DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                       BCMR Docket No. 2008-065 
 
xxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxx   

FINAL DECISION 

This is a proceeding under the provisions of section 1552 of title 10 and section 425 of 
title  14  of  the  United  States  Code.    The  Chair  docketed  the  case  on  February  1,  2008,  upon 
receipt of the applicant’s completed application, and assigned it to staff member J. Andrews to 
prepare the decision for the Board as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 

This final decision, dated September 30, 2008, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 

 

 

 

 

The  applicant  asked  the  Board  to  remove  from  his  record  an  Administrative  Remarks 
form (“Page 7”)1 dated February 17, 2004, which purports to document his third “alcohol inci-
dent.”2  The applicant alleged that although the officer in charge (OIC) of his unit entered the 
Page 7 in his record, the Group Commander determined, based upon an investigation, that his 
conduct  did  not  constitute  an  alcohol  incident.    The  applicant  further  alleged  that  the  Group 
Commander  overruled  the  OIC  and  asked  the  Coast  Guard  Personnel  Command  (CGPC)  to 
remove the Page 7 from his record, but his request was denied.   

 
In support of his allegations, the applicant submitted various documents from his record 

and the following letter from the Group Commander, dated January 22, 2008, to this Board: 

 

                                                 
1 An Administrative Remarks record entry, form CG-3307, is better known as a “Page 7” and is used to document a 
member’s notification of important information, achievements, or positive or negative aspects of a member’s per-
formance in the member’s military record. 
2 Article 20.A.2.d.1. of the Coast Guard Personnel Manual (COMDTINST M1000.6A) (hereinafter Personnel Man-
ual) defines an “alcohol incident” as “[a]ny behavior, in which alcohol is determined, by the commanding officer, to 
be a significant or causative factor, that results in the member’s loss of ability to perform assigned duties, brings 
discredit upon the Uniformed Services, or is a violation of the Uniform Code of Military Justice, Federal, State, or 
local laws. The member need not be found guilty at court-martial, in a civilian court, or be awarded non-judicial 
punishment  for  the  behavior to be considered an alcohol incident.”  Article 20.A.2.d.2. states that “[t]he member 
must actually consume alcohol for an alcohol incident to have occurred.”  Article 20.A.2.f. states that “[a]s used in 
this  chapter,  ‘commanding  officer’  includes  commanders,  commanding  officers,  and  officers-in-charge.”    Article 
20.B.2.g. requires that an alcohol incident be documented in the member’s record on a Page 7. 

1.  … The following are my thoughts to the best of my recollection. 
[The applicant] and his XPO[3] at Station xxxxxxxx were often at odds with respect to their 
2. 
leadership philosophies.  [The applicant] was more popular with the station crew, and the XPO felt 
[the applicant] undermined his authority.  Because [the applicant] was retained on active duty after 
a second alcohol incident in 2001, I believe that the Station XPO was looking for an opportunity to 
give him a third incident that would lead to his permanent discharge.  Such a situation occurred in 
February of 2004, which led to the Station OIC signing a CG-3307 to document a third alcohol 
incident. 
3.  As  soon  as  I learned of the incident, I directed an investigation and ultimately conducted a 
Commanding Officer’s mast[4] to resolve the situation.  After reviewing the facts of the incident, I 
determined that the situation did not constitute an alcohol incident and that the XPO had acted with 
prejudice.  Unfortunately, the Station XPO had forwarded the 3307 directly to CGPC on the week-
end of the incident.  I consulted with CGPC-ADM regarding the unfair circumstances surrounding 
the 3307 and the process to have that document pulled from [the applicant’s] record.  ADM indi-
cated that, as Group Commander, I had the authority to remove the 3307 and directed me to send a 
letter to that effect – [memorandum dated March 19, 2004]. 
4.  Per CGPC’s guidance at the time, the CG-3307 dated 17 February 2004 should not exist and 
should not be part of [the applicant’s] personnel record. 

SUMMARY OF THE RECORD 

 

 
On October 13, 1992, the applicant enlisted in the Coast Guard.  He was released to the 
Reserve on June 12, 1997.  On September 11, 1997, he requested extended active duty and was 
given  a  two-year  contract  through  September  30,  1999,  to  serve  as  a  xxxxxxxxxxxxxx  at  the 
Coast Guard’s xxxxxxxxxxxxxxxxxxxxx.  

 
On November 25, 1998, the commanding officer of the xxxxxxxxxx entered a Page 7 in 
the applicant’s record about his exacerbation of, and poor judgment during, another member’s 
domestic  dispute.    The  commanding  officer  noted  that  the  applicant  had  called  police  a  few 
months earlier to intervene in a domestic dispute in his own family and that  

 
[a]lcohol also appeared to be a factor in that incident.  This is the second time that your name arose 
in the context of a domestic dispute with alcohol involvement.  Your involvement in both these 
situations is indicative of a trend that is unacceptable for a Coast Guard member, particularly with 
your current assignment as a xxxxxxxxxxxx. … An incident involving undesirable behavior and 
alcohol,  whether  or  not  you  consume  the alcohol, may constitute an alcohol-related situation,[5] 
vice an alcohol incident, under Chapter 20 of the Personnel Manual. … I am referring you to the 

                                                 
3 An Executive Petty Officer (XPO) of a station is the second-in-command below the OIC, just as an Executive Offi-
cer (XO) is the second-in-command below a Commanding Officer (CO). 
4  Under  Article  15  of  the  Uniform  Code  of  Military  Justice  (UCMJ),  commanding  officers  may  hold  a  hearing 
(“mast”) to investigate members’ minor offenses against the UCMJ and may award nonjudicial punishment (NJP) 
instead of seeking a felony conviction by court-martial. 10 U.S.C. § 815.  OICs may hold masts unless that authority 
has been expressly withheld by the officer exercising general court-martial jurisdiction over the unit.  MANUAL FOR 
COURTS-MARTIAL UNITED STATES, Part V-2 (1995); Military Justice Manual, Chap. 1.A.3.a. 
5 Under Article 20.B.2.d. of the Personnel Manual, an “alcohol-related situation is defined as any situation in which 
alcohol was involved or present but was not considered a causative factor for a member’s undesirable behavior or 
performance. A member does not have to consume alcohol to meet this criterion, e.g., purchasing alcohol for minors. 
Commands shall not use the term ‘alcohol related situations’ when a member’s behavior clearly meets the criteria of 
an ‘alcohol incident.’ Members involved in alcohol related situations shall be counseled on their use of alcohol and 
informed of the conduct expected of Coast Guard members.”  There is no regulation requiring the discharge of a 
member following a second or third “alcohol-related situation.” 
 

Command Drug and Alcohol Representative (CDAR) for alcohol screening. … Future behavior of 
this nature will be grounds for disciplinary and/or administrative action. 
 
On  January  8,  1999,  the  commanding  officer  of  xxxxxxxxxxxxx  prepared a Page 7  to 

document the applicant’s first alcohol incident, which the applicant acknowledged by signature: 

 
You  have  been  referred  to  the  xxxxxxx  Addictions  Prevention  Specialist  at  xxxxxxxxxx 
concerning  an  incident  involving  your  intemperate  use  of  beverage  alcohol  on  99  JAN  01.    At 
2330 hrs, you were stopped by the xxxxxx Police Department … . Upon investigation, the police 
officer  suspected  that  you  were  driving  under  the  influence  of  alcohol.    You  were  given  a 
breathalyzer test and your Blood Alcohol Content was measured at .20.  You were then charged 
with Driving While Intoxicated.  Your behavior, which caused discredit to the Coast Guard, will 
not be tolerated.  You were screened at the Medical Dispensary, USCG xxxxxxxxxxxxxxx, on 99 
JAN 04 and were diagnosed as Alcohol Dependent (DSM-IV 303.0).  The following action will be 
taken: 
 
You are scheduled to attend residential (inpatient) treatment at the Alcohol Rehabilitation Center, 
xxxxxxxxxxxx.  Your treatment start date is 99 JAN 24. 
 
This is considered your first documented alcohol incident.  You have been made aware of the pos-
sible consequences of any further alcohol incidents in accordance with Chapter 20-B-2-g  [of the 
Personnel Manual]. 
 
A second Page 7 dated January 8, 1999, in the applicant’s record notified him that his 
qualification as a xxxxxxxxxxxxxx had been terminated because of the alcohol incident since he 
could no longer serve as xxxxxxxxxxxxxxxxx. 

 
On January 11, 1999, the applicant was convicted of driving while intoxicated in a civil 
court.  In addition, the commanding officer awarded him nonjudicial punishment (NJP) and an 
unsatisfactory Enlisted Employee Review (EER). 

 
On February 19, 1999, the Executive Officer (XO) of the applicant’s unit entered a Page 

7 in his record ordering him to abstain from drinking alcohol indefinitely, as follows: 

 
On 17 FEB 99 you successfully completed a four-week inpatient treatment program at the Alcohol 
Rehabilitation Clinic (ARC), Naval Hospital, xxxxxxxxxxxxxx. … 
 
Continuing care is an important and mandatory continuation of this recovery process and the sup-
port you will find in your continuing care plan will go far in helping to ensure your success. 
 
Your continuing care treatment plan shall consist of, but not be limited to: 
 
a)  Abstinence from alcohol indefinitely. 
b)  Participation in two support group (AA) meetings per week. 
c)  Weekly meetings with the CDAR/DAR to monitor. 
d)  A one-year evaluation of your performance, documented by quarterly aftercare reports. 
 
Failure to comply with this continuing care plan or involvement in any alcohol related incident will 
result in your separation from the U.S. Coast Guard. 
 
On March 30, 1999, the applicant reenlisted in the regular Coast Guard as a BM2.  Upon 
reenlistment, he had accumulated 9 years, 4 months, and 11 days of prior active duty.  On July 
12, 1999, the commanding officer xxxxxxxxxx entered a Page 7 in his record stating that the 

applicant  had  successfully  completed  treatment  and  counseling  and  so  could  again  be  a 
xxxxxxxxxxxxxxxxxxxxx.   

 
On June 1, 2001, the applicant advanced to BM1.  A Report of Offense dated June 25, 
2001, in his record indicates that the applicant was arrested for being drunk and disorderly on 
June 24, 2001, by the local police in xxxxxxxxxxxxxxxxxxx, where his new duty station was 
located.  The police reported that the applicant had assaulted his wife and someone else; actively 
resisted arrest; and threatened to find and kill a police officer at a later date.  Also on June 25, 
2001, the OIC of the applicant’s unit in xxxxxxxxxx entered a Page 7 in his record to document 
his misconduct as his second alcohol incident:6 

 
On 24 JUN 01 you were arrested by the xxxxxxxxxxx Public Safety Department for Assault and 
Battery, Disorderly Conduct, and Domestic Violence.  This was in direct violation of your after-
care program[7] and Coast Guard regulations. 
 
On 25 JUN 01 you were referred to the Group xxxxxxxxxx Command Drug and Alcohol Repre-
sentative (CDAR) for evaluation and were counseled on policies concerning alcohol use/abuse and 
your failure to follow your prescribed aftercare program. 

                                                 
6 Article 20.B.2.h.2. of the Personnel Manual states that “[e]nlisted members involved in a second alcohol incident 
will normally be processed for separation” and provides the following regulations for exceptions to this rule: 
a. Commanding Officers retain the authority to request retention of those enlisted members who 
they believe warrant such exception. However, retention of enlisted members following a second 
alcohol incident should not be considered a routine action. In those cases when a commanding offi-
cer feels that mitigating circumstances or an exceptional situation warrants consideration for reten-
tion, a letter request for retention and treatment, including the medical screening results, treatment 
plan, and commanding officer’s recommendation concerning treatment shall be forwarded via the 
chain  of  command  to  Commander (CGPC-epm) who shall consult with Commandant (G-WKH) 
and direct the appropriate action regarding retention. The command recommendation for retention 
will be submitted as a cover letter to the required discharge package. 
b. For those enlisted members entitled to an Administrative Discharge Board (ADB), a discharge 
package  including  everything  short  of  convening  a  Board,  shall  be  forwarded  to  Commander 
(CGPC-epm).  If  Commander  (CGPC-epm)  concurs  with  proceeding  with  the  Command’s  deci-
sions,  the  package  is  returned  to  the  Command  and  an  ADB  is  convened  unless  the  member 
declines. If retained, the member will again be counseled and the counseling will be documented as 
in  Article  20.B.2.g.,  except  that  the  member  will  be  advised  that  another  alcohol  incident  will 
result in discharge. (Administrative Separation Board Manual, COMDTINST M1910.2 (series)). 
c.  Only  after  serious  consideration,  will  enlisted  members  described  in  Article  20.B.2.f.,  be 
retained beyond a second alcohol incident. These members have already received one exceptional 
retention and have belied the faith placed in them. 

7 Article 20.B.2.k.1. of the Personnel Manual states that “members … violating an alcohol rehabilitation aftercare 
plan normally are processed for separation.”  Article 20.B.2.l. states that 

[m]embers  diagnosed  as  alcohol-dependent  must  abstain  from  alcohol  use  to  maintain  sobriety. 
When commanding officers become aware that a recovering alcohol dependent member, after suc-
cessful completion of an aftercare program, is again consuming alcohol, he or she will refer the 
member for alcohol screening to include consultation with a medical officer. An aftercare plan will 
be  reinstituted  in  accordance  with  the  Health  Promotions  Manual  ….  This  counseling,  referral, 
aftercare program, and other pertinent information shall be recorded and acknowledged on a CG-
3307 entry in the member’s PDR for enlisted members or a letter for officers. The commanding 
officer, after reviewing the information pertinent to the case, will recommend separation, retention, 
or  further  treatment  to  Commander  (CGPC-opm) or (CGPC-epm). A second episode (an occur-
rence of alcohol consumption without an associated incident) after completing any aftercare pro-
gram by members who have been diagnosed as alcohol dependent will result in separation from the 
Coast Guard. 

 
This  is  considered  your  second  alcohol  incident  for  documentation  purposes.    As  outlined  in 
Chapter  20  of  the  Personnel  Manual  …,  you  are  being  processed  for  separation  from  the  U.S. 
Coast Guard due to continued alcohol abuse.  You are advised that you may be eligible for further 
alcohol treatment by the Department of Veterans Affairs in the future. 
 
On July 27, 2001, the applicant received NJP and an unsatisfactory EER for his miscon-
duct on June 24, 2001.  He was awarded extra duties for ten days and reduction to BM2.  On 
September 12, 2001, the Group Commander prepared a Page 7 for him stating the following: 

 
You have been referred for alcohol screening twice resulting from a second documented alcohol 
incident.    Once  at  Child  and  Family  Services  of  xxxxxxxxxx,  with  a  diagnosis  of  “Alcohol 
Abusive,” and once at Naval Hospital xxxxxxxxxx with a diagnosis of “Alcohol Dependency in 
Sustained  Partial  Remission.”    Together  with  the  screening  at  Naval  Hospital  xxxxxxxxxx after 
your  first  incident,  these  results  indicate  varying  degrees  of  difficulties  with  alcohol,  but 
difficulties  nonetheless.    In  accordance  with  Chapter  20,  Personnel  Manual,  …  you  have  been 
placed on the following aftercare plan IOP (Intensive Outpatient Program): 
 
You  will receive a minimum of 8 weeks IOP at the Child Family Service of xxxxxxxx.  Group 
therapy will begin in September 01.  You will adhere to the treatment program and the require-
ments outlined below: 
 
a.  Abstinence from alcohol. 
b.  Attend 1 group therapy session per week for a minimum of 8 weeks. 
c.  You will meet with Master Social Worker … once per week or as needed … 
d.  You will contact your unit CDAR at least once per week to monitor progress until the program 
is complete. 
 
You have been advised of the content of Chapter 20, Personnel Manual … regarding the expected 
conduct of the Coast Guard personnel and treatment plans available for those who have problems 
with  alcohol  abuse/dependency.    This  is  considered  your  second  documented  alcohol  incident.  
IAW the Personnel Manual, the discharge process has been initiated and could result in your sepa-
ration from the Coast Guard. 
 
CGPC, however, did not discharge the applicant because of the second alcohol incident.  
(Presumably, the OIC or the Group Commander requested his retention in accordance with Arti-
cle 20.B.2.h.2.a. of the Personnel Manual.8)   

 
On February 17, 2004, the OIC signed another Page 7 for the applicant’s record, docu-

menting a third alcohol incident:9 

 
On 13 FEB 04 you attended a “going away” party for one of the unit’s members.  While at that 
party you began to horse-play with another crew member.  The horse-play got out of hand, and the 
XPO and a BM3 stepped in to break it up.  You then physically assaulted the BM3 by grabbing 
him by the throat.  The XPO then had to separate you from the crew and take you outside in an 
attempt to calm things down where you were verbally abusive to him.  Your actions will be con-
sidered an alcohol incident. 
                                                 
8  Personnel Manual, Article 20.B.2.h.2.a. (stating that after a second alcohol incident, “Commanding Officer retain 
the authority to request retention of those enlisted members who they believe warrant special exception.”). 
9 Article 20.B.2.i. of the Personnel Manual states that “[e]nlisted members involved in a third alcohol incident shall 
be  processed  for  separation  from  the  Service  under  Article  12.B.16.  Cases  requiring  Administrative  Discharge 
Boards because of the character of discharge contemplated or because the member has served eight or more years, 
will be processed under Articles 12.B.31. and 12.B.32.” 

 
This is your third alcohol incident for documentation purposes.  As outlined in Chapter 20 of the 
Personnel Manual, … you are being processed for separation from the U.S. Coast Guard due to 
continued alcohol abuse.  The process of separation will include a screening by a discharge review 
board. 
 
You are advised that you may be eligible for further alcohol treatment by the Department of Veter-
ans Affairs in the future.  This matter has been referred to the xxxxxxxxxxxxx CDAR.  You are 
directed to abstain from alcohol until your relationship with alcohol can be further evaluated. 
 
In addition, the OIC entered a Page 7 in the applicant’s record to notify him that because 
of an ongoing investigation into his conduct, his qualification as a Boarding Officer, his right to 
wear issued weapons, and his access to the armory had been revoked. 

On  March  12,  2004,  the  applicant  was  taken  to  mast  and  awarded  NJP  by  the  Group 
Commander for violating Article 92 of the Uniform Code of Military Justice (UCMJ) for failing 
to obey the Group Commander’s order to abstain from drinking alcohol.  A charge of assaulting a 
petty officer under Article 128 of the UCMJ was dismissed.  The NJP awarded was seven days of 
extra duty, forfeiture of $500.00, and a reduction in pay grade to BM2, which was suspended for 
six months.  (Because the suspension was never vacated, the applicant remained a BM1.)  The 
Court Memorandum indicates that at the party on February 13, 2004, the applicant had violated 
the Group Commander’s written order by failing to abstain from drinking alcohol.   

 
Also on March 12, 2004, the applicant’s rating chain prepared an unsatisfactory EER with 
low  marks.    The  supporting  comments  for  the  low  marks  note  that  the  applicant  had  “been 
ordered not to use alcohol but continues to do so in the presence of junior personnel.  By doing 
so he has set a poor example and the inability to display positive judgment and make sound deci-
sions.”  The applicant was not recommended for advancement on the EER because of his “failure 
to obey direct written orders to abstain from alcohol … unwillingness to modify your personal 
behavior to what is expected of a senior petty officer. …. You must also discontinue your inap-
propriate social behavior with junior personnel.” 
 

On March 19, 2004, the Group Commander sent CGPC a memorandum (of which CGPC 

apparently has no record) in which he wrote the following: 

 
Based  on  the  investigation  and  statements  made  during  the  NJP  proceedings  arising  from  this 
event, I have determined that the incident documented in the administrative remarks entry for [the 
applicant] dated February 17, 2004, was not an alcohol incident as outlined in [the Personnel Man-
ual], and the administrative remarks should be removed from his record. 

CGPC did not remove the Page 7 dated February 17, 2004, from the applicant’s record, 

 
 
but neither was the applicant discharged as a result of his third documented alcohol incident. 
 
 
On  June  1,  2007,  the  applicant’s  new  command  noted  that  the  applicant’s  record  con-
tained  documentation  of  a  third  alcohol  incident  (which,  under  the  Personnel  Manual,  would 
result in his separation) and asked CGPC to remove it from his record.  In addition, the command 
asked CGPC to include in the applicant’s record a memorandum reflecting the fact that CGPC 
had authorized the applicant’s retention on active duty following his second alcohol incident. 
 

 
On November 28, 2007, CGPC advised the applicant’s unit that the request for removal 
of the Page 7 had been disapproved pursuant to Article 4.D.2.b. of COMDTINST M1080.10G.  
CGPC stated that “[w]hile it appears that the Group Commander determined there was no alco-
hol incident, the signature authority on the CG-3307 was …, the Officer-in-Charge, Coast Guard 
Station xxxxxxxxx.  Consequently, any request to remove that CG-3307 must be determined by 
[him].” 
 

VIEWS OF THE COAST GUARD 

 

On  June  4,  2008  the  Judge  Advocate  General  (JAG)  of  the  Coast  Guard  submitted  an 

advisory opinion in which he recommended that the Board deny relief in this case. 

 
The JAG stated that after the applicant’s first alcohol incident—his conviction for DWI 
on January 1, 1999—he was diagnosed as alcohol dependent, provided inpatient treatment and an 
aftercare plan, and ordered to abstain from alcohol indefinitely, as shown on the Page 7 dated 
February 19, 1999.  However, on June 24, 2001, the applicant was arrested for being drunk and 
disorderly, in violation of the order.  Because of his second alcohol incident and violation of his 
aftercare  plan,  the  Coast  Guard  began  discharge  proceedings  in  accordance  with  Articles 
20.B.2.h.2 and 20.B.2.k.1. of the Personnel Manual.  However, he was retained on active duty, 
pursuant to Article 20.B.2.h., placed in another aftercare plan, and again ordered to abstain from 
alcohol consumption, as shown in the Page 7 dated September 12, 2001.  However, on February 
13, 2004, the applicant consumed alcohol10 and got involved in a scuffle with crewmates at a 
party.  His OIC documented it as the applicant’s third alcohol incident on February 17, 2004.  
The JAG noted that although the Group Commander dismissed the assault charge at mast and 
concluded that no alcohol incident had occurred, he did award the applicant NJP for having con-
sumed alcohol in direct violation of orders and his aftercare program. 

 
The JAG stated that the OIC of the applicant’s unit signed the Page 7 documenting the 
third alcohol incident on February 17, 2004, and that “any removal request must be submitted by 
the signature authority.”  The JAG stated that the OIC “exercised reasonable discretion in the 
execution of [his] duties in this case” and has never asked for the Page 7 to be removed.  The 
JAG stated that despite the Group Commander’s determination that no alcohol incident occurred, 
“there is sufficient evidence to indicate that the event documented in the CG-3307 in question 
constituted  the  applicant’s  third  alcohol  incident,  which  would  have  mandated  his  separation 
from service” under Article 20.B.2.i. of the Personnel Manual. 

 
The JAG further stated that leaving the Page 7 dated February 17, 2004, in the applicant’s 
record does not “shock the sense of justice.”  He noted that the applicant normally would have 
been  discharged  after  his  second  alcohol  incident  but  instead  was  retained  on  active  duty and 
promoted to BM1.  “The applicant has a pattern of alcohol abuse, and the record supports that 
alcohol contributed to the incident on 13 Feb[ruary] 2004.”  Since the applicant “should have 
been separated from the Coast Guard … disapproving removal of the [Page 7] in question would 
not constitute an injustice.” 

 

                                                 
10 The Page 7 documenting the February 13, 2004, incident did not expressly state that the applicant had consumed 
alcohol, as alleged by the JAG.    

The JAG included with his advisory opinion a memorandum on the case prepared by the 
Coast  Guard  Personnel  Command  (CGPC),  which  also  recommended  denying  the  requested 
relief.    CGPC  stated  that  under  Article  4.D.2.  of  COMDTINST  M1080.10G,  documents  in  a 
member’s official military record can only be corrected by the Commandant, CGPC, the Person-
nel  Records  Review  Board,  or  the  BCMR,11  although  minor  corrections  may  be  made  by  the 
command under Article 14.B.2. of the Personnel Manual.12  CGPC further stated that it has no 
record of having timely received the Group Commander’s memorandum dated March 19, 2004.  
CGPC stated that it did receive the memorandum from the applicant’s current command dated 
June 1, 2007, but the request was reviewed and disapproved by CGPC-epm. 

 
Regarding the Group Commander’s determination that the XPO had acted with prejudice, 
CGPC  pointed  out  that  it  was  the  OIC,  not  the  XPO,  who  determined  that  the  applicant  was 
involved  in  an  alcohol  incident  and  signed  the  Page  7.    Moreover,  CGPC  argued,  the  Group 
Commander’s finding at mast that the applicant had consumed alcohol in violation of his orders 
and aftercare plan actually affirms the OIC’s determination that an alcohol incident occurred.13 

 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On June 9, 2008, the Chair sent the applicant copies of the views of the Coast Guard and 

invited him to respond within thirty days.  No response was received.   

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 submission, and applicable law: 
 

                                                 
11 Article 4.D.2.a. of COMDTINST M1080.10G states that information may be “[c]orrected, added or removed from 
the CGPC (I) PDR [personal data record] by CGPC (adm-3) only when authorized by Commandant (CG-1), Com-
mandant  (CG-12),  Commandant  (CG-13),  or  Commander,  CGPC  (epm/opm/rpm)  when  directed  by  a  PRRB,  or 
BCMR.” Article 4.D.2.b. states that  information in the PDR may be “[c]orrected or removed only as Commander, 
CGPC (epm/opm/rpm) or Commandant (CG-13) authorize in all other cases not requiring administrative discretion.” 
12 Article 14.B.2.a. of the Personnel Manual states the following: 

Most errors in personnel records are minor ones, such as charging a member with too many days of 
leave, mistakenly canceling an allotment, etc. Normally, such errors can be corrected by request-
ing, either orally or in writing, the member’s Personnel Reporting Unit (PERSRU) to initiate the 
needed  change.  If  a  member  believes  a  personnel  record  entry  is  unfair,  an  appeal  through  the 
member’s chain of command usually is the simplest and fastest means for seeking correction or 
deletion of the entry. The level in the chain of command to which the appeal should be directed is 
dependent upon all of the circumstances. As an example, for a member who receives an Adminis-
trative  Remarks,  CG-3307  from  his  or  her  division  chief  documenting  purported  substandard 
watchstanding, an appeal through the division chief and the executive officer to the commanding 
officer should suffice. (This appeal may be in the form of a so-called ‘Request Mast’ pursuant to 
Article 9-2-3, Coast Guard Regulations, COMDTINST M5000.3 (series).) 

13 On August 25, 2008, the BCMR staff asked the JAG and CGPC for a copy of any written report of the investiga-
tion mentioned by the Group Commander in his memoranda dated March 19, 2004, and January 22, 2008.  On Sep-
tember 23, 2008, the JAG informed the BCMR staff that no written report of the investigation had been found. 

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

The application was timely.14  

The  applicant  requested  an  oral  hearing  before  the  Board.    The  Chair,  acting 
pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case with-
out a hearing.  The Board concurs in that recommendation. 

1. 

 
2. 

 
3. 

4. 

The applicant alleged that the Page 7 dated February 17, 2004, which documents a 
 
third alcohol incident in his record, is erroneous and unfair and should be removed.  The Board 
must  begin  its  analysis  by  presuming  that  the  disputed  Page  7  is  correct  as  it  appears  in  his 
record, and the applicant bears the burden of proving by a preponderance of the evidence that it is 
erroneous  or  unjust.15    Absent  evidence  to  the  contrary,  the  Board  presumes  that  a  member’s 
military records have been prepared “correctly, lawfully, and in good faith.”16 
 

In  support  of  his  allegation,  the  applicant  submitted  two  memoranda  from  the 
Group  Commander,  dated  March  19,  2004,  and  January  22,  2008,  neither  of  which  is  in  the 
applicant’s official military record.  In these memoranda, the Group Commander states that he 
determined at mast on March 12, 2004, that no alcohol incident had occurred; that the charge 
against the applicant was a result of bias on the part of the station XPO; and that he asked CGPC 
to remove the disputed Page 7 from the applicant’s record to no avail.  CGPC and the JAG argue, 
however,  that  it  was  the  OIC—not  the  XPO—who  determined  that  an  alcohol  incident  had 
occurred; that the OIC has never requested removal of the Page 7; that the Group Commander 
himself found at mast that the applicant had disobeyed a direct order by consuming alcohol, in 
violation of Article 92 of the UCMJ;17 and that, therefore, an alcohol incident occurred and the 
disputed Page 7 is neither erroneous nor unjust. 
 
The disputed Page 7 is signed by the station OIC, who had authority18 to decide 
 
whether the applicant was involved in an “alcohol incident,” as defined by Article 20.A.2.d.1. of 
the  Personnel  Manual,  and  to  document  the  alcohol  incident  on  a  Page  7  in  the  applicant’s 
record.19  There is no evidence in the record indicating that the OIC was biased against the appli-
cant.  The text of the Page 7 focuses on the applicant’s involvement in a scuffle with other petty 
officers and the XPO on February 13, 2004, and does not mention that he drank alcohol except 
by  implication  in  that  it  documents  an  alcohol  incident,  the  definition  of  which  requires  the 

5. 

                                                 
14 The application was received more than three years after the disputed Page 7 was entered in the applicant’s record, 
but  under  Detweiler  v.  Pena,  38  F.3d  591,  598  (D.C.  Cir.  1994),  section  205  of  the  Soldiers’  and  Sailors’  Civil 
Relief Act of 1940 “tolls the BCMR’s [3-year] limitations period during a servicemember’s period of active duty.” 
15 33 C.F.R. § 52.24(b). 
16 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
17 10 U.S.C. § 892 (2008).  Article 92 of the UCMJ, “Failure to obey order or regulation,” states that “[a]ny person 
subject to this chapter who – (1) violates or fails to obey any lawful general order or regulation; (2) having knowl-
edge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the 
order; or (3) is derelict in the performance of his duties; shall be punished as a court-martial may direct.” See also 
MANUAL FOR COURTS-MARTIAL, UNITED STATES ¶ 16.a., part IV-23 (2008 Ed.). 
18 Personnel Manual, Articles 20.A.2.d.1. and 20.A.2.f. (authorizing commanding officers to determine whether an 
alcohol incident has occurred and noting that “[a]s used in this chapter, ‘commanding officer’ includes commanders, 
commanding officers, and officers-in-charge.”)   
19 Personnel Manual, Article 20.B.2.g. (requiring documentation of alcohol incidents). 

member to have consumed alcohol.20  However, the EER prepared by the applicant’s rating chain 
on March 12, 2004, cites the applicant’s “failure to obey direct written orders to abstain from 
alcohol.”  In addition, the Court Memorandum of the mast on March 12, 2004, shows that even 
though the Group Commander dismissed the assault charge against the applicant, he determined 
that the applicant had disobeyed an order by consuming alcohol in violation of Article 92 of the 
UCMJ.  The applicant’s record shows that on both February 19, 1999, and September 12, 2001, 
he  had received written orders to abstain  from consuming alcohol indefinitely because he had 
been  diagnosed  as  alcohol-dependent.    There  is  no  evidence  that  these  orders  were  ever 
rescinded.  Article 20.B.2.k.1. of the Personnel Manual requires members who have been diag-
nosed as alcohol-dependent to abstain from alcohol use or be subject to discharge. 
 

Under Article 20.A.2.d.1., an alcohol incident includes “[a]ny behavior, in which 
alcohol is determined, by the commanding officer, to be a significant or causative factor, that … 
is a violation of the Uniform Code of Military Justice … .  The member need not be found guilty 
at court-martial, in a civilian court, or be awarded non-judicial punishment for the behavior to be 
considered an alcohol incident.”  The preponderance of the evidence shows that on February 13, 
2004, the applicant disobeyed longstanding written orders to abstain from consuming alcohol and 
that his failure to obey the orders violated Article 92 of the UCMJ.  Therefore, despite the Group 
Commander’s finding at mast on March 12, 2004, that the applicant’s conduct did not constitute 
an alcohol incident,21 the applicant has not proved by a preponderance of the evidence that the 
OIC  erred  in  determining  that  the  applicant  incurred  a  third  alcohol  incident  on  February  13, 
2004, when he consumed alcohol contrary to orders.  Because the applicant had been lawfully 
ordered  to  abstain  from  consuming  alcohol  indefinitely,  his  consumption  of  alcohol  violated 
Article 92 of the UCMJ and so met the definition of an alcohol incident under Article 20.A.2.d.1. 
regardless of his other conduct at the party. 
 
 
Although the OIC found that the applicant incurred a third alcohol incident and 
documented it in his record in accordance with Article 20.B.2.g. of the Personnel Manual, the 
applicant argues that the Page 7 must be removed because the Group Commander later overruled 
the OIC’s determination.  Article 20.B. of the Personnel Manual does not provide any procedure 
for appealing an OIC’s determination of an alcohol incident to a higher authority or for a Group 
Commander to overrule the determination of a subordinate officer.  The JAG and CGPC argue 
that  under  Article  4.D.2.  of  COMDTINST  M1080.10G,  only  the  Commandant,  CGPC,  the 
PRRB, and the BCMR have authority to remove a Page 7 documenting an alcohol incident from 
a member’s record, and so the Group Commander’s finding at mast was not dispositive.  Article 
14.B.2.a.  of  the  Personnel  Manual  states  that  a  member  may  appeal  a  personnel  record  entry 
through his chain of command and that the “level in the chain of command to which the appeal 
should be directed is dependent upon all of the circumstances.  As an example, for a member 

6. 

7. 

                                                 
20 Personnel Manual, Article 20.A.2.d.2. (see supra, note 2, for definition of “alcohol incident”). 
21  The  Group Commander’s statement that no alcohol incident occurred is not actually in the applicant’s military 
record because the disposition of UCMJ charges at mast and alcohol-incident determinations are separate proceed-
ings, and “alcohol incident,” per se, is not a legal charge under the UCMJ to be decided at mast or court-martial or to 
be included in the documentation of a UCMJ proceeding.  See 10 U.S.C. § 801 et seq.  It is possible for a member to 
incur an alcohol incident without being charged with any offense under the UCMJ, and it is possible for a member to 
be charged under the UCMJ for alcohol-fueled offenses without having an alcohol incident documented in his record 
(see, e.g., Final Decisions in BCMR Docket Nos. 2007-160, 2006-142, and 2005-137), although commands often 
pursue both courses of action. 

8. 

who  receives  [a  Page  7]  from  his  or  her  division  chief  documenting  purported  substandard 
watchstanding, an appeal through the division chief and the executive officer to the commanding 
officer should suffice.”  These two regulations seem to conflict with each other as the former 
suggests that commanding officers do not have final authority to remove any document from a 
member’s record once it is entered, whereas the latter suggests that a commanding officer does 
have such authority for minor record entries.  A Page 7 documenting an alcohol incident, how-
ever, is a very significant record entry because having just two of them normally causes a mem-
ber to be discharged.22  The JAG and CGPC have stated that the Group Commander did not have 
authority  to  order  removal  of  a  Page  7  documenting  an  alcohol  incident  from  the  applicant’s 
record, and there is no regulation clearly contradicting that assertion. Therefore, the Board finds 
that the applicant has not proved by a preponderance of the evidence that his OIC’s reasonable 
determination that he incurred a third alcohol incident on February 13, 2004, was legally over-
turned by the Group Commander’s contrary finding. 
 

Under Article 20.A.2.d. of the Personnel Manual, a member must actually con-
sume alcohol for an alcohol incident to have occurred.  The Board notes that in the text of the 
Page 7 dated February 17, 2004, the OIC failed to state expressly that the applicant drank alcohol 
at the “going away” party on February 13, 2004, which could lead one to question whether the 
applicant was involved in an “alcohol-related situation,” under Article 20.B.2.d., rather than an 
“alcohol incident.”  However, the Board is satisfied based upon a preponderance of the evidence 
in the record that the applicant drank alcohol during the party.  This evidence includes the Page 
7’s  use  of  the  phrase  “alcohol  incident”  twice  and  its  references  to  “alcohol  abuse,”  “alcohol 
treatment,” the applicant’s “relationship with alcohol,” and the order to “abstain from alcohol.”  
Furthermore, the Board notes that the Group Commander found at mast that the applicant had 
consumed alcohol at the party in violation of orders and that the applicant’s chain of command 
prepared an unsatisfactory performance evaluation for him, pursuant to the mast, with a written 
comment  that  he  “fail[ed]  to  obey  direct  written  orders  to  abstain  from  alcohol.”    Therefore, 
despite the OIC’s failure to state expressly on the Page 7 that the applicant drank alcohol at the 
party, the Board finds by a preponderance of the evidence that he did drink alcohol at the party, 
contrary to orders, and so incurred a third alcohol incident.  Therefore, his military record with 
respect to a third alcohol incident is correct.  

 
9. 

The Board recommends that the Coast Guard amend its regulations to require that 
Page 7s documenting alcohol incidents state expressly that the member drank alcohol to ensure 
that the Page 7 reflects the requirements for an alcohol incident under Article 20.A.2.d. of the 
Personnel Manual.  Article 20.B. of the Personnel Manual does not require the text of a Page 7 to 
state that the member drank alcohol, but the absence of such an express statement could lead to 
confusion.  For instance, in this case, the Page 7 focuses on the applicant’s involvement in a scuf-
fle and does not state that  he consumed  alcohol.  As written, the Page 7 could be interpreted as 
describing an alcohol-related situation, rather than an alcohol incident.   
 

The  applicant  has  not  proved  by  a  preponderance  of  the  evidence  that  his  OIC 
erred in determining that he incurred a third alcohol incident at the party on February 13, 2004.  
However,  under  10  U.S.C.  §  1552(a),  the  Board  must  also  consider  whether the third alcohol 
                                                 
22 Personnel Manual, Article 20.B.2.h.2. (“Enlisted members involved in a second alcohol incident will normally be 
processed for separation.”) 

10. 

incident in his record constitutes an injustice.23  In this regard, the Board notes that Coast Guard 
regulations  require  the  discharge  of  an  enlisted  member  following  a  third  alcohol  incident.24   
Although the Coast Guard erred in failing to separate the applicant in a timely manner after his 
third alcohol incident, since four years have passed, the Coast Guard must be considered to have 
waived that opportunity to separate him since he has invested four more years of service toward 
his eligibility for retirement on his 20th active duty anniversary.  There is no complaint or evi-
dence that CGPC is going to discharge him belatedly based upon the alcohol incident on Febru-
ary 13, 2004.  Moreover, even if the Page 7 documenting his third alcohol incident were removed 
from his record, the applicant would be no less vulnerable to discharge at this point.  Whether he 
now has two or three documented alcohol incidents in his record, he will be equally subject to 
discharge if he incurs a new alcohol incident because it would be either his third or fourth alcohol 
incident and members are subject to discharge after just two or three such incidents.25  Although 
the Coast Guard failed to discharge the applicant after he incurred the third alcohol incident in 
2004, as required by Article 20.B.2.i. of the Personnel Manual, the Board’s sense of justice is not 
shocked by the fact that the documentation of that alcohol incident remains in his record. 
 

Accordingly, the applicant’s request should be denied. 
 

 
11. 

 

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
23 See Sawyer v. United States, 18 Cl. Ct. 860, 868 (1989), rev’d on other grounds, 930 F.2d 1577 (citing Reale v. 
United  States,  208  Ct.  Cl.  1010,  1011  (1976)  (finding  that  for  purposes  of  the  BCMRs  under  10 U.S.C. § 1552, 
“injustice” is “treatment by the military authorities that shocks the sense of justice but is not technically illegal”). 
24 Personnel Manual, Article 20.B.2.i. (“Enlisted members involved in a third alcohol incident shall be processed for 
separation from the Service.”).  Officers must be discharged following a second alcohol incident.  Personnel Manual, 
Article 20.B.2.h.1. 
25 Id.; and Personnel Manual, Article 20.B.2.h.2. 

The  application  of  BM1  xxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his  military 

ORDER 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Lillian Cheng 

 

        

 
 Nancy L. Friedman 

 

 

 

 

 
 
 Janice Williams-Jones  

 

 

 

 

 

 

 

 

 

 

 
 

 
 
record is denied.