DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for Correction of 
the Coast Guard Record of: 
 
                                                                                       BCMR Docket No. 2011-021 
 
Xxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxx   

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 November 6, 2010, and assigned it to staff member J. Andrews to pre-
pare 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  June  23,  2011,  is  approved  and  signed  by  the  three  duly 

 

 

APPLICANT’S REQUEST AND ALLEGATIONS 

The applicant asked the Board to correct his record by removing a Page 7 documenting 
his first “alcohol incident”1; by erasing his “fault disenrollment” from the xxxxxx program; and 
by authorizing him to attend “A” School to become an xxxxxxxxxxxxxxxxxxxxxxx.   

 
With regard to the alcohol incident, the applicant stated that on December 29, 2009, he 
went  camping  with  five  other  enlisted  members  assigned  to  another  xxxxxxxxx,  only  two  of 
whom—Y and Z—were his friends.  They arrived at the campsite at about 3:30 p.m. and began 
drinking, listening to music, and cooking hotdogs over a campfire.  During the course of the day, 
the  applicant  stated,  he  drank  eight  12-ounce  beers.    At  some  point  after  it  got  dark,  he  and 
another member, X, went to a building that had a row of doors into separate, small bathrooms.  
The applicant alleged that after he entered one and began to urinate, X came in, violating his 
privacy,  and  began  to  talk  about  rape,  which  made  the  applicant  very  uncomfortable.    The 
applicant alleged that he finished urinating, turned around, and said with a nervous laugh, “What 
are  you talking  about?”  He alleged that  X replied, “You won’t think it’s so funny with  your 
                                                 
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.” Article 
20.B.2.g. requires that any alcohol incident be documented on a Page 7 in the member’s record.  Article 20.B.2.h. 
states that members will normally be processed for discharge if they receive a second alcohol incident. 

brains on the wall.”  When he tried to leave, the applicant alleged, X kicked the door shut.  The 
applicant alleged that he was terrified because he was trapped in a stall with a man he barely 
knew who was at least six inches taller than him and was talking about raping and hurting him.  
He estimated that he was in the bathroom with X for approximately 20 minutes.  However, he 
alleged,  X  finally  moved  away  from  the  door,  and  the  applicant  flung  it  open  and  ran  to  the 
campsite.  The applicant alleged that he was too shaken up to talk but told his friends repeatedly 
to keep X away from him.  When X returned to the campsite and Z asked X what had happened, 
the applicant alleged, he was still feeling threatened and so he knocked X down and punched him 
about six times in the back and kicked him twice before Z restrained him.   

 
The applicant stated that he was shouting and crying so much that the police showed up 
quickly.  He felt relieved because he was terrified of X.  However, the police arrested the appli-
cant and charged him with assault with a deadly weapon and public intoxication.  The applicant 
alleged that the “assault charges were dropped because the state of xxxxxxxx considered [him] as 
the victim of false imprisonment and terrorist threats.”  He pled guilty to public intoxication even 
though he was never given a breathalyzer, blood, or field sobriety test.  He alleged that he pled 
guilty because otherwise he would have had to spend a few days in jail and would have been 
absent  without  leave  from  the  Coast  Guard.    Therefore,  he  pled  guilty  as  “the  lesser  of  two 
evils.”  When his friend Z picked him up from the jail the next day, Z told him that X “had tried 
to make a joke about rape and that I had misunderstood him.”  The applicant alleged that he got 
home at 11:00 p.m., went to sleep, and reported for duty the next morning.  In response to this 
incident,  his  command  documented  his  arrest  on  a  Page  7  entry  in  his  record  as  an  alcohol 
incident, and he was disenrolled from the xxxxxxxxx program. 

 
 
The  applicant  argued  that  the  Page  7  documenting  this  alcohol  incident  should  be 
removed because “[c]ircumstances surrounding this incident were in self defense,” no alcohol 
testing was performed, and his command did not ask him for a statement before deciding that he 
had incurred an alcohol incident.  He stated that he was arrested for acting in self defense, not 
because he had drunk alcohol, and what happened “would have happened even if I had not con-
sumed any alcohol that day.”  The applicant stated that his attainment of a rating has been greatly 
delayed because of this unjust incident.  He acknowledged that “What I did was wrong.  I would 
have handled the situation differently if I could.  I am embarrassed and I regret nothing more, but 
I truly believe that I have been punished enough.” 
 

SUMMARY OF THE RECORD 

 
The  applicant  enlisted  in  the  Coast  Guard  on  May  22,  2007.    On  July  17,  2009,  he 
 
reported for duty at xxxxxxxx in xxxx, where he was enrolled in the xxxxxxxx program.   The 
Executive Officer of the xxxxxxxx entered the following Page 7 in his record to document the 
applicant’s alcohol incident: 
 

On 29 December 2009 you were involved in an alcohol incident.  After consuming approximately 
8 beers while camping at xxxxxxxxx State Park, you were involved in an altercation with another 
Coast Guard member.  Due to your actions with the other Coast Guard member, you were taken 
into  custody  and  arrested  by  the  xxxxxxxxx  Police  Department.    You  pled  guilty  to  public 
intoxication which is a direct violation of Coast Guard policy ultimately bringing discredit upon 
the service.  The investigation recommends no other punitive action be taken against you. 
 

You were counseled on USCG policies concerning alcohol use and abuse as well as the serious 
nature  of  this  incident.    The unit  CDAR  will  arrange  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 
 
This is your first alcohol incident. 
 
Any further incidents will result in you being processed for separation as per chapter 20, Personnel 
Manual COMDTINST M100.6 (series). 

 
 
Following  alcohol  dependency  screening  on  January  12,  2010,  another  Page  7  was 
entered in the applicant’s record noting that his screening had not resulted in a diagnosis but that 
he  should  attend  IMPACT  training  on  February  6,  2010,  and  abstain  from  drinking  until  that 
date.  After the applicant completed Alcohol Impact training, the command entered a third Page 
7 in his record to acknowledge that he had successfully completed the training and his aftercare 
program and to remind him that “[f]uture alcohol misuse or incidents may lead to separation.”2 
 
 
On February 19, 2010, the applicant was disenrolled from the xxxxxxxxx program for 
“fault” because of his conviction for public intoxication.3  Because of his disenrollment for fault, 
the applicant could not apply for a position in “A” School until February 19, 2011.4 
 
Police Reports 
 

On  December  30,  2009,  a  police  officer  in  xxxxxxxxxxxxxxxxxx,  reported  that  after 
being dispatched to xxxxxxxxx Campground at about 11:20 p.m. on December 29, 2009, she was 
directed  to  campsite  #14,  where  she  found  the  applicant  and  several  others.    The  applicant 
“initially  stated  nothing  had  occurred,  but  was  swaying  from  his  upper  torso  approx.  2  to  3 
inches,  had  the  odor  of  an  alcoholic  beverage  emitting  from  his  person,  was  muddy,  and 
appeared emotional.  [The applicant’s] friend indicated [the applicant] had been involved in an 
altercation  and was stating that [the applicant]  was  going to kill  another person.”   The police 
officer  escorted  the  applicant  to  his  patrol  car  because  it  was  raining  and  asked  the  applicant 
what happened.  The applicant told him that X had walked with him to the bathroom building, 
which was about 75 feet from the campsite, and entered one of the rooms but did not lock the 
door.  He said that X used a separate bathroom but then  

 
entered [the applicant’s] restroom.  The door shut behind [X].  [X] told [the applicant] something 
similar to, “I could kill you right now.  I’m going to bash your skull into the wall.”  [The appli-
cant] explained that he feared for his safety stating that he is only 5’4” tall and 148 lbs.  ([X] is 6’ 

                                                 
2 Article 20.B.2.e.1. of the Personnel Manual requires members involved in an alcohol incident to undergo screening 
for alcohol dependency and to have the results of that screening documented on a Page 7 in their record.  
3 Chapter 7.F.15.a. of the Training and Education Manual states that “[s]tudents who are disenrolled from Class ‘A’ 
school for misconduct, lack of effort or application to complete training, or disenrollment at member’s request are 
considered to be Fault disenrollments.  Such members are prohibited from applying for another Class ‘A’ school for 
12 months from date of disenrollment.” 
4  Article  4.C.4.b.4.  of  the  Personnel  Manual  states  that  “[f]or  a  fault  disenrollment,  which  includes  cheating, 
misconduct,  injuries  not  in  the  line  of  duty,  non-judicial  punishment,  individual  not  petty  officer  material,  or 
voluntary  disenrollment,  Commander  (CGPC-epm-2)  will  transfer  the  individual  to  meet  Service  needs.  The 
member is prohibited from reapplying to any ‘A’ School for one year from the date of disenrollment.”   
 

tall and 195 lbs.)  [The applicant] stated that he attempted to reach for the bathroom door to exit, 
but [X] pushed the door shut.  [The applicant] was fearful and did not ask [X] to leave because he 
feared it would empower [X] further.  [The applicant] attempted to rationalize with [X] indicating 
that [X] was drunk and swaying.  [The applicant] estimated that he was in the bathroom speaking 
with [X] for approx. 20 minutes.  At some point, [X] moved slightly out of the way and [the appli-
cant] was able to reach for the door, throw it open, and sprint back to his campsite.  [The appli-
cant] attempted to explain to his intoxicated friends what occurred, but nobody believed him. 
 
[X] walked back to camp and was rushed by others in the campground.  [X] was knocked to the 
ground by other subjects in the campsite.  When [X] was knocked down, [the applicant] admit-
tedly approached and kicked [him] in the head with his foot (it should be noted that [the applicant] 
was wearing black tennis shoes).  [The applicant and X] were then separated by the group.  While 
I was speaking with [the applicant], I could tell that he was upset regarding this case.  [The appli-
cant] was crying and repeatedly stated, [“D]on’t let me out with him.  I’ll kill him.[”] 
 
[The applicant] claimed that he consumed approx. 5 beers and several shots of alcohol during the 
day.  [He] initially did not want prosecution of [X] for false imprisonment and terrorist threats, but 
later wavered when being booked into the xxxxxxxxxx County Jail. 

On February 2, 2011, 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 argued that the applicant has failed to prove by a preponderance of the evidence 
 
that his alcohol incident and fault disenrollment from “A” School were erroneous or unjust.  The 
JAG stated that alcohol incident and disenrollment were correct under applicable regulations.   

 
 
In X’s interview with the police, X admitted that he had entered the applicant’s bathroom 
stall and teased the applicant “about touching a girl earlier within their campsite.  X told [the 
applicant] that [the applicant] had raped the girl” as a joke.  X admitted that he had kicked the 
door  once  when  the  applicant  reached  for  the  handle  but  denied  blocking  him  from  leaving.  
They talked for about another minute and then left the bathroom.  X reported that the applicant 
walked faster and arrived at their campsite first.  When X arrived back, the group surrounded 
him and Y told him that the applicant was saying X had  raped him, but X said he had never 
touched the applicant.  Then the applicant karate kicked him, he fell face down, and someone 
started kicking him hard.  The police reported that X  also appeared very  intoxicated  and was 
swaying. 
 
 
According to the police, the applicant’s friends,  Y and  Z, both told the police that the 
applicant and X left the campsite together and were away for approximately 1½  hours and that 
when the applicant returned, he was frightened, screaming, and saying that X had tried to rape 
him.  In addition, the applicant had said he was going to kill X because X had tried to rape him.  
The only female at the campsite told the police that no one had assaulted her but that, as a joke, 
X had tried to convince the applicant that he was a murderer.  She was talking to someone near a 
truck  when  she  heard  screaming  and  saw  X  in  a  fetal  position  on  the  ground  and  the  others 
holding the applicant and trying to keep the applicant from kicking X.  The fourth member told 
the police that the applicant returned from the bathrooms ahead of X and, the next thing he knew, 
the applicant was assaulting X, so they separated them. 
 

VIEWS OF THE COAST GUARD 

 

 

In recommending denial of relief, the JAG adopted the findings and analysis provided in 
a memorandum prepared by the Personnel Service Center (PSC).  The PSC stated that the Page 7 
documenting the applicant’s alcohol incident is presumptively correct and that the applicant has 
failed to substantiate any error or injustice in his record.  The PSC noted that the applicant would 
be eligible to enroll in “A” School one year after his disenrollment on February 19, 2010. 
  

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

On  February  16,  2011,  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 

 

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. 

2. 

The applicant asked the Board to correct his record by removing the Page 7 docu-
menting his alcohol incident; erasing his “fault disenrollment” from the xxxxxxxxx program; and 
authorizing him to attend XX “A” School.  The Board begins its analysis in every case by pre-
suming 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.5  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.”6  
 
 
Under  Article  4.C.4.b.4.  of  the  Personnel  Manual  and  Chapter  7.F.15.a.  of  the 
Training  and  Education  Manual,  the  applicant  presumably  became  eligible  to  enroll  in  “A” 
School on February 19, 2011, one year after his disenrollment.  Therefore, his request for relief 
in this regard is moot. 
 
 
The  applicant  alleged  that  his  conduct  on  December  29,  2009,  should not  have 
been deemed an alcohol incident because he was defending himself when he struck and kicked 
X, and he would not have been arrested if he had not had to defend himself.  The evidence in the 
record shows, however, that the applicant was not under attack or in any danger when he began 
screaming  and  striking  X,  which  caused  someone  to  call  the  police.    The  applicant  was  in  a 
public campground surrounded by friends who were questioning X when the applicant launched 
his attack.  What happened in the bathroom is not clear, but even assuming that X threatened him 

4. 

                                                 
5 33 C.F.R. § 52.24(b). 
6 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 
1979). 

5. 

with rape in the bathroom, as the applicant alleged, the danger had passed when they returned to 
the campsite.  Therefore, the applicant’s assault on X cannot be considered self defense.7 
 

The  applicant  alleged  that  his  conduct  on  December  29,  2009,  should not  have 
been deemed an alcohol incident because his alcohol level was never tested.  However, under 
Article 20.A.2.d.1. of the Personnel Manual, a member need not be “drunk” to incur an alcohol 
incident; the consumption of alcohol need only be a “causative factor” in the member’s conduct.8    
In light of the police officer’s description of the applicant’s condition and odor and the fact that 
he was convicted of public intoxication, the Board finds that he has not proved by a preponder-
ance  of  the  evidence  that  his  command  erred  in  determining  that  his  conduct  on  the  night  of 
December 29, 2009, met the criteria for an alcohol incident under Article 20.A.2.d.1.   Moreover, 
because Article 20.B.2.e.1. of the Personnel Manual requires preparation of a Page 7 document-
ing an alcohol incident whenever a member incurs one, the Board finds that the applicant has not 
proved that the Page 7 should be removed from his record. 
 
 
The applicant alleged that he was unjustly disenrolled for “fault” from the xxxx 
program after his alcohol incident and asked the Board to remove the “fault” designation.  How-
ever, under Article 4.C.4.b.4. of the Personnel Manual, any disenrollment from a training pro-
gram  because  of  the  member’s  misconduct  is  considered  a  “fault  disenrollment.”    Since  the 
applicant was disenrolled from the xxxxxxx program because of his misconduct on December 
29, 2009, there are no grounds for removing the “fault” designation from his disenrollment. 
 

Accordingly, the applicant’s requests should be denied because he has not proved 
by  a  preponderance  of  the  evidence  that  either  his  “fault  disenrollment”  from  the  xxxxxxx 
program or the Page 7 documenting his alcohol incident is erroneous or unjust.9 

 
 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]

6. 

7. 

 
 

 

                                                 
7 To succeed, a defense of “self-defense” requires that the accused have believed, based upon reasonable grounds, 
that bodily harm was about to be inflicted upon him and that his actions were necessary to protect him from bodily 
harm. MANUAL FOR COURTS MARTIAL UNITED STATES (2008), p. II-111. 
8 Personnel Manual, Article 20.A.2.d.1. 
9 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  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

ORDER 

 
 

 
 
military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Philip B. Busch 

 

 
 Reagan N. Clyne 

 

 

 
 Rebecca D. Orban