DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2004-086 
 
Xxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
 
This  proceeding  was  conducted  according  to  the  provisions  of  section  1552  of 
title 10 and section 425 of title 14 of the United States Code.  It was docketed on April 1, 
2004, upon the BCMR’s receipt of the completed application.   
 
 
ed members who were designated to serve as the Board in this case. 
 

This final decision, dated December 29, 2004, is signed by the three duly appoint-

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
The  applicant  asked  the  Board  to  reinstate  him  on  the  2003  eligibility  list  for 
appointment to chief warrant officer (CWO) and to remove an adverse Administrative 
Remarks form CG-3307 (“page 7”) from his record.  
 
 
The applicant alleged that his name was removed from the CWO eligibility list 
and the page 7 was entered in his record after a civilian employee at the Xxxxx unjustly 
accused  him  of  sexual  harassment  but  before  the  Equal  Employment  Opportunity 
(EEO) investigation was complete.  He alleged that the EEO investigation later revealed 
that the complaint was unsubstantiated.  Therefore, he argued, his removal from the list 
and the page 7 are erroneous and unjust. 
 
 
The applicant alleged that the entire situation was handled improperly and that 
he was denied due process and the right to a full and fair hearing.  He alleged that the 
fact that the Commandant did not take final action to disapprove the recommendation 
of a Special Board that he be reinstated on the CWO eligibility list until 90 days later 
was inexcusable. 

 
 
The  applicant  stated  that  he  was  denied  due  process  because  he  was  never 
“placed on report.”  He stated that, had he been placed on report, he would have had 
the chance to call witnesses and question his accusers.  Instead, he “was treated as little 
more than a bystander throughout this process, and other than being given the oppor-
tunity to make a statement, … had no knowledge of what course the investigation was 
taking or what my accusers were saying.”  He pointed out that he was away from the 
Xxxxx on temporary active duty for much of the duration of the investigation, and he 
alleged that the actions taken against him were “based on scant information and relied 
solely on collaborated [sic] statements of my accuser and her friends in retaliation for 
being terminated by the CG Xxxxx due to her own misconduct.” 
 
 
The applicant further alleged that a summary of disciplinary and administrative 
actions posted on the Coast Guard’s intranet website includes the following:  “E-8 per-
manently removed from the 2003 CWO Appointment List due to sexually harassing a 
civilian  employee.”    The  applicant  stated  that  when  a  former  shipmate  pointed  this 
notation  out  to  him,  he  was  not  certain  whether  he  was  the  E-8  in  question  or  not 
because of the conclusion of the EEO investigation.  He stated that he asked the Xxxxx 
command and discovered that he was in fact the E-8 mentioned on website and that the 
Headquarters legal staff had revised the entry at the urging of the Xxxxx command.  He 
stated that “[t]his troubles me even more because now, after taking action against me 
for  charges  that  were  later  determined  to  be  unsubstantiated,  the  XXXXX  as  well  as 
Coast Guard Headquarters still is not sure what it was I did in the first place.” 
 
 
In support of this allegation, the applicant submitted a copy of an email conver-
sation concerning the website entry.  The email indicates that a friend of his forwarded 
him a list of “military administrative actions” off the website.  In addition to the lan-
guage  about  the  removal  of  an  E-8  quoted  above,  the  list  shows  that  an  E-7  was 
removed from the same eligibility list for failing to ensure boat crew certifications at his 
unit  and  that  another  E-7  was  removed  from  the  list  for  having  been  arrested  for 
driving  under  the  influence  (DUI).    The  applicant  stated  in  an  email  to  the  Xxxxx 
command  that  he  “probably  could  have  swallowed  something  like  ‘inappropriate 
behavior’ on the message which still turns my stomach but [not] ‘sexual harassment.’”  
In response, a commander stated that he had “persuaded HQ legal that they made an 
administrative  error”  and  that  the  website  entry  now  reads  as  follows:    “An  E-8  was 
permanently  removed  from  the  2003  CWO  Appointment  List  for  engaging  in 
inappropriate personal relationships, tolerating unprofessional employee conduct, and 
failing to adhere to Coast Guard core values.” 
 

SUMMARY OF THE RECORD 

 
 
The applicant enlisted in the Coast Guard in 1981.  He became a supply specialist 
and when that specialty was abolished became a food service specialist.  He has accu-

mulated many years of sea service on various cutters and has received three Achieve-
ment Medals, a Commendation Medal, and other personal and unit awards.  On March 
11, 1998, he received training on human relations, interpersonal relationships, and frat-
ernization, in accordance with Article 8.H. of the Personnel Manual.   
 
 
On  June  17,  2001,  the  applicant  became  the  manager  of  the  Xxxxx  Xxxx  at  the 
Coast Guard Xxxxx in Xxxxxxx.  He received excellent performance evaluations.  On his 
annual performance evaluation dated September 30, 2002, he received two marks of 7 
(on a scale of 1 to 7 with 7 being best), nine marks of 6, and thirteen marks of 5, and was 
recommended for advancement.  On January 27, 2003, CO of the Xxxxx nominated him 
for a special award for his successful management of the Xxxx.  
 
 
An undated letter from the Commandant in the applicant’s record indicates that 
he was informed that he had been appointed a CWO by the Secretary and that the date 
of  appointment  would  be  June  1,  2003.    The  letter  also  informed  him  that  he  was 
required to remain “physically and otherwise qualified” until he took the oath of office 
on that day. 
 
Administrative Investigation 
 
 
On  April  2,  2003,  the  CO  of  the  Xxxxx  ordered  a  lieutenant  to  conduct  an 
informal  investigation  of  “all  the  facts  and  circumstances  surrounding  the  alleged 
sexual  harassment  by  [the  applicant]  while  discharging  his  duties  as  the  Xxxxx  Xxxx 
Manager.”  The CO noted that no hearing was required but that a report with findings 
should be prepared. 
 
 
On April 3, 2003, the investigating officer (IO) interviewed the applicant by tele-
phone.    The  record  contains  a  form  titled  “Article  31(B),  UCMJ,  and  Miranda/Tempia 
Rights,” which is signed by the IO and dated April 3, 2003 (but not by the applicant1) 
and indicates that the applicant was informed during the telephone conversation of his 
right to remain silent and to consult an attorney and of the fact that anything he said 
could  be  used  as  evidence  against  him  “in  any  court-martial,  nonjudicial  proceeding, 
administrative proceeding, or civilian court.”  The form also indicates that the applicant 
was advised that he was suspected of violating Article 92 of the Uniform Code of Mili-
tary Justice (UCMJ), Article 8.H. of the Personnel Manual, and Chapter 5.E. of the EEO 
Manual by having an “[u]nduly familiar/inappropriate personal relationship between 
superior  &  subordinate”  and  that,  after  being  informed  of  his  rights,  the  applicant 
“desire[d] to make a statement and/or answer any questions.”   
 

Also on April 3, 2003, the applicant wrote and signed a statement for the IO and 
faxed it to him.  In it, the applicant stated that he had “never sexually harassed [Ms. D] 
                                                 
1  The applicant made no allegation with respect to this form, which he submitted with his application. 

nor any other female or male employee.”  He stated that a dispute arose because in Feb-
ruary 2003 he only had three bartenders (Ms. H, Ms. D, and Ms. B), two of whom—Ms. 
D and Ms. B—were intermittent, part-time employees and under federal law could only 
work up to 19 hours per week and wanted to work even fewer hours.  Therefore, he 
sometimes  had  no  one  willing  to  tend  bar  and  would  have  to  do  so  himself,  get  an 
active  duty  member  to  serve,  or  close  the  bar.    Moreover,  he  was  advised  that  as  of 
April  1,  2003,  Ms.  H,  his  only  full-time  employee  at  the  bar,  would  become  just  an 
intermittent  employee.    Therefore,  because  he  was  already  having  trouble  filling  the 
schedule for bartenders to cover the 43.5 hours per week that the bar was open, in early 
March  2003  with  the  consent  of  his  supervisors,  he  hired  a  fourth  intermittent 
bartender,  Ms.  M.    Because  Ms.  M  had  to  be  trained,  during  one  week  in  March,  he 
scheduled her for three “break-in” days and a Friday and left Ms. D off the schedule 
that week.  Ms. D called him and became very upset about being left off the schedule, 
and he tried to find time in the schedule when she could work, but he had to make his 
decision “based on efficiency of operations.” 

 
In her statement to the IO, Ms. D, who filed the EEO complaint, wrote that she 
had been working at the Xxxxx Xxxx about one day a week for five years to supplement 
her full-time income from the Coast Guard.  She stated that the applicant  

 
has  asked  me  out  on  several  occasions  since  he  came  on  board  at  the  Xxxxx,  most 
recently was at a retirement party which was on Friday February 28, 2003.  When I came 
to work he made the comment to me about all he was going to see the rest of the night 
was  blue  because  of  the  blue  sweater  I  was  wearing.    He  continued  throughout  the 
evening making these comments in front of many of the customers and he even asked me 
if I would go out with him that weekend.  Of course, I just laughed, which is how I have 
always handled the situation.  He then asked me if I wanted to come over to his house 
after  I  closed  the  bar  and  I  played  that  off  by  saying  yeah  right.    Before  he  left  that 
evening  he  wrote  his  number  down  and  gave  it  to  me  and  told  me  to  call  him  and  he 
would take me out. … This is not the first time he has asked me out, and I am not the first 
bartender he has asked out as he has asked the others out on numerous occasions as well.  
Up until now I have just brushed the comments off and made a joke about it, but it seems 
now I am being treated unfairly because I am not interested in going out with him. 
 
Ms. D also stated that in March 2003, when she saw that the applicant had given 
Ms. M her (Ms. D’s) and Ms. B’s usual work nights, she complained to the applicant, 
but he said, “I did the schedule last night and [Ms. H and Ms. M] picked their days so I 
guess you don’t get to work this month.”  Ms. D stated that she tried to get the matter 
resolved  fairly  and  that  the  applicant  later  promised  her  she  could  continue  to  work 
every other Wednesday, as she had been doing, but that he then reneged on that prom-
ise  and  prepared  a  schedule  that  gave  her  only  one  day  of  work  for  the  month.    She 
stated that the applicant’s position was that Ms. H had to get three days a week under 
her contract and that he was giving Ms. M—the new bartender with whom he had just 
been  on  a  date—the  days  she  wanted  and  that  Ms.  D  and  Ms.  B—who  had  worked 
there  for  years  and  repeatedly  refused  his  requests  for  dates—would  only  get  the 

remaining shifts.  Ms. D alleged that she was told that if she did not like the schedule, 
she should quit and that Ms. H was told that Ms. D and Ms. B were now just “fill ins.”  
On  March  19,  2003,  one  week  after  her  discussion  with  the  applicant,  she  was  fired 
allegedly because of an incident that had occurred three months before when she had 
had to call security to remove an abusive customer from the bar and then after closing 
had asked someone else to help her count the money, contrary to policy. 

 
Ms. B also provided a statement to the investigator.  She stated the following: 
 
Not long after being employed at the Xxxxx [in 2001, the applicant] started asking me to 
go out with him. … [J]ust about every time I worked and he was there, he would ask me 
on a date and a few times asked me to his condo for dinner or to watch a movie.  I would 
always  tell  him  no,  but  he  would  continue  to  ask.    Sometimes  while  I  was  working  he 
would tell my customers that I was his girlfriend and that I was going to be his wife.  A 
few times he even told my customers I was his wife.  Now considering that I work for 
tips, this put a damper on my take home that night. 
 
I  know  when  [the  applicant]  came  here  and  took  over  the  Xxxx,  he  would  always  ask 
[Ms. D] out on dates.  Finally, [Ms. D] went out on a date with him.  They only went out 
one time, but that didn’t stop [him] from asking her out until [she] got a boyfriend.  Then 
he  backed  off  a  bit.    As  soon  as  she  would  become  single  again  it  would  start  all  over 
again.  Or at least little comments here and there.  I went to dinner with him one time 
also  on  a  Sunday  [with]  my  daughter.  …  [W]e  never  went  out  again,  not  because  he 
stopped asking but because I said no.  When I started working at the Xxxxx, I told [him] 
… that I don’t date any of my customers or co-workers. 
 
… [Ms. M] was hired making $8.00 an hour.  That’s more than what I made.  So of course 
that immediately became an issue.  I confronted [the applicant] as soon as I heard and he 
put in for a raise for me.  In less than a week of employment [he] went out on a date with 
[Ms. M]. … [M]y aunt works there and saw them there.  At this point [he] doesn’t ask me 
out anymore.  Not since [Ms. M] started.  I guess he was tired of me turning him down. 

•  •  • 

Drinking on the job.  [The applicant] has always allowed us to drink while working. … 
This only changed after the conflict at a Christmas Party [Ms. D] worked for WW. …  [A 
customer became loud and abusive, and Ms. D called security to escort him out.]  [The 
applicant] told me about 3 weeks ago that he sided with [Ms. D] that night because even 
he had [had] people help him out and count money behind him after a super busy night 
like she had.)  He was not upset about her having the help at all but said that he under-
stood and had been there himself.  Yet [Ms. D] was terminated for defending herself by 
calling  security  and  for  trying  to  secure  the  Xxxx’s  money  by  having  another  person 
recheck her counting after such a busy evening. 
•  •  • 

… [A]t least a month after that, [Mr. L] came in and said he didn’t want the barmaid to 
drink while working.  We all said okay, no problem.  Yet about two weeks after that [the 
applicant] told me that he didn’t care if we drank but not to overdo it or put it on display.  
Even while I was training [Ms. M] I mentioned to him that she wanted to make a drink 
[for herself] and he said, “go ahead.”  When I worked last Thursday … someone offered 
to buy me a beer.  [The applicant] was sitting at the bar having a drink himself.  I told the 
customer  thank  you  but  no  thanks  I’m  not  allowed  to  drink  while  I  work.    [The 
applicant] said go ahead and have one.  I told him no I don’t think so.  He wasn’t gonna 

pull a quick one on me and especially since the camera had been installed.  He again told 
me it was okay.  So I made a big deal out of it to make sure the regulars sitting next to 
him heard it, and told him to get the beer for me if it was okay for me to have it.  He got 
up and got me a beer and proceeded to tell me that he was the only one who views the 
videos and since he was leaving for two weeks that the camera was not even [turned] on.  
[However, she later discovered that it was turned on.] 
 
  
Ms. B further stated that the applicant had left her off the schedule as well as Ms. 
D to allow Ms. M to train, and that if two bartenders were present, they had to split the 
tips, which was a hardship. 
 
Ms. H also provided a statement to the IO.  She wrote that she had worked at the 
 
Xxxx for nine years and had trained Ms. D, but that in October 2001, the applicant told 
Ms.  D  that  she  might  get  a  raise,  even  though  Ms.  H  had  never  gotten  a  raise.    She 
stated  that  the  applicant  “had  asked  [Ms.  D]  out  on  a  date  on  several  occasions,  and 
they had been on one date together.”  Thereafter, Ms. H spoke to the personnel office 
and received a raise.  Ms. H stated that the applicant went on a date with Ms. B soon 
after she was hired in 2001.  She stated that Ms. M was hired at $8.00 per hour, which is 
“inflated  for  a  new  bartender  without  experience.”    Ms.  H  further  stated  that  she 
“believe[s] that raises for the part-time bartenders are not done on job performance, job 
experience or tenure at the Xxxxx Xxxx.” 
 
 
they did go out to dinner together with a friend of hers. 
 
 
The IO also received statements from two other Xxxx employees who wrote that 
the applicant had been having trouble keeping the bar staffed with a bartender and had 
hired Ms. M to have full coverage.  Another member stated that one night when Ms. D 
was wearing a blue sweater at the bar, the applicant made comments about it, such as 
when he went home, all he was going to see was blue.  This member also stated that the 
applicant had been on one date each with Ms. B, Ms. D, and Ms. M soon after they were 
hired.  The applicant’s supervisor wrote a statement indicating that he had never before 
had a complaint about the applicant’s performance. 
 
 
On  April  11,  2003,  the  IO  completed  his  informal  administrative  investigation 
and  submitted  his  report  to  the  applicant’s  CO.    The  report  indicates  that  Ms.  D  had 
been upset by the work schedule made by the applicant for the months of March and 
April because her hours were reduced after Ms. M was hired and given two nights a 
week “to gain experience.”  The IO found that the applicant had asked Ms. D “out on 
dates on several occasions”; that he had gone out to dinner with Ms. B and her daughter 
once and “[a]fter the date, he repeatedly asked her to go out with him again”; that he 
went out to dinner with Ms. M and a friend of hers shortly after she was hired; and that 
at a party at the Xxxx on February 28, 2003, he commented on a blue sweater worn by 
Ms. D several times while she was tending the bar.  

Ms. M told the IO that she never went out on a date with the applicant, but that 

 
 
On April 24, 2003, the CO of the Xxxxx, as the Final Reviewing Authority for the 
investigation, approved the IO’s findings.  The CO wrote that the applicant “established 
inappropriate personal relationships with female subordinate bartenders” at the Xxxx 
in  violation  of  Article  8.H.  of  the  Personnel  Manual.    He  wrote  that  “[t]hese 
relationships  in  combination  with  lax  management  of  the  Xxxxx  Xxxx,  by  tolerating 
bartender tardiness, improper fiscal practices and drinking while on duty, jeopardized 
an appearance of impartiality and undermined respect for [the applicant’s] authority.”  
The CO noted that a page 7 documenting the applicant’s conduct would be put in his 
record;  that  the  applicant  would  receive  remedial  training  in  accordance  with  Article 
8.H.  and  the  EEO  Manual;  that  a  special  enlisted  evaluation  would  be  prepared  to 
address  his  inappropriate  conduct;  and  that  his  command  recommendation  for 
appointment to CWO would be rescinded. 
 
Consequences of the Investigation 
 
 
the following page 7 entry, which the applicant signed in acknowledgment: 
 

On April 30, 2003, the applicant’s command officer (CO) at the Xxxxx prepared 

This is an adverse administrative remarks entry documenting your misconduct.  Specific-
ally, you displayed poor  judgment by developing a  pattern of inappropriate and unac-
ceptable personal relationships (more than occasional, non-romantic social relationships) 
with female subordinate bartenders at the USCG Xxxxx Xxxxx Xxxx.  Engaging in inap-
propriate  personal  relationships  violated  Chapter  8-H  of  …  the  Coast  Guard  Personnel 
Manual and fell below the standard of conduct expected of a Senior chief Petty Officer 
and a supervisor.  These relationships in combination with lax management of the Xxxxx 
Xxxx  (not  properly  disciplining  bartenders  for  tardiness,  improper  fiscal  practices  and 
drinking  while  on  duty)  jeopardized  an  appearance  of  impartiality  and  undermined 
respect for you.  You are hereby ordered to review the Commandant’s policy on personal 
relationships  found  in  Chapter  8-H  of  the  Coast  Guard  Personnel  Manual  and  discuss 
them with your immediate supervisor. 
 
In  addition  to  this  CG-3307,  a  letter  will  be  sent  from  this  command  to  Commander, 
Coast Guard Personnel Command (OPM-1) withdrawing the command recommendation 
for promotion to Chief Warrant Officer (CWO).  This will not prevent you from compet-
ing  for  CWO  in  the  future,  as  long  as  you  meet  all  eligibility  requirements  and  earn  a 
positive recommendation from your next command.  Your performance, outside of this 
specific  area,  has  been  exceptional  and  the  USCG  Xxxxx  employees  have  greatly 
benefited significantly [sic] from the improvements you implemented at the Xxxxx Xxxx. 
 
You are also advised that further display of inappropriate conduct will result in further 
administrative or disciplinary action. 

 
 
Also on April 30, 2003, the CO sent the Commander of the Coast Guard Person-
nel Command (CGPC) a letter regarding the CO’s “recension of command recommen-
dation to CWO.”  The CO cited the applicant’s “poor judgment with regard to his per-
sonal and professional relationships with the civilian employees that he supervised” as 

the cause of the rescission.  The CO noted that the applicant “was not aware that his 
professional judgment and personal relationships with his civilian subordinate employ-
ees  were  not  appropriate”  and  that  as  an  E-8,  he  was  “expected  to  know  where  the 
boundaries [were] or how to determine them.” 
 

On May 1, 2003, a copy of the report of the administrative investigation was pro-
vided to the applicant with the opinions and recommendations of the investigating offi-
cer redacted in accordance with 5 U.S.C. § 552(b)(5) as “pre-decisional correspondence 
… covered by the deliberative process privilege.” 
 
 
On May 5, 2003, the applicant submitted a letter appealing the action of the Final 
Reviewing Authority and his CO’s decision to remove his recommendation for promo-
tion to CWO.  He argued that the investigation was conducted in a way that denied him 
due  process;  that  the  Commandant’s  policies  concerning  interpersonal  relationships 
had been misinterpreted; and that the actions taken against him were “disproportionate 
to  the  alleged  misconduct.”    He  argued  that  the  employee  only  complained  after  she 
had been fired and noted that the Coast Guard’s administrative investigation was com-
pleted before the EEO investigation had even begun.  He alleged that when the investi-
gating officer telephoned him to interview him, the applicant asked whether the inter-
view was for the investigation begun as a result of the EEO complaint and received an 
affirmative response.  Therefore, he was not aware that it was a separate, administrative 
investigation.  He alleged that he “was preoccupied at the time and, quite frankly, did 
not  fully  grasp  the  gravity  of  the  situation  since  I  did  not  feel  as  though  I  had  done 
anything wrong in the first place.”  He alleged that he did not know the administrative 
investigation was under way until it had concluded and that it was unfair that the copy 
of  the  administrative  investigation  that  he  received  omitted  the  opinions  and  recom-
mendations that the IO provided to his CO. 
 
 
The applicant further stated that all of his off-duty associations with “the indi-
viduals in question”  were non-intimate and non-romantic.  He stated that he went to 
dinner with one female employee and her daughter once; that he went to lunch  with 
another  female  employee  and  her  daughter  and  then  turned  down  an  invitation  to 
attend a movie with them; and that he went to dinner with a third female employee and 
a friend of hers once.  He stated that the atmosphere at these meals was casual and that 
he “never felt that [his] intentions would be construed otherwise by anyone.  [He] never 
pressured any of these individuals to date [him] and never pursued a romantic relation-
ship with any of them.” 
 
 
The applicant also argued that the statement concerning his “lax management” 
of the Xxxx was erroneous in light of the fact that he “took a financially struggling Xxxx 
and  immediately  turned  it  into  a  revenue  producing  facility.    Net  profits  initially 
increased  by  20%  while  customer  complaints  decreased  by  80%  …  .    Subsequent 
reviews  …  indicate  that  revenues  increased  by  33%  from  the  previous  year.”    He 

alleged that his responses to employee tardiness and other problems were appropriate 
and “carried out with the full knowledge of” his chain of command.  He stated that he 
did  not  pursue  punitive  or  administrative  action  for  employees’  tardiness  and  last-
minute  absences  because  they  were  single  mothers  dealing  with  child-care  problems.  
Therefore, with the agreement of his chain of command, he hired another bartender to 
allow greater flexibility even though he knew it would increase competition for avail-
able workdays.  He alleged that he always prepared the work schedule “to best suit the 
needs of the Xxxx’s operation and with the input of the individuals involved,” as well 
as  with  the  consent  of  his  supervisors.    He  alleged  that  he  never  prepared  the  bar-
tenders’ work schedules based on favoritism and that it was impossible to satisfy every-
one  in  making  the  schedule.    He  further  alleged  that  he  never  observed  or  condoned 
bartenders drinking alcohol while on duty. 
 
The applicant wrote that his removal from the CWO eligibility list was dispro-
 
portionately severe in light of his actual actions and the more lenient way much worse 
behavior had been treated in the past.  He stated that it amounted to a reduction in rank 
based  only  on  the  unsubstantiated,  inaccurate  allegations  made  by  three  female 
employees who are close friends.  He pointed out that one, Ms. D, had just been fired, 
and another, Ms. H, had just been demoted to a much lower paying position, and that 
he himself had opposed these administrative actions. 
 
 
The applicant attached to his letter a statement signed by a CWO4, who stated 
that the applicant had previously told him unequivocally that he was not interested in 
pursuing a relationship with these employees because of the problems it might cause at 
work.  He also stated that he was with the applicant when the applicant received the 
call from Ms. B inviting him to brunch with her daughter. 
 
 
On May 12, 2003, the applicant received his third Achievement Medal for supe-
rior  performance  as  manager  of  the  Xxxxx  Xxxx  at  the  Xxxxx  from  July  2001  to  May 
2003.  The citation notes that his “vast business managerial knowledge contributed to 
the  impressive  revenue  increase”  of  the  Xxxx,  that  he  had  improved  the  décor  and 
menus, and that he had devoted a lot of time and energy to organizing special events. 
 
On July 24, 2003, a Special Board composed of three commanders convened to 
 
assess whether the applicant should be reinstated on the CWO eligibility list.  The Spe-
cial Board found that “as documented in the record, there does not appear to be a per-
sistent  or  particularly  egregious  character  flaw  or  pattern  of  poor  judgment  in  [the 
applicant’s] performance of duties.  In consideration of PERSMAN 1.D.3.b. and 1.d.10, 
the board recommends reinstatement on the CWO eligibility list.” 
 
On  August  1,  2003,  the  Commander  of  the  CGPC  forwarded  the  report  of  the 
 
Special Board to the Assistant Commandant for Human Resources with a recommen-
dation  that  that  board’s  findings  and  recommendation  be  approved.    The  Assistant 

Commandant  for  Human  Resources  asked  the  Chief  Counsel  to  review  the  report  to 
determine whether the Commandant to disapprove it. 
 
On September 12, 2003, the Deputy Chief Counsel informed the Assistant Com-
 
mandant  for  Human  Resources  that  “[t]here  is  sufficient  evidence  upon  which  the 
investigating officer and commanding officer could have concluded, and on which [the 
Commandant] can rely, that [the applicant] solicited on several occasions dates or other 
social interaction outside the workplace with personnel he supervised directly, and that 
an  appearance  arose  that  he  used  his  position  for  this  purpose;  that  he  created  an 
appearance of partiality and a perception of unfairness concerning his official interac-
tions with his employees; and that he undermined respect for his position by his solici-
tations,  and  from  the  appearance  of  partiality  he  created.    There  is  also  sufficient 
evidence from which to conclude that his repeated comments concerning an employee’s 
attire constituted sexual harassment.”  The Deputy Chief Counsel noted that the report 
of the Special Board “does not refute the findings of the investigation concerning mis-
conduct.  He concluded that the Commandant could “reasonably conclude that the evi-
dence in this case is sufficient to cast doubt” on the applicant’s moral and professional 
qualifications for appointment to CWO—contrary to the findings of the Special Board 
—as required for removal from an eligibility list under Article 1.D.10.a.1. of the Person-
nel Manual. 
 
 
On  September  29,  2003,  the  Assistant  Commandant  for  Human  Resources  for-
warded the report of the Special Board and the Deputy Chief Counsel’s memorandum 
to the Commandant with a recommendation that it be disapproved.  He stated that the 
applicant’s  “behavior  toward  his  subordinates  in  this  situation  [was]  at  least  a  severe 
lapse  in  judgment.    [He]  clearly  solicited  dates  on  several  occasions  …  .    The  conse-
quences of his conduct should have been obvious to him and the results of his conduct 
were entirely foreseeable. … [He] needs to regain the confidence of his superiors before 
being  considered  for  promotion.”    The  Assistant  Commandant  also  stated  that  the 
applicant’s  behavior  “casts  doubt  on  [his]  moral  or  professional  qualifications,”  as 
required  for  removal  from  an  eligibility  list  under  Article  1.D.10.a.  of  the  Personnel 
Manual. 
 
On  October  29,  2003,  the  acting  Commandant  of the  Coast  Guard  disapproved 
 
the recommendation of the Special Board pursuant to Article 1.D.10.a.1. of the Person-
nel Manual. 
 
EEO Investigation 
 
 
On November 13, 2003, the EEO investigator completed a report on her investi-
gation.  The report contains Ms. D’s complaint and affidavits by the applicant and Ms. B 
with the same allegations and arguments contained in the report by the IO.  The EEO 
investigator’s report indicates that Ms. D failed to pursue her complaint after filing it on 

April 14, 2003.  She did not respond to the EEO investigator’s requests for further infor-
mation and names of witnesses. 
 

VIEWS OF THE COAST GUARD 

On  August  17,  2004,  the  Judge  Advocate  General  (TJAG)  of  the  Coast  Guard 

 
 
submitted  an  advisory  opinion  in  which  he recommended  that the  Board  deny relief.    
TJAG adopted the findings in a memorandum on this case prepared by CGPC.   
 

CGPC stated that the “command endorsement is a critical element in the selec-
tion  of  suitable  candidates  for  appointment  to  CWO.    All  candidates  are  required  to 
have command recommendation for appointment at the beginning of the process and to 
retain it until appointed.”  CGPC stated that after receiving allegations of improprieties, 
the applicant’s CO exercised his discretion to convene an informal fact-finding investi-
gation to help him determine the facts of the case.  CGPC stated that because it was an 
informal investigation convened in accordance with the Administrative Investigations 
Manual (COMDTINST M5830.1), the applicant was not entitled to party rights. 

 
CGPC stated the Personnel Manual prohibits sexual harassment and inappropri-
ate personal relationships.  Under Article 8.I. of the Personnel Manual, sexual harass-
ment is defined as “any intentional action or omission that results in the adverse treat-
ment  of  a  person  because  of  that  person’s  sex.”    Moreover,  COMDTINST  5350.21D 
states that sexual harassment “includes unwelcome sexual advances; requests for sexual 
favors; and other verbal or physical conduct of a sexual nature that is made a condition 
of employment, affects employment decisions, unreasonably interferes with work per-
formance  and  creates  an  intimidating  or  hostile  work  environment.”    Under  Article 
8.H., an inappropriate personal relationships is defined as a relationship “regardless of 
gender, that either in actuality or in appearance jeopardizes the member’s impartiality, 
undermines the respect for authority inherent in a member’s rank or position, results in 
members  improperly  using  the  relationship  for  personal  gain  or  favor,  or  violates  a 
punitive article of the UCMJ.”  CGPC stated that the applicant’s CO “set aside the sex-
ual  harassment  charge  for  further  inquiry”  but  “concluded  there  were  numerous 
instances  of  inappropriate  personal  relationships  between  the  applicant  and  his 
coworkers.”  CGPC stated that a separate EEO investigation “later determined that sex-
ual harassment did not take place.”  

 
CGPC pointed out that the CO followed proper procedure in placing the page 7 
in  the  applicant’s  record  and  that  the  page  7  does  not  mention  the  charges  of  sexual 
harassment.  CGPC stated that after the CO rescinded his recommendation for appoint-
ment to CWO, a Special Board was convened in accordance with Article 1.D. of the Per-
sonnel Manual to consider removing the applicant’s name from the eligibility list.  The 
applicant  was  allowed  to  submit  a  statement  in  his  own  behalf.    CGPC  stated  that, 
although the Special Board did not recommend removal of the applicant’s name from 
the list, under Article 1.D.10., the final decision is made by the Commandant.  CGPC 
stated that the Personnel Manual places no time constraints on the Commandant’s deci-
sion.  CGPC stated that the Commandant decided to remove the applicant from the list 

because “he did not feel [the applicant] had the moral and/or professional qualities to 
receive a commission as a Chief Warrant Officer.” 

 
CGPC  stated  that  its  summary  of  disciplinary  actions  initially  erroneously 
described the applicant’s case as an E-8 sexually harassing a civilian employee and that 
it was corrected to reflect the actual findings of inappropriate personal relationships. 

 
TJAG argued that the applicant was afforded all due process and that he failed to 
submit  sufficient  evidence  to  overcome  the  presumption  of  regularity  afforded  to  the 
Coast  Guard.    TJAG  argued  that  the  Commandant  had  decided  that  the  applicant’s 
“behavior  indicated  a  lack  of  the  qualities  necessary  for  a  commissioned  officer”  and 
that “[d]eference to military decision makers must be at its zenith in situations such as 
these.”  TJAG argued that the BCMR “should not disturb the Commandant’s reasoned 
exercise of the discretion entrusted to him.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On  August  18,  2004,  the  Chair  sent  the  applicant  copies  of  views  of  the  Coast 

 
 
Guard and invited him to respond within 30 days.  No response was received.  
  

APPLICABLE REGULATIONS 

 
 
Article  8.H.  of  the  Personnel  Manual  (COMDTINST  M1000.6A)  contains  regu-
lations concerning inappropriate relationships among Coast Guard personnel.  Article 
8.H.1.c. states that “[p]rofessional interpersonal relationships always acknowledge mili-
tary rank and reinforce respect for authority.  Good leaders understand the privilege of 
holding  rank  requires  exercising  impartiality  and  objectivity.    Interpersonal  relation-
ships  which  raise  even  a  perception  of  unfairness  undermine  good  leadership  and 
military discipline.”  Article 8.H.1.e. states that because of their leadership roles, “rela-
tionships involving officers or chief petty officers merit close attention.” 
 

Article 8.H.2.c., entitled “Acceptable Personal Relationships,” states that “Service 
custom recognizes that personal relationships, regardless of gender, are acceptable pro-
vided  they  do  not,  either  in  actuality  or  in  appearance:  1.  Jeopardize  the  members' 
impartiality,  2.  Undermine  the  respect  for  authority  inherent  in  a  member's  rank  or 
position, 3. Result in  members improperly using the relationship for personal gain or 
favor, or 4. Violate a punitive article of the UCMJ.” 

 
Article 8.H.2.d., entitled “Assessing the Propriety,” states the following: 
 
While some situations are clearly discernible and appropriate action is easily identified, 
others  are  more  complex  and  do  not  lend  themselves  to  simple  solutions.    Evaluating 
interpersonal  relationships  requires  sound  judgment  by  all  personnel.    Factors  to  con-
sider in assessing the propriety of a relationship include: 

 

1.  The  organizational  relationship  between  the  individuals:  whether  one  member  can 
influence another's personnel or disciplinary actions, assignments, benefits or privileges; 
 
2.  The  relative  rank  and  status  of  the  individuals:  peers,  officer  and  enlisted,  CPO  and 
junior enlisted, supervisor and subordinate, military and civilian, instructor and student; 
and 
 
3. The character of the relationship; e.g., personal, romantic, marital. 

 
a. Personal relationship: Non-intimate, non-romantic association between two or 
more  people  (of  the  same  gender  or  not),  such  as  occasional  attendance  at  rec-
reational  or  entertainment  events  (movies,  ball  games,  concerts,  etc.)  or  meals. 
(Does not involve conduct which violates the UCMJ.) 
b.  Romantic  relationship:  Cross-gender  sexual  or  amorous  relationship.  (Does 
not involve conduct which violates the UCMJ.) 
c.  Unacceptable  relationship:  Inappropriate  and  not  allowed  under  Service  pol-
icy. Resolution normally administrative. Relationship must be terminated or oth-
erwise resolved once recognized. 
d. Prohibited relationship: Violates the UCMJ. Resolution may be either admin-
istrative, punitive, or both as circumstances warrant. 

 

Article 8.H.3.a. provides the following as examples of “acceptable personal rela-
tionships”:    “1.  Two  crewmembers  going  to  an  occasional  movie,  dinner,  concert,  or 
other  social  event.    2.  Members  jogging  or  participating  in  wellness  or  recreational 
activities together.”  Article 8.H.3.b. provides the following as examples of “unaccept-
able relationships”:  “1. Supervisors and subordinates in private business together.  2. 
Supervisors and subordinates in a romantic relationship.” 
 

Article  8.H.3.c.  provides  the  following  as  examples  of  “unacceptable  conduct":  
“1. Supervisors and subordinates gambling together.  2. Giving or receiving gifts, except 
gifts of nominal value on special occasions.  3. Changing duty rosters or work schedules 
to  the  benefit  of  one  or  more  members  in  a  relationship  when  other  members  of  the 
command are not afforded the same consideration.” 
 
 
Article  8.H.6.c.  states  that  counseling  concerning  unacceptable  relationships  or 
conduct  “may  be  informal  or  more  formal,  including  written  documentation  by 
Administrative Remarks, Form CG-3307 or an Administrative Letter of Censure ([see] 
Article 8.E.4.).” 
 

Article 8.H.6.f. states that “[a]s warranted, commands may recommend separa-
tion,  removal  or  withdrawal  of  advancement  recommendations,  appointment  to 
another status, or promotions.” 
 

Article 8.I.2.a. states that the Coast Guard “is committed to maintaining a work 
environment  free  from  unlawful  discriminatory  practices  and  inappropriate  behavior. 

All acts of sexual harassment are degrading to the offended individual and detrimental 
to the military profession.” 
 

Article 8.I.2.b. states the following: 
 
Commanding officers and officers in charge have a responsibility to look into all allega-
tions of sexual harassment and to take prompt and effective action. They must be aware 
of all courses of action available to them to deal with sexual harassment allegations. They 
generally  fall  into  three  categories  -  discrimination  complaint  processes,  administrative 
processes and UCMJ provisions. These actions are not mutually exclusive and two or all 
three  of  them  may  be  pursued  simultaneously.  The  actions  taken  by  a  command  in  a 
particular case will depend upon the severity of the conduct, the state of the evidence, the 
limits of the commander's authority, and other such factors. … 
 
3.  Prompt  appropriate  administrative  action  should  be  taken  simultaneously  with  dis-
crimination  complaint  processes,  with  respect  to  sexual  harassment  offenders,  when  a 
command has sufficient information to reasonably believe an incident has occurred. It is 
not necessary to await the completion of the procedures set forth in the above paragraph. 
Commands have a wide variety of actions available which include but are not limited to 
informal or formal counseling, evaluation in performance reports, and formal  perform-
ance reviews, which could lead to separation. 

Article 1.D.1.a. of the Personnel Manual states that  
 
Chief Warrant Officers (CWOs) are commissioned officers of the Coast Guard who serve 
in grades established by law and have authority commensurate with this status. CWOs 
are  mature  individuals  with  appropriate  education  and  specialty  experience  who  have 
shown through demonstrated initiative and past performance they have the potential to 
assume  positions  of  greater  responsibility  requiring  broader  conceptual,  management 
and leadership skills. While administrative and technical specialty expertise is required 
in many assignments, CWOs must be capable of performing in a wide variety of assign-
ments that require strong leadership skills. Enlisted and officer experience provide these 
officers a unique perspective in meeting the Coast Guard’s roles and missions. 

 

 

Article  1.D.2.a.13.  states  that  the  “final  eligibility  step  in  the  warrant  officer 
appointment  process  is  obtaining  the  commanding  officer's  recommendation.  After 
meeting  all  of  the  eligibility  requirements,  members  must  submit  a  request  to  their 
commanding  officer  to  obtain  a  recommendation  for  appointment  to  warrant  grade.”  
Article 1.D.3.a. states the following:  

 
The  commanding  officer’s  well-considered,  affirmative  recommendation  is  the  most 
important eligibility requirement in the warrant officer appointment process.  Regardless 
of  how  much  time  in  service  or  time  in  grade  a  member  may  have  or  the  existence  of 
other personal considerations, he or she must earn the commanding officer’s recommen-
dation.    Commanding  Officers  (COs)  shall  base  recommendations  for  appointment  to 
warrant grade first on the person’s qualities of leadership, personal integrity, and poten-
tial to perform successfully as a warrant officer.  COs must never permit technical com-
petence  and  ability  to  perform  in  a  warrant  specialty  to  overshadow  the  member's 
potential to perform successfully as a warrant officer.  Appointment as a warrant officer 

is not another step in the enlisted promotion process and shall not reward enlisted mem-
bers  for  faithful  or  extended  service  or  completion  of  minimum  service  requirements.  
Meeting the minimum standards for advancement as an enlisted member should not be 
enough  to  earn  members  the  commanding  officer’s  recommendation  to  apply  for 
appointment to warrant  grade.  A CO shall not recommend a member whose  personal 
conduct and associations constitute reasonable grounds for rejection on the basis of loy-
alty. 

 

Article  1.D.3.b.  states  that  before  recommending  a  member  for  appointment  to 

CWO, a CO  

 
shall  thoroughly  evaluate  members  seeking  their  recommendation  for  appointment  to 
warrant grade to ensure they possess the qualities of character and leadership required of 
warrant  officers.    In  addition  to  affirming  that  the  member  recommended  meets  all 
minimum  eligibility  requirements  as  well  as  the  particular  requirements  for  the  chief 
warrant officer specialty defined in Article 1.D.13., the following suitability issues shall 
be carefully evaluated prior to making a recommendation to allow the member to com-
pete:  a. demonstrations of character inconsistent with Coast Guard core values; … and f. 
sexual harassment or discrimination. 

 

Article  1.D.10.a.  provides  the  following  procedure  for  removing  a  member’s 

name from the Final Eligibility List for appointment to CWO: 
 

1. A candidate may be removed from either the Preboard or Final Eligibility List if infor-
mation is discovered which casts doubt on the candidate’s moral or professional qualifi-
cations  for  appointment  to  warrant  grade.  …    The  action  may  be  initiated  by  the  com-
manding  officer  or  Commander  (CGPC-c).    The  candidate’s  name  will  be  removed 
without conducting a special board.  The recommendation from a commanding officer or 
superior in the chain of command shall be by letter to Commander (CGPC-opm) … . 

 

2. The candidate shall have an opportunity to review the recommendation and shall be 
permitted to make such comments as desired by endorsement.  If Commander (CGPC-c) 
initiates the action, the candidate shall be advised in writing of the contemplated actions 
and the reasons therefore and given the opportunity to communicate to the special board 
in writing via the chain of command. 
 
3. The recommendation shall be reviewed at the Coast Guard Personnel Command by a 
special board of senior officers. The special board shall consist of at least three officers in 
the grade of commander or above. The membership shall include a representative from 
the Headquarters or CGPC division having cognizance of the candidate's specialty. After 
a  thorough  review  of  the  candidate's  record,  the  special  board  shall  recommend  to  the 
Commandant either that the candidate be reinstated on the Final Eligibility List or that 
the candidate not be reinstated on the Final Eligibility List. 
 
4. The recommendations of the special board shall be forwarded to the Commandant for 
approval, modification, or disapproval. 

FINDINGS AND CONCLUSIONS 

 

 

 
The Board makes the following findings and conclusions on the basis of the ap-
plicant's  military  record  and  submissions,  the  Coast  Guard's  submissions,  and  appli-
cable law: 
 

1. 

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

§ 1552.  The application was timely. 
 

2. 

Absent  specific  evidence  to  the  contrary,  the  Board  presumes  that Coast 
Guard officers, including the applicant’s CO, have acted correctly, lawfully, and in good 
faith  in  performing  their  duties.  33 C.F.R.  § 52.24(b);  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 
applicant bears the burden of proving that, in removing his name from the CWO eligi-
bility list and in entering the page 7 in his record, the CO abused his discretion by fail-
ing to act lawfully, correctly, or in good faith. 

 
3. 

Under Article 1.D.3.a. of the Personnel Manual, a CO “shall base recom-
mendations for appointment to warrant grade first on the person’s qualities of leader-
ship, personal integrity, and potential to perform successfully as a warrant officer.  COs 
must never permit technical competence and ability to perform in a warrant specialty to 
overshadow  the  member's  potential  to  perform  successfully  as  a  warrant  officer.” 
According to Article 1.D.10.a.1., a candidate for CWO “may be removed from either the 
Preboard or Final Eligibility List if information is discovered which casts doubt on the 
candidate’s  moral  or  professional  qualifications  for  appointment  to  warrant  grade.” 
Therefore,  the  applicant’s  argument  that  he  should  not  have  been  removed  from  the 
CWO list because he managed the Xxxxx Xxxx quite profitably and received an award 
for doing so is unpersuasive.  Technical competence—as manifested in Xxxx profits and 
improvements—is not the only basis on which a recommendation for appointment to 
CWO is made. 
 
 
 Various provisions in Article 1.D. of the Personnel Manual make it clear 
that to make and sustain a recommendation for appointment to CWO, a CO must have 
confidence  in  the  member’s  integrity,  maturity,  ability  to  lead,  and  readiness  for  the 
responsibilities inherent in a commission.  In light of these criteria, the Board finds that 
the applicant’s conduct toward his civilian employees, as revealed by the administrative 
investigation, provided his CO with an ample basis for losing confidence in the appli-
cant’s moral and/or professional qualifications; withdrawing his recommendation; and 
initiating  the  removal of  the  applicant’s  name  from the  CWO  eligibility  list.    The  fact 
that the EEO investigation did not conclude that the allegations of sexual harassment 
were  substantiated  does  not  persuade  the  Board  that  the  CO  was  wrong  to  have  lost 
confidence  in  the  applicant’s  suitability  for  appointment  to  CWO.   The  statements  by 
the  three  civilian  employees  in  the  IO’s  report  provide  a  reasonably  consistent  and 
coherent description of conduct by the applicant that was very unwise and obviously 
inappropriate for a supervisor. 

4. 

5. 

7. 

 
 
The applicant complained that, when he answered the IO’s questions, he 
thought he was speaking to the EEO investigator.  However, the IO’s report indicates 
that the applicant was advised of his rights and of the fact that any answers he provided 
could  be  used  against  him.    Although  the  Miranda/Tempia  form  in  the  report  is  not 
signed by the applicant because the interview was telephonic, the IO’s dated signature 
and notations indicate that the applicant was advised of the contents of the form.  The 
applicant  argued  that  he  should  have  been  allowed  to  question  his  accusers  at  a 
hearing,  but  he  cited  no  regulation  that  gives  him  such  rights  during  an  informal 
investigation, and the Board knows of none. 
 
 
The  applicant  alleged  that  the  Commandant  erred  and  committed  injus-
tice in disapproving the Special Board’s recommendation and taking more than 90 days 
to do so.  The record indicates, however, that the Coast Guard provided the applicant 
with all due process in accordance with Article 1.D.10.a. in removing his name from the 
CWO eligibility list.  As the applicant himself indicated, the removal of his name will 
have  a  tremendous  impact  on  his  career,  and  the  Board  cannot  find  that  the  Coast 
Guard committed an error or injustice in acting with caution and due deliberation. 
 
 
The  applicant  argued  that  it  was  improper  for  the  Commandant  to  act 
before the EEO investigation was complete.  However, he cited no rule that prohibits 
commands  from  taking  appropriate  administrative  action  in  response  to  misconduct 
prior to the completion of a related EEO complaint, and the Board knows of none.  The 
Board  notes  that  Article  8.I.2.  of  the  Personnel  Manual  allows  COs  to  take  prompt 
administrative  action  against  someone  accused  of  sexual  harassment  before  an  EEO 
investigation is complete.  Moreover, the CO did not base his actions upon a finding of 
sexual harassment; he based them upon finding that the applicant exercised “poor judg-
ment by developing a pattern of inappropriate and unacceptable personal relationships 
(more than occasional, non-romantic social relationships).”  
 
The applicant also alleged that the page 7 is inaccurate and unfair because 
 
he  was  unjustly  accused.    He  alleged  that  the  description  of  his  performance  as  “lax 
management” is erroneous and unfair in light of the profitability of the Xxxx and the 
award  he  received.    The  Board  finds,  however,  that  the  statements  provided  by  the 
applicant’s employees provided his CO with a sufficient basis to draw and document 
the conclusions in the page 7.  Their statements indicate that he repeatedly asked them 
to  socialize  with  him  at  restaurants  or  in  his  own  home  and  that  he  failed  to  enforce 
Coast Guard policies by condoning their consumption of alcohol while bartending and 
allowing others to count the bar’s proceeds. 
 
The applicant complained that his removal from the CWO eligibility list 
 
was  inaccurately  described  for  a  short  time  as  being  due  to  sexual  harassment  on  a 
Coast Guard web site.  However, the documentation on the web site was anonymous, 

6. 

8. 

9. 

and  the  applicant  has  not  proved  that  he  has  suffered  any  harm  as  a  result  of  the 
temporary error. 
 
The applicant has failed to prove by a preponderance of the evidence that 
 
the  disputed  page  7  and  his  removal  from  the  CWO  eligibility  list  are  erroneous  or 
unfair.  Accordingly, his request should be denied. 

10. 

 
 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

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

ORDER 

 

 
 

 

 
 

        

 
 Jordan S. Fried 

 

 
 

record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                         Suzanne L. Wilson   
 
 
 
 
 
 
 

 
 Richard Walter