DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                     BCMR Docket No. 2006-186 
 
xxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxx   

 

 
 

FINAL DECISION 

 
AUTHOR:  Andrews, J. 
 
 
This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title 14 of the United States Code.  The Chair docketed the case on September 29, 2006, upon 
receipt of the completed application. 
 
 
members who were designated to serve as the Board in this case. 

This final decision, dated May 31, 2007, is approved and signed by three duly appointed 

APPLICANT’S REQUEST FOR RELIEF 

 

 
The applicant asked that Board to correct his record by removing his reduction in rank 
from MK2/E-5 to MK3/E-4 on January 24, 2005.1  The applicant stated that when he was taken 
to mast on October 22, 2004,2 part of his non-judicial punishment (NJP) was a reduction in rank 
to MK3/E-4, which was suspended.  After an M240B machine gun he was loading discharged 
accidentally on December 17, 2004, he was taken to mast on new charges on January 24, 2005.3  
His commanding officer (CO) dismissed the new charges with a warning but then vacated the 
suspended  sentence  from  October  22,  2004,  so  that  the  reduction  in  rank  was  imposed.    The 
applicant alleged that his CO vacated the suspension of the reduction in rate as a result of the 
report of a Class D mishap investigation into the accidental discharge of the M240B. 

 
The applicant argued that Enclosure 10 of COMDTINST M5100.47 “states that ‘Persons 
involved in mishaps, either directly or indirectly, cannot be disciplined or punished based on the 

                                                 
1 The applicant made no allegations about his subsequent advancement to MK1. 
2  The  applicant  was  charged  with  submitting  a  false  travel  claim  with  intent  to  defraud,  a  violation  of  Article 
132(2)(c) of the Uniform Code of Military Justice (UCMJ), and with making false official statements about the travel 
claim in violation of Article 107(B)(3) of the UCMJ.  At mast, he was awarded as NJP an oral admonition, a written 
reprimand, 30 days of extra duty, and a reduction to MK3/E-4, which was suspended for 6 months. 
3 The applicant was charged with violating Article 92.A.3. of the UCMJ for failing to obey an order and Article 134 
of the UCMJ for discharging a weapon through negligence. 

findings of the mishap investigation.’”  Therefore, it was improper for his CO to vacate the sus-
pension of his reduction in rank as a result of the findings of the mishap investigation. 

 
In support of his allegation, the applicant submitted a copy of the mast report (CG-4910), 
which shows that on January 24, 2005, the applicant’s CO held a hearing and dismissed the new 
charges against the applicant with a warning, but then vacated the suspension of the applicant’s 
reduction in rate.  The report bears a notation by the investigating officer, LT S, that states, “Ref: 
My memo 1616 of 4 Jan 2005.”   

 
The  applicant  also  submitted  a  copy  of  a  transcript  of  the  mast,  which  shows  that  the 
report by LT S was included in the evidence at the hearing on January 24, 2005.  On page 9 of 
the transcript, the CO is quoted as saying that “there is insufficient evidence to indicate that you 
committed the alleged misconduct.  These allegations are dismissed.” 

 
In addition, the applicant submitted a copy of LT S’s report on his investigation, dated 
January 4, 2005.  The report does not indicate what type of investigation LT S conducted.  It 
states that on December 17, 2004, as a member of a boat crew preparing to get underway, the 
applicant  

 
mounted  the  ammunition  can  before  performing  operational  checks  of  the  weapon.    This  was  a 
departure from the unit’s standard method of operation.  While inspecting the weapon’s chamber 
[the applicant] was distracted by the ammunition shifting within the can.  He left the bolt to the 
rear with the safety off and adjusted the ammunition.  He then proceeded to place links of ammu-
nition on the feed tray with the bolt still locked at the rear.  Both [the applicant and another crew-
member] stated that the bolt shot forward of its own accord, stripping off one round in the process 
and firing that round.  The bolt then locked back to the rear. … The round landed between Elliott 
Bay … and the center of Duwamish Head. 
 
The  report  also  states,  however,  that  the  applicant  had  not  completed  the  qualification 
factors for the M240B and “was not qualified nor authorized to handle or load the M240B at the 
time of the mishap.”  In addition, LT S stated that he had examined the M240B with a chief gun-
ner’s mate and a first class gunner’s mate at the Pacific Area armory.   Their examination showed 
that it “appeared to be in new condition and held the bolt during jostling, even while not fully 
locked.  The weapon appeared to be in good working order,” and they were “unable to reproduce 
a failure that made the bolt slide forward without pulling the trigger.” 

 
LT S concluded that the applicant’s conduct did not meet the criteria for the charge under 
Article 92.A.3. because there was no regulation or guidance about loading an M240B.  He rec-
ommended that the charge under Article 134 be handled at mast because the applicant had loaded 
the weapon in a negligent manner, which resulted in the accidental discharge. 

other members at his station: 

 
The  applicant  also  submitted  statements  by  the other members of the boatcrew and by 

 
MK3 V stated that when the M240B discharged, he was standing nearby watching 
• 
the applicant mount and arm it.  The applicant “opened the feed tray cover, pulled the 
charging handle to the rear and inspected the chamber.  I visually checked the chamber 
and saw that it was clear.  At that time he picked up the can of ammunition and placed it 

in the weapon mount.  The belt of ammunition was twisted and falling in on itself in the 
can, so [the applicant] removed the belt, straightened it, and placed it back in the can.  He 
then placed the end of the belt on top of the feed tray with both hands keeping the belt 
from twisting again.  As he put the rounds on the feed try, the bolt went forward stripping 
and discharging one round.  Never at any time did I see his finger on or near the trigger.” 
 
BM2 G stated that he was in the cabin adjusting a chart plotter when he heard the 
• 
M240B discharge.  When he looked out the cabin window, he “could see the feed tray 
cover in up/open position, with the bolt locked to rear and the ammunition belt flipped 
back and away from the weapon.”  He told the applicant and MK3 V to step away from 
the weapon. 
 
GM1 W, who worked at the armory, stated that because the M240B was a newly 
• 
acquired weapon, there was “no policy for loading or unloading the M240B at the time of 
the discharge.” 
 
LCDR S, the applicant’s new CO, submitted a letter arguing that because the prior 
• 
CO dismissed the charges against the applicant with a warning, “there were no violations 
of  the  UCMJ  to satisfy the condition precedent to vacating the suspended punishment.  
Based  upon  the  fact  that  there  is  no  record  of  any  conditions  associated  with  the  sus-
pended punishment, and due to the fact that my predecessor dismissed the charges with a 
warning,  I  am  of  the  opinion  that  the  suspended  reduction  in  rank  was  improperly 
vacated.” 
 

VIEWS OF THE COAST GUARD 

On February 28, 2007, the Judge Advocate General (JAG) of the Coast Guard submitted 

 
 
an advisory opinion in which he recommended that the Board grant relief in this case.   
 
 
The  JAG  stated  that  the  applicant’s  CO  “vacated  the  suspended  punishment  in  error 
because there was no finding that the applicant violated a punitive article of the UCMJ.”  The 
JAG stated that the mast report dated January 24, 2005, indicates that the CO “found that there 
was insufficient evidence that he committed misconduct with regard to the accidental discharge 
of a firearm on December 17, 2004.  Where the command determined that there was no violation 
of the UCMJ, there was no basis to vacate the suspended portion of the prior NJP.”  The JAG 
cited Chapter 1.E.5.b. of the Military Justice Manual, which states that  
 

[u]nless otherwise stated, an action suspending a punishment includes a condition 
that the member not violate any punitive Article of the UCMJ.  Vacation of a sus-
pension may be based on an offense under the UCMJ or other appropriate condi-
tions of the suspension specified in writing by the NJP authority. 

 
 
The JAG argued that because on October 22, 2004, the applicant’s CO failed to specify in 
writing any conditions of the suspension, under Chapter 1.E.5.b. of the Military Justice Manual, 
“the only condition on the suspension of the reduction in rate was that the applicant not violate 
any punitive Article of the UCMJ.”  However, the transcript of the mast shows that the appli-
cant’s CO found that there was insufficient evidence and dismissed the charges.  The JAG argued 

that “[w]ithout a violation of the UCMJ there was no basis for vacating the suspended portion of 
the earlier NJP.” 
 
 
The JAG stated that in light of this error, he would not address the applicant’s allegations 
about his CO’s reliance on a mishap investigation.  The JAG recommended that the applicant’s 
record be corrected to show that the suspended portion of his October 22, 2004, NJP was not 
vacated. 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On March 1, 2007, the Chair sent the applicant a copy of the views of the Coast Guard 

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

 

FINDINGS AND CONCLUSIONS 

1. 

2. 

3. 

The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.  

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: 
 
 
The applicant was timely. 
 
 
The  applicant  requested  an  oral  hearing  before  the  Board.    The  Chair,  acting 
pursuant to 33 C.F.R. § 52.31, denied the request and recommended disposition of the case with-
out a hearing.  The Board concurs in that recommendation. 
 
 
The applicant alleged that his CO erroneously and unfairly relied on the report of 
a mishap investigation when deciding to vacate the applicant’s suspended sentence from a prior 
mast.  However, nothing in LT S’s report indicates that his investigation was a mishap investi-
gation as opposed to an administrative investigation.  As disciplinary measures may be based on 
the findings of an administrative investigation, the applicant has not proved that his CO’s reli-
ance on LT S’s investigation was erroneous or unjust. 
 
 
As  the  JAG  and  the  applicant’s  new  CO  have  pointed  out,  however,  when  the 
applicant’s prior CO suspended the applicant’s reduction in rate on October 22, 2004, the CO did 
not specify in writing any particular conditions of the suspension.  Thus, under Chapter 1.E.5.b. 
of the Military Justice Manual, only an offense under the UCMJ could justify the vacation of the 
suspension of the NJP.   Since at mast on January 24, 2005, the CO expressly stated that there 
was  insufficient  evidence  to  find  that  the  applicant  had  violated  the  UCMJ  at  the  time  of  the 
accidental discharge of the M240B and dismissed the charges against him, there was no legal 
basis on which the CO could vacate the suspension.  Therefore, the Board finds that the prepon-
derance of the evidence shows that the applicant’s reduction in rate on January 24, 2005, was 
erroneous and should be corrected. 
 
 
Accordingly, relief should be granted by removing the vacation of the suspension 
of the applicant’s reduction in rate on January 24, 2005, so that his record shall show that he 
remain  an  MK2/E-5  until  he  advanced  to  MK1/E-6  on  September  1,  2006.    He  should  also 
receive any back pay and allowances he may be due as a result of the correction. 

4. 

5. 

ORDER 

 
 
The  application  of  xxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his  military 
record is granted.  The January 24, 2005, vacation of the suspension of his reduction in rate shall 
be removed from his record so that his record shall show that he was not reduced in rate on that 
date but remained an MK2/E-5 until he advanced to MK1/E-6 on September 1, 2006.  The Coast 
Guard shall pay him any back pay and allowances he may be due as a result of this correction. 
 
 
 
 
 
 
 

  

 

 

 

 

 
 

 
 Patrick B. Kernan 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Donald A. Pedersen 

 

 

 
 Kenneth Walton