DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2011-258 
 
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FINAL DECISION 

 
This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.   The Chair docketed the case  after receiving the applicant’s 
completed  application  on  September  24,  2011,  and  assigned  it  to  staff  member  J.  Andrews  to 
prepare 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  June  21,  2012,  is  approved  and  signed  by  the  three  duly 

APPLICANT’S REQUEST AND ALLEGATIONS  

 

 

The applicant, a yeoman, first class (YN1; pay grade E-6) in the Coast Guard, asked the 
Board to correct six semiannual Enlisted Employee Reviews (EERs) covering his performance as 
a YN1 from June 1, 2006, through May 31, 2009, by correcting the recommendation of his com-
manding officer (CO) on those EERs from not recommended for advancement (N) to chief petty 
officer to recommended for advancement (R).  (After the EER dated May 31, 2009, the applicant 
was recommended for advancement.) 

 
 
The applicant alleged that the marks of N were erroneous and unjust because “the number 
factors in all the enlisted employee reviews all exceed the  minimum average mark of ‘4’.”  He 
noted that under Article 10.B.6.a.6. of the Personnel Manual, a mark of 4 is the expected level of 
performance for all enlisted members.  He alleged that the inequitable disparity between his high 
performance  marks  and  the  recommendations  against  advancement  he  received  constitute  an 
injustice  that  should  be  corrected.    The  applicant  also  noted  that  Article  10.B.7.  states  that  an 
enlisted member should receive a mark of R “regardless of the member’s qualification or eligi-
bility for advancement” and that an enlisted member who receives a mark of N must be properly 
counseled on how to receive a mark of R.  The applicant stated that the number of Ns in his EER 
summary has caused the Career Retention Screening Panel to select him for involuntarily retire-
ment.   
 
 

 

 

SUMMARY OF THE RECORD 

 

On February 26, 1991, the applicant enlisted in the Coast Guard.  He earned the yeoman 
(YN) rating and advanced to YN3 in 1993.  The applicant received many below-standard marks 
of 3 in his EERs as a YN3 until 1998, when he began receiving EERs with primarily marks of 5 
and some marks of 6.  He advanced to YN2 in 2000.  However, in 2001 and 2002, the applicant 
again received some below-standard marks on his EERs.  Page 7s documenting counseling in the 
applicant’s  record  show  that  from  1992  through  2002  he  was  counseled  numerous  times  about 
such  matters  as  incompetence,  very  untimely  work,  inattention  to  detail,  a  23%  accuracy  rate, 
conducting personal business in lieu of work, performance probation, and being disrespectful to 
a superior.  However, his marks improved to primarily 6s in 2003, and he advanced to YN1 in 
2006.   

 
On his first EER as a YN1, the applicant received primarily marks of 5 and 6 and he was 
recommended for advancement.  However, thereafter, he received the six disputed EERs, which 
cover his performance from June 1, 2006, through May 31, 2009.  The applicant received satis-
factory conduct marks but recommendations against advancement to chief petty officer on all of 
these disputed EERs. 

 
On the first disputed EER, dated November 30, 2006, the applicant received a mark of N 
despite receiving one mark of 7 (best),1  five marks of 6, fourteen marks of 5, and five marks of 4 
in  the  various  performance  categories.    The  counseling  documentation  stated  that  he  had  “dis-
played strong potential to grow and contribute to organization, however efforts have been severe-
ly  hampered  by  personal  issues  that  affect  consistent  work  attendance.    At  this  time  personal 
issues detract from member’s ability to lead and manage others as would be required following 
an advancement to E-7.  Member has skills and knowledge, needs more emphasis on consistent 
presence within office and improving teamwork skills.” 

 
On  the  second  disputed  EER,  dated  May  31,  2007,  the  applicant  received  a  mark  of  N 
and  one  mark  of  7,  two  marks  of  6,  twelve  marks  of  5,  and  ten  marks  of  4.    The  counseling 
documentation  stated  that  he  had  “not  demonstrated  level  of  supervisory  skills  necessary  to 
become a CPO.  Frequent personal issues coupled with numerous everyday problems presented 
to  command  without  solutions.    In  order  to  advance  to  next  rank,  member  must  alleviate  these 
issues.”   

 
On the third disputed EER, dated November 30, 2007, the applicant received a mark of N 
and four marks of 5, ten marks of 4, nine below-standard marks of 3, and three poor marks of 2.  
He was counseled in writing about his negative attitude, continuous complaints, contempt toward 
his supervisor, lack of commitment, lack of loyalty, and lack of leadership. 
 

In  2007,  the  applicant  was  advised  that  he  would  be  processed  for  separation  due  to  a 
diagnosed personality disorder.  On January 8, 2008, an Administrative Separation Board (ASB) 
recommended  that  the  applicant  be  retained  and  reevaluated  in  six  months.    However,  Com-

                                                 
1  Coast  Guard  enlisted  members  are  evaluated  in  a  variety  of  performance  categories  on  a  scale  of  1  (worst)  to  7 
(best).    They  also  receive  marks  for  conduct  (satisfactory  (S)  or  unsatisfactory  (U))  and  for  advancement 
(recommended (R) or not recommended (N)).  

 

 

mander,  Personnel  Command  disapproved  the  ASB’s  recommendation  and  issued  discharge 
orders on May 1, 2008.  For reasons not in the record, the applicant was not separated in 2008. 

 
On  the  fourth  disputed  EER,  dated  May  31,  2008,  the  applicant  received  a  mark  of  N, 
five marks of 5, and otherwise all marks of 4.  The counseling documentation stated that he had 
“not  displayed  any  leadership  potential  and  has  not  showed  he  could  handle  roles  requiring 
greater leadership or responsibilities.  He has not shown he has the rating knowledge required for 
promotion to Chief Petty Officer.” 

 
On the fifth disputed EER, dated November 30, 2008, the applicant received a mark of N, 
one  mark  of  7,  three  marks  of  6,  fourteen  marks  of  5,  and  seven  marks  of  4.    The  counseling 
documentation noted that he “is on performance probation through June 9, 2009.  During the cur-
rent  rating  period,  he  demonstrated  that  he  can  perform  at  a  satisfactory  or  higher  level  in  all 
areas.  Provided he maintains this positive trend moving forward, he is well on his way to earn-
ing a mark of Recommended in the future.”   

 
On the sixth disputed EER, dated May 31, 2009, the applicant received a mark of N, three 
marks of 6, twelve marks of 5, and ten marks of 4.  The counseling about the mark of N stated, 
“Completing a 1 year performance probation.  If [he] continues to perform at a satisfactory level, 
he will receive ‘Recommended’ on his next evaluation.” 

 
In  his  subsequent  EERs  in  2009,  2010,  and  2011,  the  applicant  was  recommended  for 
advancement  to  chief  petty  officer  and  received  primarily  marks  of  6.    However,  in  2011,  the 
applicant’s record was reviewed by a Career Retention Screening Panel, and he was selected for 
involuntary retirement.  He was retired as of May 1, 2012, with 21 years, 2 months, and 5 days of 
active duty. 
 

VIEWS OF THE COAST GUARD 

 
On February 24, 2012, the Judge Advocate General (JAG) of the Coast Guard submitted 
 
an advisory opinion recommending that the Board deny the applicant’s request.  In so doing, he 
adopted the findings and analysis provided in a memorandum prepared by the Personnel Service 
Center (PSC). 
 

PSC noted that Article 3.A.4.e.4. of the Enlisted Accessions, Evaluations, and Advance-

ments Manual, COMDTINST M1000.2, states the following:  
 

A recommendation for advancement shall be based on the individual’s qualities of leadership, per-
sonal integrity, adherence to core values, and his or her potential to perform in the next higher pay 
grade.  Although  minimum  performance  factors  have  been  prescribed  to  maintain  overall  consis-
tency  for  participation  in  SWE,  the  commanding  officer  shall  be  personally  satisfied  that  the 
member’s overall performance in each factor has been sufficiently strong to earn the recommen-
dation.  

 
PSC argued that “nowhere in [the above regulation] should it be construed that simply meeting 
the minimum rating in all performance categories is in itself tantamount to a recommendation for 
advancement  by  one’s  commanding  officer—as  the  applicant  suggests.”    PSC  stated  that  the 

 

 

marks of N in the applicant’s EERs mean that his chain of command determined that he was not 
capable of performing satisfactorily the duties and responsibilities of the next higher pay grade.  
PSC noted that the applicant properly received written counseling about the mark of N on each 
of the disputed EERs. 
 

PSC argued that the six marks of N are all well documented and justified.  PSC alleged 
that the applicant has not shown that the Coast Guard erred, acted in bad faith, or failed to follow 
policy when evaluating his performance as a petty officer.  Therefore, PSC argued, the applicant 
has  not  overcome  the  presumption  of  regularity  or  substantiated  any  error  or  injustice  in  his 
record. 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On March 21, 2012, the Chair of the Board sent the applicant a copy of the views of the 

Coast Guard and invited him to submit a response within 30 days.  No response was received.   

 

 

APPLICABLE REGULATIONS 

 
Article  10.B.1.b.  of  the  Personnel  Manual  in  effect  in  September  2006  through  2009 
states that “[e]ach commanding officer/officer in charge must ensure all enlisted members under 
their  command  receive  accurate,  fair,  objective,  and  timely  employee  reviews.  To  this  end, the 
Service has made enlisted performance criteria as objective as possible, within the scope of jobs 
and tasks enlisted personnel perform.”  

 
Article  10.B.6.a.1.  states  that  when  assigning  numerical  marks  for  the  various  perfor-
mance  categories  of  competency,  “[t]he  rating  chain  shall  base  employee  reviews  on  how  the 
member performed in  each competency  consistently throughout  the period, except  for conduct, 
to  which  the  member  must  adhere  every  day  of  the  period.  Normally,  a  single,  isolated  event 
(either positive or negative) should not drastically affect the marks assigned during the employee 
review period. However, the rating chain must consider the overall positive or negative impact of 
the event.”   

 
Article 10.B.6.a.5. of the Personnel Manual states that rating officials must mark evaluees 
against the written standards on the EER form.  Article 10.B.6.a.6. states that a mark of 4 “repre-
sents  the  expected  performance  level  of  all  enlisted  personnel.    Normally,  a  single,  isolated 
event, either positive or negative, should not drastically affect the marks assigned” on an EER.  
Article 10.B.6.a.7. states that a mark of 4 is an average mark indicating that the evaluee met “all 
the written performance standards for this level and none in the ‘6’ level.”  A mark of 5 is above 
average  and  means  that  the  evaluee  met  “all  the  written  performance  standards  in  the  ‘4’  level 
and at least one of those in the ‘6’ level.”  A mark of 3 is below standard and means that that the 
evaluee  “[d]id  not  meet  all  the  written  performance  standards  in  the  ‘4’  block.”    Article 
10.B.2.a.1. requires the rating chain to include supporting remarks in an EER for any numerical 
mark of 1, 2, or 7; an unsatisfactory conduct mark; or a non-recommendation for advancement. 

 
 
 

 

 

 

Article 10.B.7. states the following about advancement recommendations: 
 
1. While the rating chain must consider past performance, it must also consider and base the rec-
ommendation on the member’s potential to perform satisfactorily the duties and responsibilities of 
the next higher pay grade, qualities of leadership, and adherence to the Service’s core values. Each 
rating chain member must address this independent section every time they complete an employee 
review. 

 

2. When completing this part of the employee review, the rating chain should focus on the guide-
lines  in  Chapter  5.C.  on  advancement  recommendations  and  then  select  one  of  the  following 
choices. 

 
a.  RECOMMENDED.  The  member  is  fully  capable  of  satisfactorily  performing  the 
duties and responsibilities of the next higher pay grade. The rating chain should choose this entry 
regardless of the member’s qualification or eligibility for advancement. If the member has met all 
eligibility requirements, choosing  this  value constitutes an  official recommendation for advance-
ment. Personnel,E-6 and above, must receive a supporting remarks entry clearly documenting their 
present and future leadership potential for greater responsibility Article 10.B.2.a.(1)(e). 

 
b. NOT RECOMMENDED. The member is not capable of satisfactorily performing the 

duties and responsibilities of the next higher pay grade. 

 

3. If the Approving Official marks ‘Not Recommended,” they must ensure the member is properly 
counseled  on  the  steps  necessary  to  earn  a  recommendation  and  prepare  supporting  remarks  in 
accordance with Articles 5.C.4.b.2., 5.C.4.e.5.a., and 10.B.2. 

 

4. The Approving Official’s decision on the advancement recommendation is final and may not be 
appealed.  However,  if  the  Approving  Official  learns  new  information  and  decides  to  change  the 
recommendation, they should follow the procedures in Article 10.B.10.b. 
 
Article 5.C.4.e.4. states that the following about an advancement recommendation: 

The  CO/OICs  recommendation  for  advancement  is  the  most  important  eligibility  requirement  in 
the Coast Guard advancement system. A recommendation for advancement shall be based on the 
individual’s  qualities  of  leadership,  personal  integrity,  adherence  to  core  values,  and  his  or  her 
potential  to  perform  in  the  next  higher  pay  grade.  Although  minimum  performance  factors  have 
been prescribed to maintain overall consistency for participation in SWE, the commanding officer 
shall be personally satisfied that the member's overall performance in each factor has been suffi-
ciently strong to earn the recommendation. 
 

FINDINGS AND CONCLUSIONS 

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

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

1. 

The Board has jurisdiction over this matter under 10 U.S.C. § 1552(a).  Although 
the application was not filed within three years of when the applicant received some of the dis-
puted EERs, it is considered timely because the applicant has been serving on active duty.2   
 
                                                 
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. 

4. 

2. 

The applicant alleged that the non-recommendation for advancement in six of his 
EERs are erroneous and unjust and have unfairly caused his involuntary retirement through the 
CRSP.  Under Article 10.B.1.b. of the Personnel Manual, “[e]ach commanding officer/officer in 
charge must ensure all enlisted members under their command receive accurate, fair,  objective, 
and timely employee reviews.”  The  Board begins its analysis in  every  case by  presuming that 
the disputed information is correct as it appears in the record, and the applicant bears the burden 
of  proving  by  a  preponderance  of  the  evidence  that  it  is  erroneous  or  unjust.3    For  the  reasons 
discussed below, the Board finds the applicant has failed to meet his burden of proof.   
 
 
The applicant argued that the fact that he received standard marks of 4 or above-
standard marks in  some of the disputed EERs  proves that  his  CO’s decision not  to  recommend 
him for advancement is erroneous and unjust.  The Board notes in this regard that one of the six 
disputed EERs contains many below-standard and poor marks and that in the other five disputed 
EERs,  he  received  many  mediocre  marks  and  some  very  good  marks.    However,  as  the  PSC 
noted, a member’s recommendation for advancement in an EER does not depend upon his or her 
marks in the various competency categories.  Instead, the CO bases the recommendation on “the 
individual’s  qualities  of  leadership,  personal  integrity,  adherence  to  core  values,  and  his  or  her 
potential to perform in the next higher pay grade.”4  In the applicant’s case, his EER competency 
marks show that he usually performed his duties at least adequately, but they do not prove that 
his CO was satisfied with his leadership, integrity, or adherence to core values or was confident 
that the applicant  could  perform  well as a chief petty officer.  The supporting comments  in the 
EERs show that the applicant was properly counseled about the negative marks he received. 
 
 
The applicant alleged that he was entitled to a recommendation for advancement 
in  his  EERs  because Article 10.B.7.2.a. of the Personnel  Manual  states that  when preparing an 
EER,  “[t]he  rating  chain  should  choose  this  entry  [recommended]  regardless  of  the  member’s 
qualification or eligibility for advancement.”  According to the applicant’s interpretation of this 
sentence, a rating chain would have to recommend every member for advancement.  This inter-
pretation is clearly erroneous because Article 10.B.7.2.b. of the Personnel Manual states that the 
rating chain should not recommend a member for advancement if the member “is not capable of 
satisfactorily performing the duties and responsibilities of the next higher pay grade.”  Moreover, 
Article  10.B.7.1.  states  that  a  member  should  only  be  recommended  for  advancement  if  the 
rating  chain  is  satisfied  with  the  member’s  “potential  to  perform  satisfactorily  the  duties  and 
responsibilities  of  the  next  higher  pay  grade,  qualities  of  leadership,  and  adherence  to  the  Ser-
vice’s core values.”  The Board finds that in the context of Article 10.B.7., the disputed sentence 
clearly means that a rating chain may recommend a member for advancement even if the mem-
ber is not technically eligible or qualified for advancement for some other reason, such as having 
insufficient time in grade or sea duty.5  The Board is not persuaded that the applicant was entitled 
to his CO’s recommendation for advancement under Article 10.B.7.2.a. 
 
 
The applicant has not proved by a preponderance of the evidence that the marks 
of N denoting recommendations against advancement in the six disputed EERs are erroneous or 
unjust.  Accordingly, his request for relief should be denied. 

5. 

                                                 
3 33 C.F.R. § 52.24(b). 
4 Personnel Manual, Article 5.C.4.e.4. 
5 See Personnel Manual, Article 5.C.4. et seq. (providing numerous requirements for eligibility for advancement). 

 

 

 

ORDER 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG  (Retired),  for  correction  of 

 
 

 
 

 
 
 

 
 

 
 

 
 
 

 

 
 Philip B. Busch 

 

 

 
 Lynda K. Pilgrim 

 

 

 

 
 Vicki J. Ray 
  

 

 

 

 

 

 

        

 

 

 

 

 

 
 

 
 
his military record is denied.