’s 
failure to draft award recommendations with sufficient support for the level of the recommended 
award, as noted in block 4 of the disputed OER.  Nor does the Coast Guard’s lack of objection to 
the removal of “usually” from block 5 persuade the Board that its use is misleading, erroneous, 
or unjust since it was based on the supervisor’s lack of objection.   
 

The applicant complained that the word “usually” is not supported by a specific example 
—presumably, he means by an example of an inaccurately assigned numerical mark in an evalu-
ation he prepared.  However, the  amount of space for comments on an OER form is quite lim-
ited.    Article  10.A.4.c.4.  states  that  comments  should  reflect  “different  aspects”  of  an  officer’s 
                                                 
7 33 C.F.R. §52.24(b). 

 

 

7. 

OER Block 8:  “Approach to personnel actions during period generally indicated 

performance; “amplify and be consistent with the numerical evaluations”; and “identify specific 
strengths and weaknesses” of his performance.  The Board finds that the disputed comment sup-
porting the mark of 4 for “Evaluations” meets these requirements and that the lack of a descrip-
tion  of  a  specific  instance  when  the  applicant  assigned  a  mark  that  did  not  meet  the  written 
standards does not prove that the “usually” is erroneous or unjust.  The Board concludes that the 
applicant has not proved by a preponderance of the evidence that the comment that his “assigned 
marks usually met standards” constitutes an error or injustice. 
 
 
disconnect between self & Senior leadership … correct decisions eventually reached.” 
 
 
The applicant alleged that this comment is erroneous and unjust because it contradicts the 
mark of 4 he received for the category “Responsibility.”  The written standard for a mark of 4 in 
this  category  states  that  the  officer  “[h]eld  self  and  subordinates  personally  and  professionally 
accountable.  Spoke up when necessary, even when expressing unpopular positions.  Supported 
organizational policies and decisions which may have been counter to own ideas.  Committed to 
the successful achievement of organizational goals.”  The Board sees no contradiction between 
the  disputed  comment  and  the  mark  of  4  for  “Responsibility.”    The  written  standard  does  not 
state that the officer must always agree with the Coast Guard’s or Senior leadership’s positions 
or policies and even notes that an officer may express an unpopular position and does not have to 
agree with policies.  The written standard requires that an officer be committed to the achieve-
ment  of  organizational  goals  and  support  organizational  policies  and  decisions  even  if  he  dis-
agrees  with  them.    The  disputed  comment  does  not  show  that  the  applicant  failed  to  meet  this 
standard.    Moreover,  Article  10.A.4.c.4.e.  authorizes  comments  that  reflect  both  strengths  and 
weaknesses and does not state that only strengths can be mentioned when a mark of 4 or above is 
assigned. 
 

8. 

The rating chain’s declarations strongly support the accuracy and appropriateness of this 
comment in block 8.  The Board finds that the applicant has not proved by a preponderance of 
the evidence that the comment is erroneous or unjust or inconsistent with the written standard for 
the assigned mark of 4.    
 
 
OER Block 10:  The applicant asked the Board to remove the underlined phrase 
from  this  comment  in  block  10:    “Based  upon  shiphandling  and  tactical  operations  skills,  has 
high potential for future success as WMEC XO or WMSL OPS with mentoring on personnel and 
administrative details.” 
 
 
The  applicant  alleged  that  this  comment  is  unwarranted  and  rebutted  by  all  of  the  evi-
dence he submitted.  He alleged that the compliance report, “E” Award, and “clean sweep” dur-
ing  TSTA  training  in  October  2009  demonstrate  his  excellent  performance  in  personnel  and 
administrative matters and thus contradict the comment.  However, as noted above, the compli-
ance report clearly identifies shortcomings in administrative matters, and nothing in the criteria 
for an “E” Award expressly requires excellence in personnel and administrative matters.  Nor has 
the  applicant  shown  that  excellent  performance  in  personnel  and  administrative  matters  is  a 
requirement  for  a  clean  sweep  in  TSTA.    The  OER  itself  and  the  rating  chain’s  declarations 
noted significant weaknesses in the applicant’s oversight  and handling of certain personnel and 

 

 

administrative  details.    The  comment  is  appropriate  given  the  purpose  of  block  10  comments 
under Article 10.A.4.c.9. of the Personnel Manual, and the RO is expressly allowed to exercise 
his own judgment in commenting on an officer’s potential to fill more responsible positions.  The 
Board  finds  that  the  applicant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  the 
disputed comment in block 10 of the OER is erroneous or unjust. 

 
9. 

The applicant has not proved by a preponderance of the evidence that the disputed 
OER  is  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.8  There-
fore, the Board finds no grounds for granting the requested relief in this case. 

 
10. 

Although the applicant did not expressly request removal of his non-selection, his 
application  clearly  shows  concern  about  the  possibility  of  non-selection,  and  the  Coast  Guard 
addressed the matter in the advisory opinion, which was sent to the applicant.  Under Engels v. 
United  States,  678  F.2d  173,  176  (Ct. Cl.  1982),  removal  of  a  non-selection  requires  both  the 
existence of a prejudicial  error in  the applicant’s record when it was reviewed by the selection 
board and a finding that it is not unlikely that the applicant would have been selected if there had 
not been a prejudicial error in his record.  When an officer shows that his record was prejudiced 
before a selection board by error, “the end-burden of persuasion falls to the Government to show 
harmlessness—that,  despite  the  plaintiff’s  prima  facie  case,  there  was  no  substantial  nexus  or 
connection” between the prejudicial error and the failure of selection.9  To void a failure of selec-
tion, the Board “need not find that the officer would in fact have actually been promoted in the 
absence of the error, but merely that promotion was not definitely unlikely or excluded.”10  How-
ever, because the  Board  has not  found any error  or injustice in  the disputed OER, there  are no 
grounds for disturbing the applicant’s non-selection for promotion by the July 2012 CDR selec-
tion board.   

 
11. 

The Board has found no error or injustice in the disputed OER, including the use 
of the word “usually” in block 5.  However, even assuming arguendo that the use of  “usually” 
were deemed erroneous or unjust, the Board notes that its inclusion in the OER would not justify 
removal of the applicant’s non-selection for promotion under the Engels test.  The use of “usu-
ally” in block 5 is not prejudicial because it denotes at most the lack of perfection in the prepara-
tion of subordinates’ evaluations, which is already quite obvious due to the mark of 4 (on a scale 
of 1 to 7) in the category “Evaluations.”  Given the mark of 4 for “Evaluations,” the supporting 
comment  indicating  that  the  applicant  usually  (but  not  always)  assigned  accurate  marks  in  his 
subordinates’ evaluations cannot be considered prejudicial. 

 
12. 
 

 
 

Accordingly, the applicant’s request should be denied. 

 

                                                 
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 Christian v. United States, 337 F.3d 1338, 1343 (Fed. Cir. 2003), citing Engels v. United States, 678 F.2d 173, 175 
(Ct. Cl. 1982); Quinton v. United States, 64 Fed. Cl. 118, 125 (2005). 
10 Engels v. United States, 678 F.2d 173, 175 (Ct. Cl. 1982). 

 

 

 

ORDER 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

military record is denied.   

        

 
 Donna M. Bivona  

 

 

 
 Andrew D. Cannady 

 

 

 
 Francis H. Esposito