DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2011-209 
XXXXXXXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXXXXXXX 
   

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 on July 18, 2011, 
upon receipt of the  application,  and subsequently  prepared the final  decision  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  April  19,  2012,  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 letter dated December 
16, 2001, documenting his first alcohol incident on October 31, 2001.   The applicant alleged that 
the alcohol incident letter was issued under “false pretenses” because it was based on erroneous 
statements  in  a  February  14,  2002  non-punitive  letter  of  reprimand1  from  the  commanding 
officer (CO) admonishing the applicant for acting in a “reproachable manner through [his] public 
intoxication and subsequent arrest” on the night in question..  The applicant stated that he “was 
never arrested or charged by the police on or in relation to any event on the night of 31 October 
2001,”  notwithstanding  comments  to  the  contrary  in  the  non-punitive  letter  of  reprimand.   The 
applicant also denied that he made the comment “drink to get drunk” or condoned that practice, 
as indicated in the non-punitive letter.   
 

 The  applicant  stated  that  he  was  passed  over  for  promotion  to  lieutenant  commander 
(LCDR) by the calendar year (CY) 2011 selection board, and until then, he was unaware that the 
alcohol incident letter could adversely impact his career.  He asserted that removing the  alcohol 
incident letter would ensure that his career is not impacted negatively by a minor error “captured 

                                                 
1   An administrative letter of censure or reprimand is a corrective measure used in furthering the efficiency of the 
command.  It is not punishment and is not included in the unit files or in any  military official record.  However, the 
facts  upon  which  an  administrative  letter  is  based  may  be  the  basis  for  adverse  marking  or  comments  in  the  next 
fitness report of an officer.  Article 8.E.4 of the Personnel Manual.   

 

 

by additional documentation as mentioned in ALCGPSC 041/11.”[2] The alcohol incident letter 
states the following: 
 

Per  [the  Personnel  Manual]  your  public  intoxication  on  the  night  of  31  October 
2001 has constituted an alcohol incident.  You have been counseled on the Coast 
Guard policy regarding alcohol abuse, which is contained in Chapter 20.B. of [the 
Personnel  Manual].   You  underwent  an  alcohol  screening  .  .  .  on  28  November 
2001.    That  screening  determined  that  no  further  intervention  or  treatment  was 
required.   
 
You  are  advised  that  any  subsequent  alcohol  incidents  will  result  in  your  being 
processed for separation from the U. S. Coast Guard under Chapter 20.A. of [the 
Personnel Manual].   
 
As  mentioned  by  the  applicant,  the  CO  gave  him  a  non-punitive  letter  of  reprimand  on 
February 14, 2002, that reprimanded him for his conduct on the night of 31 October 2001.  The 
letter of reprimand stated the following: 

 
You  behaved  in  a  reproachable  manner  through  your  public  intoxication  and 
subsequent arrest on that night.  This is unacceptable conduct for any Coast Guard 
member.  As a Coast Guard officer,  your behavior was even more destructive as 
you  have  set  an  extremely  poor  example  for  your  subordinates  and  have 
jeopardized the inherent trust befitting your rank.   

 

I  am  extremely  concerned  about  your  apparent  intention  to  “drink  to  get  drunk” 
that evening.  I am also concerned that you didn’t consider the amount of alcohol 
that you consumed that evening to be unusual for anyone.  It is your responsibility 
to always drink responsibly or not drink at all.  I strongly encourage you to keep 
this  basic  tenet  in  the  forefront  of  your  mind  whenever  you  are  considering  the 
consumption of alcohol.  I also encourage you to remember that you must always 
ensure  that  your  actions  set  a  good  example  for  others  and  that  your  conduct  is 
always “becoming an officer and a gentleman.”  

 

 

  # 

 

# 

 

# 

This letter is private in nature and will not be included in any official unit files or 
records.  It may not be quoted or appended to your fitness report.  The facts upon 
which it is based, however, may serve as the basis for adverse marks or comments 
on your next fitness report.   
 

                                                 
2  ALCGPSC  041/11,  issued  on  March  23,  2011,  summarized  the  board  season  for  FY  2011  and  emphasized  the 
following  about  ensign  OERs,    in  pertinent  part:    “Beginning  in  [promotion  year]  PY  2004,  ensign  OERS  were 
masked from [LCDR] and above selection boards.  This policy was enacted to encourage measured  risk taking and 
challenging learning situations without fear of career-ending repercussions.  It also allows junior officers to recover 
from minor mistakes.  It is worth pointing out that this policy only applies to OERs, not additional documentation 
(e.g., PG7’s and memos).” 

 

 

In support of his application, the applicant submitted a July 6, 2011 letter from the Police 
Records Supervisor for the City of Virginia Beach  which stated that there were no records that 
matched the applicant’s name and social security number for that city only.  The Virginia Beach 
letter included the following disclaimer:  “This record does not reflect any juvenile charges.  This 
criminal history check does not include a Nationwide or Statewide search; therefore, this record 
may  be  incomplete.    Any  additional  charges  in  Virginia  Beach  that  are  not  listed  were  not 
prosecuted,  found  not  guilty,  or  dismissed.”    The  letter  advised  that  for  a  complete  criminal 
history check and inquiry should be directed to the Virginia State Police and/or the FBI/Criminal 
Justice Information Division.  
 

VIEWS OF THE COAST GUARD 

 
 
On October 20, 2011, the Judge Advocate General (JAG) of the Coast Guard submitted 
an advisory opinion recommending that the Board deny the applicant’s request.  The JAG argued 
that  the  applicant  has  failed  to  substantiate  an  error  or  injustice  regarding  his  properly 
documented alcohol incident.  The JAG quoted Article 20.A.2.d. of the Personnel Manual which 
defines  “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  (UCMJ),  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."  The JAG argued in light of 
this provision, the applicant’s claim that the alcohol incident letter should be removed because he 
was not arrested or charged by the police is without merit because according to Article 20.A.2.d., 
“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  JAG  further 
stated the following: 
 

The applicant’s submission of his police records check is baseless, irrelevant and 
non-dispositive  in  this  matter.    Moreover,  the  applicant  could  have  had  his 
criminal  record  expunged,  which  would  explain  the  lack  thereof.    The  applicant 
has  failed  in  his  burden  to  produce  evidence  which  shows  the  [Coast  Guard] 
committed  an  error  or  injustice  in  its  decision  to  award  the  applicant  with  an 
alcohol incident and to  document such in  his  record.   The applicant’s request  to 
have his properly documented alcohol incident redacted should be denied.   

 

Attached  to  the  advisory  opinion  as  Enclosure  (1)  was  a  memorandum  from  the 
Commander,  Coast  Guard  Personnel  Service  Center  (PSC),  which  the  JAG  asked  the  Board  to 
accept as a part of the Coast Guard’s advisory opinion.  PSC recommended that relief be denied 
and offered the following: 

 
[T]he applicant’s command deemed an alcohol incident had occurred that in some 
way  involved  the  applicant.    This  administrative  remark  serves  as  the  official 
documentation  of  the  incident.   Any  investigation,  punitive  or  administrative,  is 
considered subsequent and has no bearing on this document’s validity.   

 

 

 

 

The fact that an alcohol incident had occurred that in some way had a connection 
to  the  applicant  is  properly  documented  and  contained  in  the  applicant’s  record.  
Any subsequent claim made by the applicant is without merit and does not negate 
this fact.     

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
On November 21, 2011, the Board received the applicant’s reply to the views of the Coast 
 
Guard.  He attached a letter from LCDR V who was an ensign at the time.   LCDR V stated that 
he was assigned to the same cutter as the applicant between approximately May 2001 and June 
2003 and that he was with the applicant on the evening of October 31, 2001.  LCDR V stated that 
“[the  applicant]  was  not  arrested  or  charged  with  public  intoxication  that  evening  or  at  all  in 
connection  with  the  events  of  that  evening.    The  applicant’s  reply  to  the  views  of  the  Coast 
Guard also stated the following: 
 

After being provided the non-punitive letter of reprimand that contained the false 
accusations  stating  “my  arrest”  and  “public  intoxication”  resulted  in  the  alcohol 
incident, I immediately notified my supervisor of the error.  I was told there was 
nothing I could do about the alcohol incident because it is up to the discretion of 
the command and the only way to overcome the situation was to put it behind me. 
 
As  an  ensign  with  less  than  six  months  active  duty  service,  I  followed  my 
supervisor’s guidance because I was not aware of any other option to correct the 
injustice.  In May 2003, ALCOAST 214/03[3] . . . indicated ensign OERs would 
no  longer  be  viewed  at  LCDR  and  above  promotions  boards  beginning  with 
promotion year 2004.  After being promoted to lieutenant in May 2005 and having 
discussed  this  policy  change  with  my  command,  I  was  informed  this  alcohol 
incident  would  no  longer  impact  my  career  and  I  did  not  pursue  any  corrective 
action.  It was not until I was passed over during the PY 11 LCDR selection board 
and ALCGPSC 041/11 was released in March 2011 [that] I was made aware that 
additional documentation received as an ensign was allowed to be viewed despite 
the policy change in ALCOAST 214/03.   This  new information prompted me to 
pursue  corrective  action  by  review  of  the  Board  for  Correction  of  Military 
Records.   
 
The alcohol incident memo has continued to negatively impact [my] career and I 
received  a  second  non-selection  for  promotion  during  the  PY  2012  LCDR 
Selection Board.  I appreciate your review of the situation and request the Board’s 
approval to remove the alcohol incident memo or determine it should be masked 

                                                 
3  ALCOAST 214/03, issued on May 9, 2003, stated that promotion boards will no longer view any ensign 
OERs  at  LCDR  and  above  promotion  boards  beginning  with  promotion  year  2004.    The  Commandant 
stated that he was initiation “the policy to encourage intelligent risk taking without fear of being unduly 
penalized for minor youthful mistakes and to assist ensigns in adjusting to the Coast Guard culture and 
the Coast Guard officer corps.  There is a significant learning curve during an officers first year and a half 
of commissioned service, and minor mistakes made during this period should not adversely affect officer 
late in their careers.”   

 

 

 

at  promotion  boards.    The  alcohol  incident  was  already  captured  in  my  ensign 
OER;  therefore,  by  redacting  the  associated  memo  the  ruling  would  ensure  the 
intent of the policy change was upheld without losing the incident being captured 
in my OER.    

APPLICABLE LAW 

 
Personnel Manual (COMDTINST M1000.6A) 
 
 
Article  20.A.2.d.  defines  “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  (UCMJ),  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."    This 
provision further states, "The member must actually consume alcohol for an alcohol incident to 
have occurred." 
 
Article 20.B.2.e. states that any member involved in an alcohol incident shall be screened 
 
and the results of this alcohol screening shall be recorded and acknowledged on a page 7 entry 
describing the facts of the incident or risk factors, the results of the screening, the position and 
organization of the individual conducting the screening, and a statement of the treatment recom-
mended, if any. 
 
 
Article 20.B.2.g. states that upon a first alcohol incident an officer shall be counseled by 
letter with a copy PSC-opm and PSC-adm-3. The counseling should include advice on the Coast 
Guard policy on alcohol abuse and a warning that a subsequent incident will result in their being 
processed for separation.   
   

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant's 

 
 
military record and submissions, the Coast Guard's submissions, and applicable law: 
 

1. 

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

10 of the United States Code.  The application was timely.4 

 
2.    Article  20.A.2.d.  defines  “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  (UCMJ),  Federal,  State,  or 

                                                 
4  See, Detweiler v. Pena, 38 F.3d 591, 598 (D.C. Cir. 1994) (holding that, under § 205 of the Soldiers’  
and  Sailors’  Civil  Relief  Act  of  1940,  the  BCMR’s  three-year  limitations  period  under  10  U.S.C.  § 
1552(b) is tolled during a member’s active duty service). 
 

 

 

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." 
 

3.  The applicant was given an alcohol incident letter dated December 16, 2001, because 
the CO determined that his public intoxication on the evening of  October 31, 2001, constituted 
an alcohol incident.   The applicant  argued that  based upon the  February  14, 2002 non-punitive 
letter  of  reprimand,  the  CO  mistakenly  believed  that  the  applicant  was  arrested  for  public 
intoxication on the night in question.  The applicant stated that he was “never arrested or charged 
by  the  police  on  or  in  relation  to  any  events  on  the  night  of  October  31,  2001.   The  applicant 
submitted  a  statement  from  the Virginia  Beach  Police  Department  that  it  had  no  record  of  any 
arrest for the applicant.  The applicant also submitted a statement from LCDR V who stated that 
he was with  the applicant  on the evening of October 31, 2001, and that the applicant  was “not 
arrested  or  charged  with  public  intoxication  that  evening  or  at  all  in  connection  with  events  of 
that evening.”    

 
4.  For the reasons discussed below, the Board is not persuaded that the alcohol incident 
letter is erroneous or unjust.  In this regard, the Board notes that the alcohol incident letter does 
not  state  that  the  applicant  was  arrested,  as  argued  by  the  applicant,  but  that  he  was  publicly 
intoxicated.   Nor is  the Board persuaded that the alcohol incident  letter  is based  upon the non-
punitive letter of reprimand.  The alcohol incident letter was given to the applicant on December 
16,  2001  approximately  2  months  before  he  was  given  the  non-punitive  letter  of  reprimand  on 
February  14,  2002.   Any  argument  that  the  CO  believed  that  the  applicant  was  arrested  due  to 
public  intoxication  when  he  issued  the  alcohol  incident  letter  on  December  16,  2001  is 
speculation, particularly since the document prepared contemporaneously with that date does not 
mention an arrest.   

 
5.  Nor is the Board persuaded that the alcohol incident letter is inconsistent with LCDR 
V’s  statement  that  “[the  applicant]  was  not  arrested  or  charged  with  public  intoxication  that 
evening  or  at  all  in  connection  with  the  events  of  that  evening.”   As  stated  above,  the  alcohol 
incident letter does not state that the applicant was arrested or charged with public intoxication.  
It states that he was publicly intoxicated.  It is important to note that LCDR V does not deny that 
the applicant was intoxicated in public.  Also, LCDR V’s letter does not vouch for the applicant’s 
conduct for the entire evening because he fails to state how long he was with the applicant on the 
night  in  question.  Again, the alcohol incident  letter states that the applicant  was intoxicated in 
public not that he was arrested or arrested for such intoxication.  Therefore, the applicant has not 
produced  sufficient  evidence  to  prove  that  he  was  not  publicly  intoxicated  on  the  evening  in 
question.     

 
6.  With regard to the Virginia Beach Police Department letter that they have no records 
of an arrest for the applicant, the Board would note that the applicant has not established that the 
cutter was in Virginia Beach, VA on the evening in question.  Therefore, if the cutter was not in 
Virginia Beach on October 31, 2001, there would be no record of such an arrest in that city. The 
command’s  address  on  both  the  letter  of  reprimand  and  the  alcohol  incident  letter  is 
XXXXXXXXXXXXXX.   In light of the above findings, the applicant has failed to prove that 
the alcohol incident letter is erroneous.  

 

 

 

7.    With  regard  to  allegations  that  the  non-punitive  letter  inaccurately  states  that  the 
applicant  was  arrested  and  publicly  intoxicated,  the  Board  notes  that  there  is  some  evidence 
supporting the applicant’s contention that he was not arrested or at least he was not arrested by 
the Virginia Beach police.  However, because the applicant does not establish that the cutter was 
in  Virginia  Beach,  VA  on  the  night  in  question  and  because  the  officer  who  was  with  the 
applicant  does  not  state  that  he  was  with  the  applicant  the  entire  evening,  the  Board  finds  the 
evidence insufficient to prove that the applicant was not arrested on the evening of October 31, 
2001.      Even if  the  applicant  had  met  his  burden  of  proof,  the  February  14,  2002  non-punitive 
letter of reprimand is not in his record because it is a private communication from the CO to the 
applicant.  So, any error that may exist in the non-punitive letter did not prejudice the applicant’s 
record before the selection board.   
 

8.   The  applicant  argued  that  the  alcohol  incident  letter  which  he  received  as  an  ensign 
should  not  have  been  seen  by  the  LCDR  selections  boards.    In  this  regard,  he  stated  that  he 
believed until his first non-selection that the alcohol incident letter would be masked pursuant to 
ALCOAST  214/03  issued  on  May  9,  2003,  which  that  stated  that  ensign  OERs  would  not  be 
reviewed by LCDR and above selection boards.  However, the applicant points to nothing in that 
ALCOAST  which  states  that  other  documentation  relating  to  the  conduct  of  ensigns  would  be 
masked from view by the selection board.  The alcohol incident letter is not a part of any ensign 
OER,  but  is  a  separate  stand  alone  document.    On  March  23,  2011,  PSC  issued  ALCGPSC 
041/11,  in  which  it  summarized  the  PY  2011  selection  board  season  and  emphasized  that  the 
policy of masking ensign OERs did not apply to other documents, such as page 7s and memos.  
Therefore,  although  the  applicant  may  have  assumed  that  all  of  his  ensign  related  documents 
were to be masked before the LCDR selection board, that was not the case and was not stated as 
such by the Commandant in ALCOAST 214/03.  The policy is to mask ensign OERs.  Therefore, 
the availability of the alcohol incident letter for review by the LCDR selection boards was not an 
error or injustice.   

 
9.    Military  records  are  presumed  to  be  correct  and  the  applicant  has  not  produced 
sufficient  evidence  to  overcome  that  presumption.    Since  the  applicant  has  failed  to  prove  an 
error or injustice in his military record, no basis exists on which to consider removing his failures 
of selection for promotion to LCDR. 

 
10.    Accordingly,  the  Board  finds  that  the  applicant  has  failed  to  prove  an  error  or 

 
injustice in this case, and relief should be denied. 
    
.    
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

 
 

 

 

The application of XXXXXXXXXXXXXXXXXXXXXXXXX, for the correction of his 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

 

 
 Anthony C. DeFelice 

 

 

 
 Megan Gemunder 

 

 

 
 Patrick B. Kernan 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

military record is denied.