DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                       BCMR Docket No. 2009-185 
 
xxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxx   

FINAL DECISION 

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 Chair docketed the case after receiving the 
completed application June 29, 2009, 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  May  13,  2010,  is  approved  and  signed  by  the  three  duly 

 

 
 

 

 

 

 

APPLICANT’S REQUEST AND ALLEGATIONS 

The applicant asked the Board to remove from his record a memorandum documenting 
his  first  “alcohol  incident”1  dated  July  26,  2006,  and  a  memorandum  regarding  the  results  of 
alcohol screening dated July 7, 2006.  In addition, the applicant asked that his officer evaluation 
report (OER) for the evaluation period June 1, 2006, through August 24, 2007, be corrected by 
removing or upgrading the low mark of 3 that he received in the performance category “Health 
and Well-Being” and by removing the following two comments concerning the alcohol incident: 

 
  From block 8:  “Off-duty, atypical confrontation deemed alcohol incident.” 
  From block 10:  “[The applicant] retains my utmost trust and confidence and I con-
sider  the  alcohol  incident  aberrant  to  an  otherwise  promising  career.    [He]  showed 
great character in admitting error, learning from it, and moving on.”  

The  applicant  alleged  that  in  2006,  he  was arrested “based on incomplete information, 
mistaken  beliefs  and  merely  being  in  the  wrong  place  at  the  wrong  time.”    He  immediately 
reported his arrest to his command and received a letter documenting an alcohol incident based 
upon the police report of his arrest.  He also received a letter noting that screening had indicated 
                                                 
1 Article 20.A.2.d.1. of the Personnel Manual 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.”  

that he is not alcohol dependent.  Both letters were entered in his record.  Moreover, while the 
matter  was  pending  in  State  court,  the  evaluation  period  ended,  so  his  command  prepared  an 
OER documenting the alcohol incident. 
 
 
The applicant alleged that he was “cleared of all misconduct resulting from the incident.  
The charges were dismissed by the State … and the court issued an order that all records of the 
arrest, events, and [his] prosecution be expunged for the purpose of clearing [his] record.”  The 
applicant  stated  that  although  the  Coast  Guard  is  not  legally  required  to  follow  the  court’s 
example  or  order,  it  should  do  so  voluntarily.    The  applicant  argued  that  the  alcohol  incident 
letter and OER are incomplete, erroneous, and unjust because they do not show that he has been 
vindicated  and  cleared  of  the  charges,  and  the  State  has  determined  that  his  arrest  and  prose-
cution “did not occur” since there are no records of them. 
 
 
The applicant argued that the underlying basis for the disputed letters and OER comments 
“has been expunged from the record” and that their presence in his record “constitutes an unjust 
burden on [his] military career and on any future civilian career in law enforcement and intel-
ligence.” 
 
The applicant alleged that his new commanding officer, CDR W, who signed the OER, 
 
supports the redaction of the disputed comments from the OER and the removal of the letters 
from his record.  He also alleged that his old commanding officer, CDR E, who was in command 
at the time of the alleged alcohol incident and who signed the disputed letters, does not object to 
the removal of the letters from his record. 
 
 
The applicant alleged that if his career has been prejudiced because he forthrightly report-
ed his arrest immediately to his command and that if he had just delayed reporting the incident 
until the court had completed the matter, “there would have been nothing to report.”  He further 
alleged  that  he  was  recently  denied  employment  by  a  federal  agency  because  of  the  disputed 
documents in his record even though the agency was aware of the State’s expungement order. 
 
 
In support of his allegations, the applicant submitted a copy of a State court’s “Order for 
the Destruction of Arrest Records,” which orders that the records relating to the applicant’s arrest 
be “dismissed, expunged and immediately destroyed.”  The order shows that the Circuit Solicitor 
consented to the expungement. 
 
 
signed the disputed OER as the reviewer.  CDR W stated the following: 
 

The  applicant  also  submitted  a  statement  from  CDR  W,  the  commanding  officer  who 

I am writing this letter in support of [the applicant].  As his Commanding Officer at the Maritime 
Law Enforcement Academy (MLEA) for twelve months of the fourteen-month period covered by 
subject OER, I performed the duty as OER Reviewer in accordance with [the Personnel Manual].  
[The applicant] was a stellar performer for the entire period that I was his Commanding Officer.  I 
trusted  him  with  extremely  important  issues  involving  training  and  coordination  with  many 
different  agencies  and  components.    I  could  always  trust  that  [he]  would  represent  the  MLEA 
professionally and complete the assigned project on time and in superb fashion.  With respect to 
his OER dated 20070824, he did receive a mark of 3 in the Health and Well Being dimension as a 
result  of  a  one-time  event  that  was  documented  as  an  alcohol  incident  on  18  June  2006  in 
accordance with [the Personnel Manual].  As Reviewer, I felt the mark appropriate.  I also felt that 
the previous Commanding Officer correctly documented the alcohol incident, based on the facts at 

the time.  Had the events of 18 June 2006 never taken place, I think it fair to say that I would have 
expected [the applicant] to receive a mark of 6 or 7 in the Health and Well Being dimension based 
on the performance as documented in the OER.  I consider this an unfortunate incident that has 
tarnished  the  otherwise  stellar  career  of  a  solid  Coast  Guard  officer.  Likewise I would support 
correction of his record should the board decide it appropriate. 

 
 
The applicant noted that his prior commanding officer, CDR E, would submit a statement 
directly to the Board.  (A statement from CDR E was received with the Coast Guard’s advisory 
opinion for this case and is quoted below under “Views of the Coast Guard.”) 
 

SUMMARY OF THE RECORD 

 
 
On  January  13,  2002,  the  applicant  was  commissioned  an  ensign  in  the  Reserve  and 
began serving on extended active duty.  He was assigned to a cutter and as an ensign received 
OERs with primarily average marks of 4, as well as some below standards marks of 3 and above 
standard marks of 5.  He was promoted to lieutenant junior grade (LTJG) on August 13, 2003, 
and began to receive better OERs, with several marks of 5 and 6, as well as 4s, and no 3s.  He 
usually received marks in the fourth (middle) spot on the comparison scale, denoting him as “one 
of the many competent professionals who form the majority of this grade.”   
 

On February 13, 2006, the applicant was promoted to lieutenant.  On May 23, 2006, he 
received  a  commission  in  the  regular  Coast  Guard.    On  an  OER  covering  the  weeks  from 
February 14 to May 31, 2006, the applicant received eight marks of 5, nine marks of 6, and one 
mark of 7 (for Health and Well-Being) in the various performance categories and a mark in the 
fifth spot on the comparison scale, denoting him as an “excellent performer; give toughest, most 
challenging leadership assignments.”     
 
 
“Record of Counseling for First Alcohol Incident.”  The letter states the following: 
 

On  June  26,  2006,  the  applicant’s  commanding  officer,  CDR  E,  prepared  a  letter  as  a 

1.  On 18 June 2006 you were arrested by the xxxxx Police Department on the charge of “Simple 
Assault” after allegedly striking a bouncer at a local establishment.  I have determined that your 
use of alcohol was a significant and/or causative factor in your conduct and that your behavior has 
brought discredit upon the Coast Guard.  Therefore, your behavior meets the standard set for in 
[Article 20 of the Personnel Manual] for classification as an “alcohol incident.” 
 
2.  You were counseled on Coast Guard policies concerning alcohol use and abuse contained in 
[the Personnel Manual and Health Promotion Manual] as well as the serious nature of this incident.  
The unit Collateral Duty Addictions Representative (CDAR) has arranged an appointment with a 
provider who will determine the nature of your relationship with alcohol.  It is recommended that 
you abstain from the use of alcohol until your screening and assessment is completed.  Your initial 
screening appointment is scheduled for 28 June 2006 at the xxxxx Naval Hospital. 
 
3.  This is considered your first documented alcohol incident.  Any future incidents will result in 
you being processed for separation as per [Article 20 of the Personnel Manual]. 

On July 7, 2006, CDR E entered another letter in the applicant’s record to document the 

 
 
result of his alcohol dependence screening.  The letter states the following: 
 

1.  On 28 JUN 06 as a result of an alcohol incident you were evaluated by … at the xxxxx Naval 
Hospital where it was determined that you do not meet the criteria for a diagnosis of alcohol abuse 

or substance dependence.  You are to attend the IMPACT training on 14, 15, and 16 AUG at the 
xxxxx Naval Hospital. 
 
2.  You have been advised of the contents of [Article 20 of the Personnel Manual and Article 2 of 
the Health Promotions Manual] concerning the expected conduct of Coast Guard personnel. 

 
 
On the disputed OER, which covers the period June 1, 2006, through August 24, 2007, 
the applicant received a mark of 3 for “Health and Well-Being, fourteen marks of 6, and three 
marks of 7 in the various performance categories and a mark in the fifth spot on the comparison 
scale.  The mark of 3 is supported by the disputed comments quoted on page 1 of this decision. 
 
 
In  August  2007,  the  applicant  transferred  to  Coast  Guard  Headquarters  to  serve  as  a 
project  officer  in  counterterrorism.    On  an  OER  covering  his  service  from  August  25,  2007, 
through May 31, 2008, the applicant received one mark of 4, nine marks of 5, seven marks of 6, 
and  one  mark  of  7  in  the  various  performance  categories  and  a  mark  in  the  fifth  spot  on  the 
comparison scale. 
 

VIEWS OF THE COAST GUARD 

 
 
On November 20, 2009, the Judge Advocate General of the Coast Guard submitted an 
advisory opinion in which he recommended that the Board deny relief in this case.  In so doing, 
he  adopted  the  findings  and  analysis  provided  in  a  memorandum  prepared  by  the  Personnel 
Service Center (PSC). 
 
 
 
The PSC submitted statements from the applicant’s supervisor and reporting officer for 
the  disputed  OER  and  one  from  CDR  E.    Based  on  those  statements,  which  are  summarized 
below, and the regulations for OERs and alcohol incidents, the PSC stated that the applicant was 
arrested by civilian authorities for an incident that occurred when he was under the influence of 
alcohol.  The PSC stated that the fact that the State dismissed the charge against the applicant and 
expunged the arrest from his record does not negate the alcohol incident because the definition of 
the latter does not require any arrest or conviction.  The PSC stated that the commanding officer, 
CDR E, acted properly in documenting the alcohol incident and the subsequent alcohol depend-
ence screening in the applicant’s record. 

 
The PSC stated that the disputed OER does not misstate the facts or violate any regula-
tion  and  that  there  are  no  grounds  for  redacting  it  or  for  removing  the  alcohol  incident  and 
screening letters.  The PSC stated that the reporting officer who was responsible for assigning the 
mark of 3 in the disputed OER and the supporting comments “was in the best position to observe 
the applicant’s performance and provide a fair, accurate and objective OER.”  The PSC stated 
that  the  applicant  has  not  submitted  evidence  that  overcomes  the  presumption  of  regularity 
accorded the disputed OER and letters in his record. 
 

The PSC also noted that the applicant did not submit a reply to the OER or apply to the 

Personnel Records Review Board for the corrections he is seeking. 
 

Statement of the Applicant’s Supervisor 
 
 
LCDR  H,  who  signed  the  OER  as  the  applicant’s  supervisor,  stated  that  the  alleged 
alcohol incident occurred before he arrived at the MLEA.  LCDR H stated that the applicant’s 
“demeanor and professionalism [were] consistently above reproach.” 
 
Statement of the Applicant’s Reporting Officer 
 
 
CDR F, who served as the Executive Officer of the MLEA and the applicant’s reporting 
officer throughout the evaluation period for the disputed OER, stated that because of LCDR H’s 
late arrival at the MLEA, he worked closely with the applicant in the summer of 2006.  CDR F 
stated that the State’s decision not to proceed with criminal charges against the applicant  
 

does not change the fact that, while under the influence of alcohol, [he] was involved in physical 
altercation with a bouncer at an establishment in xxxxxxxxx.  Having spoken to both the arresting 
officer and the other party in the altercation, I am convinced the incident took place.  That said, the 
other  party  in  the  altercation  (a  bouncer  and  part  owner  of  the  establishment)  was  not  a 
sympathetic  person  and  may  have  played  some  role  in  escalating  the  incident.    This  does  not 
excuse  the  behavior  of  [the  applicant],  who  at  the  time  of  the  incident  was  serving  as  a  law 
enforcement  instructor  at  the  MLEA,  though  it  is  a  mitigating  factor.    Due  to  [the  applicant’s] 
otherwise  stellar  performance  and  due  to  this  mitigating  factor,  I  recommended  to  the  then 
commanding  officer,  [CDR  E],  this  matter  be  handled  administratively  as  opposed  to  seeking 
approval  from  the  Judge  Advocate  General  of  the  Coast  Guard  to  concurrently  proceed  with 
charges under the Uniform Code of Military Justice while civilian charges remained pending. … 
[The applicant’s] behavior was properly deemed an alcohol incident and was correctly documented 
by the memo as it is currently written. … [A]s [the applicant] was properly ordered to undergo 
screening for alcohol dependence based on that determination, the “Result of Alcohol Dependence 
Screening Memo” was also properly completed and filed. … I believe the incident was properly 
and  fairly  document  in  [his]  Officer  Evaluation  Report  (OER).    Again,  due  to  [his]  otherwise 
excellent  performance,  this  OER  was  otherwise  very  strong.    In  drafting  this  OER,  both  the 
supervisor and I went to great pains to attempt to minimize the negative effects of this incident. … 
If the BCMR has the discretion and authority to remove this incident from his record even though 
it has been properly documented, I would not object. 

 
Statement of CDR E, Past CO of the MLEA 
 
 
incident, stated that  
 

CDR E, who was the applicant’s commanding officer at the time of the alleged alcohol 

while  the  State  of  xxxxxx  order  for  destruction  of  arrest records is clearly in their purview, the 
documented  alcohol 
incident  was  appropriate  and  was  processed  [in  accordance  with 
Commandant] policy.  Member admitted alcohol ingestion was a contributing factor to his striking 
a  bouncer  at  a  local  xxxxxx  South  Carolina  establishment  on  18  June  2006.    That  said,  in  the 
overall  scheme  of  his  career  progression,  it  is  my  opinion  that  this  behavior  was  an  isolated 
incident that does in no way reflect negatively on the current or future potential as an otherwise 
excellent  officer.    While  expected,  [the  applicant’s]  accepting  responsibility  for  his  actions  and 
admitting error speaks positively of his character.  Additionally, had I continued in his chain of 
command … [he] would have retained my utmost confidence in his knowledge, skills, and abilities.  
As such, I have no objection to a BCMR considering previous/current positive performance and 
my endorsement of my confidence in his abilities in the board’s contemplation of removal from 
record his 18 June 2006 alcohol incident and the above associated memorandums. 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 

On February 3, 2010, the applicant submitted his response to the advisory opinion.  The 
applicant alleged that he could properly have “waited until this contested charge was adjudicated 
in  criminal  court  to  report  it.    At  that  point,  I  would  not  have  needed  to  report  this  incident 
because I was acquitted of the criminal charges and the court expunged the record.  I chose to do 
what  I  thought  was  right  and  self-report  the  incident  immediately.”    He  also  argued  that  the 
letters  should  be  expunged  because  he  cooperated  with  his  command  by  participating  in  the 
screening program and was found not to be alcohol abusive or dependent. 

 
The applicant stated that at the time the OER was prepared, it was accurate and that the 
expungement happened later.  He stated that he pled not guilty and requested a hearing, but the 
judge dismissed the charges during a pre-hearing.  He alleged that the charges were dismissed 
“because they truly were incredible.”  The applicant alleged that he did not apply to the PRRB for 
the correction of his record because he did not immediately receive and understand the records of 
the expungement from his attorney. 

 
The applicant stated that the expungement of his arrest means that “there is no record that 
the event ever happened.”  He admitted having consumed alcohol before the incident but alleged 
that  the  “bouncer  apparently  had  a  reputation  and  I  defended  myself  against  an  aggravated 
assault.”  The applicant argued that based on the advisory opinion, if he had been hit by a car 
while  walking  home  after  drinking  a  beer,  he  would  have  incurred  an  alcohol  incident.    The 
applicant  alleged  that  he  “was  not  drunk,  disorderly,  out-of-control  or  otherwise  inebriated  to 
have the incident considered an alcohol incident.  Not a single witness has alleged I was drunk or 
well on my way there when I was attacked.” 

 
The applicant alleged that his conduct on June 18, 2006, was not an alcohol incident.  He 
noted that the definition of an alcohol incident requires that it result in a member’s loss of ability 
to perform assigned duties, bring discredit upon the Uniformed Service, or be in violation of law.  
He argued that the expungement shows that the State’s judicial system found that he had not vio-
lated the law.  In addition, he was off-duty when he was arrested and reported for work without 
any loss of time.  Therefore, his conduct can only be considered an alcohol incident if it brought 
discredit upon the Uniform Services, but as indicated in the statements from his superiors, he has 
“represented  the  CG  proudly  and  respectfully  throughout  [his]  career.”    The  applicant  also 
alleged that the expungement by the judge is evidence that he did not discredit the Uniformed 
Services. 
 
The applicant stated that the fact that all procedures were followed and that the disputed 
documents were accurate at the time they were prepared “does not mean that today in light of the 
expungement, a reconsideration of the facts should not merit a different outcome.”  The applicant 
noted that the advisory opinion does not respond to the statements from his superiors indicating 
that they would not object to his record being corrected or to the statement from CDR W, who 
said that he “would support correction of his record should the board decide it appropriate.” 

 
The applicant stated that even if the Coast Guard’s refusal to expunge the documentation 
of the alleged alcohol incident is not erroneous, it is unjust and the Board can correct injustices.  
He stated the following: 

 
I think that injustice defines my case.  I did everything required.  I cleared my name and expunged 
the records.  Now a CG opinion says don’t change the records.  True justice from the CG would 
support my request.  It costs the CG nothing to correct my records.  This is especially true when 
the  officers  involved  appear  to  clearly  understand  the  injustice  and  have  no  objection.  …  I  am 
asking to be treated fairly and within the leadership principles I have exemplified.  The officers I 
served  understand  and  exemplify  those  same  leadership  principles  and  have  no  objection to my 
request. 
 

APPLICABLE REGULATIONS 

 
Article 8.B.2.a. of the Personnel Manual states that “[a]ny Coast Guard member arrested 
or detained by civil authorities shall immediately advise their commanding officer, OOD or DCO 
and state the facts concerning such arrest and detention.” 

 
Article 20.A.2.d.1. 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 Ser-
vices, 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.B.2.e.1., entitled “Alcohol Screening,” states that “[a]ny member who has been 
involved in an alcohol incident or otherwise shown signs of alcohol abuse shall be screened in 
accordance  with  the  procedures  outlined  in  the  Health  Promotions  Manual,  COMDTINST 
M6200.1 (series), Ch 2.  The results of this alcohol screening shall be recorded and acknowl-
edged on a CG-3307 entry or letter, as appropriate, in the member’s PDR with a copy to Com-
mander (CGPC-epm) or (CGPC-opm), as appropriate, and (CGPC-adm-3).”  (Emphasis added.) 

 
Article 20.B.2.g. states that “[t]he first time a member is involved in an alcohol incident, 
except those described in Article 20.B.2.f., the commanding officer shall ensure this counseling 
is conducted; …  For officers the record of counseling shall be by letter with copy to Commander 
(CGPC-opm) and (CGPC-adm-3).  This entry is in addition to that required by Article 20.B.2.e.”  
(Emphasis added.)  This article further states that the officer shall be counseled on Coast Guard 
policy  regarding  alcohol  abuse  and  warned  that  a  second  alcohol  incident  will  result  in  their 
being processed for separation from the Coast Guard. 
 

Article  20.B.2.h.1.  states  that  “[o]fficers  will  be  processed  for  separation  following  a 

second alcohol incident.” 

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: 
 
 
The application was timely. 
 

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

1. 

3. 

4. 

 
5. 

2. 

The applicant asked the Board to remove from his record the letters documenting 
his alcohol incident and the results of his alcohol screening.  The Board begins its analysis in 
every case by presuming that the disputed information in the applicant’s military record is correct 
as it appears in his record, and the applicant bears the burden of proving by a preponderance of 
the  evidence  that  the  disputed  information  is  erroneous  or  unjust.2  Absent  evidence  to  the 
contrary, the Board presumes that Coast Guard officials and other Government employees have 
carried out their duties “correctly, lawfully, and in good faith.”3  
 
 
Article 20.B.2.e.1. of the Personnel Manual requires entry of a letter documenting 
the  results  of  alcohol  abuse  and  dependency  screening  whenever  an  officer  incurs  an  alcohol 
incident.  Article 20.B.2.g. requires entry of a separate letter documenting an officer’s counseling 
about  an  alcohol  incident  and  the  consequences  of  a  second  alcohol  incident.    The  disputed 
letters were entered in the applicant’s record in accordance with these rules. 
 

The applicant argued that the disputed letters should be removed because his con-
duct and arrest on June 18, 2006, did not qualify as an alcohol incident pursuant to the definition 
in  Article  20.A.2.d.1.  of  the  Personnel  Manual.    That  article  requires  that  a  member  commit 
“[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 Jus-
tice.”    The  applicant  argued  that  his  behavior  did  not  meet  these  criteria  because  he  was  not 
drunk, because he lost no time at work, because the charges against him were dismissed, because 
he  acted  in  self  defense,  and  because  he  has  “represented  the  CG  proudly  and  respectfully 
throughout  [his]  career.”    However,  the  applicant’s  commanding  officer  at  the  time,  CDR  E, 
clearly concluded that an alcohol incident did occur and stated that the applicant “admitted alco-
hol ingestion was a contributing factor to his striking a bouncer.”  Under Article 20.A.2.d.1., a 
member need not be “drunk” to incur an alcohol incident, and his misconduct need not be prose-
cuted  or  result  in  a  conviction  to  be  considered  a  violation  of  the  Uniform  Code  of  Military 
Justice.4   

With respect to the applicant’s claim of self defense, there is no evidence in the 
record that the bouncer and part owner of the establishment confronted or manhandled the appli-
cant  without  good  reason  or provocation or that striking the bouncer was reasonable behavior 
under the circumstances.  The fact that, according to CDR E, the bouncer was “not a sympathetic 
person” is not evidence that he launched an unprovoked attack on one of his customers.  CDR E 
stated that the bouncer “may have played some role in escalating the incident” but also that the 
circumstances did “not excuse the behavior of [the applicant].”  None of the evidence submitted 
by  the  applicant  suggests  that  he  was  defending  himself  against  an  unprovoked  attack  on  the 
                                                 
2 33 C.F.R. § 52.24(b); see Docket No. 2000-194, at 35-40 (DOT BCMR, Apr. 25, 2002, approved by the Deputy 
General Counsel, May 29, 2002) (rejecting the “clear and convincing” evidence standard recommended by the Coast 
Guard and adopting the “preponderance of the evidence” standard for all cases prior to the promulgation of the latter 
standard in 2003 in 33 C.F.R.§ 52.24(b)).   
3 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 
4 In fact, the second sentence of Article 20.A.2.d.1. of the Personnel Manual states that “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.”    A  commanding  officer  uses  the  preponderance  of  the  evidence  standard  in 
determining whether an alcohol incident occurred. 

night  of  June  18,  2006.    Therefore,  although  the  statements  of  the  rating  chain  show  that  the 
applicant  is  usually  a  fine  representative  of  the  Coast  Guard,  the  Board  finds  that  he  has  not 
proved by a preponderance of the evidence that CDR E committed error or injustice in finding 
that his conduct on the night of June 18, 2006, constituted an alcohol incident. 

The applicant alleged that the disputed letters should be removed from his record 
because  his  alcohol  screening  did  not  result  in  a  diagnosis  of  alcohol  abusive  or  dependent.  
Alcohol  screening  consists  primarily  of  a  member  answering  dozens  of  questions  about  his 
alcohol consumption, and the diagnosis depends on the member’s own answers.  Nothing in the 
regulations states that only members who are diagnosed as alcohol dependent or abusive should 
have  alcohol  incidents  and  screening  results  documented  in  their  records  pursuant  to  Articles 
20.B.2.e.1. and 20.B.2.g. of the Personnel Manual. 

The applicant alleged that the disputed letters should be removed from his record 
because the State court dismissed the charges and expunged his arrest from the State’s criminal 
records.  He alleged that the charges were dismissed and the arrest expunged because the charges 
were “incredible.”  The applicant submitted no evidence showing that he did not strike a bouncer, 
and CDR E’s statement indicates that the applicant admitted to having struck the bouncer while 
under the influence of alcohol.  Criminal charges may be dismissed and matters expunged for any 
number  of  reasons.    Even  if  the  Board  were  to  assume  that  the  matter  was  dismissed  and 
expunged  because  the  judge  found  that  the  applicant’s  conduct  did  not  violate  State  law,  the 
disputed letters would still be proper because the elements of an alcohol incident are not the same 
as those of a simple assault.  Having a Coast Guard officer under the influence of alcohol behave 
in an establishment in such a way that he is confronted by a bouncer and then strikes the bouncer 
is clearly a prime example of conduct that “brings discredit upon the Uniformed Services.”  The 
court’s actions in dismissing and expunging the matter do not persuade the Board that the alcohol 
incident  did  not  occur  or  that  it  is  unjust  for  the  alcohol  incident  to  be  documented  in  the 
applicant’s record. 

The  applicant  alleged  that  the  disputed  letters  should  be  removed  because  he 
could have chosen not to report his arrest, in which case the Coast Guard would not have dis-
covered it since it was expunged by the court.  However, it is also possible that the Coast Guard 
would have discovered his arrest before its expungement and, under Article 8.B.2.a. of the Per-
sonnel Manual, members are supposed to report arrests by civil authorities.5  The fact that the 
applicant could theoretically have kept the Coast Guard in ignorance of his arrest does not per-
suade the Board that the alcohol incident should not be documented in his record. 

 
6. 

 
7. 

 
8. 

 
9. 

The applicant pointed out that neither CDR E nor the members of the rating chain 
who prepared the disputed OER object to the removal of the disputed letters from his record.  
These officers’ statements show that their lack of objection to the applicant’s request for correc-
tion stems not from any question about whether an alcohol incident occurred, but from the appli-
cant’s usual excellent performance.  The fact that the applicant has joined the ranks of excellent 

                                                 
5 But see United States v. Serianne, 68 M.J. 580 (NMCCA, 2009) (holding that a member could not be convicted of 
dereliction of duty for failing to report his arrest for driving under the influence (DUI) to his command, as required 
by Navy regulations, because the Fifth Amendment to the Constitution guarantees that no one may be “compelled in 
any criminal case to be a witness against himself”). 

officers  who  have  one  alcohol  incident  in  their  record  is  unfortunate,  but  the  Board  does  not 
believe that the quality of an officer’s work justifies removal of the accurate and proper docu-
mentation of an alcohol incident and alcohol screening that is required by Articles 20.B.2.e.1. 
and 20.B.2.g. of the Personnel Manual. 

The applicant asked the Board to remove two comments in his OER referring to 
the alcohol incident and to remove or upgrade the mark of 3 he received for “Health and Well-
Being.”  To be entitled to correction of an OER, an applicant must prove that the disputed OER 
was adversely affected by a “misstatement of significant hard fact,” factors “which had no busi-
ness being in the rating process,” or a prejudicial violation of a statute or regulation.6  The appli-
cant has not shown that the disputed comments and mark in the OER are erroneous, contrary to 
law,  or  the  result  of  bias  or  prejudice.    The  Board  finds  no  basis  for  making  the  requested 
changes to the disputed OER. 

Accordingly, the applicant’s requests should be denied because he has not proved 

by a preponderance of the evidence that the disputed letters and OER are erroneous or unjust.7 

 
10. 

 
11. 

 
 

 

 

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

                                                 
6 Hary v. United States, 618 F.2d 704, 708 (Ct. Cl. 1980), cited in Lindsay v. United States, 295 F.3d 1252, 1259 
(Fed. Cir. 2002). 
7 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 military authorities that “shocks the sense of justice”). 

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

ORDER 

 
 
record is denied. 
 
 
 
 
 
 
 

 
 
 

 
 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Donna M. Bivona 

 

 

 
 Nancy L. Friedman 

 

 

 
 Dorothy J. Ulmer