DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2002-110 
 
Xxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxx 

 

 
 

 
2. 

DECISION OF THE DELEGATE OF THE SECRETARY  

I adopt the findings and approve the order of the Board in the Board’s Recommended 

 
 
Decision dated February 27, 2003, except for the findings and that part of the order concerning: 
 
1. 

The applicant’s officer evaluation report (OER) for the period June 1, 1998, to May 31, 
1999,  which  is  denoted  as  OER3  in  the  Recommended  Decision.    I  do  not  adopt  the 
findings or approve the part of the order that concerns OER3 because the applicant did 
not ask the Board to remove the OER in his original application; the Board raised the 
issue.  Because the applicant failed to request its removal, the issue was not considered 
by the Chief Counsel of the Coast Guard and it was not addressed in his advisory opinion 
to the Board for the case.  The Board made its decision with respect to OER3 without 
hearing  the  Coast  Guard’s  views  on  the  matter.    Under  33  C.F.R.  §  52.82,  the  Coast 
Guard should have been given an opportunity to consider and submit a recommendation 
to the Board regarding the requested removal of OER3.  Without the Coast Guard’s input 
on the matter, the record has not been sufficiently developed for me to make an informed 
decision regarding OER3. 

The removal of all evidence from the applicant’s record of his 1994 integration into the 
regular Coast Guard.   I do not adopt the findings or approve the part of the order that 
concerns this because I find that another form of relief is more suitable in this situation.  
Specifically,  I  find  that  the  Secretary  of  the  Department  of  Homeland  Security,  acting 
with the authority given him by the President, should appoint the applicant to the U.S. 
Coast  Guard  Reserves  with  the  rank  of  xxxxxx  effective  December  16,  1999.    The 
applicant’s record will be corrected to reflect that he has served on inactive duty with the 
U.S. Coast Guard Reserves from December 16, 1999, until the present.  The applicant’s 
DD-214 should be corrected to show that he was discharged on December 15, 1999, by 
reason  of  Secretarial  Authority  with  an  honorable  character  of  service  and  separation 
code LLF, in accordance with Article 12.A.5. of the Personnel Manual. 

 
 
Therefore,  I  advise  the  Secretary  to  appoint  the  applicant  to  the  U.S.  Coast  Guard 
Reserve with the rank of xxxxxxxx effective December 16, 1999.  I approve the relief granted in 
paragraphs (b), (g), (h), (i), and (j) of the Board’s order.  The relief granted in paragraph (a) is 

also approved except with respect to the removal of the applicant’s OER for the period June 1, 
1998, to May 31, 1999.  The applicant’s recent request for the removal of this OER is remanded 
to the Board for further and full consideration in accordance with the Board’s rules.  Because I 
do not approve the  removal of this third OER, the explanation for the  gaps in the  applicant’s 
record in paragraph (f) of the Board’s order shall read as follows: 
 

“xxxxxxxxxxxxxxxxxxxxx’s  Personnel  Data  Record 
includes  no  Officer 
Evaluation  Reports  for  his  active  duty  service  from  May  17,  1997,  to  May  31, 
1998, from June 1, 1999, to December 15, 1999, and for a period of inactive duty 
from December 16, 1999, through [insert the date he returns to active duty].  His 
record has been corrected by the Secretary in accordance with 10 U.S.C. § 1552, 
and  no  adverse  inference  of  any  kind  is  to  be  drawn  from  the  lack  of  Officer 
Evaluation Reports, his release from active duty, or the period of inactive duty.” 
 

The relief granted in paragraph (c) is removed and replaced with the following:  “The delegate of 
the Secretary recommends that the Secretary of the Department of Homeland Security appoint 
the applicant to the Coast Guard Reserves with the rank of xxxxxxxx effective December 16, 
1999.”  The relief granted in paragraph (d) is amended to read as follows:  “His DD 214 shall be 
corrected  to  show  that  he  was  discharged  from  the  Coast  Guard  on  December  15,  1999,  by 
reason of Secretarial Authority with an honorable character of service and separation code LLF, 
in accordance with Article 12.A.5. of the Personnel Manual.”  The relief granted in paragraph (e) 
is approved except that the first sentence of paragraph (e) is amended to read as follows: “The 
Coast  Guard  shall  offer  to  recall  the  applicant  to  active  duty  on  a  mutually  convenient  date 
within six months after the Secretary has appointed the applicant to the Coast Guard Reserves.” 
 

 

 
 
_April 4, 2003____________________ 
Date 
 
 
 

 
 
 

 
 
 

 

 
 
 

 
 
 

 
 
 

 
 
 
 

___________/s/_______________________ 
Lucy G. Clark 
Chief Legal Counselor 
Department of Homeland Security 

DEPARTMENT OF TRANSPORTATION 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2002-110 
 
xxxxxxxxxxxxxxxxxxxxxxx 
  xxxxxxxxxxxxxxxxxx 

 

 
 

FINAL DECISION 

 
ANDREWS, Deputy Chair: 
 
 
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 BCMR docketed the 
case on May 28, 2002, upon receipt of the applicant’s completed application and mili-
tary records. 
 
 
ed members who were designated to serve as the Board in this case. 
 

This final decision, dated February 27, 2003, is signed by the three duly appoint-

RELIEF REQUESTED 

 
 
The applicant, who was discharged from the Coast Guard on December 15, 1999, 
after  having  pled  nolo  contendere  to  a  State  charge  of  xxxxxxxxxxx  that  was  later  dis-
missed, asked the Board to correct his record by expunging the following documents: 
 

•  his separation from the Coast Guard on December 15, 1999, and his general dis-

•  a  special  officer  evaluation  report  (OER)  for  the  period  July  15,  1995,  through 

charge under honorable conditions;  

April 6, 1998 (OER1);  

•  his regular OER for the period May 17, 1997, through May 31, 1998 (OER2); 
•  a Determination Board Results Notification letter of January 25, 1999; 
•  a Board of Inquiry (BOI) precept dated March 30, 1999; 
•  a BOI amended precept dated April 15, 1999; 
•  a BOI report dated April 17, 1999; 
•  a BOI Results Notification dated May 21, 1999, with BOI transcripts, acknowledg-

ment referral cards, and exhibits of the proceedings from April 15 through 17, 1999; 

•  a transmittal letter from LCDR X dated May 13, 1999; 
•  a Board of Review (BOR) precept dated June 29, 1999; 
•  a letter from LCDR X dated June 18, 1999; 
• 
• 

the BOR’s findings and recommendations dated July 12, 1999; and 
the BOR’s Notification of Results dated October 28, 1999. 

 

In addition, the applicant asked the Board to order the Coast Guard to take the 

following actions: 

 

Records Center;  

•  withdraw  any  submissions  it  has  made  concerning  him  to  the  National  Crime 

•  restore him to active duty as a xxxxxxxx in his previous position as the xxxxxxx 
xxxx Detached Duty supervisor and with the same signal number and class standing he 
had prior to his discharge; 

•  pay him back pay and allowances from the date of his discharge until his return 

to active duty; and 

•  restore his security clearance; or 
•  as an alternative to the above, grant him a 20-year retirement by recognizing his 
constructive service from the date of his separation through July 4, 2001, which is the 
date he could have retired had he remained in the service, and promoting him to the 
rank of xxxxxxx (xxx) with back pay. 

 

APPLICANT’S ALLEGATIONS 

 
 
The applicant alleged that in 1996, his then xxxxxxxxxx told a friend that he had 
had  xxxxxxxxxxxx  in  1995.    The  xxxxx  friend  told  her  xxxxxx,  who  told  the  xxxxxx 
xxxxx.    His  xxxxxxxxx  filed  a  complaint  with  civil  authorities,  and  the  applicant  was 
arrested  for  xxxxxxxxxx,  which  he  denied.    However,  he  stated,  “His  attorney 
negotiated  a  plea  agreement  with  the  [county]  prosecutor  that  was  practical.    These 
kinds of cases can yield convictions based solely on a xxxxxxxx.  The accused xxx is left 
only with a verbal denial.”  Therefore, he alleged, he pleaded nolo contendere.1  He was 
put on probation and had to xxxxxxxxxxxxxxx. 
 
The applicant alleged that as a result of his plea, he received a derogatory special 
 
OER (OER1) and an adverse regular OER (OER2).  He alleged that some of his reporting 
officer’s comments in his response to the applicant’s reply to OER2 prove that his plea 
was the basis for the adverse marks and comments in OER2. 
 

                                                 
1 According to BLACK’S LAW DICTIONARY, 4th ed., the plea nolo contendere means “I will not contest it” and 
has “the same legal effect as a plea of guilty, so far as regards all proceedings on the indictment and on 
which the defendant may be sentenced. Like a demurrer, this plea admits, for the purposes of the case, all 
the facts which are well pleaded, but is not to be used as an admission elsewhere.” [citations omitted]  

 
The  applicant  alleged  that  as  a  result  of  his  plea,  the  Coast  Guard  convened  a 
Board of Inquiry, which ultimately resulted in his separation with a general discharge 
after 18 years, 5 months, and 11 days of active military service.  He alleged that but for 
his plea and the allegations against him, he would have retired from the Coast Guard 
after 20 years of service with a “spotless” record. 
 
 
The  applicant  alleged  that,  as  xxxxxxxxxxx,  “the  consequences  xxxxxxxxxxx 
became  more  concrete  xxxxxx.    In  July  2000,  without  any  prompting,  [xxxxxxx],  then 
xxxxxx,  spontaneously  told  xxxxxxxxxxxxxxxx  that  the  events  never  occurred.”    On 
November 27, 2000, the xxxxx signed a detailed affidavit recanting xxxxxx and express-
ing remorse.  He alleged that a “false allegation by xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
is  not  a  novel  circumstance.”    Thereafter,  he  sought  to  have  his  nolo  contendere  plea 
overturned and, on November 19, 2001, he was released from probation and from the 
requirement to xxxxxxxxxxxxxx.  Because of xxxxxxxxx recantation, the State moved to 
dismiss the charges against him, and the case was dismissed on December 3, 2001.  The 
applicant alleged that the State was not required to move to dismiss the charges against 
him but did so “because the recantation was credible.” 
 
 
The  applicant  alleged  that  he  was  “wrongly  accused,”  that  he  now  “seeks  to 
complete  his  vindication”  through  the  BCMR,  and  that  receiving  the  relief  he  has 
requested “is the only way [he] can obtain a just result.” 
 

SUMMARY OF THE RECORD 

 

 
On September 20, 19xx, the applicant enlisted in the Coast Guard Reserve under 
an agreement to attend Officer Candidate School.  He had several years of prior service 
in  the  Army,  the  National  Guard,  and  the  Air  Force.    On  March  16,  19xx,  he  was 
appointed an xxxxxxxxxx in the Reserve.  On May 20, 19xx, he was integrated into the 
regular Coast Guard as a xxxxxxxxxxxxx with a date of rank of September 16, 19xx.  On 
September 16, 19xx, he was promoted to xxxxxx (xxx). 
 
 
The  applicant  excelled  as  a  xxxxxxx  in  the  Coast  Guard.    On  his  OER  for  the 
period June 1 to November 30, 1995, he received one mark of 5, fifteen marks of 6, seven 
marks of 7 (on a scale of 1 to 7, with 7 being best), and a comparison scale mark of 6, 
meaning  that  he  was  “strongly  recommended  for  accelerated  promotion”  to  xxx.   On 
his OER for the period December 1, 1995, to May 31, 1996, he received nineteen marks 
of 6, four marks of 7, and another 6 on the comparison scale.  Thereafter, he was trans-
ferred.  However, his OER for the period June 1, 1996, to May 16, 1997, was similarly 
excellent, with twenty marks of 6, three marks of 7, and a 6 on the comparison scale.   
 

On April 1, 1997, a warrant was issued for the arrest of the applicant on a charge 
of  xxxxxxxxxxxxxxxxxx.    On  April  2,  1997,  the  Coast  Guard  suspended  his  security 
clearance.  Soon thereafter, he was transferred to a position in the district office.   

 
On June 19, 1997, the  applicant  was  indicted by a grand  jury for  having xxxxx 
xxxxxxxxxxxxxxxxxxxxxxx on or about July 15, 1995.  On February 17, 1998, he pleaded 
nolo contendere.  The judge indicated that he would decide whether to accept the plea at 
a  later  date.    On  April  6,  1998,  the  judge  accepted  the  plea  and  entered  a  Deferred 
Adjudication Order against the applicant for “xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.”  
The order stated that “after hearing evidence, the Court finds that it substantiates the 
defendant’s guilt; defers further proceedings without entering an adjudication of guilt 
for [ten years]; and places the defendant under the supervision of the [county probation 
department],  subject  to  your  obeying  the  following  conditions.”    The  long  list  of 
conditions  included  reporting  to  a  probation  officer,  xxxxxxxxxxxxxxxx,  avoiding 
xxxxxxxxxxxxxxxxxx,  performing  400  hours  of  community  service,  and  completing  a 
xxxxxxxxxxx treatment program. 
 
 
On April 14, 1998, the Coast Guard terminated the applicant’s security clearance.  
On April 30, 1998, his commanding officer (CO) sent the Commandant a letter reporting 
his April 6, 1998, “non-formal conviction” by the county court for xxxxxxxxxxxxxxxx.  
 
 
On July 23, 1998, OER1, a “special” OER, was entered in the applicant’s record 
“under Article 10.A.3.c.1.b and Article 10.A.3.c.1.d [of the Personnel Manual] due to a 
deferred adjudication order from the Criminal District Court of … which substantiated 
[the applicant’s] guilt for a civil offense of xxxxxxxxxxxxxxxxxxxxxxxx.”  OER1 outlines 
the  applicant’s  arrest,  indictment,  plea,  and  “ten-year  deferred  adjudication”  with 
probation and multiple conditions.  OER1 contains comments about the moral aspects 
of the offense and the consequences for the Coast Guard, as well as low marks for the 
performance categories “Workplace Climate,” “Judgment,” “Responsibility,” and “Pro-
fessional Presence” and the lowest possible score on the comparison scale, denoting an 
unsatisfactory  performance  in  comparison  to  other  xxxxxxxxs.    OER1  ends  with  the 
CO’s recommendation that he be discharged following a “show cause” board.   
 
The applicant’s record contains his official reply to OER1, dated June 25, 1998.  In 
 
it, he questioned the length of the period covered by the OER—July 15, 1995, through 
April 6, 1998—and argued that OER1 should cover only the time when the conduct that 
was investigated occurred, rather than almost three years.  He also argued that his com-
parison scale mark should not have been unsatisfactory since his job performance had 
been exemplary throughout his career.  He stated that the low comparison scale mark 
was  not  documented  in  any  way  with  reprimands,  warnings,  or  counseling  sessions 
and that there was “no direct correlation” between his probation and his performance 
of duty.  Regarding his positive representation of the Coast Guard, he stated that he had 
coached girls’ intermediate, high school, church, and YMCA volleyball leagues, taught 
children under the Partners in Education program, started a bible study, and delivered 
Meals on Wheels to the elderly. 
 

 
The  applicant’s  supervisor  forwarded  the  reply  to  OER1  to  their  CO  without 
comment.  In forwarding it to the Coast Guard Personnel Command (CGPC), the CO 
stated, “I stand by the peer comparison I made” on the comparison scale.  He further 
stated,  “We  have  taken  great  pains  to  protect  [the  applicant’s]  constitutional  rights, 
most importantly his ‘innocence until proven guilty’ and ‘due process.’  I supported his 
assertion of innocence, maintained his privacy and allowed him to discharge his duties 
as Supervisor of my Detached Duty Office … while his civil case was under considera-
tion.  …    The  process  has  been  completed,  his  plea  and  subsequent  adjudication  have 
substantiated his guilt and this OER is submitted to document the consequences of his 
criminal actions and resulting prosecution.”   
 
 
On August 5, 1998, OER2 was entered in the applicant’s record to document his 
performance from May 17, 1997, through May 31, 1998.  It contains two marks of 2, for 
the performance categories “Workplace Climate” and “Responsibility”; two marks of 3, 
for “Teamwork” and “Professional Presence”; eleven marks of 4; three marks of 5; and 
the lowest comparison scale mark.  Many of the comments are very positive, particular-
ly those regarding the applicant’s job performance prior to his plea.  However, OER2 
notes  his  plea  and  probation,  his  reassignment  to  the  district  office,  and  the  negative 
effect his plea had on the harmony and course of business in his office.  It states that his 
probation  interfered  with  his  ability  to  lead  and  destroyed  his  subordinates’  loyalty, 
and it strongly recommends his separation from the Coast Guard. 
 

In the applicant’s official reply to OER2, dated July 2, 1998, he called it “inaccu-
rate, unfair, unfounded and biased.”  He stated that the judge made no adjudication of 
guilt at all, so he was not actually convicted.  He stated that his reassignment was unfair 
because there is “no direct correlation between the civil incident and my performance of 
duty.”  He alleged that his conduct had not affected the workplace climate.  He alleged 
that the unsatisfactory comparison scale mark was unsubstantiated, unfair, and incon-
sistent  with  other  marks  and  comments  in  OER2  and  that  OER2  should  have  been 
based on his job performance rather than the “isolated civil incident.” 

 
In forwarding the applicant’s reply to OER2 to the CO, his supervisor supported 
the evaluation by describing several problems with the applicant’s job performance and 
the  performance  of  his  staff  that  had  required  significant  work  and  reorganization  to 
fix.    He  stated  that  the  applicant’s  “personal  problems  came  at  the  expense  of  [the 
office] … with many missed details, … reports glossed over and minimal … oversight 
provided.” 
 

In  forwarding  the  reply  to  OER2  to  CGPC,  his  CO  stated  that  he  stood  by  the 
comparison  scale  mark  he  assigned  the  applicant,  which  he  stated  was  based  on  the 
applicant’s nolo contendere plea to xxxxxxxxxxxxxxxxxxxxxxx.  Most of his statement is 
identical to the one he used to forward OER1 to CGPC.  He further stated that since the 

plea  and  court  order  occurred  during  the  regular  reporting  period,  it  was  proper  for 
OER2 to reflect the consequences of the applicant’s criminal actions. 

 
On January 25, 1999, the applicant was notified that in accordance with Article 
12.A.15.f. of the Personnel Manual, the Commander of CGPC had convened a Determi-
nation Board, which had decided that the applicant would be required to “show cause” 
as to why he should not be separated for moral dereliction. 

 
On April 17, 1999, following a “show cause” hearing at which the applicant was 
present and represented by counsel, the Board of Inquiry issued a report.  After viewing 
a  videotape  of  xxxxxxxxxxxxx,  reviewing  the  court  record,  and  listening  to  several 
character  witnesses  presented  by  the  applicant,  the  BOI  reported  that  the  applicant’s 
plea  of  nolo  contendere  had  the  same  effect  as  a  plea  of  guilty  and  that  the  court  had 
found that “sufficient evidence was provided which showed beyond a reasonable doubt 
that  he  is  guilty  of  a  first-degree  felony.”    The  BOI  found  that  the  applicant’s  moral 
dereliction and the terms of his probation would interfere with his ability to serve in the 
Coast Guard and recommended that he be separated.  
 
 
On  July  12,  1999,  a  Board  of  Review  was  convened  in  accordance  with  Article 
12.A.15. of the Personnel Manual.  The BOR found that the applicant had been morally 
derelict and had provided no compelling information to warrant his retention.  It rec-
ommended his separation. 
 
On July 14, 1999, another OER was entered in the applicant’s record, evaluating 
 
his job performance at the district office from June 1, 1998, through May 31, 1999.  It has 
five marks of 4, eleven marks of 5, two marks of 6, and a comparison scale mark of 4, 
which denotes a “good performer.”  Most of the comments in this OER (OER3) are very 
positive,  describing  the  applicant  as  “outstanding”  and  a  “tremendous  asset  to  the 
Coast Guard.”  In the final block of comments on the applicant’s potential, the CO stat-
ed that the applicant was “[w]ell qualified for promotion with peers.” 
 
 
tion board.  He was not selected. 
 
 
On October 28, 1999, CGPC informed the applicant in a letter that the Comman-
dant of the Coast Guard had approved the recommendation of the BOR on August 25, 
1999,  and  that  the  Secretary  of  Transportation,  acting  in  accordance  with  14  U.S.C. 
§ 327(b)(3), had ordered that he be discharged without severance pay.  The letter further 
stated that the applicant would be discharged no later than December 15, 1999. 
 
On December 15, 1999, the applicant received an involuntary general discharge 
 
by  reason  of  misconduct  with  separation  code  GKQ  (which  denotes  an  “involuntary 
discharge  approved  on  recommendation  of  a  board  when  member  has  committed  a 

In August 1999, the applicant was considered for promotion to XXX by a selec-

My  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 

I am sorry for the lie that I made in this case about xxxxxxxxxxxx. 
Back  in  December  1996,  I  was  xxxxxxxxxxxxxxxxxxxx.    We  started  telling  each  other 

 
2. 
1995 at … . 
3. 
xxxxxxxxxxxxxxxxxxxxxx. 
4. 
5. 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxx.  I  never dreamed that this act of bragging  to  my friend would become 
such a serious problem. 
6. 
After I told xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx in the Summer of 1995, she 
went  and  told  xxxxxxxxxxxxxxx.  Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxI  was  very  scared  and  confused.    Seeing  how  xxxxxxxxxxxxxx,  I 
was  afraid  that  if  I  told  him  that  it  was  a  lie,  that  xxxxxxxxxxxxxxxxxxxxx.    I  was  scared  and 
could  not bring  myself to  come forward with the truth.  Later, I didn’t come forward with the 
truth  because  xxxxxxxxxxxxxxxx  we  didn’t  have  to  go  to  court,  so  I  thought  nothing  wrong 
happened because I told the lie. 
7. 
xxxxxxxxxxxxxxxxxx because I didn’t want to keep telling the lie. 
8. 
This  summer,  July  2000,  while  staying  with  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxx that would be inappropriate.  I told her this on my own free will because I’ve 
been feeling really bad about the lie. 
9. 
In September, xxxxxxxxxxxxxx asked me about  my confession xxxxxxxxxxx.  I  told xxx 
xxxxxxx that everything I told xxxxxxx was true.  Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 
10. 
forward now because I have the courage to do so. 
11. 
anybody wants me to come and testify or talk to anybody personally about this, I will do that. 
12. 

I even went to xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx However, I never told the xxxxxxxxxx 

I am so sorry that it took me so long to get the courage to tell the truth but I am coming 

Nobody has promised me anything or threatened my in any way to sign this Affidavit.  If 

serious military or civilian offense”) and no severance pay.  The discharge was docu-
mented in his record by a letter of notification from CGPC dated November 12, 1999, a 
“page 7” entry, and a discharge form DD 214. 
 
 
sworn affidavit, which stated the following in pertinent part: 

On  November  27,  2000,  the  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  signed  a 

In December 1996, I accused xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx in the  summer of 

I apologize for all of the harm that I caused others. 

 
 
On  November  19,  2001,  the  State  court  decreed  that  the  Deferred Adjudication 
Order dated April 6, 1998, was set aside and released the applicant from all the condi-
tions of his probation.  On December 3, 2001, the court dismissed the charges against 
the applicant following a motion by the State.  On December 27, 2002, the court issued 
an  Order  of  Expunction  holding  that  the  applicant  was  entitled  to  have  various  state 
and  federal  agencies,  including  the  Coast  Guard,  “return  to  this  Court  all  files  and 
records they have pertaining to [the applicant], arising out of the transaction,” delete all 
index  references  to  the  files  and  records,  and  request  the  return  of  any  records  con-
cerning the arrest that may have been sent to a central federal depository.  Upon receipt 
by the court, the records are to be sealed in accordance with the State statute. 
 

VIEWS OF THE COAST GUARD 

 

On November 27, 2002, the Chief Counsel of the Coast Guard submitted an advi-

sory opinion recommending that the Board grant partial relief in this case.  

 
The Chief Counsel alleged that, under the regulations in the Personnel Manual, it 
was proper for his rating chain to prepare OER1 and OER2 to “reflect his plea bargain 
to a state felony charge.”  He argued that the comments and corresponding marks in the 
OERs were “fair and accurate based on the information available at the time the OERs 
were prepared.  Moreover, the Board of Inquiry and Board of Review properly consid-
ered the member’s entire record along with his nolo contendere plea to xxxxxxxxxxxxxx 
xxxxxxxxxxxx when recommending that the Applicant be separated from the service. …  
It cannot be overstated that the Applicant, himself, contributed to the OERs in question 
as well as the findings and recommendations of the Boards of Inquiry and Review” by 
pleading  nolo  contendere  to  “one  of  the  most  serious  charges  in  the  criminal  court 
system.  Clearly the Coast Guard committed no error in taking the course of action it 
did  at  the  time  it  did.”    However,  the  Chief  Counsel  stated,  in  light  of  the  xxxxxxxx 
xxxxxxxxxx recantation and the decision of the State to dismiss the charges, “the Coast 
Guard agrees that the results of the Boards of Inquiry and Review, as well as the OERs 
in  question  and  the  Applicant’s  eligibility  to  gain  a  security  clearance,  should  be 
revisited and the Applicant’s BCMR petition for relief should be favorably considered.” 

 
The Chief Counsel recommended that the Board vacate the applicant’s involun-
tary separation from the service; remove OER1 and OER2 from his record; remove his 
failure  of  selection  for  promotion  to  xxx  in  1999;  return  him  to  the  active  duty  pro-
motion list (ADPL) with his prior date of rank as a xxxxxxx, September 16, 19xx; and 
assign him to a geographic area of his choice if a billet is available.  The Chief Counsel 
stated that because the applicant did not serve on active duty from December 15, 1999, 
to the present, “due to no fault or error on the part of the Government,” he should not 
receive back pay or seniority as if he had been serving on active duty.   

 
The Chief Counsel argued that because the Coast Guard committed no errors in 
discharging the applicant, the taxpayers should not pay him a salary he did not earn, 
nor should he receive constructive credit toward retirement.  He stated that the appli-
cant’s loss of salary and seniority was “caused by the Applicant’s voluntary decision to 
enter  into  a  plea  agreement  for  a  heinously  serious  offense:  xxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxx.”    However,  the  Chief  Counsel  argued,  if  the  applicant  is  selected  for 
promotion by the first XXX selection board to consider his corrected record, the Board 
should give him the choice of (a) having his date of rank backdated to what it would 
have been if he had been selected for promotion in 1999 “but without crediting him for 
service and pay for the time period he was not on active duty,” or (b) not having his 
date  of  rank  backdated  “so  that  he  can  serve  the  typical  number  of  years  to  gain 

experience and growth, as well as receive the typical number of [XXX] OERs that are in 
an officer’s record, before being considered by a [xxx] Selection Board.” 
 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  December  2,  2002,  the  Chair  sent  the  applicant  a  copy  of  the  views  of  the 
Coast Guard and invited him to respond within 15 days.  The applicant was granted an 
extension of the time to respond, and he responded on December 27, 2002. 
 
 
The  applicant  stated  that  the  Chief  Counsel’s  argument  that  he  should  not 
receive  backpay  or  constructive  service  credit  “would  put  the  Board  on  a  collision 
course with settled law.”  He argued that when the separation of an officer on active 
duty is set aside, “he is entitled to be deemed to have remained on active duty (both for 
pay and constructive service purposes) until lawfully separated.”  See Tippett v. United 
States, 185 F.3d 1250, 1255 (Fed. Cir.), citing Sanders v. United States, 594 F.2d 804, 810 
(Ct. Cl. 1979).  The applicant argued that he is entitled to backpay under the Military 
Pay Act, 37 U.S.C. § 204, and that the only legal adjustments to his entitlement would be 
offsets for his civilian earnings and unemployment benefits.  He argued that there is no 
exception in the statute that would bar payment when the service is not to blame for the 
separation that is being set aside.  He argued that “the right to backpay and construc-
tive credit is unconditional, and applies even if the root cause was a falsehood told by a 
private individual.  The back pay entitlement arises as a result of setting aside the sepa-
ration—something the Coast Guard rightly acknowledges should be done here.” 
 
 
The applicant stated that he “understands the challenge that the [State] proceed-
ings  presented  for  the  Coast  Guard,  and  appreciates  the  service’s recognition  that  his 
record should be corrected and he should be restored to active duty.”  He also stated 
that  he  would  work  with  CGPC  to  identify  an  assignment  to  “get  his  career  back  on 
track.”  He submitted with his response a copy of the Order of Expunction.  
 

APPLICABLE LAW 

 

Under 10 U.S.C. § 1552(a), the BCMR “may correct any military record of the Sec-
 
retary’s department when the [Board acting on behalf of the] Secretary considers it nec-
essary to correct an error or remove an injustice.”   

 

Article 10.A.1.b.1. of the Personnel Manual (PM) states that commanding officers 

 OER Regulations 
 
 
must ensure that their subordinates receive accurate, fair, and objective evaluations. 
 
 
PM Articles 10.A.4.c.4. and 7. provide that the supervisor and reporting officer 
evaluate officers by comparing their performance in the various categories with written 

standards on the OER form and, for each category, assigning them the numerical mark 
that corresponds to the written standard that “best describes the Reported-on Officer’s 
performance and qualities during the marking period.”  The supervisor and reporting 
officer include comments based on their “observations, those of any secondary super-
visors,  and  other  information  accumulated  during  the  reporting  period.”    Article 
10.A.4.c.8.  provides  that,  to  complete  the  comparison  scale,  “[t]he  Reporting  Officer 
shall  fill  in  the  circle  that  most  closely  reflects  the  Reporting  Officer's  ranking  of  the 
Reported-on Officer relative to all other officers of the same grade the Reporting Officer 
has known. … A mark of "unsatisfactory" requires compliance with Article 10.A.4.h.” 
 

PM Article 10.A.4.g. permits the reported-on officer to file a reply to any OER “to 

express a view of performance which may differ from that of a rating official.” 
 

PM Article 10.A.4.h. provides that any OER with an unsatisfactory mark on the 
comparison scale is “derogatory,” and the reported-on officer must be invited to submit 
an addendum to explain the failure or provide a different view of his performance.  The 
supervisor  and  reporting  officer  forward  the  addendum  with  the  derogatory  OER  to 
CGPC and, in so doing, may address any statement made in the addendum. 
 
 
PM Article 10.A.3.c. provides that commanding officers may direct the prepara-
tion  of  a  Special  OER  under  certain  circumstances,  including  whenever  an  officer  is 
found guilty of a criminal offense or when the command finds it necessary to “docu-
ment  significant  historical  performance  or  behavior  of  substance  and  consequence 
which was unknown when the regular OER was prepared and submitted.” 
 
Separation Regulations 
 
 
PM Article 12.A.15.c. provides that, in accordance with 14 U.S.C. §§ 317-327, offi-
cers may be separated for cause if they commit “[a]cts of personal misconduct prohib-
ited by military or civilian authorities” or “[c]onduct unbecoming an officer.”  In addi-
tion, conviction by a civil court, denial of a security clearance, or receipt of a derogatory 
evaluation report may be sufficient to invoke separation for cause.  PM Article 12.A.15.f. 
provides that the Commander of CGPC may convene a Determination Board to review 
an officer’s record to determine whether he should be required to “show cause” for his 
retention on active duty due to, among other things, moral dereliction.  If the Determi-
nation  Board  decides  that  the  officer  should  be  required  to  “show  cause,”  the  Com-
mander of CGPC must inform the officer and invite him to appear with counsel before a 
Board of Inquiry to present evidence, testimony, and witnesses to show why he should 
be retained as an officer.  PM Article 12.A.15.h. requires the BOI, after reviewing all of 
the evidence presented, to make findings and a recommendation as to whether the offi-
cer should be retained.  Under PM Article 12.A.15.i., the records, documented evidence, 
and findings and recommendation of the BOI are reviewed by a Board of Review.  If the 

BOR decides that the officer should be separated, its recommendation is forwarded to 
the Commandant, who has “final decision authority.” 
 

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 appli-
cable law: 
 

1. 

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

§ 1552.  The application was timely. 

 
2. 

The applicant requested an oral hearing before the Board.  The Chair, act-
ing pursuant to 33 C.F.R. § 52.31, denied the request and recommended disposition of 
the case without a hearing.  The Board concurs in that recommendation. 

 
3. 

The applicant asked the Board to remove from his record the documents 
listed on the first page of this decision, all of which pertain to or include mention of his 
arrest and civil proceedings or his separation for cause from the service.  As the Chief 
Counsel stated, these documents seemed accurate and proper based on the information 
available  to  the  Coast  Guard  at  the  time  they  were  prepared.    The  applicant  did  not 
allege that the Coast Guard failed to follow its regulations in separating him, and the 
record  indicates  that  he  received  all  due  process  from  the  service.    The  Board  finds, 
however, that in light of the xxxxxxxxxxxxxxx recent recantation and the withdrawal of 
the criminal charge against the applicant, he has proved by a preponderance of the evi-
dence that the documents listed on the first page of this final decision and any other ref-
erences to the allegations against him, his arrest, his plea, or the civil proceedings, or to 
the  Determination  Board,  Board  of  Inquiry,  Board  of  Review,  or  his  separation  for 
cause, now constitute an injustice and should be removed from his military record. 

   
4. 

OER1 is a special OER prepared solely because of the applicant’s plea and 
probation and should removed entirely from the record.  OER2 is a regular evaluation 
and thus includes much information about the applicant’s job performance aside from 
the civil proceedings.  In BCMR Docket No. 151-87, it was held that “an OER will not be 
ordered  expunged  unless  the  Board  finds  that  the  entire  report  is  infected  with  the 
errors or injustices alleged; unless the Board finds that every significant comment in the 
report  is  incorrect  or  unjust;  or  unless  the  Board  finds  it  impossible  or  impractical  to 
sever the incorrect/unjust material from the appropriate material.”  Although it would 
be possible to redact the comments about the civil proceedings from OER2, it is unclear 
to what extent those proceedings affected the numerical marks.  Therefore, and in light 
of  the  CO’s  comments  indicating  that  some  of  the  marks  in  OER2  are  based  on  the 
applicant’s plea, the Board is persuaded that OER2 is so infected by the plea and civil 

proceedings  as  to  be  an  unreliable  assessment  of  his  actual  job  performance.    OER2 
should also be removed in its entirety from his record.   

 
5. 

The applicant did not mention OER3 in his application, but upon inquiry 
by the Board, he stated that he wants it removed from his record.2  OER3 includes no 
mention of the civil proceedings and contains much information about the applicant’s 
job performance.  However, during the evaluation period for OER3, the applicant con-
tinued  to  serve  in  the  same  District  as  before  and  his  alleged  crime—having  xxxxxxx 
xxxxxxxxxxxxxxxxxxx—must  have  been  notorious.    In  fact,  comments  in  OER2  prove 
that  his  alleged  crime  was  notorious  because  it  negatively  affected  the  workplace 
climate and his ability to lead subordinates.  The officer who served as the reviewer for 
OER2 also served as the reviewer for OER3.  Moreover, during the evaluation period, 
the  applicant  appeared  before  a  “show  cause”  Board  of  Inquiry  and  was  being  proc-
essed for discharge.  Although the stress the applicant was under could certainly have 
diminished his performance from the stellar level he maintained prior to his indictment 
and plea, the Board is persuaded that the marks in OER3 were negatively affected by 
the notoriety of applicant’s alleged crime and plea and that OER3 is infected by the plea 
and  proceedings.    The  Board  finds  that  the  presumption  of  regularity  normally 
accorded  an  OER  is  overcome  for  OER3  by  the  highly  unusual  events  that  occurred 
before and during the evaluation period that must have colored all aspects of the appli-
cant’s relationship with his chain of command and subordinates.  The Board finds that 
the  preponderance  of  the  evidence  in  the  record  indicates  that  OER3  is  an  unreliable 
assessment  of  the  applicant’s  performance  and  potential  as  an  officer  and  should  be 
removed from his record.  

 
6. 

 
The applicant asked the Board to order the Coast Guard to withdraw any 
submissions  it  has  made  concerning  him  to  the  National  Crime  Records  Center.    The 
court  has  already  asked  the  Coast  Guard  to  do  this  in  its  Order  of  Expunction  dated 
December 27, 2002.  If the Coast Guard has not already done so, the Board finds that it 
should  request  the  return  of  any  records  concerning  the  applicant’s  arrest,  plea,  and 
civil proceedings that it may have sent to a central federal depository. 
 

7. 

The applicant asked the Board to award him pay him backpay and allow-
ances  from  the  date  of  his  discharge  until  his  return  to  active  duty  as  if  he  had  been 
serving on active duty during the past three-plus years.  The applicant also pointed out 
that if, as the Chief Counsel recommended, the Board vacates his involuntary discharge 
so that his record reflects continuous active duty, he would be entitled to receive back-
pay and allowances for those years in accordance with 10 U.S.C. § 204, which mandates 
pay for regular members and officers based upon their status rather than upon actual 

                                                 
2  The Board’s inquiry and the applicant’s response occurred in an exchange of email messages and tele-
phone calls on February 27, 2003. 

performance of duty.3  The Board realizes that the applicant has undergone tremendous 
financial and personal hardship.  However, the fact is that he was legally discharged on 
December  15,  1999;  he  has  not  performed  active  duty  since  that  day;  and  none of  his 
hardship  has  been  the  result  of  any  error  or  injustice  committed  by  the  Coast  Guard.  
The  record  indicates  that,  once  the  applicant  pleaded  nolo  contendere  to  xxxxxxxxxxxx 
xxxxxxxxxxxxxx,  the  Coast  Guard  reasonably  and  carefully  followed  the  required 
procedures  for  administratively  separating  an  officer  under  14  U.S.C.  §§  321-327  and 
Article 12.A.15. of the Personnel Manual.   

 
8. 

In  Powers  v.  United  States,  212  Ct.  Cl.  553  (1976),  the  Court  of  Claims 
upheld the decision of the Board for Correction of Naval Records (BCNR) not to award 
backpay and allowances to a seaman who had received an undesirable discharge after 
being convicted of robbery in a New York court.  After the conviction was overturned, 
the BCNR upgraded his discharge to honorable and gave him “mustering-out” pay but 
denied his claim for restoration to active duty and backpay because he “had not per-
formed active duty” and “his imprisonment was not the fault of the Navy.”4  The court 
found that the BCNR had “acted lawfully and with a proper exercise of its discretion” 
in its decision.5  In the cases relied on by the applicant, Tippett v. United, 185 F.3d 1250, 
1255  (Fed.  Cir.  2001),  and  Sanders  v.  United States,  594  F.2d  804,  810  (Ct.  Cl.  1979)  (en 
banc), the members’ separations had been caused by errors committed by the military 
services, which is not the case here.6  The Board finds that the applicant’s situation is 
more analogous to that of the plaintiff in Powers than to those of plaintiffs wrongfully 
discharged by a military service.  

 
9. 

Although  the  applicant  has  not  proved  that the  Coast  Guard  committed 
any errors in processing him for separation, the Board finds that the general discharge 
for misconduct in  his  military record now constitutes an injustice  to the extent that it 
prevents him from continuing his military career and will prejudice him in civilian life.  
As the Court of Claims held in Caddington v. United States, 178 F. Supp. 604, 607 (Ct. Cl. 
1959), “the Secretary and his boards have an abiding moral sanction to determine inso-

                                                 
3    Cameron  v.  United  States,  34  Fed.  Cl.  422,  426-27  (1995)  (holding  that  “absent  a  proper  discharge,”  a 
member is entitled to basic pay as “a member of a uniformed service who is on active duty” and citing 
Adkins v. United States, 68 F.3d 1317 (Fed. Cir. 1995)). 
4  Powers v. United States, 212 Ct. Cl. 553, 554 (1976). See also xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 
5 Powers, 555. 
6  See also Doe v. United States, 132 F.3d 1430, 1437 (1997) (holding that an officer who had been adminis-
tratively discharged for child molestation pursuant to a recommendation of a Board of Inquiry that based 
its  decision  on  wrongfully  obtained  hearsay  not  amounting  to  substantial  evidence  was  entitled  to 
backpay and reinstatement in the same position he would have been in but for his wrongful discharge); 
Dilley v. Alexander, 627 F.2d 407, 414 (D.C. Cir. 1980) (holding that officers illegally separated by the Army 
were entitled to reinstatement and back pay). 

far as possible, the true nature of an alleged injustice and to take steps to grant thorough 
and fitting relief.”  In light of the xxxxxxxx recantation and the State court’s dismissal of 
the  charge,  the  Board  finds  that  thorough  and  fitting  relief  would  be  to  upgrade  the 
applicant’s discharge and allow him to continue his career in the Coast Guard with a 
personnel record that has been cleaned of any mention of the civil proceedings.  

 
10. 

The  Chief  Counsel  recommended  that  the  Board  vacate  the  applicant’s 
separation, but the Board finds that vacating his separation entirely would inaccurately 
cause  his record to indicate that he has performed active duty for the past three-plus 
years, which he has not.  As the court found in Powers, the Board finds that the injustice 
done to the applicant by his accuser and the legal consequences of the civil proceedings 
do not entitle him to the vacation of his separation. 

 
11. 

To fashion thorough and fitting relief, the Board must determine how to 
allow the applicant to return to active duty and continue his career in the Coast Guard 
with a personnel record that includes no mention of the civil proceedings.  In addition 
to  removing  all  such  references,  the  applicant’s  DD  214  should  be  corrected  to  show 
that his departure from active duty was not caused by misconduct.  The number of non-
derogatory  causes  of  separation  provided  for  an  officer  under  the  Personnel  Manual 
and  Separation  Program  Designator  Handbook  is  very  limited.    Moreover,  the  Board 
does not have the authority to appoint an officer once he has been discharged since only 
the President can appoint a xxxxxx in either the regular Coast Guard or the Reserve.7  
The Board finds that the cause of separation least prejudicial to the applicant’s contin-
ued  service  would  be  an  involuntary  release  from  active  duty  into  the  Coast  Guard 
Reserve by reason of Secretarial Authority with separation code LFF in accordance with 
Article 12.A.5. of the Personnel Manual.  However, for his record to show that he was 
released into the Reserve, his 1994 appointment as an officer in the regular Coast Guard 
must  be  reversed  so  that  his  record  will  show  that  he  remained  on  active  duty  as  an 
officer in the Reserve until his release in December 1999.  To undo that reversal, how-
ever, the Coast Guard should recall the applicant to active duty on a date that is mutu-
ally convenient and within six months of the date of this final decision and then, if he 
accepts that offer, further offer to reintegrate him back into the regular Coast Guard. 

 
12. 

The applicant asked the Board to restore him to active duty as a xxxxxxxx 
with  the  same  signal  number  and  class  standing  he  had  prior  to  his  discharge.    The 
Chief Counsel recommended that the Board return him to active duty and to the active 
duty promotion list (ADPL) with his prior date of rank as a xxxxxxxxx, September 16, 
19xx, and remove his 1999 failure of selection to XXX.  The Chief Counsel also stated 
that, if the applicant is selected for promotion by the first XXX selection board to review 
his record, he should have the choice of (a) having his XXX date of rank backdated to 
what it would have been if he had been selected for promotion in 1999 or (b) not having 

                                                 
7 14 U.S.C. § 211; 10 U.S.C. § 12203. 

his  date  of  rank  backdated  “so  that  he  can  serve  the  typical  number  of  years  to  gain 
experience and growth, as well as receive the typical number of [XXX] OERs that are in 
an officer’s record, before being considered by a [xxx] Selection Board.”   

 
13. 

The Board agrees with the Chief Counsel that the applicant should have 
the opportunity to return to active duty with his prior date of rank and position on the 
ADPL so that he can continue his Coast Guard career.  In addition, because the appli-
cant failed of  selection for promotion to XXX in 1999 when the information about his 
arrest, plea, and probation was in his record, the Board finds that the circumstances of 
his passover meet the Engels test8 and his failure of selection should be removed so that 
he may have another chance to compete for promotion while “in the zone.”  However, 
with at least a three-year break in his active service and no recent OERs in his record, 
the applicant may have little chance of being selected for promotion to XXX if his record 
is reviewed by a selection board immediately after he is recalled to active duty.  There-
fore, the Board finds that the Coast Guard should recall him to active duty but allow 
him to acquire at least one more OER before being considered for promotion to XXX by 
a selection board.  In addition, he should be returned to the ADPL with his 1994 date of 
rank.    An  explanation  of  the  gap  in  his  OER  record  should  be  entered  in  his  record 
directing selection board members not to draw any adverse inference from the gap.  If 
the applicant is selected for promotion to XXX by the next selection board to review his 
record, he should have the choice of (a) having his XXX date of rank backdated to what 
it would have been if he had been selected for promotion in 1999 or (b) not having his 
date of rank backdated.   
 

14. 

The applicant asked the Board to order the Coast Guard to return him to 
his prior billet.  The Chief Counsel agreed that he should be assigned to a geographic 
area of his choice if any billet is available.  The Board finds that upon his return to active 
duty, the applicant should be assigned to a geographic area of his choice if any billet is 
available. 
 

15. 

The applicant asked the Board to restore his security clearance.  However, 
even with his arrest, plea, and the civil proceedings erased from his military records, his 
current eligibility for a security clearance is unknown to the Board.  He has not present-
ed any evidence to show that he currently meets the qualifications for a security clear-

                                                 
8 In Engels v. United States, 678 F.2d 173, 175-76 (Ct. Cl. 1982), the court found that to determine whether 
an officer’s failure of selection should be removed because of errors in his record when it was reviewed 
by  a  selection  board,  the  BCMR  should  answer  two  questions:    “First,  was  [the  officer’s]  record  pre-
judiced by the errors in the sense that the record appears worse than it would in the absence of the errors?  
Second, even if there was some such prejudice, is it unlikely that [the officer] would have been promoted 
in any event?”  Given the derogatory nature of the civil proceedings and the excellence of the applicant’s 
prior  record,  it  is  clear  that  the  applicant’s  case  meets  this  test  and  his  failure  of  selection  should  be 
removed.  
 

ance.  However, the Chief Counsel has stated that the applicant’s eligibility for a securi-
ty clearance should be revisited, and the Board agrees. 

 
16. 

The applicant requested, as an alternative to his primary request for relief, 
that the Board promote him to XXX and grant him a 20-year retirement by correcting 
his record to reflect constructive service from the date of his separation through July 4, 
2001, which is the date he could have retired had he remained in the service, with corre-
sponding backpay.  For the reasons stated in findings 7 through 10, above, the Board 
finds that the applicant is not entitled to such relief. 

 
17.  Accordingly,  the  Board  finds  that  relief  should  be  granted  by  removing 
from the applicant’s military record the documents listed on the first page of this final 
decision, any other documents concerning or references to the allegations against him, 
his arrest, his plea, the civil proceedings, the Determination Board, the Board of Inquiry, 
the  Board  of  Review,  OER3,  his  general  discharge  for  misconduct,  and  his  failure  of 
selection; by requesting the return of any records concerning his arrest, plea, and civil 
proceedings that may have been sent to a central federal depository; by having his secu-
rity clearance reassessed after his record is corrected; by voiding his 1994 appointment 
in the regular Coast Guard so that he shall have remained an officer in the Reserve; by 
correcting his DD 214 to show that he was involuntarily released from active duty into 
the Reserve on December 15, 1999, by reason of Secretarial Authority with an honorable 
character of service and separation code LFF; by offering to recall him to active duty on 
a  mutually  acceptable  date  within  the  next  six  months  and  allowing  him  to  acquire 
another regular OER in his record before being considered for promotion; by placing an 
explanation of the lack of recent OERs in his record; by offering him an opportunity to 
reintegrate in the regular Coast Guard; and if he is selected for promotion by the next 
XXX  selection  board  to  review  his  record,  by  backdating  his  XXX  date  of rank,  at  his 
discretion, to what it would have been if he had been selected for promotion in 1999.  In 
addition, should he choose to return to active duty, the Coast Guard should assign him 
to a geographic area of his choice if any billet is available upon his return to active duty.  
Finally, no copy of this Final Decision should be kept in the applicant’s military record. 
 

 

 
 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

The application of xxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of his 

military record is granted in part as follows: 

ORDER 

 

 
a)  All  of  the  documents  listed  on  the  first  page  of  this  final  decision  and  any 
other references to the allegations against him, his arrest, his plea, or the civil proceed-
ings, or to the Determination Board, Board of Inquiry, Board of Review, or his separa-
tion for cause shall be removed from his military record.  The special OER validated on 
July 23, 1998, and two regular OERs covering his service from May 17, 1997, to May 31, 
1998, and from June 1, 1998, to May 31, 1999, shall be removed from his record.  In addi-
tion, his failure of selection for promotion to XXX shall be removed from his record. 

b)  The Coast Guard shall, in accordance with the Order of Expunction, request 
the  return  of  any  records  concerning  his  arrest,  plea,  and  civil  proceedings  that  may 
have been sent to a central federal depository. 

c)  His 19xx appointment as a xxxxxxx in the regular Coast Guard shall be null 
and void so that his record shall reflect that he remained on active duty as a xxxxxxxx in 
the  Reserve,  was  promoted  to  xxxxxxxxx  as  a  Reserve  officer  on  September  16,  1994, 
and remained on active duty until December 15, 1999. 

d)  His DD 214 shall be corrected to show that he was released to inactive duty in 
the Coast Guard Reserve on December 15, 1999, by reason of Secretarial Authority with 
an honorable character of service and separation code LFF, in accordance with Article 
12.A.5. of the Personnel Manual.   

e)  The Coast Guard shall offer to recall the applicant to active duty on a mutual-
ly convenient date within the next six months.  He shall be allowed to remain on active 
duty until he has acquired another regular OER before his record is reviewed by a xxx 
selection  board.    He  shall  be  offered  the  opportunity  to  reintegrate  into  the  regular 
Coast Guard and he shall be placed on the ADPL with his September 16, 19xx, date of 
rank  and  subsequently  considered  for  promotion  “in  the  zone”  by  an  ADPL  xxx 
selection board after the regular OER is entered in his record.  If necessary, he shall be 
allowed  to  remain  on  active  duty  until  he  has  been  considered  for  promotion  by  an 
ADPL xxx selection board a second time, “above the zone.”   

f)  The following statement shall be placed in the applicant’s record to explain 

the lack of OERs and the period of inactive duty in his record: 
 

“xxxxxxxxxxxxxxxxxxxxxx’s  Personnel  Data  Record  includes  no  Officer 
Evaluation  Reports  for  his  active  duty  service  from  May  17,  1997,  to 
December 15, 1999, and a period of inactive duty from December 16, 1999, 
through [insert the date he returns to active duty].  His record has been 
corrected  by  the  Secretary  in  accordance  with  10  U.S.C.  § 1552,  and  no 
adverse  inference  of  any  kind  is  to  be  drawn  from  the  lack  of  Officer 
Evaluation Reports, his release from active duty, or the period of inactive 
duty.” 

g)  If he returns to active duty, the Coast Guard shall assign him to a geographic 

area of his choice if any billet is available upon his return to active duty.   

h)  If  the  applicant  is  selected  for  promotion  by  the  first  xxx  selection  board  to 
review his record, he shall have the option of having his xxx date of rank backdated to 
what it would have been if he had been selected for promotion in 1999.   

i)  The Coast Guard shall have the applicant’s eligibility for a security clearance 
reassessed in accordance with regulation after his military record has been corrected in 
accordance with this order. 

 

 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

j)  No copy of this final decision shall be kept in his military record. 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 
 

 
 

 
 

 

 

 
 
 John A. Kern 

 

 
 James G. Parks 

 

 

 
 Coleman R. Sachs