DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2012-109 
 
Xxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxx 

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  29,  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 21, 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 or amending an officer 
evaluation  report  (OER)  covering  his  service  as  the  Operations  Officer  (Ops)  of  a  cutter  from 
May  24,  2008,  to  July  5,  2009,  and,  if  removed,  by  replacing  it  with  a  Continuity  OER.    The 
applicant  alleged  that  the  disputed  OER  was  prepared  in  violation  of  the  Personnel  Manual  in 
effect in 2009 because the Reporting Officer, who was the commanding officer (CO) of the cut-
ter, improperly pressured his supervisor, the Executive Officer (XO) of the cutter, to assign him 
lower marks than the XO thought he should receive. 
 

The disputed OER, which is attached, shows that the applicant received high marks of 5 
and 6 in  many performance categories.1  However, from  his  supervisor,2 the XO, the applicant 
received average marks of 4 for “Developing Others,” “Directing Others,” and “Workplace Cli-
mate” and a just above-standard mark of 5 for “Results/Effectiveness.”  The XO did not include 
any  negative  comments  in  his  portion  of  the  OER.    The  CO  assigned  the  applicant  a  below-
standard  mark  of  3  for  “Responsibility,”  supported  by  the  following  comment  in  block  8: 
“Unfortunately failed to  provide timely feedback to subordinates that may have prevented their 
                                                 
1  In  OERs,  officers  are  evaluated  in  18  different  performance  categories,  such  as  “Professional  Competence,” 
“Teamwork,” and “Initiative,” on a scale of 1 to 7, with 7 being best.   
2  An  officer  is  evaluated  by  a  “rating  chain”  of  three  superior  officers,  including  a  supervisor,  who  completes  the 
first 13 marks on the OER; a reporting officer, normally the supervisor’s supervisor, who completes the rest of the 
OER; and an OER reviewer, who reviews the OER for consistency and comportment with regulations. 

 

 

missteps  in  perpetuating  inappropriate  [and]  unprofessional  conduct;  inaction  created  a  pre-
sumption that behavior was acceptable.”  The CO recommended the applicant for promotion but 
assigned him a mark in the fourth spot on the officer comparison scale,3 which denotes merely a 
“Good performer; give tough, challenging assignments.” 

 
The applicant noted that other crewmembers’ OERs suffered from the same problem  of 
undue influence and that this Board or the Personnel Record Review Board (PRRB) has granted 
relief  to  them  by  removing  their  disputed  OERs.    See  final  decisions  for  BCMR  Docket  Nos. 
2011-082 and 2011-035. 

 
The applicant alleged that the CO’s mark of 3 for “Responsibility” and supporting nega-
tive comment in block 8 are erroneous, unjust, and not based on direct observations or reliable 
reports of others, as required by the Personnel Manual.   He said they are erroneous because he 
did,  in  fact,  provide timely feedback to  his  subordinates in  the situation addressed by the com-
ment.   

 
The applicant explained that the CO’s comment concerns a bridge “quote book” that was 
started on the cutter in 1999, long before he came aboard in 2007.  He was unaware of the quote 
book until the Assistant Ops Officer (AOps) brought  it to  his attention in the summer of 2008.  
The  AOps  told  the  applicant  that  he  intended  to  remove  the  quote  book  from  the  bridge  and 
sought the Ops support.  The applicant alleged that the AOps did not tell him that the book con-
tained inappropriate language or content but said that it should be removed “to increase the pro-
fessionalism of the bridge watch and suggested the book might be a distraction to maintaining a 
proper watch on the bridge.”  However, the AOps was a senior Deckwatch Officer and had been 
the Navigation Officer responsible for maintaining the bridge equipment, logs, and manuals, so 
the  applicant  trusted  his  recommendation.    The  AOps  left  the  book  on  the  applicant’s  desk 
“where it remained for a day or two during which time I did not  review it as I was focused on 
conducting  the  operations  of  the  patrol  we  were  conducting.”    The  applicant  alleged  that  the 
AOps removed the book a few days later, and the applicant assumed the book was not going to 
be returned to the bridge. 

 
In early spring of 2009, however, the CO brought the quote book to an Officer’s Call and 
said it contained many inappropriate entries made by past and present members of the crew.  She 
was very upset about the content of the book but did not let him see it.  After the meeting, the 
applicant met with the CO and XO about the book, and they agreed that he should counsel the 
AOps  and  other  subordinates  in  the  Operations  Department  to  ensure  that  they  understood  the 
content of the book was inappropriate.  The CO did not mention any need for punishment.  The 
applicant  said  that  he  promptly  followed  through  by  meeting  with  his  subordinates  to  counsel 
them about the quote book. 

 

                                                 
3  On  an  OER  Comparison  Scale,  the  reporting  officer  assigns  a  mark  by  comparing  the  reported-on  officer  to  all 
other officers of the same grade whom the reporting officer has known throughout her career.  Although the marks 
on the scale are not numbered, there are 7 possible marks, which range from a low of “unsatisfactory” for a mark in 
the first spot on the scale to a high of “a distinguished officer” for a mark in the seventh spot.  A mark in the third, 
fourth (middle), or fifth spot on the scale denotes the officer as “one of the many competent professionals who form 
the majority of this grade.”   

 

 

Later  that  spring,  after  he  prepared  the  supervisor’s  portion  of  his  subordinate  officers’ 
OERs, the XO told him that the CO said the marks he assigned were too high and should be low-
ered because of the circumstances surrounding the quote book.  Moreover, the XO told him that 
“failing  to  do  so  could  negatively  affect  my  own  marks  since  the  CO  would  not  approve  the 
marks I initially submitted.”   

 
The applicant alleged that when he received a copy of his own OER in July 2009, he did 
not contest it because he thought that doing so would only lead to further problems and poten-
tially delay his departure for his next assignment, which was post-graduate school.  However, the 
mark of 3 is erroneous and unjust and should be raised to a 6 because if the CO’s erroneous sup-
porting comment is removed, the rest of the comments support a mark of 6. 

 
 
The  applicant  also  alleged  that  the  low  mark  of  3  for  “Responsibility”  is  erroneous 
because the disputed OER contains some comments that reflect positively on his responsibility:  
“Held  second  chance  first  termer  accountable  upon  return  to  unit,  member  now  w/  clear  docu-
ment[ed] performance goals [and] expectations, well on way towards re-earning trust.  Held divi-
sion accountable for COMSEC miscue, responsibly focused on lessons learned.”  Moreover, he 
argued, if he had actually been irresponsible, as indicated by the low mark, he would have been 
removed  as  the  Operations  Officer,  because  that  position  was  responsible  for  35  subordinates 
divided among the Navigation, Communications, Weapons, and Electronics Divisions, especially 
since the cutter was going on a law enforcement patrol and undergoing  Tailored Annual Cutter 
Training. 
 
 
The  applicant  alleged  that  the  supporting  comment  for  the  low  mark—“Unfortunately 
failed to provide timely feedback to subordinates that may have prevented their missteps in per-
petuating  inappropriate  [and]  unprofessional  conduct;  inaction  created  a  presumption  that 
behavior was acceptable”—is also erroneous because as soon as he was informed of the inappro-
priate nature of the quotes in the quote book he did promptly counsel his subordinates as directed 
by the CO. 
 

The applicant also alleged that the marks of 4 for “Developing Others,” “Directing Oth-
ers,” and “Workplace Climate” and the mark of 5 for “Results/Effectiveness” are erroneous and 
unjust because the XO was directed by the CO to lower these marks.  The applicant noted that 
there are only positive comments supporting these marks and alleged that the comments support 
higher marks in these categories.  The applicant alleged that based on the comments in the OER, 
he should have received the highest mark, a 7, for “Results/Effectiveness,” which is the mark he 
had received in his immediately preceding OER for this performance category. 

 
The applicant alleged that he should have received a mark of 6 for “Developing Others.”  
He alleged that the supporting comments entered by the XO meet the written standard for a mark 
of 6.  He noted that he had previously received a mark of 5 in this category but that his responsi-
bilities  had  significantly  increased  in  the  reporting  period  for  the  disputed  OER  and  the  com-
ments show that he was very successful in developing other despite the increased responsibility. 

 
The  applicant  alleged  that  he  should  have  received  a  mark  of  6  for  “Directing  Others.”  
He alleged that the supporting comments entered by the XO meet the written standard for a mark 

 

 

of 6.  He noted that he had previously received a mark of 5 in this category but that his responsi-
bilities  had  significantly  increased  in  the  reporting  period  for  the  disputed  OER  and  the  com-
ments  show  that  his  direction  of  junior  officers  and  other  subordinates  resulted  in  exceptional 
results, such as a significant cocaine seizure, saving 318 lives from unsafe vessels, twice termi-
nating illegal fishing operations, and flight deck recertification.   

 
The applicant alleged that the mark of 4 for “Workplace Climate” is erroneous and based 
on his supposed failure to interdict the quote book even though he supported its removal from the 
bridge when he first learned about it.  The applicant noted that he had received a 6 in this cate-
gory on his prior OER and that none of the supporting comments for the mark reflect a decline in 
his performance in this area. 

 
 
The  applicant  alleged  that  the  mark  in  the  fourth  spot  on  the  officer  comparison  scale 
should  be  raised  to  the  fifth  spot,  which  denotes  an  “Excellent  performer;  give  toughest,  most 
challenging  leadership  assignments.”    He  alleged  that  if  other  marks  on  the  disputed  OER  had 
not been erroneously and unjustly lowered, his marks in the performance categories would have 
supported a mark in the fifth spot.  The applicant also alleged that the CO’s comments about his 
leadership potential in block 10 support a mark in the fifth spot on the comparison scale.  More-
over, he argued, because he was already serving  as the Ops of a medium endurance cutter, the 
CO’s  comments  that  he  was  prepared  for  “more  challenging  positions”  and  “exhibited  multi-
tasking skills  and vast  operational  knowledge” logically correspond to  a  mark denoting that, in 
comparison with his peers, he was ready for the most challenging leadership assignments.  
 
 
Therefore,  the  applicant  asked  the  Board  to  correct  the  disputed  OER  by  removing  the 
erroneous  comment  and  raising  the  assigned  marks  as  requested.    However,  he  asked,  if  the 
Board  decides  that  any  of  these  particular  corrections  cannot  be  made,  he  wants  the  Board  to 
remove the entire OER from his record and have it replaced with a Continuity OER. 
 
 
In support of these allegations, the applicant  submitted copies of the disputed OER, his 
previous OER, prior decisions of the PRRB and BCMR in his subordinates’ cases (they submit-
ted statements authorizing his use of them), and some of the evidence submitted in those cases.  
The witnesses’ statements summarized in the BCMR’s prior decisions on this matter are incorpo-
rated in this decision by reference.   
 
 
In  BCMR  Docket  No.  2011-082,  the  AOps  stated  that  in  2008,  he  consulted  the  Ops 
about issues he was having with a fellow junior officer and gave the Ops the quote book because 
it contained examples of the problems that were causing him concern.  The AOps alleged that he 
told  the  Ops  that  he  had  removed  the  quote  book  from  the  bridge  because  of  its  questionable 
content, but that someone took it from him without his consent at the direction of the other junior 
officer  and returned it to  the bridge.  The  AOps  gave the quote book to  the  Ops to  review and 
also consulted members of the Chiefs’ Mess about how to handle the matter.  As a result of the 
consultation with the Chiefs, he told the Ops that he thought the quote book should be removed 
from  the  bridge  and  quotations  could  be  recorded  on  the  back  of  the  wake-up  log  book  for  a 
while.  The Ops agreed, and the AOps took the quote book since he intended to create a new one 
without the offensive content.  However, in April 2009, while he and several other junior officers 
were off the cutter for five days pursuant to the board of a fishing vessel, someone removed the 

 

 

quote book from  his  stateroom without his  consent  or knowledge and returned it to  the bridge, 
where the CO found it shortly thereafter. 
 

The only pages of the quote book in the Board’s possession are two pages submitted by 
the  CO  for  a  prior  case.    The  first  page  contains  quotations  entered  in  the  book  in  early  2008 
before she took command of the cutter: 
 

During  G.E:  SN  [name]  is  explaining  that  he  never  gets  in  trouble  when  he  gets  drunk.    Mr. 
[name] asks “What about getting anybody pregnant?”  [SN]: “Well, I got a … .” 
 
During  flight  quarters:    Captain:  “What  do  you  call  it  when  you  have  meridian  passage  of  the 
moon?”  Nobody answers, so he says, “Local apparent moon.”  A few chuckle.  BM [name] says:  
“Captain, those were sympathy laughs.” 
 
29  Feb.  [The  applicant]  enters  the  bridge  and  quotes  BM3  [name]:  “How’s  it  goin  …  “[m.f.] 
[name]?”  BM3: “Alright but I gotta get a relief soon so I can go take a shit.”  [LTJG X]: “Why 
wait BM3?”  BM3 [name]: “Eh, I’ll go when it hits the crack of that ass … that’s when I know it’s 
time.” 
 
01 MAR 08 – Mid watch 
LTJG [name] to ENS [name]: “I’m not trying to impress you, [name].  I’m trying to break world 
records here.” 

 
 
The second page that the CO submitted bears the heading “MAR – MAY ‘09” and con-
tains the following quotations, which appear to have been entered by just two people, one who 
wrote the heading and made the first four entries and another who made the last two entries: 
 

  BM1 [name]: “[name] was … and praying.” 
 
  BM3 F: “Man,  you try to find someone to help  me out, so I can go to this  meeting, and no 
one is around.  But, if someone needs a relief to go to something, they  come find my black 
ass.” 

 
  CIC [name]: “Chupacabra, Shark 01, I have you soft and broken.”  OOD:  “Ouch that sucks.” 
 
  BM2 H: (Answers phone on bridge.) “Hello.  You want to do what with the boom?”  (Hands 

phone to OOD.)  “It’s [name], I don’t know what he is saying.” 

 
  ENS [name]: “I [unreadable word] at the chart.” 
 
14  APR  ’09:  BM2  H:  “Sir,  I could  definitely  see  you  being  sold  into  sex  trafficking.”    ENS  W: 
“Quote book.” 

 

VIEWS OF THE COAST GUARD 

 
 
On August 14, 2012, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion in which he recommended that the Board grant relief by removing the disputed 
OER and replacing it with a Continuity OER.  In making this recommendation, the JAG adopted 
the findings and analysis provided in a memorandum on the case prepared by the Personnel Ser-
vice Center (PSC). 
 

 

 

PSC’s Memorandum 
 
The PSC submitted sworn declarations signed by the applicant’s rating chain, which are 
 
summarized  below,  and  in  light  of  those  declarations  concluded  that  the  rating  chain  did  not 
carry out its duties properly under the Personnel Manual.  The PSC stated that the XO’s declara-
tion  shows  that  he  was  improperly  directed  by  the  CO  to  lower  marks  he  had  assigned  to  the 
applicant when drafting the disputed OER and would have assigned higher marks in several cat-
egories “had he not felt compelled to provide marks” that the CO would accept.  “It is clear to 
PSC  that  [the  XO’s]  sections  [of  the  OER]  so  not  document  an  independent  view.    This  goes 
against the intent of, and is in violation of, the OER [officer evaluation system].” 
 
 
PSC  noted  that  the  CO  is  adamant  in  her  declaration  that  she  did  not  direct  the  XO  to 
lower  the  applicant’s  marks.    PSC  “believes  the  influence  [the  XO]  felt  came  from  a  series  of 
disputed  evaluations  from  officers  during  the  2009  timeframe”  aboard  the  cutter.    “While  the 
[CO]  continues  to  declare  that  she  never  unduly  influenced  others  in  completing  evaluations, 
[PSC]  yields  to  several  BCMR  and  PRRB  decisions  where  others  have  disagreed  and  subse-
quently ordered removal of evaluations from officers’ records.”  PSC stated that it is reasonable 
to believe both that the CO did not expressly direct the XO to lower the applicant’s marks and 
that the XO, nonetheless, felt influenced to submit lower marks than he thought were deserved. 
 
 
PSC  stated  that  the  XO  should  have  assigned  the  marks  he  thought  the  applicant  had 
earned  and noted that the CO had the opportunity  in  block 7 of the OER to  express  her agree-
ment or disagreement with the marks and comments assigned by the XO.  PSC stated that if the 
XO had assigned marks in accordance with the OES, the disputed OER would likely have con-
tained higher marks in the XO’s section and appeared quite different, but because the CO would 
have had the opportunity to comment on the XO’s section, PSC cannot state whether the result-
ing OER would have been more positive or negative than the disputed OER. 
 

Regarding  the  disputed  marks  and  comment  assigned  by  the  CO,  PSC  stated  that  the 
applicant has submitted insufficient evidence to refute them.  PSC noted that officers’ marks are 
supposed to  reflect  their performance during a particular  reporting period and so do not  neces-
sarily reflect a trend. 

 
PSC concluded that there is enough evidence to overcome the presumption of regularity 
with  respect  to  the  preparation  of  the  disputed  OER,  “and  coupled  with  precedence  from  prior 
BCMR  and  PRRB  findings,  there  is  a  basis  for  removing  the  OER”  because  the  XO  failed  to 
carry  out  his  responsibility  as  the  applicant’s  supervisor  to  provide  an  independent  evaluation.  
PSC stated that the entire OER should be removed from the applicant’s record and replaced with 
a Continuity OER because raising the marks assigned by the XO in his section would render the 
CO’s concurrence and comments in block 7 erroneous. 
 
Declaration of the XO of the Cutter 
 
The XO of the cutter, who prepared the supervisor’s portion of the disputed OER, stated 
 
that he had no knowledge of the quote book until the CO brought it to his attention in the spring 
of 2009 and she refused to let him see the entries in it or to tell him who wrote the objectionable 

 

 

comments in it.  When he discussed the book with his subordinates, the applicant told him that 
the AOps had brought him the quote book in the summer of 2008 and that it had sat on his desk 
for  a  couple  of  days,  but  he    did  not  read  it  because  he  did  not  think  it was  a  pressing  matter.  
Because  the  AOps  had  said  he  was  going  to  remove  it  from  the  bridge,  the  applicant  did  not 
think that the quote book would be returned to the bridge after the AOps retrieved it.   
 
 
Regarding  the  disputed  OER,  the  XO  said  that  the  CO  did  influence  him  to  lower  the 
applicant’s  marks  “to  some  degree.”    She  did  not  specify  exactly  what  marks  the  XO  should 
assign but told him that the AOps  
 

was  responsible  for  [the]  perceived  performance  shortfalls  of  those  in  his  department.    It  is  my 
opinion that the shortfalls that the [CO] perceived were heavily influenced by some of the entries 
she  saw  in  the  quote  book.    Since  she  did  not  permit  me  to  read  the  book,  I  [did]  not  have 
knowledge of the specific inappropriate behavior in which she perceived the crew engaged.  I had 
at least one discussion with the [CO] regarding [the applicant’s] OER and his overall performance 
in which she made it clear that [his] inaction when presented the quote book was inexcusable and 
indicative of his lack of leadership. 

 
 
Regarding the disputed marks, the XO said that for “Results/Effectiveness,” “Developing 
Others,”  and  “Workplace  Climate,”  he  would  have  assigned  the  applicant  higher  marks  but 
assigned him the highest marks in those categories that he thought the CO would accept.  He said 
he would have assigned the applicant a 6 for “Results/Effectiveness,” a 6 for “Developing Oth-
ers,” and a 5 for “Workplace Climate.”  He did not address the applicant’s complaint about the 
mark of 4 for “Directing Others.” 
 
 
The XO noted that while the CO was responsible for the mark of 3 for “Responsibility,” 
the supporting negative comment, and the comparison scale mark, the CO had him draft her sec-
tion of the disputed OER for her, he drafted it knowing that expected the OER to hold the appli-
cant  accountable  for  the  circumstances  surrounding  the  quote  book,  and  she  adopted  his  draft 
with little revision.  However, the XO strongly believes that the mark of 3 for “Responsibility” 
does not reflect the applicant’s actual performance and that the applicant “had no part in the per-
petuation of any inappropriate or unprofessional  conduct” as stated in the OER comment.  The 
XO stated that he spent far more time on the bridge than the CO and “never witnessed any inap-
propriate behavior or unprofessional conduct.”   
 
 
Regarding  the  comparison  scale  mark,  the  XO  stated  that,  while  it  is  a  subjective  mark 
assigned by the CO, it was influenced by the CO’s erroneous perception that the applicant  had 
perpetuated  inappropriate  and  unprofessional  behavior  on  the  bridge.    The  XO  stated  that  he 
thinks that the applicant performed well enough in one of the most challenging LT assignments 
in the Coast Guard to merit a mark in the sixth spot on the comparison scale as an “exceptional 
officer.” 
 
 

 

 

 

Declaration of the CO of the Cutter 
 
 
The CO, who served as the reporting officer for the disputed OER, stated that she did not 
direct  the XO to  change any mark or  comment  that the XO entered in  his section of the appli-
cant’s evaluation.  The CO stated that she believes that the OER is an accurate reflection of the 
applicant’s performance during the reporting period. 
 
The CO stated that the quote book was maintained on the bridge of the cutter and that the 
 
applicant was frequently on the bridge while the cutter was inport and underway.  The applicant 
supervised all of the bridge watchstanders.  The quote book “contained references to perverted, 
disgusting,  and  unprofessional  behavior  in  direct  opposition  to  Coast  Guard  core  values.    The 
book  detailed  sex  acts,  including  masturbation,  bestiality  and  oral  sex.    The  book  documented 
disrespect from officers to enlisted members and from enlisted members to officers.”  The appli-
cant was in a position to stop such behavior and admitted that in 2008, the AOps had approached 
him to discuss what to do about the book.  However, the applicant took no action and therefore 
failed his subordinates by not stopping their unacceptable practice. 
 
 
The CO alleged that the applicant’s claim that he did not review the quote book is false.  
The AOps told her that when he gave the quote book to the applicant, he discussed the contents 
with him.  At some point the AOps got the book back from the applicant, who “never directed 
that the practice of documenting unprofessional behavior be stopped.”  The CO alleged that the 
quote book “was actively maintained” until she discovered it on the bridge in April 2009. 
 
 
The CO wrote that she had several conversations with the applicant about the quote book, 
and he never denied knowledge of the presence or content of it.  Instead, the applicant told her 
that he “didn’t think it was a big deal.”  Therefore, she wrote him an administrative letter of cen-
sure.    She  submitted  a  copy  of  the  letter,  which  states  that  the  applicant’s  “knowledge  of  the 
book, failure to stop the quote book coupled with the behavior detailed in the book shows a grave 
lack of judgment and lapse in our core values” and that he had “failed to provide timely feedback 
to your subordinates that may have prevented their missteps.”  The applicant told her he thought 
the administrative letter of censure was unduly harsh.   
 
 
The CO stated that the disputed comment in block 8 of the OER “is true, based on infor-
mation  accumulated  during  the  reporting  period,  and  should  remain.”    She  cannot  recall  the 
applicant every counseling other officers about the book, and she presented them with adminis-
trative letters of censure too. 
 
 
The CO stated that the laudatory comments in the OER show that the applicant’s perfor-
mance  as Ops  was acceptable.  She stated that the OER marks were based on his  performance 
throughout the reporting period and cited the following examples of poor performance justifying 
the assigned marks: 
 

  She  was  the  first  female  CO  aboard  the  cutter  and  the  only  female  on  board  when  she 
took  command  in  June  2008.    Before  the  first  operational  brief  she  attended,  the  appli-
cant, who led the briefs, told her that “certain [operational] terms were reviewed at each 

 

 

 

 

brief  for  professional  development.”    The  term  chosen  for  review  at  her  first  brief  was 
“hooker.” 

  During the reporting period, the CO’s computer files “became public without my permis-
sion or knowledge.”  The applicant was notified but failed to tell her, but at ET2 told her.  
The applicant  took  no action to  learn how the lapse in  computer security had happened 
until she told him to. 

  Concerns were raised about the health, well-being, and finances of a crewmember with a 
top  secret  security  clearance.   The CO met with  the applicant and others  and adopted a 
plan  of  action.    When  the  plan  of  action  was  not  carried  out,  she  asked  a  chief  petty 
officer why not, and he told her that the applicant had told him not to carry out the plan. 
 

  Personnel  in  the  Operations  Department  had  numerous  disciplinary  problems  that  were 
addressed at mast.  Two chief petty officers were not recommended for advancement and 
were almost place on performance probation, and a petty officer lost his access to classi-
fied information and was ultimately arrested by local police after barricading himself in 
his home with weapons. 
 

  The Chief’s Mess on the cutter told her that the applicant was insensitive and abrupt with 

the crew and “did not promote and environment of open communication and respect.” 
 

  Coast Guard policy and procedures were not always followed in the Operations Depart-
ment.    Personal  protective  equipment  was  not  worn  as  required,  logs  were  not  properly 
maintained  in  the  Weapons  Division,  and  “during  training,  a  weapons  system  was  not 
handled properly which resulted in non-eligibility for a unit level award.” 
 

  Following  a  boarding  operation,  the  applicant  presented  to  her  for  approval  a  law 

enforcement package with “notes written on the back of a Pop Tart box.” 
 
The CO noted that she vehemently disagrees with the relief granted in the BCMR’s and 
PRRB’s prior cases.  She alleged that relief was granted in those cases based on “factually incor-
rect statements” provided by the applicant and the XO.  She averred that she had never directed a 
subordinate officer to change assigned marks or comments on an OER but had, as authorized by 
policy, returned draft OERs for reconsideration and corrections of errors, omissions, and incon-
sistencies. 

 
The CO stated that the applicant’s claim that he could not discuss the disputed OER with 
her is “baseless and false” because he had discussed difficult topics with her in the past and she 
always  maintained  professional  communications.    She  stated  that  the  XO  often  discussed  the 
applicant’s performance with her and expressed his frustration with it.  Moreover, the XO fully 
participated  in  giving  the  applicant  the  letter  of  censure  and  himself  contacted  the  Officer  Per-
sonnel Management Branch of PSC and described the quote book matter as “a significant emo-
tional  event”  for  another  junior  officer  (for  whom  the  PRRB  granted  relief).      She  submitted  a 
copy of an email in which someone from PSC mentioned that the XO had described it that way. 

 

 

 

The  CO  stated  that  during  the  reporting  period  she  discussed  with  the  XO  her  expecta-
tions of the OER process, the standards in the Personnel Manual, and the purpose and use of “do 
not concur” comments in block 7 and Reviewer comments.  She remembers telling him, “I don’t 
want any funny business,” by which she meant that she wanted him to follow the standards.  The 
XO  indicated  that  he  understood  her.    Moreover,  the  CO  alleged  that  she  had  retained  “legal 
counsel to assist me in drafting charges for the Convening Authority to take action against [the 
applicant and the XO’s] false statements. 

 
The  CO  alleged  that  the  OES  was  sound  on  the  cutter.    Based  on  OERs  she  provided, 
other officers on the cutter had been promoted and received orders to serve as the COs and XOs 
of other cutters and to attend flight school.  “These officers were marked with the same integrity 
to the OES as [the applicant] was marked.” 
 
Declaration of the OER Reviewer 
 
 
The Deputy Chief of Atlantic Area Cutter Forces served as the reviewer of the disputed 
OER.  He stated that he believes that the applicant “is of great character and a fine Coast Guard 
officer.”    He  did  not  observe  the  performance  discussed  in  this  application  and  was  “a  bit  sur-
prised” when he saw the applicant’s OER but followed the procedures for reviewing OERs in the 
Personnel Manual. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On August 24, 2012, the Chair sent the applicant a copy of the views of the Coast Guard 
and invited him to reply within 30 days.  No reply was received.  (The applicant was selected for 
promotion to lieutenant commander in July 2012 with the disputed OER in his record.)   

SUMMARY OF THE REGULATIONS 

 

 
Article 10.A.1.b.1. of the Personnel Manual states that COs “must ensure accurate, fair, 
 
and  objective  evaluations  are  provided  to  all  officers  under  their  command.”    Article  10.A.2.a. 
states  that  an  officers  “rating  chain  [supervisor,  reporting  officer,  and  reviewer]  provides  the 
assessment of an officer’s performance and value to the Coast Guard through a system of multi-
ple evaluators and reviewers who present independent views and ensure accuracy and timeliness 
of reporting.” 
 

Article  10.A.4.c.4.  of  the  manual  provides  the  following  instructions  for  Supervisors 
completing the first 13 marks on an OER (similar instructions are provided for Reporting Offi-
cers for completing 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. [Emphasis added.] 

 

 

 

●  ●  ● 

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. [Emphasis added.] 
 
e. Comments should amplify and be consistent with the numerical evaluations. They should iden-
tify specific strengths and weaknesses in performance. … 

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

●  ●  ● 

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

 
Article 10.A.2.e.2.c. states that a reporting officer “[e]nsures the Supervisor fully meets 
responsibilities  for  administration  of  the  OES.  Reporting  Officers  are  expected  to  hold  desig-
nated Supervisors accountable for timely and accurate evaluations. The Reporting Officer shall 
return a report for correction or reconsideration, if the Supervisor’s submission is  found incon-
sistent with actual performance or unsubstantiated by narrative comments. The Reporting Officer 
shall not direct that an evaluation mark or comment be changed (unless the comment is prohib-
ited under Article 10.A.4.f.).” 
 

FINDINGS AND CONCLUSIONS 

1. 

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

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

 
 
military record and submissions, the Coast Guard’s submission, and applicable law: 
 
 
The application was timely filed.  
 
 
The applicant asked the Board to correct or remove from his record his OER for 
the period May 24, 2008, to July 5, 2009.  The Board begins its analysis by presuming that a dis-
puted OER in an officer’s military record is correct and fair, and the applicant bears the burden 
of proving by a preponderance of the evidence that the OER is erroneous or unjust.4  Absent spe-
cific  evidence  to  the  contrary,  the  Board  presumes  that  the  members  of  an  applicant’s  rating 
chain have acted “correctly, lawfully, and in good faith” in preparing their evaluations.5  To be 
entitled to relief, the applicant cannot “merely allege or prove that an [OER] seems inaccurate, 
incomplete  or  subjective  in  some  sense,”  but  must  prove  that  the  disputed  OER  was  adversely 

2. 

                                                 
4 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002, approved by the Deputy 
General Counsel, May 29, 2002) (rejecting the “clear and convincing” evidence standard recommended by the Coast 
Guard and adopting the “preponderance of the evidence” standard for all cases, including disputes over OERs, prior 
to the promulgation of the latter standard in 2003 in 33 C.F.R. § 52.24(b)).   
5 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

 

 

3. 

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.6 
 
 
The applicant has alleged and proved by a preponderance of the evidence that the 
disputed OER was prepared in violation of Article 10.A.2.a. of the Personnel Manual because his 
supervisor, the XO, failed to exercise his independent judgment in assigning the applicant marks 
in  the  disputed  OER  and  instead  assigned  the  applicant  only  the  highest  marks  the  XO 
assumed—apparently without proof—that the CO would accept.  The XO has executed a sworn 
statement admitting this fact.  Because the XO admits that he assigned the applicant lower marks 
than he thought the applicant deserved, the Board finds that the OER was adversely affected by a 
prejudicial violation of a regulation. 
 
 
The applicant also alleged that the disputed OER is inaccurate as an assessment of 
his  performance  during  the  reporting  period.    He  alleged  that  the  laudatory  comments  support 
higher  marks  in  certain  categories.    However,  under  Articles  10.A.4.c.4.  and  10.A.4.c.7.  of  the 
Personnel Manual, OER marks are not based on the comments.  Instead, the rating chain mem-
bers review the written standards for the marks on the OER form and assign marks by comparing 
the officer’s overall performance with the written standards.  The OER comments are supposed 
to support the assigned marks by providing examples of how the officer met the written stand-
ards.  The Board finds that the positive comments in the disputed OER are not so laudatory that 
they are clearly inconsistent with the assigned marks.  In this regard, the Board notes that a mark 
of 4 in each performance category means that the officer met the “expected standard of perfor-
mance.”  Therefore, even very laudatory comments are not inconsistent with a mark of 4 or 5. 
 

4. 

5. 

The  applicant  alleged  that  the  mark  of  3  for  “Responsibility”  and  the  CO’s 
supporting comment are erroneous and unwarranted because he had supported the AOps’s deci-
sion  to  remove  the  quote  book  from  the  bridge  in  2008,  he  was  unaware  the  book  had  been 
returned  to  the  bridge  in  April  2009,  he  did  not  know  how  inappropriate  the  comments  in  the 
quote  book  were  until  the  CO  informed  him,  and  he  promptly  counseled  his  subordinates  in 
response to that information.  The applicant’s description of events regarding the quote book is 
very  similar  to  that  provided  by  the  AOps  for  BCMR  Docket  No.  2011-082,  which  the  AOps 
allowed the applicant to use.  The CO based the mark and her comment on the fact that the appli-
cant  did  not  disclaim  knowledge  of  the  existence  of  the  quote  book.    However,  as  the  Board 
noted in that prior decision, a witness, CWO X, “stated that after establishing that the applicant 
and others knew about the book, the CO ‘did not really want to hear what anyone had to say, and 
she asked generic questions such as, “How did we get here and how do we proceed?”’”  

 
6. 

Because the Board has already found that the disputed OER was prepared in vio-
lation  of  Article  10.A.2.a.  of  the  Personnel  Manual,  however,  it  is  not  necessary  to  determine 
whether all of the applicant’s allegations are true.  As the Coast Guard stated, if the XO had pre-
pared his own marks and comments independently and differently, as he stated he should have, 
the CO’s section of the OER would likely also have been different.  Although the XO has sup-
ported  some  of  the  applicant’s  claims  about  what  his  marks  would  have  been  had  the  XO 
properly prepared the OER, the Board cannot reasonably correct the OER to appear as it would 
                                                 
6 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). 

 

 

have had the  XO not  believed that he had to  assign lower marks than he  thought  the applicant 
had earned.  In BCMR Docket No. 151-87, the Board found that an OER should “not be ordered 
expunged  unless  the  Board  finds  that  the  entire  report  is  infected  with  the  errors  or  injustices 
alleged; unless the Board finds that every significant comment in the report is incorrect or unjust; 
or unless the Board finds it impossible or impractical to sever the incorrect/unjust material from 
the appropriate material.”  In this case, the Board finds that much of the report is infected by the 
XO’s error and that it is impossible to sever the incorrect and unjust material from the appropri-
ate material.  Therefore, it should be removed from his record in its entirety and replaced with a 
Continuity OER. 

 
7. 

Therefore, relief should be granted by removing the disputed OER from the appli-

cant’s record as the Coast Guard recommended. 

 

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

ORDER 

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

 
 
record is granted as follows: 
 
 
The Coast Guard shall remove from his record his OER for the period May 24, 2008, to 
July  5,  2009,  and  replace  it  with  an  OER  prepared  for  continuity  purposes  only  with  the  same 
description of duties in block 2.   
 
 
 

 
 

 

 
 
 Katia Cervoni 

 

 
 Donna A. Lewis 

 

 

   
 Lynda K. Pilgrim