DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2005-126 
 
XXXXXXXXXXXXXX 
xxxxxxxxxxxxxx, CDR  
   

 

 
 

FINAL DECISION 

 
Author:  Ulmer, D. 
 
 
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.    The  application  was 
docketed  on  July  22,  2005,  upon  receipt  of  the  applicant’s  completed  application  and 
military records. 
 
 
members who were designated to serve as the Board in this case. 
 

This final decision, dated March 16, 2006, is signed by the three duly appointed 

APPLICANT’S REQUEST 

 
 
 The applicant asked the Board to correct his military record by returning him to 
the promotion year (PY) 2004 Reserve Program Administrator (RPA) captain selection 
list.  The Secretary of Homeland Security removed the applicant's name from the list on 
July 9, 2004. 
 

APPLICANT’S ALLEGATIONS 

 
 
The  applicant  alleged  that  the  action  taken  to  remove  him  from  the  list  was 
unjust  in  three  respects:  "First,  it  is  unfairly  cumulative  because  [the  applicant's] 
immediate commander already resolved the matter.  Second, the effect of the removal 
from the promotion list operates to deprive [the applicant] of over $256,000 in lost pay, 
which is grossly out of proportion to the conduct underlying the removal.  Third, the 
removal  is  unfair  to  the  Coast  Guard  because  they  lose  a  stellar  candidate  who  has 

shown before and after the incident that he is capable of performing at the grade of O-
6."  
 
 
from the 2004 O-6 RPA promotion list: 
 

The  applicant  offered  the  following  account  of  events  that  led  to  his  removal 

While  stationed  at  [a  command  in  New  Orleans,  the  applicant]  received 
and forwarded an email entitled "Football" that contained a Power Point 
slide presentation.  Without checking each slide, he forwarded the email 
to  several  fellow  Coast  Guardsmen.    Unfortunately,  the  last  slide  in  the 
presentation  depicted  a  partially  unclothed  female.    By  the  time  [the 
applicant]  discovered  this,  it  was  too  late  to  retract  the  email.    So  he 
decided to do nothing to exacerbate the situation, instead choosing to "let 
the  waters  calm."    Shortly  thereafter,  and  due  to  the  extremely  high 
operational tempo of the unit [the applicant] forgot about the incident.  No 
one  who  received  or  even  saw  the  email  was  offended.    However,  two 
enlisted members driven by personal enmity against [the applicant] found 
out about it and decided to complain.  The reason for their grudge stems 
from  [the  applicant]  requiring  them  (as  he  did  everyone)  to  strictly 
comply  with  Coast  Guard  regulations  when  they  wanted  to  be  excused 
from them.  [The applicant] admitted to his commander  . . . of his mistake 
in sending the mail without first checking all the slides.  For this minor, 
one  time  lapse  of 
judgment  [the  applicant]  was  issued  a  written 
reprimand by his commanding officer.  After [the applicant] was selected 
for  promotion  to  O-6,  this  matter  was  referred  to  a  special  board  to 
determine  whether  he  should  be  removed  from  the  O-6  promotion  list. 
The  special  board  recommended  he  should  be  removed  from  the 
Promotion  Year  2004  promotion  list,  whose  recommendation  was 
presumably approved.    

 
With respect to the unfair cumulative effect of the removal from the promotion 
 
list, the applicant stated that his commanding officer (CO) took appropriate action by 
issuing  the  applicant  a  written  letter  of  admonishment,  a  negative  administrative 
remarks sheet (page 7), and two special OERs, and by transferring the applicant from 
the  command.    The  applicant  stated  that  the  decision  to  remove  him  form  the 
promotion list was not made by his CO, who considered the punishment he meted out 
to  be  appropriate,  but  by  Coast  Guard  Personnel  Command  (CGPC)  Officer 
Performance  and  Management  (OPM)  division.    The  applicant  stated  that  although 
CGPC's action was technically authorized, it was unfairly cumulative, particularly since 
the applicant's CO had instituted punishment that he considered to be appropriate.  
 
 
On  the  issue  of  whether  the  applicant's  removal  of  his  name  from  the  list  was 
disproportionate  to  the  conduct,  the  applicant  stated  that  the  isolated  minor  incident 

operates to deprive him of over two hundred fifty thousand dollars of active duty and 
retired pay.    He stated that the administrative actions taken by his CO were more than 
sufficient.   
 
 
On the third point, the applicant argued that his removal from the list deprives 
the Coast Guard of a stellar O-6 candidate in time of war and therefore is unjust to both 
the Coast Guard and himself.  He stated that his OERs demonstrate that he was capable 
of performing as an O-6 before and after the incident.  He stated that his then CO has 
always supported the applicant's promotion, as did the investigating officer.    
 
 
The  applicant  submitted  letters  from  his  then  CO,  the  former  and  current  U.S. 
Ambassadors to Haiti and other Embassy personnel, six Coast Guard captains, and one 
Coast Guard Commander. 
 
 
1.    The  CO  praised  the  applicant's  performance  as  executive  officer  and  stated 
that  "on  one  occasion  and  one  only,  [the  applicant]  unknowingly  sent  an  email  to  a 
limited  distribution  list  which  later  proved  to  be  very  inappropriate."    He  stated  that 
certain members of the command  who had  malice against  both the applicant and the 
command  took  advantage  of  the  applicant's  lapse  in  judgment  by  redistributing  the 
email outside the command.  The CO stated that he had no doubt that this lone incident 
was not indicative of a character flaw in the applicant; nor was it a pattern of behavior.  
He stated that he remained convinced that the applicant's potential future value to the 
Coast Guard as an O-6 far outweighed any potential risk of another occurrence of this 
type of lapse in judgment.  He described the applicant as a proven performer, effective 
leader, consistent problem solver, innovative forward thinker, and consummate planner 
who can make substantial and lasting contributions to our Service and nation at the O-6 
level.  
 
 
2.  A CDR wrote that he had been both a subordinate and peer of the applicant's 
at the unit in which the incident occurred.  He stated that the applicant was a mentor 
who helped him refine his leadership skills and abilities.   He stated that in his twenty-
six  years  of  active  duty  service,  he  has  been  a  keen  observer  of  many  leaders  and  he 
placed the applicant  with the best of them.  "[The applicant]  possesses a  breadth and 
depth  of  knowledge  that  is  truly  amazing  which  the  Coast  Guard  most  certainly 
benefits from now and would in the future."  The CDR stated that he is convinced that 
the applicant possesses the qualities of leadership and integrity essential to succeed as a 
captain.    
 
 
3.    Embassy  personnel  provided  statements  on  behalf  of  the  applicant.    The 
Ambassador  to  Haiti,  where  the  applicant  was  assigned  as  the  senior  military  officer 
after  the  incident,  strongly  recommended  the  applicant  for  promotion  to  the  rank  of 
captain.  He stated that the applicant was a strong and effective leader of the military 
personnel assigned there.  He stated that the applicant performed his tasks in a highly 

effective  manner  and  has  clearly  demonstrated  the  ability  to  serve  effectively  as  a 
United  States  Coast  Guard  captain. 
  He  recommended  that  the  applicant  be 
immediately promoted.   
 

The  current  Ambassador  also  wrote  a  statement  praising  the  applicant's 
performance.  He stated that the applicant "has been a strong and effective leader for 
the military personnel assigned here."  He concluded his letter on the applicant's behalf 
with the following:  "Whenever we face a crisis here, [the applicant] is at the center of 
the action, contributing essential information, providing sound guidance and ultimately 
winning a successful outcome."  He stated that the applicant has clearly demonstrated 
the  ability  to  serve  effectively  as  a  United  States  captain  and  has  his  highest 
recommendation for immediate promotion. 
 

A GS-15 who was also assigned to duty in Haiti wrote comments similar to those 
of the Ambassador.  He stated that he has known and worked with many Coast Guard 
officers during the past three years, and in his experience the applicant ranks among the 
finest.   
 
 
4.  Six Coast Guard captains expressed their opinion and belief that the applicant 
has the necessary qualities of leadership and integrity essential to succeed as a captain.  
One captain noted that the applicant's performance as the senior military official at the 
Embassy had been exemplary.  He recommended that the applicant be reinstated on the 
O-6 promotion list.   
 
 
A second Coast Guard captain for whom the applicant had worked earlier stated 
that he "could not have been more pleased with his performance."  He encouraged the 
Board to balance the applicant's long record of accomplishments and contributions to 
the Service in determining an appropriate resolution of his application.  A third captain 
wrote that he had known the applicant for over twenty years and that during that time 
he never had any reason to question the applicant's honesty or integrity.  He stated that 
the applicant is fully qualified to be an O-6 and should be promoted as soon as possible 
so that the Coast Guard can benefit from his talent.     
 
A fourth captain stated that during his thirty-plus years in the Coast Guard, he 
 
has  met  many,  many  simply  outstanding  Officers,  but  then  there  are  the  special  few 
who step forward and volunteer for the truly "hard to fill" billets, like the applicant. He 
stated  that  the  applicant  demonstrated  the  qualities  of  unselfish  commitment, 
dedication and patriotism and that he brings credit and honor to the Coast Guard, 
 
 
A  fifth  captain  wrote  that  during  the  twenty  years  he  has  known  and 
communicated  with  the  applicant,  he  had  never  heard,  read,  or  seen  any  personal  or 
general derogatory comments directed toward any individual or group.   He stated that 

the applicant does not look the other way when it comes to enforcing good order and 
discipline.  He recommended the applicant's reinstatement to the O-6 promotion list.   
 
A sixth captain wrote that he has known the applicant for five years and that the 
 
applicant has routinely conducted himself in a professional manner.  He stated that the 
applicant's  conduct  and  demeanor  have  always  been  exemplary.    He  stated  that  the 
applicant is a competent officer who is qualified and ready to serve the Coast Guard in 
an O-6 assignment.      
 

  

SUMMARY OF THE RECORD 

 
 
The applicant is an RPA with over thirty years of Reserve and active service.  He 
was serving as the executive officer of a command when he forwarded an email with an 
inappropriate attachment from his home computer to his Coast Guard office computer.  
On October 14, 2003, using his Coast Guard computer he sent inappropriate attachment 
to a limited number of Coast Guard officers some of whom were his subordinates. An 
allegedly disgruntled chief yeoman discovered the email and forwarded it to others in 
the Coast Guard, including two admirals.    
 
 
On October 17, 2003, the applicant's CO directed that an informal investigation 
take place into the forwarding of the inappropriate email from the Coast Guard work 
computers of the applicant and the chief yeoman.   
 
On November 22, 2003, the investigating officer (IO) concluded that the applicant 
 
had  violated  Coast  Guard  regulation1  by  emailing  material  with  sexual  content  to 
coworkers  from  his  Coast  Guard  computer.    In  recommending  that  the  applicant  be 
taken  to  admiral's  mast,  the  IO  offered  the  following  opinion  about  the  applicant's 
conduct: 
 

[The  applicant],  the  Executive  Officer    .  .  .  by  violating  a  general  order, 
involving seven subordinates in the act, making false official statements to 
the [CO] and in his signed statement . . . with the intent to deceive, and 
doing  nothing to  explain  his  actions  to  the subordinates  involved  or the 
command  until  his  actions  were  revealed,  permanently  and  negatively 
affected  his  ability  to  ensure  the  good  order  and  discipline  of  the 
command and should not be retained as the Executive Officer.   

 
 
On  December  19,  2003,  the  CO  placed  an  adverse  page  7  into  the  applicant's 
record to document his violation of the Commandant's policy by sending an email with 
an inappropriate attachment from his Coast Guard computer.   

                                                 
1   Enclosure (2) to COMDTINST 5375.1 prohibits the use of Coast Guard equipment to create, download, 
view, store, copy, or transmit sexually oriented materials.   

 
 
On February 10, 2004, a special OER for the period October 14, 2003, to February 
2,  2004,  was  prepared  documenting  the  inappropriate  email  incident.    The  applicant 
received observed marks of 3 in workplace climate, judgment, and responsibility.  In the 
comments  sections,  the  reporting  officer  indicated  that  the  applicant  used  poor 
judgment by forwarding an email "without knowing the full contents of the attachment 
originating  from  an  external  source,  albeit  a  trusted  one."    The  reporting  officer  also 
stated  that  the  applicant  acted  less  than  ethically  when  he  failed  to  take  prompt 
mitigating  follow-up  action  upon  learning  the  true  attachment  contents.    Despite  the 
lapses in judgment, the reporting officer believed the applicant's lapse in judgment was 
an  isolated  incident  as  opposed  to  a  character  flaw.    In  block  92  of  the  OER,  the 
reporting officer marked the applicant as a good performer who should be given tough 
challenging assignments, the equivalent of a mark of 4.  In block 10, with respect to the 
applicant's ability to assume greater leadership roles and responsibilities, the reporting 
officer wrote: 
 

Previous  to  this  incident,  ROO  [reported-on  officer]  had  exhibited 
behavior consistent with a well-respected senior officer including some of 
the highest standards of integrity and personal conduct I have witnessed 
in  my  career.   ROO  is  an  extremely  capable  officer  who  can  continue  to 
add  great  value  to  our  service  particularly  in  his  area  of  expertise.    Not 
recommended  for  CO,  although  I  still  feel  very  strongly  that  he  would 
excel  in  a  Reserve  Program  Management  or  Joint  Service  Liaison  billet.  
Based  on  his  otherwise  unblemished  record  and  the  valuable  lesson 
learned  from  this  incident,  I  recommend  he  be  promoted  with  his  peers 
and continue to serve. 

 
 
The  reviewer  attached  comments  disagreeing  with  the  reporting  officer's  belief 
that  the  applicant  was  not  aware  that  the  attachment  to  the  email  contained 
inappropriate material.  The reviewer stated the following: 
 

From  the  Coast  Guard's  thorough  Administrative  Investigation  of  this 
matter, it is clear to me that [the applicant] forwarded to subordinates -- at 
his own unit and at another unit -- an electronic mail that contained the 
picture of a partially nude woman, and that he was then untruthful when 
he provided official statements about his actions.  I specifically reviewed 
[the  applicant's]  written  statement  about  the  incident  and  found  his 
version of events to be unbelievable.  Therefore, I do not concur with the 
comments in blocks 7 and 8 that imply that [the applicant] was not aware 

                                                 
2 Block 9 of an OER is where the reporting officer compares the reported on officer with all other officers 
of that grade that he has known in his career.  The seven evaluations blocks correspond to marks from a 
low of 1 to a high of 7. 

of the contents of the attached photograph that he admittedly forwarded 
to those subordinates.  
 
This Executive Officer's misconduct irrevocably negated the special trust 
and confidence required in a member of the unit's command cadre.  I most 
strongly  do  not  concur  with  the  Reporting  Officer's  recommendation  in 
Block 10 that [the applicant] should be promoted and continue to serve. 
 
Reported On Officer should be reassigned immediately to another unit.    

 
 
The applicant's record contains another special OER for the period April 1, 2003, 
to February 12, 2004, apparently prepared upon the applicant's transfer from his then 
current command.  The OER is above average with mostly 5s and 6s and several marks 
of 7 and a single mark of 4 in evaluations.  The comments supporting the marks were all 
positive  and  the  reporting  officer  stated  in  the  potential  section  of  the  OER  that  the 
applicant was "recently selected for O-6 & ready to capably serve in that grade."  The 
reviewer attached a comment sheet to the OER in which he stated, "I do not concur with 
the  comments  that  the  reported  on  officer  is  ready  to  capably  serve  in  the  grade  of 
captain.  Reported-on officer was relieved of his duties as Executive Officer on 12 Feb 
2004, and subsequently reassigned."  
 
 
On April 13, 2004, CGPC informed the applicant that in light of the special OERs 
action had been initiated under Article 5.A.13.f. of the Personnel Manual to convene a 
board to recommend whether or not the applicant's name should be removed from the 
promotion year 2004 RPA captain selection board list.  CGPC stated that the two special 
reports cast doubt on the applicant's qualification to serve as an O-6.  The applicant was 
provided  with  an  opportunity  to  submit  comments  to  the  board  in  his  behalf.    The 
applicant acknowledged in writing receipt of the proposed board action and indicated 
that he would submit a statement.   
 
On  May  19,  2004,  the  board  convened  to  recommend  whether  the  applicant's 
 
name should be removed from the RPA selection board list.  The board considered the 
special OER dated February 2, 2004; the page 7 dated December 19, 2003; the IO report 
dated  November  22,  2003;  the  applicant's  headquarters'  record;  and  the  applicant's 
statement.    In  his  statement,  the  applicant  accepted  full  responsibility  and  expressed 
remorse for the incident.  He noted that the magnitude of the incident was fueled by the 
malicious  intent  of  one  or  two  individuals  who  had  an  animus  against  him  in  his 
capacity as executive officer of the command.  
 

In recommending that the applicant's name be removed from the promotion list 

the board stated the following: 
 

[The applicant]  . . . demonstrated poor judgment in sending an explicitly 
inappropriate  power  point  program  to  11  co-workers  and  friends  via 
Coast Guard email.  After becoming aware of the inappropriate nature of 
the Power Point program later that same day, [the applicant] failed to take 
quick  and  decisive  steps  to  limit  distribution  of  the  email,  did  not 
immediately  advise  the  CO,  and  failed  to  immediately  notify  the 
recipients  of  the  objectionable  program  and  request  that  they  delete  it.  
While there is strong evidence that malicious action was taken by a Chief 
Petty Officer at the Command to escalate the negative impact and scope of 
the mistake of [the applicant], [he] still bears responsibility for his failure 
to mitigate the situation.  [The applicant's] actions demonstrate a lack of 
judgment  essential  for  promotion  to  the  grade  of  captain  in  the  Coast 
Guard.   

 

VIEWS OF THE COAST GUARD 

 
 
On  November  8,  2005,  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard 
submitted  an  advisory  opinion  recommending  that  the  Board  deny  the  applicant’s 
request.    The  JAG  noted  that  the  Secretary  of  Homeland  Security  acting  on  the 
recommendation  of  a  board  convened  under  Article  5.A.13.  of  the  Personnel  Manual 
removed  the  applicant's  name  from  the  2004  RPA  list  of  captain  selectees  because  he 
sent  an  electronic  mail  photograph  of  a  partially  nude  woman  to  coworkers  using  a 
Coast  Guard  Workstation  and  CG  Data  Network,  in  violation  of  Coast  Guard  policy.  
He noted that the applicant was considered for promotion the following year but was 
not selected.   
 
 
The JAG noted the applicant's allegation of "an injustice by the Coast Guard in 
initiating the process to remove his name from the PY 04 RPA Captain Promotion List 
in  that  it  represented  unfairly  cumulative  and  disproportionate  punishment  and 
deprives the Coast Guard of a stellar O-6 candidate in time of war."  In response to the 
applicant's allegation, the JAG stated that there was no error in the proceedings leading 
to the applicant's removal from the selection list.  In this regard, the JAG stated that a 
special board convened under the Personnel Manual reviewed the applicant's case and 
recommended his removal from the list, which was approved by the Secretary.   
 
 
The JAG did not see a basis that warranted invalidating the Secretary's decision 
to remove the applicant's name from the PY04 RPA selection board list.  In this regard, 
the JAG stated the following: 
 

Removal of the applicant's name from the PY04 RPA Captain Promotion 
List  did  not  represent  unfairly  cumulative  and  disproportionate 
punishment.    Removal  from  the  promotion  list  was  an  administrative 
action  that  was  a  result  of  the  conduct  breach  documented  in  the 

administrative  remarks  and  the  Special  OER  in  February  2004.    The 
process  was  implemented  in  accordance  with  Article  5.A.13(f)  of  [the 
Personnel Manual].  It is not a punitive action intended to supplement or 
replace  action  taken  at  Captain's  Mast,  court-martial  or  performance 
documentation.  
 
Applicant  could  have  faced  non-judicial  punishment  (NJP)  or  even 
charges  before  a  court-martial.    Instead,  this  high-ranking  officer  was 
merely  removed  from  a  promotion  list  for  violating  a  lawful  general 
order.  The Coast Guard's action was well within its authority.  There is 
nothing  manifestly  unjust  about  the  manner  in  which  the  applicant  was 
treated.    The  applicant's  actions  clearly  cast  doubt  on  his  moral  and 
professional qualifications to serve at the rank of captain.   

 
  
The JAG agreed that the applicant was otherwise qualified to be on the captain 
promotion list prior to the transmission of the inappropriate email.  However, the JAG 
stated  that  the  Coast  Guard  steadfastly  maintained  that  the  applicant's  removal  from 
the list was warranted and fully justified as a consequence of having violated a general 
lawful order.  The JAG noted that the applicant has had an impressive career, except for 
the incident under review, and that he has been afforded the opportunity to transfer to 
a senior military officer billet at an American Embassy.     
 
 
The JAG attached a memorandum from CGPC as Enclosure (1) to the advisory 
opinion and asked that the Board accept it as part of the Coast Guard comments.  CGPC 
stated  that  although  the  applicant's  CO  did  not  recommend  removal  from  the 
promotion list, the CO's superior did recommend special board action and CGPC was 
within  its  authority  to  convene  a  special  board  to  determine  whether  the  applicant's 
removal from the promotion list was warranted.   
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On November 9, 2005, the BCMR sent the applicant a copy of the views of the 
Coast Guard and invited him to respond.  The BCMR did not receive a response from 
the applicant. 
 

APPLICABLE LAW 

 
Personnel Manual (COMDTINST M1000.6A) 
 
 
Article  5.A.6.J.  of  the  Personnel  Manual  states  that  the  promotion  of  any  RPA 
may  be  delayed  if  he  or  she  has  disqualified  him  or  herself  under  the  conditions  set 
forth in Article 5.A.13.  Subsection 4. of this Article further states that the Commandant 

Article 5.A.13.f. of the Personnel Manual provides for the following: 

may  remove  the  name  of  any  RPA  from  a  promotion  list  subject  to  the  Secretary's 
approval. 
 
 
 
 "1.  Each officer in the chain of command or Commander (CGPC-opm) is responsible 
for delaying a promotion if he or she knows the appointee had disqualified himself or 
herself  after  being  placed  on  a  promotion  list.    Disqualification  here  means  any 
circumstance which casts doubt on the moral or professional qualifications of the officer 
concerned, including pending action by a board officers, courts-martial, or investigative 
proceedings (14 U.S.C. 271(f)).   
 
  "2.  A complete report of the circumstances recommending removing the selectee from 
the promotion list under Article 5.A.4. shall be sent to Commander (CGPC-opm).  If the 
promotion letter is used for notification, include it if received; a copy of the OPAL need 
not be included.  The selectee shall be furnished a copy of the report and required to 
acknowledge receipt.  Attach a signed copy of the acknowledgement as an enclosure to 
the report.   
 
  "3.  If Commander (CGPC-opm) initiates delaying a promotion, he or she shall advise 
the  officer  concerned 
in  writing  of  the  reasons  for  so  doing  and  require 
acknowledgment of receipt. 
 
  "4.  The Commandant shall refer the case to a board of officers to recommend to the 
President  whether  to  remove  the  selectee  from  the  promotion  list.    The  officer 
concerned  will  be  afforded  21  days  notice  of  the  proceedings,  and  may  communicate 
directly by letter to the board, in care of Commander (CGPC-opm-1), before the board 
convenes.  Chain of command endorsements are optional.  Enclosures or attachments 
are  limited  to  copies  of  official  records  and  materials  allowed  to  be  submitted  with 
Officer evaluation Reports under Article 10.A.4.c.3.  Letters from other officers shall not 
be solicited or submitted as enclosures . . .  
 
 "5.  The President of the board will forward a report of the proceedings of the board 
containing a recommendation to the Commandant as to whether the officer should be 
promoted,  along  with  reasons  for  the  recommendation.    If  the  Commandant  finds 
removal  from  the  promotion  list  appropriate,  he  or  she  will  forward  the  report  with 
endorsements  to  the  Secretary  of  [Homeland  Security]  (acting  as  the  alter  ego  of  the 
President), who is the final reviewing authority.  If the Commandant determines that 
removal is inappropriate the case is closed, and the delay of promotion is canceled."  
 

FINDINGS AND CONCLUSIONS 

 

 
The  Board  makes  the  following  findings  and  conclusions  on  the  basis  of  the 
applicant's  military  record  and  submissions,  the  Coast  Guard's  submissions,  and 
applicable law: 
 

1.  The Board has jurisdiction concerning this matter pursuant to section 1552 of 

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

 
2.  The Coast Guard did not commit an error in the proceedings to remove the 
applicant  from  the  O-6  promotion  list;  nor  did  the  applicant  allege  or  prove  the 
existence of an error.   

 
3.  However, the applicant alleged that the Coast Guard committed an injustice 
against  him  when  it  acted  to  remove  him  from  the  promotion  list.    In this  regard,  he 
argued  that  the  removal  from  the  list  was  unfairly  cumulative  because  his  CO  had 
already  resolved  the  matter.    Injustice  is  defined  as  treatment  by  military  authorities 
that  "shocks  the  sense  of  justice."    Sawyer  v.  United  States,  18  Cl.  Ct.  860,  868  (1989) 
(citing Reale v. United States, 208 Ct. CL 1010, 1011, cert. denied, 429 U.S. 854, 50 L. Ed. 
2d 129, 97 S. Ct. 148 (1976). 

 
4.  The  Board  finds  that  CGPC's  initiation  of  a  special  board  to  recommend 
whether  the  applicant's  name  should  be  removed  from  the  promotion  list  was 
appropriate  and  in  accordance  with  regulation.      The  CO  acted  within  the  authority 
demanded of and granted to him under the Personnel Manual by preparing a special 
OER  and  negative  page  7,  respectively.    However,  the  decision  of  whether  the 
applicant's  name  should  be  removed  from  the  promotion  list  due  to  his  violation  of 
Coast  Guard  policy  did  not  belong  solely  to  the  CO.    In  fact,  the  Personnel  Manual 
states,  "each  officer  in  the  chain  of  command  or  Commander  (CGPC-opm)  is 
responsible for delaying a promotion if he or she knows the appointee had disqualified 
himself or herself after being placed on a promotion list."  

 
5.  The Board finds that the issuance of the special OER, the negative page 7, and 
the convening of a special board are not unfairly cumulative. Each action is provided 
for  by  regulation  and  they  are  not  mutually  exclusive.  The  applicant  was,  after  all,  a 
CDR  holding  the  executive  officer  position  at  his  command  when  he  sent  the 
inappropriate email.  Prior to the special board the applicant received two special OERs, 
neither  of  which  contained  a  mark  of  1,  which  would  have  made  them  derogatory, 
although one clearly documented the misbehavior.  However, the reviewer made clear 
on  each  report  that  in  his  judgment  the  applicant  had  disqualified  himself  for 
promotion.   Accordingly, a legitimate question existed in the judgment of the reviewer 
and  CGPC  whether  the  applicant  remained  qualified  for  promotion  to  captain.    The 
only  avenue  available  to  answer  that  question  was  to  process  the  applicant  under 
Article  5.A.13.f.  of  the  Personnel  Manual  because  it  appears  that  he  was  selected  for 
promotion  to  O-6  before  the  special  OERs  and  negative  page  7  were  entered  into  his 

record.  The first special OER was entered into the military record on February 23, 2004 
and the second was entered in the record on March 25, 2004.  The selection board for 
promotion year 2004 would have met in calendar year 2003.  Therefore, a special board 
was necessary, since  no selection board had reviewed the applicant's qualification for 
promotion to O-6 subsequent to his misconduct at that time.  

 
6.  The  special  OER,  the  negative  page  7,  the  investigation,  the  applicant's 
performance  record,  and  his  statement  were  available  to  the  special  board  when  it 
recommended  the  applicant's  removal  from  the  RPA  captain  promotion  list.    These 
documents  were  available  to the  Commandant  when  he  reviewed  the  matter.    Under 
the  Personnel  Manual,  the  Commandant  had  the  discretion  to  close  the  investigation 
upon  receiving  the  report  from  the  board  of  officers.  Instead,  he  referred  it  to  the 
Secretary.  The Secretary acted to remove the applicant's name from the promotion list. 
Apparently,  the  board  of  officers,  the  Commandant,  and  the  Secretary  found  that 
despite the earlier actions taken by the CO, the applicant's misconduct disqualified him 
from promotion.  We find that none of the actions in this case, whether taken separately 
or  collectively,  shock  our  sense  of  justice  as  being  unfairly  cumulative.    While  a 
disgruntled employee may have escalated the situation by sending the email to others, 
the applicant exercised poor judgment, not expected of a senior officer and particularly 
not expected of an executive officer, in sending the inappropriate material and in failing 
to  act  promptly  to  report  and  minimize  its  impact  after  becoming  aware  that  he  had 
sent it. 
 

7.  The applicant's other arguments that the removal from the list will result in 
his  loss  of  pay  and  that  the  Service  will  lose  a  stellar  officer  in  a  time  of  war  do  not 
persuade the Board that he has suffered an injustice. The applicant is fortunate that he 
continues  to  serve  on  active  duty.  He  could  have  faced  much  tougher  punitive 
sanctions.  That he did not is a testament to his prior stellar performance record.  

 
8.    The  Board  notes  the  many  complimentary  letters  from  senior  Coast  Guard 
officers,  the  former  and  current  Haitian  Ambassadors,  and  others  on  the  applicant's 
behalf expressing their opinion that the applicant is capable of serving as an O-6, as well 
as the applicant's excellent performance record.  However, the Board notes the heavy 
responsibility for managing the Coast Guard that belongs to the Commandant and the 
Secretary.  We will not disturb their decision without a clear demonstration of error or 
injustice.  We do not see such an error or injustice in this case.   
 

9. 

Accordingly, the applicant’s request should be denied.  

 
 
 

 

[ORDER AND SIGNATURES ON FOLLOWING PAGE] 

 
 
 

The  application  of  CDR  XXXXXXXXXXXXXXXX,  USCGR,  for  correction  of  his 

ORDER 

 

 
 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Charles P. Kielkopf 

 

 

 
 
 Donald A. Pedersen 

 

 

 
 Darren S. Wall