DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2001-119 
 
 
   

 

 
 

 

FINAL DECISION 

 
ANDREWS, Deputy Chair: 
 
 
This proceeding was conducted under the provisions of section 1552 of title 10 
and section 425 of title 14 of the United States Code.  This case was docketed upon the 
BCMR’s receipt of the applicant’s completed application on August 17, 2001. 
 
 
members who were designated to serve as the Board in this case. 
 

This  final  decision,  dated  June  20,  2002,  is  signed  by  the  three  duly  appointed 

APPLICANT’S REQUEST AND ALLEGATIONS 

The  applicant,  a  xxxxxx  and  first  class  petty  officer  (pay  grade  E-6),  asked  the 
Board to correct his record to show that he advanced to chief petty officer (pay grade E-
7) on June 1, xxxx.1  
 

The applicant alleged that at a captain’s mast on May 5, xxxx, his commanding 
officer (CO) dismissed the charges against him with warning and placed him on proba-
tion for six months.  If he met the terms of his probation, he alleged, he was supposed to 
be advanced at the end of the period.  The applicant alleged that he met all of his CO’s 

                                                 
1  In support of his application, the applicant submitted several documents pertaining to a suit he filed in 
federal court regarding this matter.  In his Complaint for Declaratory Relief to the court, he also requested 
removal of “any and all derogatory notations, including adverse enlisted performance evaluation marks, 
and  adverse  statements  of  understanding  (CG-3307’s)”  from  his  record  and  a  permanent  injunction  to 
stop the Coast Guard from transferring him from his office and position as a xxxxxx.  The complaint was 
dismissed  for  failing  to  exhaust  the  administrative  remedy  provided  by  this  Board.  This  section  of  the 
final decision is a summary of the applicant’s allegations in his complaint to the court that are relevant to 
his case before the Board. 

goals during the probationary period and received no guidance or mentoring.  How-
ever, he was not advanced at the end of his probation. 

 
The applicant alleged that, during his probation, certain members of his chain of 
command who were upset that the CO did not “throw the book” at him at the mast laid 
more  “vindictive”  and  unsubstantiated  charges  against  him.    He  alleged  that  the 
charges, for misusing a Government calling card and XXXX account for personal busi-
ness, were false and unfair.  He alleged that the phone calls and packages at issue were 
work-related and that they mostly predated both his mast and the evaluation period.  
He alleged that his phone calls were “largely related” to a 13-week training course in 
compassion  he  had  been  ordered  to  attend  to  help  him  “recover  from  personal 
upheaval and depression.”  He alleged that the training included psychotherapy that 
required him to identify “core hurts” and to talk to his mother “when these core hurts 
surfaced.”    If  he  had  not  had  to  take  the  course,  he  would  not  have  had  to  call  his 
mother.  The applicant alleged that after completing the course, he informed his super-
visor about his use of the calling card.  His supervisor “expressed reservations” about 
his use of the calling card because the calls were not “xxxxxxxx related.”  Therefore, he 
repaid $58.63 in telephone charges but submitted a reimbursement claim for them.  He 
alleged that his supervisor forwarded his claim but then unjustly reported him for mis-
using the calling card. 

 
The applicant alleged that no action was taken against him regarding the alleged 
misuse of the calling card during his period of probation, which ended on November 5, 
xxxx.  He alleged that the Coast Guard did not act on the charge until December xxxx.  
He alleged that this delayed action was improper as it allowed him to believe that “all 
was well.”  Moreover, he alleged that many members used calling cards “when a local 
travel  claim  was  allowed”  without  being  taken  to  mast.    He  submitted  a  copy  of  a 
November  27,  xxxx,  email  message  from  the  lieutenant  who  had  represented  him  at 
mast.  The lieutenant suggested that he had been “held to a higher standard because of 
the opinion that the outcome of the … mast wasn’t … right.”  

 
The applicant alleged that in July xxxx, his supervisor made “inappropriate com-
ments” about his compassion training.  His supervisor indicated that he did not believe 
that the training was a legitimate process or that it was “producing the desired results.”  
When he complained about his supervisor’s comments, he was told that he could file a 
complaint alleging a violation of Article 134 of the UCMJ, which denotes making “dis-
loyal statements,” and he did so.  However, on December 5, xxxx, he discovered that 
the executive officer (XO) of his unit had not forwarded his complaint to his CO.  

 
The applicant alleged that on October 30, xxxx, he sent an email inquiring about 
his pending advancement.  The very next day, the charge regarding his use of the XXXX 
account was made.  He was shown the charges on November 15, xxxx.  The applicant 
alleged  that  the  approximately  $70  he  was  said  to  have  wrongfully  charged  to  the 

account was “endorsed and authorized by supervisory personnel and/or proper under 
various Coast Guard directives” and was definitely “Coast Guard related.”  He alleged 
that he reasonably used the account for his own administrative needs because his iso-
lated post had no Integrated Support Command, no Personnel Reporting Unit, and no 
medical facilities, which might otherwise have sent the packages for him.  He further 
alleged that his use of the account fell within the scope of “For Official Use Only” or 
“Quasi-Official.”    Moreover,  he  alleged,  the  officer  assigned  to  investigate  the  charge 
had been xxxxxed into the Coast Guard by his supervisor and therefore had a conflict of 
interest in investigating the complaint against him. 

 
The applicant alleged that he was held to a higher standard regarding use of the 
XXXX account than were other xxxxxxs.  He alleged that, for fiscal year xxxx, his office’s 
total charges were well under the $100 annual limit, but only his charges to the account 
were  singled  out  for  investigation.    He  alleged  that  the  allegations  against  him 
amounted to “[a]pplying arbitrary hyper-technical standards to a nebulous past.” 

 
The applicant alleged that on December 12, xxxx, his CO dismissed the charges 
against him but, the very next day, removed his name from the E-7 advancement list, 
even though he had done nothing wrong during his probationary period. He alleged 
that the administrative procedures followed by the Coast Guard in charging him and 
removing him from the list were “substantially flawed.”  He alleged that his CO’s with-
drawal  of  his  recommendation  for  advancement  “dissolved  [his]  opportunity  for 
advancement for a period of at least 37 months.  And as a practical matter – forever.”  
He alleged that the denial of his advancement was a “draconian measure not called for 
in view of the totality of the underlying circumstances.” 

 

 

SUMMARY OF THE RECORD 

The applicant served about nine years in the xxxxx before enlisting in the Coast 
Guard  in  1992.    He  initially  served  on  cutters,  but  in  1997,  he  became  a  xxxxxx.    In 
March xxxx, he was assigned to the xxxxxxxx office where these issues arose. 

 
On January 4, xxxx, the applicant was arrested and jailed for allegedly assaulting 
his wife.  According to statements signed by the xxxxxxxx staff, he called his office the 
next day and stated that he could not come in because his wife had undergone emer-
gency surgery.  However, when his wife called a friend who worked at the xxxxxxxx 
office, the fact that he was in jail was discovered. 

 
On January 6, xxxx, the applicant returned to work, and his supervisor confront-
ed  him.    On  the  same  day,  the  applicant  wrote  his  CO  a  letter  denying  that  he  had 
assaulted  his  wife.    He  alleged  that  the  altercation  occurred  because  she  was  a  drug 
addict.  He admitted that he had grabbed her and that they struggled and fell down.  
He alleged that it happened only because she had thrown a candle holder at a door and 

 
On April 10, xxxx, the applicant’s supervisor charged him with violating Articles 
134, 86, and 121 of the Uniform Code of Military Justice (UCMJ).  The Article 134 charge 
alleged  that  he  had  lied  to  his  supervisor  regarding  his  whereabouts  and  reason  for 
being absent from work.  The Article 86 charge alleged that he had been absent without 
leave  since  he  had  received  authorization  for  time  off  based  on  a false  premise.    The 
Article 121 charge alleged that he had wrongfully forged his estranged wife’s signature 
on her paycheck and cashed it without her consent.   

 
On April 12, xxxx, the applicant’s CO made an administrative entry (“page 7”) in 
his record detailing the facts behind the forgery charge.  It states that on April 5, 2002, 
the applicant’s wife came to the office because she was missing a paycheck and thought 
her husband had it.  The applicant claimed that he had mailed it back to the bank where 
his wife previously worked because he did not know her address.  After his wife left to 
go to the bank, the applicant put cash totaling the amount of the check in an envelope 
and asked a supervisor to give it to his wife.  He stated that his action was “in no way 
an admission of guilt.”  On April 7, xxxx, the bank reported that the check had been 
cashed on March 21st with the wife’s purported signature endorsing it to the applicant. 

 
On April 12, xxxx, the applicant was informed of his rights by the investigator, 
including his rights to remain silent, to consult counsel, to refuse non-judicial punish-
ment (NJP or “mast”), and to submit a statement in his own behalf.  He signed state-
ments indicating that he wanted to consult an attorney before making any statements 
and that he wanted a “military lawyer” to represent him at mast.   

he had grabbed her to ask her what was wrong and to tell her she needed help for her 
addiction. 

 
On February 17, xxxx, a Case Review Committee examined the applicant’s family 
situation and police reports.  It found that there was domestic violence and that he was 
the primary “aggressor” but that his wife “instigated” many incidents.  He was ordered 
to attend a 13-week “compassion workshop.” 

 
On April 13, xxxx, the applicant submitted a written statement about the charges.  
It  is  unclear  whether  he  waited  to  consult  with  an  attorney  before  he  submitted  this 
statement.  In it, he claimed in regards to the Article 121 charge that, after he received 
his wife’s check in the mail, he wrote “return to sender” on it to return it to the bank, 
but the post office redelivered it to him.  He claimed that his wife then called and asked 
him to deposit the check and give her the money when she returned to town, so he did.  
The applicant alleged that his wife just pretended she did not know where the check 
was  to  cause  trouble  for  him.    Regarding  the  charges  under  Articles  134  and  86,  he 
alleged that he had been wrongfully accused of assault by his wife and was too embar-

rassed to admit that he was in jail.  He alleged that he had been “vindicated” in court on 
this matter2 and that his wife had actually been abusing him. 

 
On April 28, xxxx, the applicant was informed that his CO had revised the charge 
sheet to include just one count of making a false official statement with intent to deceive 
in violation of Article 107 of the UCMJ.  He signed a statement acknowledging his right 
to  consult  with  an  attorney  before  deciding  whether  to  accept  NJP,  “waiv[ing]  the 
opportunity” to consult with an attorney, and accepting NJP.  He was assigned a non-
attorney lieutenant as a representative to help him prepare for the mast, in accordance 
with Chapter 1.C.3. of the Military Justice Manual. 

 
Prior to the mast, the applicant submitted another statement in which he admit-
ted  that  he  had  lied  about  being  in  jail.    He  explained  that  he  lied  because  he  was 
embarrassed and “did not want [his] wife to be negatively viewed by the people in our 
office if they learned that she had made false accusations.”  He alleged that he had been 
covering up his wife’s “inappropriate behavior” and was in therapy to understand why 
his wife had physically and mentally abused him.  

 
In his statement, the applicant also admitted that on March 31, xxxx, he had not 
spent the day xxxxxxxx at a high school, as he had told his supervisor.  He claimed that 
he  had  previously  left  a  couple  of  phone  messages  for  the  career  counselor  about 
xxxxxxxx at the school and was surprised when he arrived and found the school closed.  
Because  he  knew  that  most  of  the  office  staff  were  attending  a  birthday  party  for  a 
coworker, he spent the rest of the day at his mother’s house.  Later, he pretended that 
the school had been open because he “did not want to look like an idiot.”  He submitted 
a store receipt to prove that he was near the school that day. 

 
Finally, the applicant claimed that if the CO awarded him NJP, he would have to 
retire at the E-6 rate, rather than the E-7 rate, which would be unfair because he had 
previously given up two pay grades (going from E-6 to E-4) when he left the Navy to 
join  the  Coast  Guard.    He  pleaded  that  he  was  “desperate”  to  remain  in  his  billet 
because he needed the emotional support of his family and could not leave his “fragile” 
mother.  He alleged that if his supervisor had had more leadership experience, he could 
have  avoided  charging  the  applicant  with  the  violations  by  having  “heart  to  heart 
talks.”  He suggested that the CO place him on probation. 

 
On May 5, xxxx, the applicant went to mast on the Article 107 charge.  The inves-
tigator had concluded that the allegations against the applicant were true.  However, 
the CO dismissed the charge with a warning and placed him on six months’ probation. 

 

                                                 
2  Apparently, the city attorney decided not to prosecute him for assault. 

 
On May 18, xxxx, the Personnel Command issued ALCGENL xxxxxx, listing the 
members who were eligible for advancement on June 1, xxxx.  It stated that, “[i]f appro-
priate, CO’s shall withhold or cancel advancements of ineligible personnel per Art. 5-C-
25.c.  …  of  [the  Personnel  Manual]”  by  sending  a  message  to  the  Human  Resources 
Services & Information Center (HRSIC).  The applicant’s name was on the list.   

 
On May 22, xxxx, the applicant’s CO asked the Personnel Command to withhold 
his advancement “until further notice” in accordance with Article 5.C.25.c. of the Per-
sonnel  Manual.    The  Personnel  Command  forwarded  his  message  to  HRSIC,  which 
withheld the advancement and notified the applicant’s command that he could still be 
advanced if he regained his eligibility before December 16, xxxx. 

On May 11, xxxx, the applicant’s supervisor prepared an Enlisted Performance 
Evaluation Form (EPEF) for the evaluation period ending May 31, xxxx.  He assigned 
the applicant marks of 2 (on a scale of 1 to 7, with 7 being best) for the performance 
categories  “integrity”  and  “setting  an  example.”    However,  the  applicant  received  a 
satisfactory  conduct  mark  and  was  recommended  for  advancement.    The  supervisor 
also prepared a page 7 to document the low performance marks.  It recounts the lies the 
applicant told on January 4 and 5, xxxx, and relates the events regarding the allegedly 
forged check.  It also states that on April 3, xxxx, the applicant told his xxxxxx in charge 
(xxx) that he had been xxxxxxxx in a high school on March 31, xxxx, when in fact the 
school  was  closed  for  spring  break.    Although  the  applicant  blamed  the  school  for 
making  a  scheduling  mistake,  school  officials  strongly  denied  ever  having  made  an 
appointment with him.  Neither the EPEF nor the page 7 were timely approved.  Appar-
ently, they were placed in a file concerning the applicant’s conduct and forgotten until 
his  next  EPEF  was  being  prepared.    They  were  finally  completed  by  the  applicant’s 
marking official and CO on December 13, xxxx. 

 
On June 22, xxxx, the applicant’s supervisor charged him with violating Article 
92 of the UCMJ for using a Government calling card to place $58.63 worth of personal 
telephone calls.  He explained that, before March xxxx, calling card bills were sent by 
the telephone company to the regional xxxxxxxx center, bypassing the local xxxxxxxx 
offices.  When the first telephone bill came to the local office on June 12, xxxx, he saw 
that the applicant “had placed numerous questionable calls on his Government phone 
card,” and that most of them were from his home phone to his mother’s home or office.3  
He spoke with a chief petty officer, decided to discuss the bill with the applicant when 
he returned from leave, and put the bill in his day planner on his desk.  However, early 
the next morning, June 13th, the applicant called to tell him that all of the calls charged 
to  his  phone  card  “were  made  in  connection  with  CG  mandated  counseling.”    The 
applicant told him that “the CG had implicitly permitted him to use his phone card for 
personal use.”  The supervisor disagreed and suggested that he bring in a money order 
                                                 
3  A copy of this phone bill appears in the report of the investigation. 

for the amount he owed.  The applicant did so promptly but on June 21, xxxx, filed a 
claim for reimbursement for the calls, which the supervisor forwarded.  The supervisor 
stated that he did not believe that “out of the blue, while on leave, [the applicant] was 
struck with a sudden urge to call [him] and discuss his personal use of his Government 
phone card.”  He concluded that the applicant either searched his desk or heard about 
the bill from someone who overheard his conversation with the chief petty officer.  He 
also provided a copy of the statement the applicant signed when he was given his new 
phone card on March 20, xxxx.  The statement indicates that the card is “FOR OFFICIAL 
GOVERNMENT USE ONLY.” 

 
On July 21, xxxx, the applicant charged his supervisor with violating Article 134 
of  the  UCMJ  for  falsely  accusing  him  of  “rifl[ing]  through  his  desk”  and  for  making 
“inappropriate comments” regarding his attendance at the compassion workshop.  The 
applicant alleged that the supervisor had made comments about what he “should have 
learned (e.g. personal responsibility) at a recent 13-week compassion workshop.”  The 
investigator  determined  that  the  supervisor’s  conclusion  that  the  applicant  had 
searched his desk at night and his criticism of the applicant were both “reasonable.”  He 
concluded that the applicant’s charge was “a retributative act.”  Months later, the CO 
dismissed the charge. 

 
On July 28, xxxx, the applicant was informed of his rights regarding the Article 
92 charge against him.  He indicated that he did not want counsel but would submit a 
statement.  He asked that the lieutenant who had represented him at his May 5th mast 
be appointed to represent him again if he were taken to mast.  He asked that no one 
who worked at his command serve as the investigator, but this request was denied.  In 
his statement, the applicant argued that the calls were made in relation to the compas-
sion workshop.  He stated that the only time he had previously been warned was in 
xxxx when he used $10 in postage to mail copies of Coast Guard Magazines to his fam-
ily members.  He argued that his use of the postage was justified as “cost-effective and 
efficient advertising.”  He argued that that first warning did not justify charging him 
over  his  misuse  of  the  calling  card.    He  argued  that  the  charge  “simply  reopens  old 
wounds and serves no constructive purpose” since he had repaid the money.  He stated 
that being removed from xxxxxxxx “would be a crushing blow to my well-being” and 
pointed out that everyone in his office except him was being transferred and that, as the 
“most productive xxxxxx,” he should be retained for the “mission.”   

 
The investigator for this charge concluded that the applicant had used his calling 
card for “numerous unofficial long-distance personal phone calls.”  She stated that he 
admitted  to  having  made  such  calls  on  his  previous  calling  card,  but  he  felt  that  it 
should  be  ignored  because  “everybody  does  it.”    She  concluded  that  the  calling  card 
misuse alone would not justify a mast, except that he had not “learned anything from 
this  situation,  as  he  firmly  believes  he  has  done  nothing  wrong.”    Apparently,  no 
further action was taken on this charge until December 5, xxxx. 

On October 30, xxxx, the applicant emailed his supervisor, asking to be advanced 
to E-7 on December 1, xxxx.  He stated that the “six-month delay” on his advancement 
imposed at mast in May xxxx was expiring. 

 
On October 31, xxxx, the Chief of Operations charged the applicant with violat-
ing Article 92 of the UCMJ for misusing the office’s XXXX account for personal pack-
ages.    An  investigator  found  21  charges  on  the  XXXX  account  for  personal  packages 
shipped by the applicant between June xxxx and March xxxx.4 

 
On November 15, xxxx, the applicant was informed of his rights.  He signed a 
statement indicating that he did not want counsel but wanted to make a statement.  He 
again  asked  that  the  lieutenant  who  had  represented  him  at  his  May  5th  mast  be 
appointed to represent him if he were taken to mast.  The investigator who questioned 
him about his use of the XXXX account reported that he admitted to having used the 
account to send several packages to his wife’s address, to his mother, and to his bank.  
The  applicant  told  the  investigator  that  he  should  not  be  charged  with  anything  that 
happened before his mast on May 5, xxxx, because his CO had said he was “drawing a 
line in the sand.”  He stated that he was being “persecuted” and would not accept NJP.  
The  investigator  recommended  that  his  name  be  removed  from  the  advancement  list 
and that his security clearance be revoked.  He also recommended that the applicant be 
taken to mast.   

 

 
On  November  27,  xxxx,  a  new  xxx  wrote  a  letter  in  support  of  the  applicant’s 
advancement.  He pointed out that the applicant had been the only xxxxxx in the city 
for the previous three months and was the region’s most productive xxxxxx. 
 

On  November  29,  xxxx,  the  applicant  filed  an  Article  138  request  for  relief 
because of his CO’s refusal to advance him to E-7.  He alleged that his use of both the 
calling card and the XXXX account was related to his work and that the new charges 
arose because others in his command were angry that the charges in May xxxx had been 
dismissed.    He  insisted  that  “the  past  must  be  put  to  rest.”    He  also  alleged  that  the 
Coast Guard violated Chapter 1.C.3.b. of the Military Justice Manual by not appointing 
him a representative prior to questioning him about his use of the XXXX account.  

 
On  November  30,  xxxx,  the  applicant’s  supervisor  prepared  another  EPEF, 
assigning  him  an  “unsatisfactory”  conduct  mark,  a  “not  recommended  for  advance-
ment” mark, and marks of 1 for “integrity” and “setting an example.”  He also prepared 
a page 7 to document the marks.  It states that from November xxxx through July xxxx, 
the applicant had charged at least 26 unauthorized personal long-distance phone calls 
                                                 
4  The report of the investigation contains 21 copies of shipping statements showing packages sent from 
the applicant to the addresses of his wife, mother, bank, and vehicle lien holder.  

from  his  home  on  his  calling  card.    It  notes  that  he  had  previously  been  counseled 
regarding personal use of government accounts and yet, from June xxxx to March xxxx, 
used the office’s XXXX account for personal packages “at least 21 times.”  The page 7 
states  that,  despite  counseling,  the  applicant  was  not  adhering  to  “the  core  values  of 
Honor, Respect, and Devotion to Duty” and had repeatedly lied to his superiors to try 
to cover up his misconduct.  Another page 7 was prepared to inform the applicant that 
his  period  of  eligibility  for  a  good  conduct  award  had  ended  because  of  the  unsatis-
factory conduct mark. 

 
On  December  5,  xxxx,  the  applicant  was  notified  that  the  CO  was  considering 
imposing NJP for his misuse of the two accounts.  He was informed of his rights and 
asked  to  respond  by  December  7th.    He  responded  the  same  day  with  a  signed 
acknowledgment  of  his  rights,  including  his  right  to  consult  with  an  attorney  before 
deciding  whether  to  accept  NJP.    He  “waive[d]  the  opportunity”  to  consult  with  an 
attorney and rejected NJP.  The CO chose not to court-martial him and dismissed the 
charges with a warning. 

 
On  December  12,  xxxx,  the  CO  signed  a  page  7  notifying  the  applicant  of  his 
removal from the advancement list because of “the compelling information” about his 
misuse  of  the  calling  card  and  XXXX  account.    The  CO  also  noted  that  the  charges 
would not be referred to a court-martial and that he would remain a xxxxxx.  

 
On  December  13,  xxxx,  the  CO  asked  the  Personnel  Command  to  remove  the 
applicant’s name from the advancement list due to unsatisfactory conduct.  The request 
was  forwarded  to  HRSIC,  which  removed  his  name  from  the  list.    The  CO  and  the 
marking official also completed the most recent EPEF and page 7s, as well as those for 
the marking period that had ended on May 31, xxxx. 

 
On  December  14,  xxxx,  the  applicant’s  CO  denied  his  request  for  relief  under 
Article 138, stating that his actions portrayed a “pattern of unethical behavior” and cast 
“grave  doubt”  on  his  “leadership,  personal  integrity,  adherence  to  core  values,  and 
potential to perform in the next higher pay grade,” which are the criteria for advance-
ment  under  Article  5.C.4.e.4.  of  the  Personnel  Manual.    The  CO  alleged  that  the 
applicant was obviously reluctant to hold himself accountable for his actions.  He stated 
that his decision to withhold the advancement was based on “irrefutable documenta-
tion” of his “significant misuse” of Government accounts.  The CO also stated that the 
June xxxx charge regarding his misuse of the calling card had been “held in abeyance, 
pending  the  very  complex  investigation  of  …  [his]  improper  use  of  the  government 
XXXX account.”  He stated that he had dismissed the applicant’s July xxxx Article 134 
complaint  against  his  supervisor  because  it  was  “specious,  at  best,”  and  that  he  was 
only allowing the applicant to remain in his position because of the new xxx’s request. 

 

On December 18, xxxx, the applicant received copies of the EPEFs and page 7s 
and sent a message to the xxxxxxxx center.  He stated that he would not to appeal them 
and that he would proceed directly to court.  He stated that he was “looking forward to 
a trial.  The game is afoot.”   

 
On December 19, xxxx, the applicant sent his request for relief under Article 138 
to the Commander of the regional Maintenance and Logistics Command (MLC), who 
ordered an investigation of the matter.  On February 2, xxxx, the applicant’s CO signed 
a statement for the investigation. He stated that the applicant had acted as if it was all a 
“game” and showed no remorse.  At mast in May xxxx, the CO “was convinced that 
[he]  had  committed  grievous  offenses  …  which  called  his  integrity  into  question.”  
However, the applicant was getting a divorce, undergoing counseling, and caring for 
his mother, and the CO “realized that any action [he] took against [the applicant] would 
likely result in a disruption of all of these activities” and cause him to be transferred.  
He also realized that if he imposed NJP, the applicant would never be promoted to E-7.  
Therefore,  he  “cut[]  him  a  huge  break”  and  dismissed  the  charges.    He  warned  the 
applicant that his performance would be scrutinized over the next six months and that 
his recommendation for advancement would be withheld “for at least six months.” 
 

The CO further stated that he had dismissed the Article 92 charges in December 
for the same reasons that he had dismissed the charges in May.  In addition, after the 
applicant refused mast, he decided that his staff “could not adequately support a trial 
by court-martial and still conduct the xxxxxxxx business of the Coast Guard.”  There-
fore,  he  did  not  court-martial  the  applicant  but  removed  his  recommendation  for 
advancement.  To meet the needs of the Service, he retained him as a xxxxxx. 

 
On February 9, xxxx, the applicant’s supervisor signed a statement for the inves-
tigation indicating that, although he allowed the applicant to request reimbursement for 
the telephone calls, he did not endorse the request.  He stated that he thought the appli-
cant submitted the reimbursement request to “somehow officiate or legitimize his con-
duct relative to the personal use of the calling card.  This was a tactic of his with which I 
became very familiar.  Once caught in a lie or misconduct, he would immediately set 
about constructing an improbable yet plausible explanation.” 

 
On  February  26,  xxxx,  the  investigator  reported  that  the  allegations  about  the 
applicant’s lying, forgery, and misuse of the calling card and XXXX account were true.  
He found that the applicant’s supervisor, after catching the calling card misuse and get-
ting him to repay the $58.63, should not have let him seek reimbursement for the calls.  
He  also  found  that  a  supervisor  at  the  applicant’s  previous  office  may  have  known 
about his personal use of a Government XXXX account.  However, because the appli-
cant was counseled about not using office accounts for personal business when he first 
came  to  the office,  when  he  used  $10  in  postage  for  a  personal  package  in  xxxx,  and 
when he was issued the calling card in March xxxx, the investigator found that his mis-

use of the accounts was not justified.  He found that the CO had properly withheld and 
then removed the applicant’s name from the advancement list.  He also found that the 
unsatisfactory conduct mark was justified.   

 
The investigator further found that the applicant had not been denied any due 
process  regarding  the charges  against  him.   He  found  that the  charge  concerning  the 
calling card was delayed first because of slow communications and then because of the 
investigation into the misuse of the XXXX account.  He found that the delay was not 
unfair because the applicant was made aware of the charges in a timely manner and the 
statute of limitations for NJP is two years.  He also found that, in light of his known 
misuse of the calling card, the command’s scrutiny of his use of the XXXX account could 
not be considered unfair.  In addition, he found no bias on the part of the officers who 
investigated these matters. 

 
On  March  5,  xxxx,  the  Commander  of  MLC  denied  the  applicant’s  request  for 
relief, finding that his CO had “acted within his discretion” in removing his name from 
the advancement list and assigning him an unsatisfactory conduct mark.  On March 14, 
xxxx, the Commander forwarded the applicant’s request and associated documents to 
the Chief Counsel for review.  On April 23, xxxx, the Chief of the Office of Military Jus-
tice determined that the Commander’s denial was appropriate. 

 
On  August  14,  xxxx,  the  applicant’s  new  CO  placed  a  page  7  in  his  record  to 
document  counseling  for  having  misused  Coast  Guard  stationery  in  his  communica-
tions with a bankruptcy court.  The CO warned him that further misconduct would lead 
to his removal from xxxxxx duty and “official action” to remedy the misconduct.  On 
October 31, xxxx, the applicant was informed that he was ineligible to apply to any pro-
gram leading to an officer’s commission because of the unsatisfactory conduct mark on 
his November 30, xxxx, EPEF. 
 

VIEWS OF THE COAST GUARD 

 
 
On February 7, 2002, the Chief Counsel of the Coast Guard submitted an advi-
sory  opinion  recommending  that  the  Board  deny  the  applicant’s  request.    He  inter-
preted the applicant’s request to include both advancement to E-7 and removal of the 
adverse performance evaluation and administrative entries from his record. 
 
 
The Chief Counsel argued that the applicant has “failed to produce substantial 
evidence  to  support  his  allegations  of  error  and  injustice.”    He  argued  that  “[a]bsent 
strong evidence to the contrary, Coast Guard officials, such as Applicant’s Command-
ing Officer and immediate supervisor, are presumed to have executed their duties cor-
rectly, lawfully, and in good faith.” Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 
1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979).  
 

 
The Chief Counsel alleged that the Coast Guard “followed established policy and 
procedure  when  it  denied  advancement  to  E-7.”    He  alleged  that  the  applicant’s 
advancement on June 1, xxxx, depended upon his continuing to meet the eligibility cri-
teria, including being recommended for advancement by his CO.  He alleged that after 
the advancement list was issued on May 18, xxxx, the CO properly notified the Person-
nel  Command  that  the  applicant  was  no  longer  recommended  for  advancement  and 
that  his  advancement  should  be  withheld  “until  further  notice,”  in  accordance  with 
Article 5.C.25.c. of the Personnel Manual.  
 
 
The Chief Counsel alleged that after the applicant was again charged with UCMJ 
violations—for misusing his calling card and the office XXXX account—the CO proper-
ly  asked  the  Personnel  Command  to  remove  the  applicant’s  name  from  the  advance-
ment  list  “due  to  unsatisfactory  conduct”  in  accordance  with  Article  5.C.4.e.4.  of  the 
Personnel Manual.  The Chief Counsel alleged that the removal was proper, as a CO’s 
recommendation for advancement is supposed to be based on the member’s “qualities 
of leadership, personal integrity, adherence to core values and his or her potential to 
perform in the next higher pay grade.”  He alleged that the page 7 dated November 30, 
xxxx, in the applicant’s record proves that the CO acted in accordance with the regula-
tions. 
 
 
The  Chief  Counsel  further  alleged  that  the  CO  properly  found  the  applicant’s 
performance  to  be  unsatisfactory  on  the  November  30,  xxxx,  EPEF,  because  he  had 
failed to comply with civilian and military rules, regulations, and standards during the 
reporting period.  He argued that the poor marks in the EPEF were properly supported 
by the comments in the page 7 prepared to document the marks.  He alleged that the 
page 7 indicates the “pattern of unacceptable behavior” required to justify an unsatis-
factory conduct mark on an EPEF.  
 
 
supervisor and his CO were thoroughly investigated and found to be meritless.   
 

Finally,  the  Chief  Counsel  alleged  that  the  applicant’s  complaints  against  his 

APPLICANT’S RESPONSE TO THE COAST GUARD’S VIEWS 

On  February  8,  2002,  the  BCMR  sent  the  applicant  a  copy  of  the  views  of  the 

 
 
Coast Guard and invited him to respond.  He responded on February 16, 2002. 
 
The applicant argued that under Arens v. United States, 969 F.2d 1034, 1037 (Fed. 
 
Cir. 1992), a member’s record “may be corrected if it is judicially determined that the 
alleged error was unsupported by substantial evidence.”  He alleged that the evidence 
against him “is not only less than substantial, it is non-existent.”  He then discussed at 
length the court’s decision to dismiss his case and repeated his previous allegations. 
 

 
The applicant also alleged that the fact that his CO permitted him to remain in 
his xxxxxxxx position belies the allegations about his integrity upon which the decision 
to withhold his advancement was based.  He alleged that it was “obviously inappropri-
ate” for his CO to punish him administratively by withholding his advancement in lieu 
of awarding him NJP.  He alleged that once the charges against him were dismissed, the 
allegations should not have been held against him.  He further alleged that, other than 
the false allegations about his misuse of the accounts, he received no notice during his 
probation period that he was not meeting his CO’s expectations.  He pointed out that 
his new supervisor “wrote a glowing letter of support” for him to the CO and submit-
ted a copy of the letter dated November 27, xxxx, to the Board.  
 
 
The applicant also alleged that because on December 13, xxxx, his CO signed the 
EPEF for May xxxx with a recommendation for advancement, his decision the same day 
not  to  recommend  the  applicant  for  advancement  on  the  November  EPEF  is  clearly 
inconsistent and erroneous.  He also alleged that it was unreasonable and erroneous for 
the  CO  to  base  his  recommendation  against  advancement  on  allegations  that  he  had 
already dismissed.  In addition, he alleged that the recommendation against advance-
ment  in  the  November  EPEF  was  based  on  his  performance  in  a  previous  reporting 
period, which he alleged was contrary to the rules. 
 
 
The applicant alleged that his CO’s letter of December 14, xxxx, proved that the 
decision to remove him from the advancement list was inconsistent with his perform-
ance and with the alleged promise to advance him after the probationary period.  He 
quoted  one  paragraph  from  that  letter  about  his  decision  to  retain  the  applicant  as  a 
xxxxxx  and  several  sentences  about  the  applicant’s  integrity  from  the  CO’s  statement 
dated February 2, xxxx.  He also submitted a copy of the latter statement. 
 

APPLICABLE LAW 

 
Enlisted Advancement 
 
 
Under Article 5.C.4.b.1.l. of the Personnel Manual (PM), a member must be rec-
ommended  for  advancement  by  his  or  her  CO  to  be  eligible  to  take  the  servicewide 
examination (SWE) for advancement.  PM Article 5.C.31. provides that, after the SWE is 
scored, HRSIC will prepare an advancement eligibility list and publish it in an advance-
ment  announcement.    It  also  provides  that  COs  may  withhold  an  advancement  or 
remove a member’s name from the advancement list.  
 
 
advancement program.”  It further states the following: 
 

PM Article 5.C.4.e. states that members’ COs “are responsible for execution of the 

4. 
Advancement Recommendation.  The commanding officer’s recommendation for 
advancement is the most important eligibility requirement in the Coast Guard advance-
ment  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 poten-
tial to perform in the next higher pay grade. … 
•   •   • 

9. 
Effecting  Advancements.    Upon  notification  through  Headquarters  Advance-
ment  Announcement  (HAA)  from  Commander  CGPC,  commanding  officers  shall 
advance those personnel listed, or advise HRSIC (adv) to withhold their advancement or 
remove them from the eligibility list … . 

 

PM Article 5.C.4.e.5.b. requires COs to notify members in a page 7 that their rec-

ommendations for advancement have been withdrawn. 

 
Under  PM  Article  5.C.25.c.,  if  a  CO  withholds  an  advancement,  it  “may  be 
effected  at  a  later  date  but  not  later  than  the  expiration  of  the  current  eligibility  list. 
When the commanding officer feels that an individual is deserving of an advancement 
that has been withheld, he or she shall advise [the Personnel Command] with their rec-
ommendation  in  order  that  the  member  may  be  advanced.    No  member  whose 
advancement has been withheld may be carried over to the new eligibility list.” 
 
 
Under PM Article 5.C.25.d., “[i]f at any time prior to effecting an advancement, a 
commanding officer wishes to withdraw his or her recommendation because an indi-
vidual has failed to remain eligible and it appears that eligibility will not be attained 
prior  to  expiration  of  the  current  eligibility  list,  the  commanding  officer  shall  advise 
[HRSIC] … to remove the individual’s name from the eligibility list.” 
 
Under  PM  Article  5.C.5.b.3.,  members  competing  for  advancement  to  E-7  may 
 
not have received NJP or an unsatisfactory conduct mark on an EPEF within 24 months 
of the “terminal eligibility date” before the servicewide examination for advancement.  
In addition, the eligibility period for a good conduct award restarts upon receipt of NJP 
or an unsatisfactory mark. 
 
EPEFs 
 
 
Article 10.B. of the Personnel Manual governs the preparation of EPEFs.  Article 
10.B.1.b.  states  that  COs  “must  ensure  all  enlisted  members  under  their  command 
receive  accurate,  fair,  objective,  and  timely  evaluations.”    Each  enlisted  member  is 
evaluated by a “rating chain” of three persons: a supervisor, a marking official, and an 
approving official.  PM Article 10.B.6.a.1. states that the member is to be evaluated on 
his performance “since the last recorded evaluation.” 
 

Under PM Article 10.B.4.d., the supervisor assigns recommended marks for each 
performance  category  and  for  conduct  by  placing  an  “X”  in  the  appropriate  circles.  
Marks in the performance categories are assigned on a scale of 1 to 7, with 7 being best.  
For conduct, the supervisor must choose between unsatisfactory and satisfactory.  PM 
Article 10.B.2.a. provides that a “one time, minor infraction … is insufficient” to justify 

an  unsatisfactory  conduct  mark.    Instead,  there  should  be  “patterns  of  unacceptable 
behavior.” 

 
The  supervisor  also  prepares  any  page  7s  necessary  to  document  poor  or  out-
standing  performance,  unsatisfactory  conduct,  or  failure  to  be  recommended  for 
advancement.  Page 7s must be prepared for the approving official's signature when a 
member  is  “not  recommended”  for  advancement,  receives  an  unsatisfactory  conduct 
mark,  or  receives  a  mark  of  1,  2,  or  7  in  any  performance  category.  PM,  Articles 
10.B.2.a., 10.B.6.b., and 10.B.7. 
 

Under PM Article 10.B.4.d., the marking official reviews the recommended EPEF 
marks, discusses with the supervisor “any recommendations considered inaccurate or 
inconsistent with the member’s actual performance,” and assigns the final performance 
marks  by  filling  in  the  appropriate  circles.    The  approving  official  then  reviews  the 
EPEF to ensure “overall consistency between assigned marks and actual behavior and 
output” and to ensure that “evaluees are counseled and advised of appeal procedures.”  
The approving official may return an EPEF for revision if he thinks any marks are inac-
curate.  Otherwise he signs the EPEF, concurring in the marks assigned.   
 

In addition, each member of the rating chain indicates on the EPEF whether he or 
she recommends the member for advancement.  PM Article 10.B.7. states that in making 
this decision, rating chain members must consider the member’s past performance and 
ability to perform the duties of the next higher pay grade.  When a member receives a 
mark of “not recommended,” the approving official must sign a page 7 in accordance 
with PM Article 5.C.4.e. 

 
Under PM Article 10.B.5.a., members in pay grade E-6 receive “regular” semian-
nual evaluations at the end of each May and November.  Article 10.B.4.b. provides that 
EPEFs are to be completed within 21 days of the end of a reporting period. 
 
 
Under PM Article 10.B.10., a member may appeal performance marks within 15 
days of receiving a copy of an approved EPEF but may not appeal a negative recom-
mendation for advancement on an EPEF.   
 
Non-Judicial Punishment 
 
 
Under Article 15 of the UCMJ, commanding officers, at their personal discretion, 
may consider imposing NJP for minor violations of the UCMJ when administrative cor-
rective measures seem inadequate and court-martial seems excessive.  Under Article 43 
of the UCMJ, the statute of limitations for imposing NJP is two years from the date of 
the offense. 
 

 
Chapter 1 of the Military Justice Manual (MJM) contains the regulations govern-
ing NJP, which is a non-adversarial, administrative procedure.  The MJM establishes no 
limitation of the time between when a charge is preferred and the day of mast.  Chapter 
1.B.4. of the MJM provides that members must be given notice of the charges against 
them and informed of their rights prior to questioning by an investigator.  If a member 
asks to consult an attorney, he cannot be questioned further until he has an opportunity 
to consult one.   

 
Chapter  1.C.3.c.  of  the  MJM  provides  that  the  accused  member’s  XO  should 
appoint a mast representative “to assist the member in preparing for and presenting his 
or her side of the matter and to speak for the member, if the member desires.”  Under 
Chapter  1.C.3.b.,  the  member  may  request  a  particular  person  to  represent  him,  who 
should be appointed if he is appropriate and “reasonably available.”  Under Chapters 
1.C.3.a. and 1.B.3.b., the XO should appoint the representative either at the time he initi-
ates  the  investigation  of  the  charges  or  after  the  investigation,  when  he  forwards  the 
matter to the CO with a recommendation to take the member to mast, to dismiss the 
charges, or to take some other action.  

 
Under Chapter 1.B.5.e. of the MJM, if a CO decides that taking the member to 
mast is appropriate, the member has a right to refuse NJP and demand trial by court-
martial.    In  making  this  decision,  the  member  is  allowed  to  consult  counsel.    MJM, 
Chap. 1.C.2.a.  If the member accepts NJP, he is entitled to have a representative or a 
spokesperson of his own choosing at mast, but he does not have a right to be represent-
ed by an attorney.  MJM, Chaps. 1.C.1. and 1.C.3.  If a member refuses NJP, the CO may 
decide  not  to  convene  a  court-martial.    MJM,  Chap.  1.B.5.g.    Under  Chapter  1.A.7.a., 
COs should attempt to try all known, related offenses together at the same mast. 
 
 
Under  Chapter  1.D.17.  of  the  MJM,  once  a  member  is  charged,  the  CO  may 
“decide not to punish a member by dismissing the matter with a warning.  Such a deci-
sion may be based on either a lack of proof or a determination that punishment is not 
appropriate  even  though  the  member  committed  an  offense(s).”    A  dismissal  with 
warning is not considered NJP, and no entry is made in the member’s record. 
 
Page 7s 
 

Commandant  Instruction  1000.14A,  “Preparation  and  Submission  of  Adminis-
trative Remarks (CG-3307),” authorizes COs to prepare negative page 7 entries for the 
military records of members who commit acts that are contrary to Coast Guard rules 
and policies.  

Article 138 Complaints 

 

 

Under Chapter 7.A.1. of the MJM, any member who believes himself wronged by 
his CO, and who is refused redress by the CO, may send a complaint to the officer exer-
cising general court-martial jurisdiction (OEGCMJ) over the CO.  See UCMJ Art. 138, 10 
U.S.C. § 938.  Upon receipt of an Article 138 complaint, the OEGCMJ initiates “either a 
formal  or  an  informal  inquiry  into  all  facts  material  to  the  complaint.”    MJM,  Chap. 
7.A.2.g.  The OEGCMJ is responsible for determining what relief, if any, is warranted.  
MJM, Chap. 7.A.7.  After granting or denying relief, the OEGCMJ forwards the com-
plaint and all pertinent documents to the Chief Counsel for review.  MJM, Chaps. 7.A.8. 
and 7.A.9. 
  

FINDINGS AND CONCLUSIONS 

1. 

 
2. 

 
 
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 appli-
cable law: 
 

The Board has jurisdiction concerning this matter pursuant to section 1552 

of title 10 of the United States Code.  The application was timely. 

3. 

The applicant requested an oral hearing before the Board.  The Chair, act-
ing pursuant to 33 C.F.R. § 52.31, denied the request and recommended disposition of 
the case without a hearing.  The Board concurs in that recommendation. 
 
The applicant alleged that his CO wrongfully withheld his advancement 
 
to E-7 and asked the Board to correct his record by advancing him as of June 1, xxxx, 
Absent  strong  evidence  to  the  contrary,  the Board  must  presume  that  the  applicant’s 
command  and  other Coast  Guard  officials  involved  in  the  denial  of  his  advancement 
executed their duties “correctly, lawfully, and in good faith.” Arens v. United States, 969 
F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979).  
 

After the applicant’s name appeared on the advancement announcement 
issued  on  May  18,  xxxx,  his  CO  notified  HRSIC,  in  accordance  with  PM  Article 
5.C.4.e.9., that his advancement should be withheld “until further notice” because the 
CO no longer recommended him for advancement.  The record indicates that the appli-
cant was orally informed of the reasons his advancement would be withheld at his mast 
on  May  5,  xxxx.    It  also  indicates  that  he  was  fully  aware  of  the  allegations  against 
him—as described on the charge sheets and documented on the page 7 dated April 12, 
xxxx.  In addition, he had ample opportunity to respond to the allegations both in writ-
ten  statements  and  at  mast.    The  fact  that  the  charges  were  dismissed  at  mast  with 
warning does not prove that his CO found them to be untrue or unjust. MJM, Chapter 
1.D.17.   
 

4. 

5. 

6. 

 
7. 

In the record before the Board, there is no page 7 dated in May xxxx noti-
fying  the  applicant  of  the  CO’s  decision  to  withhold  the  advancement,  as  required 
under PM Article 5.C.4.e.5.b.  However, the Board finds that the lack of the page 7 was 
harmless  because,  in  April  and  May  xxxx,  the  applicant  was  made  fully  and  timely 
aware of the allegations against him and clearly knew that his CO was withholding his 
recommendation  for  advancement.    The  preparation  of  a  page  7  in  accordance  with 
Article  5.C.4.e.5.b.  would  not  have  informed  the  applicant  of  anything  he  did  not 
already know.  Moreover, the fact that he was never found guilty of the charges against 
him at mast or court-martial is irrelevant since no such conviction is required to with-
hold a recommendation for advancement, which is a discretionary decision for the CO 
to make based on the criteria listed in PM Article 5.C.4.e.4. 
 

Under PM Article 5.C.4.e.4., 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.”  The record 
contains ample evidence that reflects poorly on the applicant’s integrity and ability to 
adhere to the core values of honor, respect, and devotion to duty and supports the deci-
sion  of  his  CO  in  May  xxxx  to  withdraw  his  recommendation  for  advancement  and 
cause it to be withheld by HRSIC.  Although after the EPEF for the period ending May 
31, xxxx, was completed in December xxxx, the applicant received a mark of “recom-
mended” for advancement, the mark does not prove that his CO erred or committed 
any injustice in  withholding his recommendation for advancement after the advance-
ment list was issued on May 18, xxxx.  Moreover, because the EPEF was not completed 
and  presented  to  him  until  December  18,  xxxx,  the  “recommended”  mark  could  not 
have confused the applicant about his actual status in May xxxx or during his proba-
tionary period.  The Board concludes that the applicant has not proved by a preponder-
ance of the evidence that his CO or the Coast Guard committed any material error or 
injustice in withholding his advancement on June 1, xxxx. 

 The applicant alleged that he should have been advanced at the end of his 
six-month  probationary  period  because  he  met  all  of  his  CO’s  goals.    However,  the 
record indicates that during the probationary period, the applicant’s command discov-
ered  that  he  had  been  regularly  misusing  his  Government  calling card  and  the  office 
XXXX account for personal purposes.  Under PM Articles 5.C.4.e. and 10.B.7., the fact 
that most of his misuse of the accounts occurred before the evaluation period did not 
prohibit  his  CO  from  considering  that  misconduct  in  deciding  whether  to  allow  his 
advancement.  Moreover, during the evaluation period, the applicant refused to hold 
himself  accountable  for  his  actions  and  persisted  in  making  misleading  and  uncon-
vincing arguments that his use of the accounts was proper.  Therefore, the Board finds 
that the evidence in the record fully supports the CO’s decision not to allow the appli-
cant’s advancement at the end of his probation.  As with the charges in April and May 
xxxx, the fact that the later charges were dismissed with warning does not prove that 

his CO found them to be untrue or unjust. MJM, Chapter 1.D.17.  Nor does it prove that 
his CO’s decision to remove his name from the advancement list was improper.   

 
8. 

10. 

11. 

 

 
9. 

 The record indicates that the CO properly informed the applicant about 
his removal from the advancement list in a page 7 dated December 12, xxxx, and asked 
HRSIC to remove his name from the advancement list on December 13, xxxx, in accor-
dance with the provisions of PM Article 5.C.4.e.  The applicant has not proved by a pre-
ponderance of the evidence that these actions were in error or unjust. 
 

Although  the  applicant  did  not  expressly  ask  the  Board  to  remove  any 
EPEFs from his record, he submitted a copy of a complaint in which he disputed their 
accuracy and the propriety of the procedure by which the EPEF for the period ending 
May 31, xxxx, was completed.  Therefore, the Board will consider whether they should 
be removed from his record. 
 
 
In  the  EPEF  for  the  period  ending  May  31,  xxxx,  the  applicant  received 
marks of 2 for the performance categories “integrity” and “setting an example.”  He did 
not  submit  any  evidence  to  refute the  marks,  and  the  record  indicates  that  his  rating 
chain  had  ample  evidence  on  which  to  conclude  that  his  integrity  was  impaired  and 
that he was setting a poor example for others.  The record indicates that his supervisor 
timely prepared the EPEF and a page 7 to document the low marks in accordance with 
PM Article 10.B.6.b.  The record also indicates that neither the EPEF nor the page 7 was 
signed by the marking and approving officials until December 13, xxxx.  
 
 
 Although the EPEF and the page 7 for the period ending May 31, xxxx, 
were not timely completed and approved by the marking and approving officials, the 
Board finds no reason to remove them from his record.  The applicant has not proved 
that they contain any error or that he was harmed in any way by the delay in their com-
pletion.  Despite the delay, he was entitled to appeal them under PM Article 10.B.10. but 
chose not to do so.  Untimeliness per se is insufficient to justify removal of an otherwise 
valid performance evaluation.  The Board finds that the applicant has not proved by a 
preponderance of the evidence that the EPEF or the page 7 are erroneous or unjust. 
 

12. 

The  record  indicates  that  the  applicant’s  EPEF  for  the  period  ending 
November 30, xxxx, was timely completed in accordance with the provisions of the Per-
sonnel Manual.  In addition, the applicant’s marks of 1 in “integrity” and “setting an 
example,”  unsatisfactory  conduct  mark,  “not  recommended”  for  advancement  mark, 
and loss of eligibility for a good conduct award were properly and timely documented 
on page 7s in accordance with PM Articles 10.B.2.a., 10.B.6.b., and 10.B.7.  Moreover, the 
record contains ample evidence to support his rating chain’s decision to award those 
marks.  While most of the applicant’s misuse of the accounts occurred before the evalu-
ation period, his failure to hold himself accountable for his misuse of the accounts pro-
vided a sufficient basis for the rating chain’s low performance and “not recommended” 

marks,  as  well  as  for  the  unsatisfactory  conduct  mark,  under  PM  Article  10.B.2.a.    In 
addition, he chose not to appeal this EPEF.  The Board finds that the applicant has not 
proved by a preponderance of the evidence that this EPEF or the page 7s documenting 
the marks are erroneous or unjust. 

 
13. 

The applicant made many allegations regarding the charges against him 
and how they were handled.  With respect to the charges that led to his mast on May 5, 
xxxx, he did not prove that they were made in bad faith or that he was denied due proc-
ess in any  way.   The  record indicates that  on April 12, xxxx, he was informed of the 
charges against him, of his right to remain silent and to consult counsel, and of his right 
to submit a statement in his own behalf.  He asked to consult counsel, and the next day 
submitted a written statement.5  When the charges were revised on April 28, xxxx, he 
was informed of the revision, was again informed of his rights, waived his right to con-
sult an attorney before making a decision about whether to accept NJP, and accepted 
NJP.    The  record  also  indicates  that  the  applicant  asked  that  a  military  attorney  be 
assigned to represent him at mast.  However, under Chapter 1.C.3. of the MJM, he had 
no right to an attorney at mast; he was only entitled to a “mast representative,” and one 
was appointed.  Therefore, the Board finds that the applicant has not proved by a pre-
ponderance of the evidence that he was denied due process in any way with respect to 
the charges against him in the spring of xxxx or his mast on May 5, xxxx.  Moreover, 
even if he had proved some procedural error under the MJM, it would not prove that 
his CO erred in withholding his recommendation for advancement, which was a sepa-
rate, discretionary, administrative decision.  Furthermore, because the charges were dis-
missed  with  warning,  he  is  not  considered  to  have  received  NJP,  and  no  court 
memorandum about the mast appears in his record.  MJM, Chapter 1.D.17. 

 
 
14.  With  respect  to  the  charges  regarding  the  applicant’s  use  of  the  calling 
card and XXXX account, the Board finds that he has not proved any bias or bad faith on 
the  part  of  the  persons  who  charged  him  with  the  offenses,  the  persons  who  investi-
gated the charges, or his CO.  The lieutenant’s opinion as expressed in the email mes-
sage  dated  November  27,  xxxx,  and  the  fact  that  one  of  the  investigators  had  been 
xxxxxed by his supervisor are insufficient to overcome the presumption of correctness 
accorded  Coast  Guard  officers  under  Arens  v.  United  States,  969  F.2d  1034,  1037  (Fed. 
Cir.  1992).    In  light  of  his  use  of  the  calling  card,  it  was  perfectly  reasonable  for  his 
command to scrutinize his use of other Government accounts.  Under Chapter 1.A.7.a. 
of the MJM, it was proper for the CO to try to handle the similar charges at one mast, 
and  there  is  no  evidence  in  the  record  that  the  CO  intended  at  the  May  5th  mast  to 
absolve  him  of  then-unknown  wrongdoing  when  he  dismissed  the  charges  for  the 
known offenses.  Moreover, the applicant has not proved that he was harmed in any 

                                                 
5  It is unclear from the record whether the applicant actually consulted an attorney between April 12th, 
when he asked for one, and April 13th, when he submitted his statement.  However, if he submitted his 
written statement before the Coast Guard assigned him counsel, this was not the fault of the Coast Guard. 

way by his CO’s delay in acting on the first charge, even if he might have been hoping it 
would disappear. 

The record indicates that the applicant was properly informed of his rights 
when he was questioned about his calling card use on July 28, xxxx, and when he was 
questioned  about  his  use  of  the  XXXX  account  on  November  15,  xxxx.    In  both 
instances, he indicated that he did not want to consult counsel but would make a state-
ment in his own behalf.  For both Article 92 charges, he asked that the lieutenant who 
had  represented  him  for  the  May  5th  mast  be  reappointed  if  he  were  taken  to  mast.  
Under MJM Chapters 1.C.3.a. and 1.B.3.b., he was not entitled to have a mast represen-
tative appointed until his XO forwarded the charges with his recommendation to the 
CO.  It is unclear from the record exactly what day that happened, and the lieutenant 
apparently was not reappointed.  The applicant has presented no evidence to prove that 
any significant amount of time passed between when his XO forwarded the charges to 
the CO and December 5, xxxx—the day he was advised that his CO was considering 
taking  him  to  mast,  was  informed  of  his  rights,  and  waived  his  right  to  consult  an 
attorney  before  making  the  decision  about  whether  to  accept  NJP.    Moreover,  since 
under MJM Chapter 1.C.3.c., the purpose of a mast representative is to help the member 
prepare for mast and to speak for him at mast, the Board fails to see how the applicant 
could have been prejudiced by not having a mast representative appointed before he 
had  decided  whether  or  not  to  accept  mast.    Furthermore,  because  the  charges  were 
dismissed  with  warning,  no  court  memorandum  about  the  charges  appears  in  his 
record.    MJM,  Chapter  1.D.17.    Therefore,  the  Board  finds  that  the  applicant  has  not 
proved by a preponderance of the evidence the existence of any material error or injus-
tice in his record with respect to the Article 92 charges. 

 
15. 

 
16. 

17. 

In his complaint to the court, which he submitted as part of his applica-
tion,  the  applicant  also  asked  that  all  derogatory  page  7s  and  other  notations  be 
removed from his record.  However, he has not proved that any of the page 7s in his 
record are erroneous or unjust.  Under Chapter 1.D.17. of the MJM, the fact that all of 
the  charges  against  him  were  dismissed  with  warning  does  not  mean  that  they  were 
found to be false.  Commandant Instruction 1000.14A does not require that allegations 
be proved at a mast or court-martial before a CO can document unacceptable behavior 
in an administrative entry in the member’s record.   
 

The applicant alleged that his Article 134 complaint against his supervisor 
was not properly processed.  He has not alleged or proved the existence of any error or 
injustice  in  his  military  record  as  a  result  of  how  the  Coast  Guard  handled  his  com-
plaint. 
 
18. 

The record indicates that the applicant’s November 29, xxxx, request for 
relief  under  Article  138  was  properly  addressed  by  his  CO,  forwarded  to  the  Com-
mander of MLC, investigated, and denied.  In addition, it was reviewed by the Chief of 

the Office of Military Justice, who found that the denial was “appropriate.”  The Board 
finds that the applicant has not proved any material error or injustice with respect to the 
handling and denial of his Article 138 request for relief. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 
19. 

The applicant made numerous allegations with respect to the actions and 
attitudes of his supervisor, his CO, and others at his command.  Those allegations not 
specifically addressed above are considered by the Board to be without merit and/or 
not dispositive of the issues involved in this case. 
 
 
 
 
 
 
 

20.  Accordingly, the applicant’s request should be denied. 

record is denied. 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

*recused 
James K. Augustine 

 

 

 

 
Murray A. Bloom 

 

 

 
 
Betsy L. Wolf 

 

 

 

 

 

 

 

 

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

ORDER 

 

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
*  Member  recused  to  avoid  any  appearance  of  impropriety.    While  he  divorces  himself  from  any 
involvement  in  personnel  matters  potentially  involving  the  BCMR,  he  nonetheless  is  employed  as  an 
attorney in the Coast Guard’s Office of Claims and Litigation, which represented the Coast Guard in an 
earlier legal proceeding brought by the applicant.