DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2012-074 
 
Xxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxx 
   

FINAL DECISION 

This proceeding was conducted under the provisions of section 1552 of title 10 and sec-
tion 425 of title 14 of the United States Code.  The Chair docketed the case upon receiving the 
completed application on February 18, 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 September 27, 2012, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 
 
The  applicant,  a  chief  petty  officer  on  active  duty,  asked  the  Board  to  remove  from  his 
record  an  Administrative  Remarks  form  CG-3307  (“Page  7”)1  dated  September  19,  2003.    He 
alleged  that  the  Page  7  was  entered  in  his  record  “out  of  spite  due  to  a  tumultuous  command 
relationship and the fact that I had reported the BMC [X’s] failures as an Officer in Charge to the 
Silver Badge at the Group, Senior Chief [X].”  The applicant stated that there was a personality 
conflict  between  him  and  the  OIC  of  his  unit  that  created  a  hostile  work  environment.    He 
explained that the OIC retaliated against him when the applicant “went outside of his Command 
and reported problems  we were having  at  the unit.   If  you review his  PDR  you will be  able to 
confirm the issues I am referring to.” 
 

The applicant stated that the disputed Page 7 is “completely false and has cost me many 
promotions  and  advancements.”    Although  he  himself  “did  not  handle  the  situation  as  profes-
sionally as possible,” he is not guilty of any of the misconduct listed on the Page 7.  In fact, the 
applicant  alleged,  the  allegations  of  misconduct  on  the  disputed  Page  7  were  investigated  and 
dismissed because they had no merit.  Therefore, he was not subject to any disciplinary action.  
However, the OIC had the authority to enter the Page 7 in his record despite the findings of the 
                                                 
1 Chapter 10.A. of the Pay and Personnel Procedures Manual in effect in 2003 states that the CG-3307 “provides a 
means  of  recording  miscellaneous  entries,  which  are  not  recorded  elsewhere  in  a  Personnel  Data  Record  (PDR). 
Administrative Remarks entries are  made, to document counseling, or to record any other information required by 
current directives, or considered to be of historical value.” 

 

 

investigation.    He  alleged  that  his  OIC  “acted  immaturely  and  unprofessionally  exercising  any 
avenues possible to stain my career.” 
 
 
The applicant alleged that he discovered the Page 7 in April 2008 and that it was submit-
ted in 2003 without his knowledge.  Regarding a handwritten notation on the Page 7 stating that 
he had refused to sign it, the applicant wrote that he “had never signed it because I had not seen 
it until  I  requested  a copy  of my [record] in  2008 when  I was first  applying for Chief Warrant 
Officer”—an appointment he has not received. 
 
 
As  evidence  of  the  inaccuracy  of  the  Page  7,  the  applicant  pointed  to  the  impeccable 
quality of his career during the ten years before and ten years after the Page 7 was prepared.  He 
noted  that  he  has  received  many  of  the  highest  possible  marks  of  7  on  his  Enlisted  Employee 
Reviews (EERs) and has not  received  any other  negative Page 7s or other negative entries.   In 
addition,  he  has  been  constantly  driving  himself  to  increase  his  education  to  better  serve  the 
country and his family. 
 
 
Regarding the timing of his application, the applicant stated that since he discovered the 
disputed Page 7 in April 2008, he has twice tried to have it removed through his chain of com-
mand to no avail.  He only recently learned that it could be removed through the BCMR. 
 

SUMMARY OF THE RECORD 

 
 
The  disputed  Page  7,  dated  September  19,  2003,  contains  the  following  statements  as 
well as a handwritten note by the OIC of the applicant’s station at the bottom claiming that the 
applicant had refused to sign it: 
 

[The  applicant]  was  counseled  concerning  his  performance  as  the  Engineering  Petty  Officer,  his 
poor decision making and keeping the command informed.  On or about 05 September, [he] let the 
air out of a crewmember’s car tires after finding paint dust on his motorcycle.  This was done in 
anger and retaliation. 
 
[The applicant] had on occasion kept a handgun in his tool box that was kept in the EPO office.  
This is in direct violation of  Station Standing Order #14.  [He]  was told at no time is a personal 
fire arm allowed on the unit without prior authorization from the Officer in Charge.  As the EPO, 
he is required to know and enforce unit regulations.  He was counseled on his poor judgment and 
decision making. 
 
[The applicant] did, without  prior consent or knowledge  from the  OIC or XPO, install cable TV 
hookup  to  the  EPO  office.    Cable  wire  was  routed  on  the  outside  of  the  station  grounds  and 
through the Engineering building.  In doing so, holes were drilled in the walls of the building and 
routed to his office. 
 
[The  applicant]  was  counseled  on  his  leadership  skills.    Members  of  the  engineering  department 
came to the command stating that the department was frustrated with working for the EPO.  They 
felt they could not go to him for assistance for fear of being yelled at.  [The applicant] was coun-
seled on better leadership skills and better ways to lead his personnel.  During the month of Sep-
tember 2002, [he] attended the Leadership and Management School. 

 
 
Aside from the disputed Page 7, the applicant’s record contains numerous positive Page 
7s  documenting  high  marks  in  his  EERs  and  other  laudable  service.    His  performance  evalua-

 

 

tions show that on his five EERs as an MK2, the applicant received primarily marks of 5 and 6 
and  a  few  7s  in  the  numerous  performance  categories.    On  his  thirteen  EERs  as  an  MK1,  he 
initially  received  primarily  marks  of  5  and  6  and  gradually  improved  to  primarily  marks  of  6 
with many marks of 7 too.  Generally, his marks in the Performance categories have been higher 
on average than those in the Professionalism categories, which have been higher on average than 
those in the Leadership categories.  On his EER for the half-year ending on November 30, 2003, 
however, which was his second as an MK1, the applicant received mostly marks of 4 and 5 with 
only two marks of 6 and a mark of “not recommended for advancement.”  The written comments 
for this EER state the following: 
 

Member is developing his leadership abilities and correcting actions that were non-productive or 
did  not  promote  sound  judgment.    Member  has  assumed  the  EPO  position  recently,  taken  on  a 
Dept  head  role  and  become  a  member  of  the  Command  Cadre.    His  leadership  in  these  roles  is 
constantly developing. 
 
[The applicant] has CG-3307 [Page 7] dated 19 Sep 03 documenting behavior and leadership defi-
ciencies.  He has been counseled on steps necessary to correct them.  At this time in his career, he 
[is] not yet ready to advance to the next higher paygrade. 

 
The applicant’s record also contains an end-of-tour Achievement Medal he received  for 
 
serving  as  the  EPO  of  the  station  from  July  2002  through  July  2006,  a  second  Achievement 
Medal for his next tour as Assistant EPO of a cutter from July 2006 through August 2009, and 
several Good Conduct Medals and unit and team awards.  From July 2009 through July 2011, the 
applicant’s duty consisted of full-time instruction in electrical engineering and since then he has 
served  as  the  EPO  of  another  station.    Transcripts  in  his  record  show  that  he  has  taken  many 
classes over the years and has received two Associate’s degrees in Engineering Technology and 
Criminal Justice Technology/Public Safety Services. 
 

VIEWS OF THE COAST GUARD 

The JAG noted that apart from  the applicant’s own claims, he failed to  submit  any evi-

On July 19, 2012, the Judge Advocate General  (JAG) submitted an advisory opinion in 

 
 
which he recommended that the Board deny relief in this case.   
 
 
dence  that  contradicts  the  Page  7,  which  is  presumptively  correct  under  33  C.F.R.  §  52.24(b).  
The JAG stated that the  Page 7 was properly prepared by the  OIC in  accordance with  the Per-
sonnel  and  Pay  Procedures  Manual  (PPPM)  in  effect  in  2003  and  that  under  those  rules,  the 
applicant’s refusal to sign it did not invalidate it.  The JAG stated that the OIC’s actions are also 
presumptively  correct,  lawful,  and  performed  in  good  faith.    The  JAG  argued  that  because  the 
evidence  of  record  is  insufficient  to  overcome  the  presumption  of  regularity,  the  Board  should 
deny the applicant’s request. 
 
 
The JAG also adopted the findings and analysis provided in a memorandum on the case 
prepared by the Personnel Service Center (PSC).  PSC noted that the applicant did not contest his 
November 2003 EER, in which he received slightly lower marks than usual and was not recom-
mended for advancement. 
 

 

 

PSC stated that it has no record of the applicant ever petitioning for removal of the Page 
 
7  in  the  past.    PSC  also  stated  that  because  the  OIC  is  now  no  longer  a  member  of  the  Coast 
Guard, it is very difficult for the Coast Guard to determine the facts of the matter since it can get 
no input from the OIC.  Therefore, PSC argued, and in the absence of compelling evidence to the 
contrary, the Board should deny the applicant’s request. 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On August 24, 2012, the applicant responded to the views of the Coast Guard.   He said 
that he is puzzled by those views and asked the Board “to explore the rest of the facts of the case, 
not just the deficiency in formal rebuttal paperwork.” 
 
 
The applicant repeated some of his prior allegations and again pointed to the lack of other 
derogatory  information  in  his  record.    He  noted  that  the  OIC  had  recommended  him  for 
advancement on his May 2003 EER and his May 2004 EER and argued that this is evidence that 
the Page 7 is erroneous as it is unlikely that he would have gone “from a recommended E-6 for 
E-7 in May of 2003 to not recommended in Nov of 2003 to recommended again in May of 2004.  
In addition, he alleged that it is illogical that someone who received all average or above average 
marks, as he did even in November 2003, would be not recommended for advancement. 
 

The applicant also said, in response to the Coast Guard’s claim that the disputed Page 7 
and the OIC must be accorded a presumption of regularity, that if the Board checks the personnel 
file of the OIC, “you will find that on many instances his leadership, credibility, and job perfor-
mance were found to be sub-par and illegal.  For an individual of such poor natured performance 
and integrity issues to tarnish my record is appalling.” 
 
 
The  applicant  also  addressed  the  allegations  of  misconduct  and  poor  leadership  in  the 
disputed Page 7.  Regarding the statement that he had deflated another member’s tires, the appli-
cant said that he had previously counseled a member about his failure to respect others’ property 
and  to  be  mindful  of  his  surroundings  when  working  and  when  the  tires  were  found  flat  the 
member assumed he had done it because of “practical jokes the duty standers would play on each 
other at night.” 
 
 
Regarding the allegation that he had kept a handgun in his tool box at the station against 
orders, the applicant stated that if the Board checks the station’s armory log, it would find that he 
checked his personal weapon into the armory daily, and checking in a weapon must be witnessed 
by the Officer of the  Day, who must sign the log.   He  alleged that it is  illogical  that he would 
check his weapon into the armory and then keep it in his tool box in the office, that no one ever 
accused him of doing this, and that “it never happened.” 
 
 
Regarding the allegation about the cable installation, the applicant stated that if the Board 
reviews  the  station’s  purchase  ledger,  it  will  find  that  a  “purchase  request”  for  coaxial  cable, 
coaxial fittings, and coaxial splitters was submitted through the chain of command and signed by 
both the XPO and CIO.  He alleged that their signatures prove that they were “aware of the cable 
installation in conjunction with the fact that I told him previously about the coax wire install to 

 

 

my office in the adjacent building.  Why would he approve the purchase of TV cable if all the 
rooms in the main station already had TV service?” 
 
 
Regarding the allegation that he was  counseled  about  yelling at  subordinates, the appli-
cant stated that in the military “authoritative voice inflection” is sometimes necessary, especially 
when  subordinates  are  lackadaisical  or  irresponsible.    The  applicant  stated  that  while  he  “may 
not have been the best leader at the time, [he] was definitely a good one.” 
 
 
The  applicant  stated  that  he  would  be  delighted  to  submit  documentation  contradicting 
the allegations in  the Page 7, but  he “cannot  create documents that  were dismissed and thrown 
out due to their lack of validity.”  He asked the Board to contact the investigating officer and the 
Deputy Sector Commander, who dismissed the charges following the investigation, as they are 
still on active duty.  He repeated his allegation that the Page 7 was retaliatory because he filed a 
complaint against the OIC in September 2003, which triggered an investigation. 

FINDINGS AND CONCLUSIONS 

 

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

 
 
military record and submissions, the Coast Guard's submissions, and applicable law: 
 

1. 

The Board has jurisdiction concerning this matter pursuant  to  10 U.S.C.  § 1552.  
Although  the  application  was  not  filed  within  three  years  of  the  applicant’s  discovery  of  the 
alleged error or injustice, it is considered timely.2 
 

2. 

The applicant requested an oral hearing before the Board.  The Chair, acting pur-
suant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case without 
a hearing.  The Board concurs in that recommendation.3   
 

3. 

The  applicant  alleged  that  the  Page  7  in  his  record  dated  September  19,  2003, 
should be expunged because it is erroneous and unjust.   The Board begins its analysis in every 
case by presuming that the disputed information in the 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.4  Absent evidence to the contrary, 
the Board presumes that Coast Guard officials and other Government employees have carried out 
their duties “correctly, lawfully, and in good faith.”5  

                                                 
2 Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that, under § 205 of the Soldiers’ and Sailors’ Civil 
Relief  Act  of  1940,  the  BCMR’s  three-year  limitations  period  under  10  U.S.C.  §  1552(b)  is  tolled  during  a 
member’s active duty service). 
3 See Steen v. United States, No. 436-74, 1977 U.S. Ct. Cl. LEXIS 585, at *21 (Dec. 7, 1977) (holding that “whether 
to grant such a hearing is a decision entirely within the discretion of the Board”); Flute v. United States, 210 Ct. Cl. 
34,  40  (1976)  (“The  denial  of  a  hearing  before  the  BCMR  does  not  per  se  deprive  plaintiff  of  due  process.”); 
Armstrong  v.  United  States,  205  Ct.  Cl.  754,  764  (1974)  (stating  that  a  hearing  is  not  required  because  BCMR 
proceedings are non-adversarial and 10 U.S.C. § 1552 does not require them). 
4 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). 

 

 

 
4. 

Although the applicant alleged that he never saw the Page 7 until 2008, the Page 7 
was mentioned on his November 2003 EER, and so he clearly knew of its existence in 2003 even 
if he chose not to read it or sign it.   
 

5. 

The applicant has submitted insufficient evidence to overcome the presumption of 
regularity and to support his claim that the Page 7 is erroneous and unjust.  Although he argues 
that the Page 7 must be erroneous because it is the only negative entry in his record, the Board 
finds that the fine quality of the remainder of the applicant’s record does not prove that the Page 
7 is erroneous or unjust.6   In addition, the validity of the Page 7 is supported by his November 
2003 EER.   

 
6.   

Although  the  application  in  this  case  is  considered  timely  filed,  the  Board  notes 
the Coast  Guard’s  laches  argument  that the applicant’s delay  has prejudiced the Coast  Guard’s 
ability to submit evidence because a significant witness, the OIC, is no longer available.7  How-
ever, it is not necessary for the Board to address the issue of laches because the applicant has not 
submitted sufficient evidence to overcome the presumption of regularity accorded the Page 7.8     
 

7. 

Accordingly,  the  Board  finds  that  the  application  should  be  denied  because  the 

applicant has not submitted sufficient evidence to overcome the presumption of regularity. 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

                                                 
6  See  Grieg  v.  United  States,  640  F.2d  1261,  1269  (Ct.  Cl.  1981)  (holding  that  “the  fact  that  this  fine  officer  had 
better  ratings  before  and  after  the  challenged  OER  is  of  no  legal  moment  nor  of  probative  value  as  to  the  rating 
period covered by the one OER with which he is dissatisfied”). 

7 See Lebrun v. England, 212 F. Supp. 2d 5, 13 (D.D.C. 2002); Detweiler v. Pena, 38 F.3d 591, 595 (D.C. Cir. 1994) 
(holding that even when the Board’s statute of limitations is tolled, “the doctrine of laches remains available to the 
government  to  protect  itself  from  stale  claims.”);    Bliss  v.  Bliss,  50  F.2d  1002,  1004-05  (D.C.  Cir.  1931) 
(“Independently  of  any  statute  of  limitations,  courts  of  equity  uniformly  decline  to  assist  a  person  who  has  slept 
upon his rights, and shows no excuse for his laches in asserting them.”).   

8 33 C.F.R. § 52.24(b).   

 

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

  

 
 Evan R. Franke 

 

 

 

 
 
 Thomas H. Van Horn 

 

 

 
 Barbara Walthers 

 

 

 

 

 

 

 

 

 

 

 

military record is denied.