DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 2006-134
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FINAL DECISION
This proceeding was conducted under the provisions of section 1552 of title 10 and sec-
tion 425 of title 14 of the United States Code. The Chair docketed the case on June 16, 2006,
upon receipt of the completed application.
who were designated to serve as the Board in this case.
This final decision, dated April 26, 2007, is signed by the three duly appointed members
SUMMARY OF THE APPLICANT’S REQUEST AND ALLEGATIONS
The applicant received a general discharge for “unacceptable conduct” on August 31,
2005, after admitting on February 10, 2004, that he had used marijuana four times while serving
on active duty under instruction (DUINS) at the Naval Postgraduate School in 2000 and 2001.
He asked the Board to correct his record by removing his discharge, reinstating him on active
duty, and awarding him back pay and allowances. In the alternative, he asked the Board to
upgrade his discharge to honorable and to upgrade his narrative reason for separation, his sepa-
ration code, and his reentry code of RE-4 (ineligible).
The applicant stated that in February 2004, he faced a “moral and ethical conundrum”
because he had to complete an SF-86 Security Background Information Form to accept transfer
orders to become the Operations Officer of a cutter. “[T]o truthfully answer the question con-
cerning drug use, he would be required to disclose past recreational marijuana use” while he was
an officer serving on DUINS. Therefore, he informed his commanding officer (CO) that he “had
on occasion taken recreational ‘hits’ of marijuana” while assigned to DUINS in 2000 and 2001.
Following the applicant’s admission, his CO determined that the applicant had been involved in
a “drug incident,” and the applicant was required to “show cause” why he should be retained as
an officer before a Board of Inquiry (BOI) convened pursuant to 14 U.S.C. § 322. In addition,
the applicant’s command prepared a special Officer Evaluation Report (OER) to document his
past drug use in his performance record.
The applicant alleged that during the BOI from January 12 through 14, 2005, he proved
by overwhelming evidence that he should be retained on active duty, in accordance with Article
12.A.15.h.1. of the Personnel Manual, because of his excellent performance while on DUINS
and in other billets and because of the Service’s need for his skills as an engineer. The Govern-
ment’s Recorder presented no witnesses to rebut his evidence and argued only that he should be
discharged because of the Service’s alleged “zero-tolerance” policy concerning drug abuse.
Although the Recorder was unable to prove that no member had ever been retained following a
“drug incident,” the BOI ignored the preponderance of the evidence and arbitrarily and capri-
ciously recommended that he be discharged. The applicant also alleged that because the Coast
Guard rarely conducts BOIs, many mistakes were made that denied him due process and the fair
and impartial hearing to which he was entitled under 14 U.S.C. §§ 321 et seq.
(1) First, the applicant alleged, the BOI misunderstood its purpose and the burden of
proof because in its report, the BOI wrote that “[t]he question is whether [the applicant] knew
that his actions were illegal and against Coast Guard policy,” whereas under Article 12.A.15. of
the Personnel Manual, the only question before the BOI was supposed to be whether the appli-
cant had established by a preponderance of the evidence that the Service should retain him. He
alleged that the BOI considered his professional performance to be irrelevant and therefore
clearly misunderstood the issue. Instead, the BOI incorrectly focused on whether he had com-
plied with the Coast Guard’s “core values”—honor, respect, and devotion to duty—which was
“patently ridiculous” since the only reason an officer would be subject to a BOI is if his behavior
had not complied with those values. The applicant argued that the purpose of a BOI is to allow
an officer whose behavior has not been consistent with the core values to show by a preponder-
ance of the evidence why he should be retained as an officer anyway. The applicant complained
that the BOI failed to explain why the overwhelming evidence he presented was inadequate to
rebut the charge of professional dereliction against him and instead mocked his attempt to show
why he should be retained by saying that he had “paraded a series of witnesses” before the board.
The applicant stated that the BOI incorrectly focused on whether his drug use could be
considered mitigated or excused. The applicant argued that “these were issues of no relevance
once the burden shifted” to himself to show why he should be retained despite his drug use. He
stated that the BOI’s focus on the facts of his drug use, which he had admitted, rather than on the
evidence showing that he should be retained despite his drug use, meant that the BOI merely
reinvestigated and rehashed a punitive matter that preceded the BOI. He argued that he would
not even have had a BOI had there been mitigating factors or a legal excuse. He argued that the
lack of mitigating factors or an excuse was determined by his CO when the CO decided that
there had been a drug incident and should not have been the focus of the BOI.
The applicant stated that the “argument that ‘zero tolerance’ dictates discharge is logic-
ally insupportable in that a policy that demands or predetermines discharge would completely
obviate the need for a BOI or any other Board. It also contradicts the plain language of [Article]
12.A.15 of the Personnel Manual” and would negate an officer’s statutory right to a fair and
impartial hearing. He argued that by mentioning the zero-tolerance policy, the BOI showed that
it failed to comprehend that it had the discretion to recommend his retention despite that policy
because the policy in Article 20 of the Personnel Manual requiring initiation of separation proce-
dures applies only at the local, command level when a “drug incident” is discovered and is not
supposed to predetermine the outcome of a BOI convened under 14 U.S.C. § 322.
(2) Second, the applicant complained that, without authority, the BOI found that he had
incurred four separate drug incidents rather than just one. Under Article 20 of the Personnel
Manual, only his CO had authority to determine how many drug incidents he had incurred.
(3) Third, the applicant alleged that, contrary to regulation, the BOI’s Legal Advisor met
with the BOI in secret before the close of the proceedings. He argued that under Article
12.A.15.h.5.i., the Legal Advisor may only provide advice “in open session in the presence of the
officer concerned and his or her counsel.” The applicant stated that when his counsel came upon
the secret, illegal meeting, he objected and stopped it, but the Coast Guard ignored this violation
of due process by disingenuously arguing that his counsel did not object “on the record.” The
applicant argued that this “due process violation alone should be sufficient to reverse the Coast
Guard’s determination to discharge [him].”
(4) Fourth, the applicant argued that CGPC also denied him due process when it attached
to the BOI report two endorsements before forwarding the report to the Board of Review (BOR)
for review. He argued that Article 12.A.15.i.3. provides that only the report of the BOI itself
should be reviewed by the BOR and that the attached endorsements were highly prejudicial. The
applicant stated that the officers who endorsed the BOI report were not subject to his cross-
examination and simply tried to bolster the case against his retention by stating that the BOI’s
report was “in accordance with law and regulation.”
(5) Fifth, the applicant alleged that the BOI’s report shows that the board members were
biased against him in that they derided his evidence as a “parade” of witnesses and did not dis-
cuss any of the evidence he presented. Whereas the Government’s exhibits were individually
tabbed in the report, his own were lumped together under a single tab. He also complained that
the report erroneously indicates that three of his own exhibits were not accepted for considera-
tion, whereas in fact the three were Government exhibits and were excluded due to his own sus-
tained objections. During the hearing, the applicant alleged, the BOI asked “bizarre and inap-
propriate questions” of his witnesses. In the case of a female, married petty officer who wrote a
letter on the applicant’s behalf, the BOI questioned the nature of their relationship in a “prurient
and degrading” digression from the issues. The applicant also stated that following the hearing,
the president of the BOI “gave a weird little speech about suicide—going yet again ‘off the
record.’ … The speech made it clear that the members had tried to ‘psychoanalyze’ [the appli-
cant].”
(6) Sixth, the applicant alleged that the Recorder continued to argue about what had
occurred in other cases even though the Legal Advisor had ruled that such evidence was irrele-
vant and that he was not allowed to present significant evidence to the BOI. Although the
Recorder had tried to prove that no one was ever retained after a drug incident, the Legal Advisor
later prevented the applicant from trying to prove the contrary by ruling that information about
prior administrative actions against other officers who had committed misconduct was irrelevant.
(7) Seventh, the applicant alleged that the Recorder made erroneous and inappropriate
arguments to the BOI. The applicant complained that the Recorder speculated during the hearing
that the applicant would never be selected for promotion with a drug incident in his record. The
applicant argued that such speculation was irrelevant to the question of whether he should be
retained. He alleged that many officers on active duty “do not have a fantastic shot—or any shot
—at making the next grade” and so his likelihood of promotion should not have been raised as
an issue by the Records. Moreover, he stated, because there “is nothing in [Article 12 of the Per-
sonnel Manual] about future likelihood of selection for promotion, … arguing this violated [the
applicant’s] due process rights.”
(8) Eighth, the applicant argued that he was not provided full and timely access to rele-
vant records as required under Article 12.A.15.g.4. He was given access to the Government’s
documentary evidence only the day before the hearing because the Government did not have it
ready until that day—not because his attorney did not ask for it earlier. The applicant also com-
plained that he did not receive a copy of the precept until the BOI hearing convened. In addition,
a FOIA request that he had made on August 31, 2004, was ignored until January 4, 2005, at
which point the Coast Guard gave him only 15 redacted pages out of a total of 55 that were
responsive to his request.
(9) Ninth, the Coast Guard failed to produce some of the applicant’s requested witnesses
in person, claiming that the in-person testimony would be duplicative and expensive, and so the
applicant had to have them testify by telephone. The applicant stated that in the most egregious
case, LT M testified that he knew the applicant socially and knew that the applicant did not use
drugs, but in closing arguments the Recorder ignored his testimony and told the BOI that the
applicant’s witnesses knew him only professionally rather than socially.
(10) Tenth, the applicant argued that the Coast Guard violated Article 12.A.15.d. of the
Personnel Manual by responding to his admission of drug use with separation in lieu of discipli-
nary action under the Uniform Code of Military Justice (UCMJ). He alleged that the Coast
Guard did so only because disciplinary action under Article 15 had failed since more than two
years had passed and because he could not be convicted by court-martial based on his own
uncorroborated admissions.
(11) Eleventh, applicant alleged that the Coast Guard Personnel Command (CGPC) con-
ducted ex parte communications with the BOI. He submitted a copy of an email message dated
January 17, 2005, from CGPC to the BOI. The applicant alleged that the email wrongly accuses
him of causing the hearing to last more than two days by increasing the number of his witnesses
at the last moment, whereas in fact he had submitted his witness list a month before the hearing.
He alleged that the email also indicates that CGPC would approve a recommendation for dis-
charge and would reward the Board members with future opportunities, such as serving on pro-
motion boards.
(12) Twelfth, regarding the Board of Review (BOR), the applicant stated that he submit-
ted a rebuttal statement regarding the BOI’s bias, misunderstanding of its task, and inadequate
findings; the improper secret meeting with the legal advisor; the unauthorized endorsements by
CGPC; the Recorder’s improper and irrelevant arguments; the Coast Guard’s failure to provide
the applicant access to necessary records in advance of the BOI hearing; the Coast Guard’s fail-
ure to produce all of the military witnesses to appear at the hearing in person; and the Coast
Guard’s “illegal use of separation in lieu of punishment” in response to the applicant’s admis-
sion. In rebuttal, the Recorder argued that the Administrative Separation Boards Manual,
COMDTINST M1910.2, which did not even apply, allowed such secret meetings, and made sev-
eral other “specious arguments.” Yet the BOR also recommended separation even though it met
for only 80 minutes and so could not possibly have reviewed all of the documents in the case file
in order to determine accurately whether the applicant had established that he should be retained.
The applicant alleged that the BOR clearly failed in its duty to give him a separate and independ-
ent decision under 14 U.S.C. § 323.
The applicant concluded the Coast Guard had failed to grant him the full and fair hearing
required under 14 U.S.C. § 322 and Article 12 of the Personnel Manual and that as a law
enforcement agency, when
the Coast Guard decides to separate an officer, it must operate according to rules grounded in fair
play and substantial justice. It must convene proceedings that comply with U.S. statutory law, as
well as the process it has outlined for itself in the Personnel Manual. It cannot be allowed to con-
jure new standards, meet in secret, make unsupported findings, disingenuously argue against the
evidence, ignore the PERSMAN, use separation to achieve punishment, deprive a member of
records and witnesses vital to his case, engage in unfounded speculation, and other contretemps in
violation of the officer’s rights. In short, it cannot be above the law it seeks to enforce.
The applicant noted that the Coast Guard continues to employ him as a civilian engineer
under contract1 because given his performance “no actual reason to separate [him] from the
Coast Guard existed.” In light of his continued employment by the Coast Guard, he alleged,
“[a]ny argument by the Government that keeping [him] at MLCPAC(t) sets a bad example is
disingenuous and hypocritical at best.” The applicant argued that the Coast Guard should not be
able to take advantage of his abilities while burdening him with a General Discharge.
SUMMARY OF THE RECORD
Upon graduating from the U.S. Coast Guard Academy, the applicant was commissioned
an ensign on May 20, 1998. For two years, he served aboard a cutter as a deck watch officer.
On his OERs, he received high marks and his commanding officer’s recommendation for promo-
tion. The applicant was promoted to lieutenant junior grade on November 20, 1999.
From June 2000 through June 2002, the applicant was assigned to DUINS at the Naval
Postgraduate School to earn a master’s degree in electrical engineering. Upon receiving his
degree, his final grade point average was 3.78.
In June 2002 through May 2003, the applicant served as a radio systems project officer at
a Maintenance and Logistics Command for the Pacific Area (MLCPAC). The applicant received
1 An affidavit by the applicant in the proceedings indicates that the applicant is an employee of SAGE Systems
Technologies and as such works as a program manager improving long-range communications in the Pacific Area
for the Coast Guard.
Admission and Investigation
high marks for this work and his Reporting Officer’s recommendation for promotion. He was
promoted to lieutenant on October 29, 2002.
In June 2003, the applicant began serving as an aide to the MLCPAC Commander, a rear
admiral, by coordinating her activities, writing speeches, and serving as protocol officer.
On February 10, 2004, the applicant, who was expecting orders to a cutter that would
require him to get a top secret security clearance, informed CAPT D, the Deputy Commander at
MLCPAC, that he had used marijuana on four occasions while assigned to DUINS in 2000 and
2001. CAPT D ordered an investigation.
On February 20, 2004, LCDR B, the investigator, issued his report. He had informed the
applicant of his rights before interviewing him. The applicant told LCDR B that he had used
marijuana on four occasions: (1) at a party in Los Angeles with his brother on December 31,
2000, he “aceepted a ‘hit’ off of a ‘blunt’ as a single marijuana cigarette was passed around a
circle of partygoers”; (2) at a party in San Diego with his cousin in 2001, he had “2 to 3 ‘hits’ off
of a ‘bong’”; (3) at a gathering in San Francisco in 2001, he “accepted one ‘hit’ off of a ‘pipe’”;
and (4) at a gathering in Oxnard in 2001, he accepted one ‘hit’ off of a ‘cigarette-like pipe’.”
Regarding his reasons for using marijuana, the applicant told LCDR B that while a cadet
at the Academy, he had begun “to be depressed and apathetic … and performed self-mutilation
… by cutting his wrists and forearms (showed scars upon his left arm).” He felt that the “first
class cadets formed an allegiance to overlook transgressions by failing to be present when they
occurred.” The applicant stated that his “depression and general apathy toward the Service
abated during his first year in the cutter, however, returned in his second year when there was a
change in the Executive Officer, stressful response to the Alaskan Airline crash, and increased
workload.” The applicant told LCDR B that by the end of his tour on the cutter, he intended to
complete only his obligated service, and so he declined a postgraduate program when he was
accepted. However, then the assignment officer told him he would be assigned to Virginia, when
he wanted to stay in the San Francisco Bay area, so he asked to get back into the graduate school
program even though that would increase his service obligation. The applicant told LCDR B that
he initially saw his assignment to Naval Postgraduate School “as negative” and he had “abso-
lutely no service pride,” but it was “marginally better than service in Virginia.” When he first
used marijuana at the New Year’s Eve party, he was curious about it and feeling apathetic and
depressed. He also “had not expectation of ever getting caught, and no care at the time if he did
get caught.” Later, he began feeling camaraderie with other officers at his school, which
“renewed his sense of optimism, spirit de corps, and pride in the Service” so he did not use
marijuana again. The applicant stated that “he did not want to be discharged, but had to make
the choice to tell the truth.”
LCDR B opined that the applicant’s “use of marijuana constitutes a drug incident.” He
noted that since the two-year statute of limitations for non-judicial punishment had passed, the
applicant’s misconduct could only be addressed at court-martial or “some lesser administrative
action.” He also noted that the Naval Postgraduate School does not perform random drug testing
On April 2, 2004, Commander, MLCPAC reported to CGPC that the applicant had been
involved in a “drug incident.” She “request[ed] administrative action for separation by reason of
misconduct under Article 12.A.15. of [the Personnel Manual].” However, she also recommend-
ed that the applicant be retained “as an exception to the policies contained in [the Personnel
Manual].” She stated that the applicant’s “voluntary action to come forward and confess to a
transgression that would not otherwise have been discovered is indicative of a sincere desire to
adhere to the Coast Guard’s core values. This incident runs counter to the present information
that I have on [the applicant’s] performance and character. I firmly believe he can continue to
serve the Coast Guard.”
On April 22, 2004, Command, PAC issued the applicant a letter of caution indicating that
his secret security clearance would not be revoked but that receipt of further derogatory informa-
tion would be cause for reconsideration of the decision.
On May 11, 2004, CGPC entered a special OER in the applicant’s record for the period
December 31, 2000, through June 30, 2001, pursuant to Article 10.A.3.c.(1)(d) of the Personnel
Manual. The special OER, which had been prepared by his rating chain at MLCPAC, was cre-
ated “to document significant behavior of substance and consequence which was unknown when
[the] regular OER was prepared.” Most of the performance categories are marked “not
observed.” However, the applicant received a low mark of 2 for “Judgment,” a low mark of 3
for “Responsibility,” and a mark of 4 on the Comparison Scale. The MLCPAC Commander
wrote the following to support these marks:
on Coast Guard personnel. LCDR B recommended that the command issue an administrative
letter of censure and initiate separation under Article 12.A.15.c.2.i.
On March 29, 2004, Commander, MLCPAC gave the applicant an administrative letter of
censure “for wrongfully using marijuana on 31 December 2000 and at three other times in 2001.”
The letter was apparently the result of a mast or non-judicial punishment (NJP) proceeding under
Article 15 of the UCMJ, which was later removed from the applicant’s record as void because
his misconduct had occurred more than two years before the mast.
In updating documentation for a security clearance, [the applicant] self reported his use of mari-
juana while a CG officer during his tenure at Naval Postgraduate School in Monterey, CA. Use of
marijuana occurred on 31 DEC 2000 and three separate occasions prior to 30 June 2001. [His]
explanation for self reporting the use was that he did not want to lie about past illegal drug use on
his security clearance forms. [The applicant] indicated that he wanted to continue his CG career
but did not want to continue the deceit. [He] indicated he had never used illegal drugs before nor
since and has no intentions of ever doing so again. An investigation was conducted. The investi-
gation revealed [he] admitted to wrongful use of marijuana, a controlled substance.
[The applicant] has been an excellent performer at this command. His sense of honor and integrity
compelled him to self report his use. However, his choice to knowingly engage in illegal activity
is not in keeping with the CG’s core values. I am convinced that [he] has not engaged in this
activity since nor is he likely to do so. I do not recommend him at this time for command cadre
assignments, however, I firmly believe he still has valued to the CG and can make a contribution.
[The applicant] should be retained in the Coast Guard.
On the applicant’s regular OER for the period June 1, 2003, through May 31, 2004, he
received primarily marks of 5 in the various performance categories, a mark in the fifth spot on
the comparison scale, and the MLCPAC Commander’s recommendation for promotion.
On September 14, 2004, the applicant submitted a letter to the Determination Board in
which he stated that he regretted his errors in judgment, accepted responsibility for his actions,
and hoped to be able to retain his commission. He argued that, because Article 12.A.15.c.(2)(i)
states that a drug incident, among other types of misconduct “may require removing an officer,”
the Coast Guard was not bound by any law, policy, or precedent to discharge him. “Surely an
incident involving an officer who hurts no one, and who is simply unwilling to lie, qualifies as
the type of drug incident the drafters had in mind when they included this discretionary lan-
guage.” He stated that when told that he could resign if he accepted a general discharge, he
decided to go through the Board process because “on the whole my six years of service have
been ‘Honorable,’” and because he believes he is still able to serve in the Coast Guard. He noted
that a general discharge might hinder his ability to serve his country as a civilian federal
employee. He argued that even if retained he would be severely punished for his misconduct
because he would be separated after two failures of selection for promotion. The applicant asked
the board to “show compassion for my circumstance and acknowledge that, when posed with a
moral dilemma, I made the right choice, even though the result wreaked havoc on my career.
Please determine that I should not be required to ‘show cause,’ as my heart and moral sense have
always been in the right place despite my extremely poor judgment in the past.”
On January 5, 2005, CGPC responded to the applicant’s FOIA request dated August 31,
2004, “for a complete copy of all headquarters and unit files pertaining to [the applicant],
including but not limited to all files retained by OPM and the officer boards section.” CGPC
noted that the applicant had amended his request on November 5, 2004, by narrowing it “to all
inter- and intra- office e-mails, digests, memoranda, letters, notes nad other documents sent, cre-
On September 22, 2004, CGPC notified the applicant that on September 16, 2004, the
Determination Board convened and found that he should be required to show cause for retention
on active duty and that therefore a Board of Inquiry would be convened under Article 12.A.15.
of the Personnel Manual. CGPC also informed the applicant that in lieu of further board proc-
essing, he could ask to resign, in which case he would receive a general discharge in accordance
with Article 12.A.15.f.6.e.
On December 20, 2004, the applicant’s attorney submitted a “preliminary witness list” to
the Coast Guard with the names of twelve military members or employees and the applicant’s
parents. She noted that she expected to name another three to seven witnesses before the BOI
hearing. She asked to receive the Government’s witness list and evidence at least a week before
the hearing, as well as the names of the board members. In addition, she noted that she was
having a problem getting a response to the FOIA request.
On January 4, 2005, CGPC issued a precept for the BOI to three officers. The precept
stated that the BOI hearing would convene on January 12, 2005, “for the purpose of receiving
evidence, making findings and recommendations whether [the applicant] should be retained in
the Service.”
ated, made or retained by OPM regarding [the applicant] and/or his processing for separation
from the Coast Guard.” CGPC stated that it had found 55 pages that were responsive to the
request but was withholding 38 of them in their entirety and was releasing 15 with redactions.
CGPC stated that “[s]ome records being withheld contain intra-agency and attorney client infor-
mation” and so are exempt from disclosure. CGPC noted that the names of private citizens,
junior military personnel, social security numbers, home addresses and phone numbers, etc., had
been redacted to prevent unwarranted invasions of privacy. The Coast Guard’s response
included a copy of the BOI precept, but the names of the board members were redacted.
email message:
Also on January 5, 2005, the BOI Recorder sent the applicant’s attorney the following
Concerning who I plan to call, I plan to call [CAPT D, CDR H, LCDR B and LCDR H] at [tele-
phone number omitted]. [LCDR H] is the current force manager for [the applicant’s] specialty
and is expected to testify that the EE field is currently at strength. I have not spoken to [CAPT D
or CDR H] at this time, but I plan to simply obtain testimony from them concerning the back-
ground and circumstances of this matter. [LCDR B] will also testify to the background of this
matter and his investigation. I will update this list as soon as possible with any additions.
Concerning documentary evidence, as discussed, at this time, I am only planning on submitting
the Determination Board file, to include [the applicant’s military record] and I believe it may have
been lost in our least conversation, but you can come by anytime to review what I currently have.
I think there may have been a little confusion about that and I will try to produce any other materi-
als (which I do not have at the moment) as soon as they become available, if at all.
Proceedings of the Board of Inquiry
On January 12, 2005, the BOI convened to hear the applicant’s case. Present were the
board members, consisting of three Coast Guard commanders; the BOI’s Legal Advisor; the
Recorder for the Government; a court reporter; and the applicant with his attorneys. The Record-
er reported that the BOI was convened to require the applicant to “show cause for retention on
active duty in the Coast Guard by reason of professional dereliction for involvement in a drug
incident.” The Legal Advisor noted that her purpose was to instruct the board on procedural
rules and to rule on procedural and evidentiary questions, and challenges for cause. She also
noted that her advice to the board “must only be given in open session and will be made a part of
the record” but that the board could invite her to a closed session to assist the members in draft-
ing their final report “after the board has announced its recommendations in open session.” The
Legal Advisor informed the BOI that its purpose was
to afford [the applicant] a fair and impartial hearing at which he has an opportunity to establish
that his retention in the Coast Guard is warranted. [He] may present evidence through his counsel
to refute matters of record offered against him or otherwise establish that he should be retained.
The board of inquiry will consider all relevant evidence presented at the hearing and make find-
ings and a recommendation based on a preponderance of the evidence. … On the basis of its find-
ings, the board determines whether the Coast Guard should or should not retain [the applicant].
The Legal Advisor also stated that the applicant could not offset an allegation “involving
a defect in character or integrity by a rebuttal that attempts to emphasize other qualities in his or
her favor.” The Legal Advisor informed the applicant of his rights, including his right to have
full access to copies of all relevant records, and stated that a “failure to invoke any of your rights
of which you have been apprised cannot be considered as a bar to the board’s proceedings, find-
ings, and recommendations.”
After the BOI members were sworn in, the applicant’s attorney questioned them about
any prior contacts with the applicant, prior knowledge of the allegations against him, any belief
that voting to retain the applicant could be detrimental to their careers, any belief that it was their
duty to recommend the applicant’s discharge, any belief that they had been directly or implicitly
ordered to recommend his discharge, any belief that the Personnel Manual required the discharge
in cases of marijuana use, any belief that policy or precedent required the applicant’s discharge,
and any inability to exercise the absolute discretion granted to the BOI. The attorney did not
challenge any member of the BOI for cause.
The applicant’s attorney submitted the following objections regarding pre-hearing mat-
ters: not all of the requested witnesses had been invited to appear in person (argument (9)); the
Government did not allow access to or furnish copies of all relevant records “at all stages of the
proceedings” because the applicant did not receive an unredacted copy of the precept for the
BOI, the Recorder did not allow access to certain documents until the day before the hearing, and
the Coast Guard made an incomplete response to the applicant’s FOIA request of August 31,
2004 (argument (8)); and the proceeding was improper under Article 12.A.15.d. of the Person-
nel Manual since it was being conducted in lieu of disciplinary action as it was not commenced
until after the mast had been rejected due to lack of jurisdiction (argument (10)).
Regarding the invitation of witnesses, the Recorder stated that the Government had
invited almost all of the applicant’s requested witnesses to appear in person, but did not invite
one, LT M, who would have to be flown in from the East Coast, because his testimony would be
cumulative in nature and in the interests of judicial economy and the cost to the Coast Guard.
The Recorder noted that LT M would be available to testify by telephone. Regarding argument
(10), the Legal Advisor ruled that it was outside the purview of the BOI to decide.
When the Government submitted its documentary evidence, the applicant’s attorney
objected to the admission of Exhibit 12, a part of the Personnel Manual that concerns different
kinds of military discharges, on the grounds that what kind of discharge the applicant could
receive was not within the purview of the BOI. Exhibit 12 was excluded. Exhibit 13, two
redacted decisions of the BCMR, was excluded because the Legal Advisor agreed with the appli-
cant’s counsel that how the BCMR had interpreted the regulations in those cases was not ger-
maine. The Recorder voluntarily excluded Exhibit 19, which also concerned different kinds of
discharges.
The only witness called by the Recorder was the investigator, CDR B, who stated that the
applicant admitted to him that he had used marijuana on four occasions and that he knew that the
Naval Postgraduate School did not conduct random testing except on Navy and Marine Corps
personnel. CDR B testified that he had handled between 80 and 100 drug cases during his career
and had never known an officer with a drug offense to be retained in the Coast Guard. He stated
that the Coast Guard’s “second chance program” did not apply to drug users. CDR B stated that
the second chance program and the Service’s zero-tolerance policy were discussed in official
Coast Guard publications but were not expressly mentioned in the Personnel Manual. He stated
that the applicant had said he was unhappy with his career in the Coast Guard at the time of his
drug use and that the only reason the drug use was discovered was that the applicant had too
much integrity to lie on the security clearance form.
The applicant testified that although he was very unhappy when he started graduate
school and used marijuana, his attitude gradually changed and by the end of graduate school he
had regained his Service pride. He testified that his marijuana use had not interfered with his
performance of duty. He stated that since graduate school, he had become more mature. He
noted that even if the BOI decided to retain him, he would not be assigned to a cutter or a super-
visory position and was unlikely to be promoted with the special OER in his record. Under
cross-examination, the applicant stated that he knew the Coast Guard’s drug policy, knew he was
violating the UCMJ and the Coast Guard’s core values, and “fully and knowingly did what I did.
I used marijuana. There wasn’t an excuse for it.” He also stated that when he used the mari-
juana, he was attending parties with civilians who knew he was a Coast Guard officer. When
asked what he would do in the future if a subordinate confessed drug use to him, the applicant
stated that he would process the member for discharge but might, depending upon the circum-
stances and the member’s character and value to the Service, add a recommendation as to
whether the member should be retained.
Upon redirect examination, the applicant testified that he had been told that he could get
severance pay if he resigned but did not resign. In response to a question from a board member,
the applicant stated that when he realized he would have to answer questions about drug use to
get a top secret security clearance and accept the expected orders, he also realized that there
would be questions if he suddenly tried to avoid orders he had been enthusiastically pursuing and
did not want to lie about that either. The applicant also explained that when, in a letter to the
Determination Board, he stated that his drug use had hurt no one, he meant that it had hurt no
one but himself in comparison to other crimes such as fraternization, which hurts crew morale,
and that the harm to the Service was subtle.
Regarding his request for resignation, the applicant testified that when he received a letter
from CGPC stating that the Determination Board would be convened within 30 days unless he
resigned, he submitted a letter asking to resign because he thought that he was expected to do so
and the MLCPAC Commander told him she thought it would be in his best interest to resign.
Therefore, he submitted a “qualified” request, meaning that he was asking for an honorable dis-
charge. In response, CGPC advised him that he would only be allowed to resign if he submitted
an “unqualified” request, and his discharge would be general rather than honorable. The appli-
cant testified that he did not believe he deserved a general discharge because his service had been
honorable even though he had made mistakes.
Witnesses for the Applicant
Twelve witnesses testified orally on behalf of the applicant—three of them by telephone.
All twelve highly praised his honesty, skills, and job performance and recommended his reten-
tion as an officer. More specific testimony is summarized below:
MCPO T, who had been working with the applicant for about three years and played
volleyball with him for two seasons, testified that he knew the applicant pretty well as they had
spent a lot of time together and had a lot of conversations. He stated that he thought there was
no “second chance” policy but “from [his] understanding of some of the information [he had]
heard here is that for officers there may be.” However, he had never heard of an officer being
retained after a drug offense.
The MLCPAC Deputy Commander, CAPT D, stated that when the applicant first told
him he could not sign a form indicating that he had not used drugs, CAPT D tried to stop him
and then read him his rights because the applicant was confessing to a violation of the UCMJ.
CAPT D stated that instead of confessing or lying, the applicant could have just called the
detailer and asked not to receive the orders to the cutter because someone else would have
wanted the orders. The applicant, however, told him that he had spoken to an attorney and felt
compelled to confess and so told CAPT D about smoking marijuana while on DUINS. CAPT D
stated that he had handled from 40 to 60 enlisted members with drug incidents during his 28
years of service and that a small minority had been retained—some of them because their com-
manding officers believed that there had been innocent ingestion or a false positive urinalysis.
Therefore, CAPT D stated, retaining the applicant would not create a “double standard” for offi-
cers and enlisted members. He had heard of only one officer with a drug incident and that offi-
cer had been separated. CAPT D testified that the applicant’s career as an officer was over as he
would never be promoted, given more responsibility, or assigned to a cutter, but that he could
return the Coast Guard’s investment in his education by working on electronics projects.
CDR B, who had previously been chief of the electronics section in which the applicant
worked, stated that he knew the applicant very well and that the applicant was an excellent offi-
cer who had made a mistake. He described how the applicant’s work researching his thesis
while on DUINS and afterwards had helped the Coast Guard significantly. CDR B stated that he
knew of no exceptions wherein enlisted members or officers with drug incidents had been
retained. He stated that even though he understood that officers should be held to a higher stan-
dard than enlisted members were, he thought that an exception should be made in the applicant’s
case because of his commendable honesty.
CDR H, a retired officer and attorney whom the applicant consulted and chose to repre-
sent him at mast, stated that he knew a man who had smoked marijuana while enlisted in the Air
Force in the 1970s and was later commissioned and retired as an officer in the Navy Reserve
even though he admitted his marijuana use on all of his security clearance forms. CDR H testi-
fied that the applicant should be retained despite policy because he had voluntarily told the truth
and had been in a severe depression at the time he used marijuana. He stated that because of the
applicant’s depression while on DUINS, his use of marijuana should not even be classified as a
“drug incident.” CDR H stated that he felt partially to blame when CAPT D told him about the
applicant’s confession because CDR H had previously advised the applicant—when the appli-
cant posed him a hypothetical question without mentioning drug use—not to lie on a security
clearance form because if the lie was discovered, the hypothetical officer would be “done.”
LT M, who served as the PAC Commander’s aide while the applicant was the MLCPAC
Commander’s aide, stated that he had known the applicant for a little more than two years, both
professionally and socially, as LT M would sometimes give the applicant a ride in his truck and
on several occasions they met at the applicant’s house before going out to dinner together. LT M
stated that he had met the applicant’s housemates and girlfriend and that he could tell they were
not drug users. LT M stated that he had never seen the applicant use drugs and that the applicant
should be retained as his case was an exception and that the applicant’s honesty in coming for-
ward should be considered a mitigating factor.
LT K stated that he had gotten to know the applicant fairly well both professionally and
socially during the previous two and one-half years. He stated that he had never known the
applicant to use drugs and that the applicant had told him that he had used marijuana during
DUINS because he was “having difficult times.”
Mr. W, Technical Director of the Electronic Systems Division at MLCPAC, stated that
the applicant was a “very brilliant young engineer” who had done fine work for the Coast Guard
while still in graduate school. He stated that he had had no indication that the applicant was
depressed or troubled during graduate school. He stated that he knew of one storekeeper who
had been retained after testing positive for marijuana use because she claimed it was second-
hand smoke, but she later tested positive again and was discharged. He stated that he thought the
applicant should be retained because “being honest is more important than past deeds.”
Professor C of the Naval Postgraduate School, who supervised the applicant’s thesis
work and socialized with him as well, stated that the applicant was a very good, conscientious
student who often stayed late at school to work on his thesis. He further stated that the applicant
had not confided in him about any personal or professional problems.
LCDR K, who was the applicant’s supervisor from 2002 to 2003 (after the drug use) and
played intramural sports with him, praised the applicant’s skills and noted that the Coast Guard
had recently offered a retention bonus to officers with those skills.
Mr. B, a branch chief in the Electronic Systems Division at MLCPAC and the supervisor
of the applicant’s supervisor, stated that it was in the Coast Guard’s interest to retain the appli-
cant because he was a highly capable engineer and highly motivated young officer. The Legal
Advisor stopped Mr. B from answering a question from the Recorder about whether Coast Guard
officers should be able to use marijuana on an occasional basis.
Following Mr. B’s testimony, the Legal Advisor stated that he was “curbing some of the
testimony” because a civilian’s opinion of the Coast Guard’s drug policy was not relevant to the
proceedings. He stated that what was relevant was the applicant’s “performance and any miti-
gating factors.” He stated that the applicant’s counsel could elicit testimony as to whether wit-
nesses agreed with the drug policy but still thought that the applicant should be retained as an
exception to that policy, but that the applicant’s counsel could not argue about whether the policy
in the Personnel Manual was correct. He stated that the BOI should not be focusing on wit-
nesses’ opinions of the policy or how it should be changed.
CDR S of the Readiness Management Division stated that there was a very critical short-
age of officers with the applicant’s engineering skills; that the Coast Guard had commissioned
many senior enlisted members and chief warrant officers with such skills to fill lieutenant billets;
and that as a result 74 percent of the lieutenants with such skills were already eligible for retire-
ment. CDR S further stated that the two-year graduate programs for master’s degrees in electri-
cal engineering were very stressful and that many of the students failed. She stated that after one
struggling student confessed to her that he had become addicted to on-line pornography, she
ensured that he got help and he ultimately managed to get his degree. She herself occasionally
drank too much alcohol during her two years at the Naval Postgraduate School because of the
stress. CDR S described the applicant as an exceptional student and a creative, “out-of-the-box”
thinker, who was “the one in a hundred or one in a thousand that I would do this for with these
circumstances.” CDR S further stated that while the applicant was on DUINS she “knew some-
thing was going on with [him]” and that “he was having trouble.” She also said, “I think that
there was something going on, and I missed it.” She noted that after the applicant was selected
to attend graduate school, he was slow to make decisions and seemed to be questioning whether
he should go to graduate school.
CAPT J, Chief of the Electronic Systems Division, stated that he had interacted with the
applicant both professionally and socially. He stated that he had handled about 20 drug incidents
during his career and had never known an officer to be retained after a drug incident. He called
the applicant’s case constituted a “close call” as his confession showed “a lot of moral fiber,
moral character.” CAPT J stated that in 1974 an admission that you had ever smoked marijuana
would keep you out of the Academy, and therefore many people lied on their applications and
security clearance forms to get into the Coast Guard. He stated that he supported the Coast
Guard’s drug policy but that the applicant should be retained because he was a “stellar officer”
and his case is “the exception that validates the rule.” CAPT J stated that the BOI had the dis-
cretion to make any recommendation it wanted regarding the applicant even though his case
involved drugs. However, he testified that the low marks and comment about drug use in the
special OER would “kill him” before a promotion board.
In rebuttal, the Recorder called LCDR H, the Officer Work Force Team Leader for Sys-
tems and Engineering, who stated that for the applicant’s specialty, ENG-58 (electrical engi-
neering), the Coast Guard currently had 94 officers with the designation and only 83 such billets.
However, not everyone with the ENG-58 designator had a master’s degree, which was preferred
for some ENG-58 billets. LCDR H could not state the number of ENG-58 billets that were
empty or filled by officers without the ENG-58 designation. He stated that with only a couple
years of work in the field, the applicant was still a “journeyman” rather than an “expert” in terms
of experience and that the “loss is less by severing ties now as opposed to … 2 to 5 years from
now, after we’ve invested more into this individual.”
Following this testimony and a short recess, the President of the BOI and the Legal Advi-
sor (Counsel for Board (CB)) stated the following on the record:
PO: Procedurally, I just would like to get on the record I did ask the Legal Advisor a question off
record. I’d like to re-ask for the record to get the response present. I’d ask the Legal Advisor,
when is it appropriate to request to redirect some questions to witnesses that had previously testi-
fied, knowing that the respondent’s counsel had some evidence they wanted to present? Is it
appropriate to ask to recall witnesses now, before the respondent introduces additional evidence?
So could you restate your response, please.
CB: Sure. Actually, the board at any time can request witnesses or evidence be brought forward
to them. If you’d like, we can just get the – this is documentary evidence I’m assuming you’re
bringing in? If it’s documentary evidence, we can just bring in the documents. And then at that
point, you’d ask the Recorder to either – you know, can we get whichever witness it is, or if it’s
respondent’s counsel’s witness, and you want to ask them a question ---
PO: And if there’s—additional procedural question—if there’s potential evidence out there that
has not yet been submitted by either side, can the board request that?
CB: Yes.
The applicant’s attorney then submitted documentary evidence, including a letter from
YN1 M, who wrote that that applicant was an “excellent mentor and a great leader” and that “[i]f
anyone deserves a second chance I feel that he does.” Another document (Exhibit 24) showed
that special boards had retained one officer after an “alcohol incident” and another officer who
had an inappropriate personal relationship. The Recorder objected on the grounds that what
another type of board had done with officers who had committed non-drug-related misconduct
was irrelevant. The Legal Advisor stated that what other boards had done was not relevant to
whether the applicant should be retained. The applicant’s attorney stated that he was introducing
it to rebut all of the testimony elicited from the witnesses by the Recorder about whether the
Coast Guard ever retained people who violated the “so-called zero-tolerance policy laid out in
Chapter 20.” He stated that Article 20 of the Personnel Manual “says substance abuse and alco-
hol abuse are not tolerated. Our position is going to be ‘not tolerating’ is processing someone for
separation, but not necessarily separating. This is to rebut the idea that we have to separate.”
The Recorder argued that Exhibit 24 should be excluded for the same reason that the Govern-
ment’s Exhibit 13 (prior BCMR decisions) was excluded. The Legal Advisor stated that the
applicant was free to argue that the BOI had discretion to retain him despite the zero-tolerance
policy, but that none of the seven cases in Exhibit 24 concerned drug use and that although the
document would be admitted as an exhibit, the BOI should not consider it because it was not
relevant to the applicant’s “current situation of a self-reported use of marijuana.”
At the request of the BOI, the applicant answered more questions. He testified that
graduate school had not been the most stressful time in his life; that he had self-mutilated while
he was at the Academy and had silently suffered shame from that; that his stress during graduate
school was not academic but “personal, … internal conflict stress.” He stated that he did not
seek any professional help but having read a pamphlet about depression, he believes that he
exhibited some of the signs of depression while in graduate school. However, no specific thing
happened to cloud his judgment but he was not happy and felt like he “just wasn’t cutting it with
the Coast Guard.” He stated that the first time he used marijuana during graduate school, he was
“trying to look cool” but recognized that he “had done the wrong thing” and used again later
because he “felt like [he’d] already screwed up” and no longer had the pride of “never having
done drugs.” The applicant stated that he stopped smoking marijuana after the fourth time
because he felt like a fraud among his fellow students after having violated his own values. He
stated that getting to know the other military personnel at that school was like “moral therapy”
and so he did not use marijuana again. The applicant stated that if in the future a subordinate
came to him and admitted to having used drugs, he would follow CAPT D’s example by initiat-
ing an investigation and reporting the admission. He stated that he now has a better support sys-
tem and knows to get help if he ever falls into depression again.
On the final morning of the BOI, the board’s presiding officer (PO) asked the applicant if
he was willing to testify a third time. The applicant’s attorney (counsel for the respondent (CR))
and the presiding officer then engaged in the following exchange:
CR: Yes, Commander. For the record, can we just clarify that the board had a discussion—I—I
don’t know what happened and what the Legal Advisor did, but –
PO: Yeah. for the record, before we came on the record this morning, the board met in private to
discuss whether or not, as a group, we felt it would be—assist us in our deliberations to call [the
applicant] to the witness stand a third time to address some questions that the board—that I as
president of the board still have in my mind that I don’t feel have been adequately answered to my
satisfaction. We called in the Legal Advisor to find out, the questions that I am contemplating,
whether or not they would be even considered relevant to this proceedings [sic], and generally got
the advice that, yes, the line of questioning we’re considering would be considered relevant in
regards to this case, but we would have to, again, on the record, just state that we are considering
calling [the applicant]. This time—that was the summary of our discussions. Legal Advisor, is
that generally what we discussed?
CB: Yeah, it was more of a—again, like a procedural matter. Can we call—you know, the board
is authorized to ask for additional evidence, if needed. Of course, the evidence they’re seeking is
from the respondent, so that always creates a touchy situation. So they wanted to just get that
reality check. I said, yes, because the questions in the president’s mind, the evidence that he seeks
to gather concerns the four different times that [the applicant] was smoking. So it’s not something
that’s out of the bounds of the purview of the board. If it was, I’d still come on the record and say,
you know, this was the question, and I would deem it to be irrelevant. But the questions concern
the times that he did smoke marijuana, and so, therefore, I said, well, those would be relevant,
whatever those questions may be. But again, you have to ask respondent and respondent’s counsel
and allow them the opportunity either to submit to questioning or not.
CR: [The applicant] is fine with being called.
PO: Okay. Very well. Before we do that, though, is there any other procedural matter we need to
take care of?
REC: No, sir.
CR: No, commander.
Thereafter, the applicant testified that the first time he used marijuana, December 31,
2000, he was visiting his brother and “tagging along” with him and his friend to a New Year’s
Eve party where he knew no one else besides his brother and the friend. The second time was at
a party at this cousin’s house in San Diego, where he was visiting. At that party, he knew a few
people because he had visited his cousin before. The third time, in San Francisco, he was at a
party with a friend and a few other people he knew. The fourth time, he had just met some peo-
ple at a bar in Oxnard and they invited him to “hang out” with them someplace near the beach.
He stated that the only time he felt any sort of “peer pressure” was at his cousin’s house because
there had been bad relationships in the family and he had “a desire to try to keep the family
close” and to be accepted by the cousin despite the bad feelings between their parents. He stated
that although he had been drinking alcohol on the occasions when he used marijuana, he did not
believe it was a causative factor.
In response to the letter from YN1 M, the BOI asked the applicant to “state for the
record, what’s your relationship, and how do you know this officer candidate?” The applicant
stated that the yeoman worked in the MLCPAC Commander’s front officer with him and that he
had a “typical officer/enlisted relationship” with her in that she helped him with administrative
work. After she filled out the “booking sheet” for his case, he realized she knew about his situa-
tion and so he explained it further to her.
In closing arguments on January 14, 2005, the Recorder stated that the applicant had
admitted that his drug use was not caused by depression, academic stress, peer pressure, or any
specific event. He stated that it’s imperative for the Coast Guard to consistently apply policies
between officers and enlisted members and that as a law enforcement agency, the Coast Guard
must be “above reproach” with regards to illegal drugs. The Recorder stated that the applicant’s
commanding officer had determined that there was a “drug incident” and that the Coast Guard
did not have a second chance policy for drug users. Concerning the applicant’s engineering
skills, the Recorder asked the BOI to consider whether it is more important for the Coast Guard
to get a return on its investment in the applicant or to uphold its core values and consistently
apply its policies regardless of rank. He also reminded the BOI of LCDR H’s statement that
there were then 94 ENG-58s and only 83 ENG-58 billets and that the applicant’s loss would have
a greater impact if he remained an officer and gained more years of experience. The Recorder
also pointed out that the witnesses had indicated that the applicant would never get promoted
with a drug incident and special OER in his record. The Recorder stated that the Government’s
position was that the BOI should recommend the applicant’s discharge.
In her closing arguments, the applicant’s attorney stated that the BOI was not bound by
the decision of any other board or in any other case and that the BOI’s decision would not set
any precedent. She reminded the Board that CAPT D had testified that he was aware of enlisted
members being retained after drug incidents. She reminded the board that the MLCPAC Com-
mander had determined that the applicant’s four uses of marijuana constituted just one drug inci-
dent and that the “lapse in judgment is years behind him.” The attorney argued that whether or
not the applicant had an excuse was not at issue because if he had a legal excuse there would not
have been a BOI. She argued that, under Article 12.A.15.h.3.a. of the Personnel Manual, “the
issue before this board is whether [the applicant] meets the minimum level of performance of
duty or integrity acceptable of Coast Guard officers” and that the burden of proof borne by the
applicant was the preponderance of the evidence. She pointed out that the BOI members did not
really know the applicant but that thirteen officers and civilians who do really know him had
testified that the applicant should be retained and that none had testified that he should be dis-
charged. She reminded the BOI about the email in which CAPT B stated that there was “consid-
erable dissention” within the Office of Personnel Management over whether the applicant’s case
should go to a Determination Board. She pointed out that the MLCPAC Commander, who under
Article 20 had no discretion as to whether to initiate procedures for separation, had recom-
mended his retention in the special OER and in her letter to CGPC.
The applicant’s attorney argued that although there was no discretion about initiating dis-
charge procedures under Article 20, the BOI had the discretion to retain the applicant under Arti-
cle 12.A.15., which states only that a drug incident “may” require removal of an officer. She
pointed out that the words “zero tolerance” do not appear in Article 20 or Article 12. She stated
that the BOI’s job was to decide whether the applicant had integrity and devotion to duty and so
met the minimum standards for retention. She argued that the applicant had “met the preponder-
ance burden by a mile” in that so many high-ranking witnesses had stated that though they
strongly support the Coast Guard’s drug policy, they thought that the applicant should be
retained as an exception to the policy because of his honesty, integrity, skills, and brilliance. She
reminded the Board that MCPO T, who has been a Command Enlisted Advisor, and YN1 M had
testified that retaining the applicant would not send a bad or mixed message to the enlisted com-
munity or create an impression of a double standard.
The applicant’s attorney argued that the BOI should not concern itself with whether the
applicant would get passed over for promotion in a few years. She concluded that the extensive
testimony about his technical skills and high-level performance show that his “fitness to serve
goes well beyond the minimum standard required for lieutenants.”
In rebuttal, the Recorder stated that the BOI should concern itself with the best interests
of the Coast Guard and “what officers are supposed to do, not only professionally, but also
socially.” He stated that the thirteen witnesses “basically know [the applicant] in a professional
sense. They weren’t with him during the 2000/2001 period. …[T]he really don’t know him
socially. But … when we put on this blue uniform, we’re officers 24 hours, 7 days a week.”
Moreover, the Recorder argued, “the sheer number of witnesses doesn’t go to the quality of the
evidence. It’s not a quantity issue.” The Recorder reminded the BOI that none of the witnesses
had heard of an officer being retained following a drug incident. The Recorder stated that the
applicant “has not provided you a reason to excuse what he did on four occasions in 2000/2001.
Simply coming in 3 years after the fact and self-reporting is not enough.”
Following the closing arguments, the Legal Advisor reminded the BOI to review it pre-
cept, guidance, and all of the evidence before deciding whether he had refuted the evidence
offered against him or otherwise established that he should be retained. The BOI met in private
for several hours and then reconvened and informed the applicant that it was recommending that
he be separated.
On January 17, 2005, the chief of the Officer Boards Section at CGPC sent the BOI
members an email thanking them for participating. He also wrote that “[u]p until days before,
the witness list was fairly small and appeared manageable for a two day board, so I apologize for
this going over. This was the second Board of Inquiry in the past 12 years (the other held in
November ’04), making this was [sic] truly a significant event. I will keep you all in mind for
future promotion boards held at CGPC.”
Report of the BOI
In an undated report, the BOI issued its findings and opinions and recommended that the
applicant “be separated from the service due to his involvement in four separate drug incidents in
2000-2001.” The report lists the exhibits and shows that Exhibits 12, 13, 19, and 24 were
removed. It also erroneously indicates that the removed exhibits all came from the applicant.
In opinion #4 of its report, the BOI stated that the applicant’s drug use was not in dispute
as both he and his counsel admitted it. Therefore, the BOI stated, the “question is whether [the
applicant] knew that his actions were illegal and against Coast Guard policy.” The BOI found
that the applicant did know that his actions were illegal and against policy. The BOI also found
that the applicant’s ingestion of the drug was not inadvertent or involuntary. The BOI stated that
the applicant was faced with a moral dilemma each time he was offered drugs, “had ample
opportunity to reflect on his previous actions [and] yet repeatedly chose to again engage in con-
duct in violation of United States law and Coast Guard policy.” The BOI stated that although the
applicant’s commanding officer documented the four admitted incidents of drug use as a single
drug incident, “each incident of drug use was an independent act” at a different time and location
and among different people. Therefore, the BOI stated that in its “opinion, [the applicant] com-
mitted four drug incidents.” The BOI further stated that the applicant
attempted to mitigate his drug use by putting forth a strong case centered on [his] sustained supe-
rior performance both before and after the period of drug use. [His] performance is not in ques-
tion; however, his off duty conduct is in question. The Board commends [his] professional
accomplishments. However, Coast Guard core values and zero tolerance policy regarding drug
use apply to all Coast Guard members, whether they are superior or sub-par performers, at all
times. … The Board opined that knowingly engaging in illegal narcotics use after hours is not
offset by stellar performance and the standard of conduct bar is no lower for a superior performer.
7. … [N]umerous witnesses opined that [the applicant] should be commended for his honesty in
coming forth and self-admitting his drug use. The Board looked differently on [his] self-admis-
sion. [His] honesty is no different than the same standard all Coast Guard officers should follow.
Honesty is expected from every Coast Guard officer. The Board felt that … doing the right thing
in NOT lying on the SF-86 regarding past drug use does not offset or trump past periods of mis-
conduct. An officer is always expected to be honest just as an officer is always expected to follow
the Coast Guard’s zero tolerance policy on drug use. To place undue positive emphasis on [the
applicant’s] difficult but morally correct decision in coming forward doesn’t lessen [his] previous
misconduct. …
8. [The applicant] and retained counsel paraded a series of witnesses (peers, co-workers, and
supervisors) that praised [his] performance since his period of drug use activity. Through his own
action of maintaining his silence for 3+ years after his drug use, [the applicant] was able to place
himself in a more favorable position. His silence on his illegal and improper conduct afforded him
the time to build up a successful professional resume as a Coast Guard officer to include duties as
an Admiral’s Aide. Had [he] broken his silence earlier or were his actions otherwise known soon
after the illegal conduct took place, he likely would never have been selected as an Aide or
afforded the opportunity to create a professional resume. Supervisors would have had no reason
to “go to bat” for [him]. …
9. The Board determined that [the applicant] failed to meet the minimum standards required of all
Coast Guard officers. [He] failed to articulate or produce mitigating evidence that he either
unknowingly used an illegal substance on more than one occasion or [that] his faculties and deci-
sion-making abilities were impaired through documented medical treatment for stress, depression,
or some other type of physical or psychological disorder. …
10. There was a failure by [the applicant] to clearly adhere to the Coast Guard’s core values of
Honor, Respect, and Devotion to Duty in that he knowingly used an illegal substance on four
occasions while undergoing a post graduate education program at a joint military institution. …
11. [The applicant’s] positive performance and ultimate decision to confess to his illegal drug use
while at Naval Postgraduate School do not outweigh the Board’s concerns regarding [his] judg-
ment or his lack of adherence to the Coast Guard’s core values.
On April 5, 2005, the chief of the Officer Personnel Management Division forwarded the
report of the BOI to Commander, CGPC, stating that the “report of the Board has been reviewed
and found to be in accordance with law and regulation” and that he recommended that Com-
mander, CGPC approve the applicant’s separation. Commander, CGPC returned the proceedings
to the Officer Personnel Management Division and stated that he approved the recommendation.
Rebuttal to the BOI
On April 28, 2005, the applicant submitted a rebuttal to the BOI’s report. The rebuttal
contained the same arguments and allegations that the applicant made in his application to the
BCMR, including (1) that the BOI misunderstood its task and the burden of proof; (2) that the
BOI had no authority to overrule the determination by Commander, MLCPAC, that the applicant
had just one drug incident; (3) that the BOI met in secret with the Legal Advisor before the close
of the proceedings contrary to regulation; (4) that the two endorsements by which the report of
the BOI was forwarded to the BOR were irrelevant, unauthorized, and highly prejudicial; (5) that
the BOI’s report showed bias against the applicant; (6) that the Recorder continued to argue
about what had occurred in other cases even though the Legal Advisor had ruled that such evi-
dence was irrelevant, and that the Legal Advisor improperly excluded the applicant’s evidence
rebutting that contention; (7) that the BOI’s speculation about whether the applicant could be
promoted was improper and irrelevant; (8) that the applicant was not provided full access to all
relevant records as required by Article 12.A.15.g.4.; (9) that he was required to interview several
key witnesses by telephone because the Government refused to invite them; and (10) that the
separation proceedings violated Article 12.A.15.d. by using separation in lieu of disciplinary
action under the UCMJ.
The applicant included with his rebuttal an affidavit from his attorney stating that when
she arrived for the final day of the BOI hearing on January 14, 2005, she observed the BOI
members in a meeting with the Legal Advisor. When she asked what they were doing, they said
“something about how they were trying to figure out whether they could ask for additional evi-
dence. I told them they were violating the rules for the BOI’s proceedings by meeting with each
other and with the Legal Advisor off the record and in secret.” The attorney further stated that
after the proceedings had adjourned, the Presiding Officer told the applicant that he hoped that
the applicant knew he “had support through his family in case he felt like ‘doing something’ as a
result of the separation recommendation.”
On May 5, 2005, the Recorder submitted a rebuttal to the applicant’s rebuttal. The
Recorder stated that the applicant’s procedural rights under 10 U.S.C. § 322 were to have 30
days notice of the BOI hearing; to have a reasonable time to prepare his case; to appear in person
and by counsel before the BOI; and to have “full access to, and furnished copies of, records rele-
vant to the case at all stages of the proceeding” except any records withheld in the interest of
national security. The Recorder argued that the applicant received these rights in that the appli-
cant received notice of the BOI on September 22, 2004, and he was afforded a reasonable time to
prepare his case and his attorney did not request a continuance. Regarding (8) the alleged failure
to provide timely access to the Government’s exhibits, the Recorder stated that he invited the
applicant’s attorney to inspect the documentary evidence on January 5, 2005—a week before the
BOI convened—and she agreed to inspect it the day before the hearing. The Recorder further
argued that the fact that the applicant’s attorney objected to some of the Government’s exhibits
shows that his case was not prejudiced by the timing of the inspection.
Regarding the allegation (1) that the BOI did not understand its task or the burden of
proof, the Recorder stated that under Article 12.A.15.h.6.b.3., the applicant was required to
“refute the Government’s evidence and present evidence affirming his or her contention he or
she is qualified to retain his or her current status.” The Recorder claimed that the BOI “reason-
ably weighed the evidence … and found that under the fact and circumstances, the officer’s per-
formance record and character testimony did not refute the gravity of the knowing use of a con-
trolled substance on repeated occasions.” Regarding (2) the BOI’s opinion about the number of
drug incidents, the Recorder stated that the rules do not limit the opinions a BOI’s report may
include, and that the BOR could weigh those opinions itself. Regarding (3) the alleged secret
meeting, the Recorder stated that the rules allow the BOI to seek counsel “whenever necessary”
but that the content of such counseling should be put in the record. The Recorder alleged that the
BOI did not violate the rule by asking the Legal Advisor off the record about recalling the appli-
cant to the stand and having the Legal Advisor later repeat his advice on the record. He noted
that the applicant’s counsel did not object at the time. The Recorder noted that Article 6-C of the
Administrative Separation Boards Manual states that “whenever legal advice is required, the
legal advisor to the Board may be consulted … Such consultation, by telephone or other means
as necessary, may be in open or closed session or any other manner approved by the Senior
Member.” Regarding (4) the two attached endorsements to the BOI’s report, the Recorder rec-
ommended that the BOR consult its own counsel about this complaint. Regarding (5) the allega-
tion of bias, the Recorder noted that the applicant had a chance to challenge the members of the
BOI for cause but did not do so. He alleged that the allegation is unfounded and that there is no
evidence that the members were not impartial.
Regarding (6) the testimony about prior drug cases, the Recorder stated he asked about
retention of officers only; that no witness testified about an officer being retained after having
used illegal drugs as an officer; that a BOI does not follow strict rules of evidence; and that the
Recorder’s “cross-examination line of questioning … was appropriate in light of the direct
examination of witnesses” by the applicant’s attorney. Moreover, the Recorder argued, the Legal
Advisor did not rule out questions about retention but only about a civilian witness’s personal
opinion about whether officers should be able to use marijuana on an occasional basis.
Regarding (7) the testimony about whether the applicant could be promoted, the Recorder
argued that the testimony was relevant in response to testimony elicited by the applicant’s coun-
sel about whether the applicant had value to the Coast Guard and whether the Coast Guard had a
lot invested in the applicant. “If the respondent presents an argument based on the respondent’s
value to the Coast Guard and money invested in the member, the Board should be allowed to
consider all factors that may effect that particular member’s long-term career potential, which
would factor into how much value the Coast Guard might actually receive in return for the mem-
ber’s continued service.”
Regarding (9) the fact that some witnesses testified by telephone, the Recorder stated that
no law requires the in-person appearance of every witness. The Recorder is required to invite to
appear in person only those witnesses if they are reasonably available and if their testimony can
contribute materially to the case. Under Rule for Courts-Martial 703(b)(1), he argued, they must
only be invited if their testimony would be relevant and necessary, and “relevant testimony is
necessary when it is not cumulative.” The Recorder further argued that under Article 4-C.1. of
the Administrative Separations Board Manual, a “board is never required to hear the testimony
of a witness that is unreasonably cumulative with other evidence before the board.” The
Recorder stated that LT M was primarily a character witness and so his testimony was cumula-
tive in nature. The Recorder argued that the applicant’s case was not prejudiced by having some
of the witnesses testify by telephone.
The applicant was granted an opportunity to respond to the Recorder’s rebuttal. In his
further rebuttal, dated May 16, 2005, he pointed out that the Administrative Separation Boards
Manual cited by the Recorder applies only to boards for enlisted members and is therefore inap-
plicable to (3) the secret meeting between the BOI and the Legal Advisor and (9) whether all of
the applicant’s witnesses should have been invited to appear in person. The applicant argued that
only the Personnel Manual applied to the BOI and that Article 12.A.15.h.5.g. clearly prohibits
off-the-record meetings between the Legal Advisor and the BOI. The applicant stated, more-
over, that his counsel did immediately object to and stop the secret meeting and that the
Recorder’s position that his counsel had to re-object to the secret meeting on the record “is pat-
ently silly and not worthy of serious comment.”
Regarding (8) his access to documents, the applicant stated that Article 12.A.15.f.6.a. & j.
of the Personnel Manual mandated that he be sent all pertinent documents following the Deter-
mination Board. However, the Coast Guard failed to do so and he had to try to get them through
a FOIA request, the response to which withheld many responsive documents. Moreover, the
applicant argued that one week before the BOI his counsel was told that only the report of the
Determination Board and the applicant’s personal data record were available to review. Yet a
week later, the Recorder submitted nineteen documentary exhibits, “some of which had not been
disclosed previously and were not provided until after the BOI had commenced.” The applicant
alleged that the Coast Guard “sandbagged” him by not disclosing documents earlier and giving
him a reasonable time to prepare his case. The applicant also alleged that he could not reasona-
bly have requested a continuance because a dozen friendly witnesses, some of whom were com-
ing from out of town, were scheduled to testify for him. He argued that the alleged option of
asking for a continuance was a “ludicrous ‘Hobson’s choice’—that is, an apparently free choice
that offers no real alternative—that was clearly not in [his own] best interests at the time or in the
best interests of the Service.”
Regarding (1) the purpose of the BOI, the applicant argued that it is not true that he was
required to refute the Government’s evidence of a drug incident during the BOI. He had con-
ceded the incident and “set about the task of establishing that he should otherwise be retained, as
was his option” under Article 12.A.15.h.1. The applicant argued that the “statutes and
PERSMAN are clear that he does not have to refute the drug incident,” which he reported him-
self, “if he can ‘otherwise establish that he should be retained.’”
Regarding (6) the Legal Advisor’s ruling about the admissibility of evidence about prior
cases, the applicant pointed out that in a discussion of whether applicant’s exhibit number 24
should be admitted on page 397 of the transcript, the Legal Advisor stated that what other types
of boards had done “is not relevant to what they [the BOI] should be doing with [the applicant].”
Regarding (7) the testimony about whether the applicant could be promoted, the applicant argued
that only his then current value to the Coast Guard as testified to by his supervisors was relevant.
Board of Review
On May 18, 2005, CGPC issued a precept appointing three captains to serve as a Board
of Review (BOR) for the applicant’s case. The precept stated that the BOR was to review “the
records, documented evidence, and any additional information the officer concerned or the
Recorder submitted under Article 12.A.15.h. of [the Personnel Manual] that were considered and
made a part of the Board of Inquiry’s proceedings. … The Board shall determine whether [the
applicant] has or has not established that he should be retained in the Service.”
On May 24, 2005, the BOR convened for 35 minutes. The BOR members received their
own precept; the applicant’s rebuttal to the BOI dated April 28, 2005; the Recorder’s rebuttal
dated May 5, 2005; the applicant’s further rebuttal dated May 16, 2005; and the report of the
BOI with the enclosed evidence, including the proceedings of the Determination Board. The
BOR’s report did not mention the page of endorsements by which the report of the BOI was for-
warded. On May 31, 2005, the BOR reconvened for 45 minutes and then issued a unanimous
opinion that the applicant should be separated:
[The applicant] demonstrated a blatant disregard of the Coast Guard’s core values by his admitted
use of marijuana. His egregious lapse of judgment was a direct assault on the good order and dis-
cipline of the Coast Guard and an affront to the integrity and authority of the Service. Despite
[his] apparent above-average performance as a junior officer since his assignment to the Naval
Postgraduate School in Monterey, CA, he irreparably damaged his ability to serve as an officer in
good standing.
Commander, CGPC, forwarded the proceedings of the BOR to the Commandant with the
statement that the “report of the Board has been reviewed and found to be in accordance with
law and regulations” and with a recommendation that the BOR’s recommendation be approved.
On July 8, 2005, the Commandant approved the recommendation of the BOR and ordered that
the applicant be separated on the first day of the second month following the date of his
endorsement. On July 14, 2005, CGPC notified the applicant that he would receive a general
discharge no later than September 1, 2005.
On August 31, 2005, the applicant received a general discharge under honorable condi-
tions from the Coast Guard due to “Unacceptable Conduct,” under Article 12.A.15. of the Per-
sonnel Manual, with a GNC separation code (which denotes an involuntary discharge for “moral
and/or professional dereliction”) and an RE-4 reenlistment code (ineligible to reenlist).
On October 30, 2006, the Judge Advocate General (JAG) of the Coast Guard submitted
an advisory opinion in which he recommended that the Board deny the requested relief.
Regarding the allegation (1) that the BOI misunderstood its task and the burden of proof,
the JAG stated that the purpose of the BOI was provided in its precept and explained to the BOI
by the Legal Advisor at the beginning and end of the hearing. He pointed out that the BOI report
lists all of the evidence and states that the board carefully considered it all, including the wit-
nesses’ testimony. The JAG pointed out that the report indicates that the BOI weighed that tes-
timony but found that it did not outweigh its concerns about the applicant’s lack of judgment and
lack of adherence to the Coast Guard’s core values. He concluded that the “BOI record clearly
demonstrates the Board understood its purpose, responsibilities, and the burden of proof.”
Regarding the allegation (2) that the BOI had no authority to overrule the determination
by Commander, MLCPAC, that the applicant had just one drug incident, the JAG agreed that the
BOI was without authority to officially find a drug incident pursuant to Article 20 of the Person-
nel Manual. However, the JAG argued, the BOI’s opinion about the applicant having four sepa-
rate drug incidents did not create new drug incidents in his record. The JAG stated that the
BOI’s opinion, which is consistent with the applicant’s own admission, was simply “factual jus-
tification for its recommendation,” as required under Article 12.A.15.h.7.b.
Regarding the allegation (3) that the BOI met in secret with the Legal Advisor before the
close of the proceedings contrary to regulation, the JAG argued that the BOI proceedings did not
violate the provisions in Article 12.A.15. of the Personnel Manual because the off-the-record
conversation between the BOI members and the Legal Advisor about procedural matters “was
stated and explained on the record, thereby satisfying the requirement that the advice be given in
open session and become part of the record. The Legal Advisor gave no advice to the members
that the applicant was not given the opportunity to challenge, and all advice was made part of the
record.” The JAG also pointed out that the applicant’s attorney did not object on the record to
either the fact that the Legal Advisor had advised the BOI off the record or to the substance of
that advice.
VIEWS OF THE COAST GUARD
Regarding the allegation (4) that the two endorsements by which the report of the BOI
was forwarded to the BOR were irrelevant, unauthorized, and highly prejudicial, the JAG argued
that such endorsements “are standard procedure in the Coast Guard, used in forwarding corre-
spondence and documents,” under the Correspondence Manual, COMDTINST M5216.4C.
“Many endorsements simply forward memos without comment to the next addressee. But other
possibilities exist, and there is no prohibition on using such endorsements in a variety of con-
texts. … [T]here is no evidence presented that suggest the BOR was influenced by the endorse-
ments in an inappropriate way.”
Regarding the allegation (5) that the BOI’s report showed bias against the applicant, the
JAG pointed out that the applicant had a chance to voire dire and challenge the board members
for cause but did not object to their participation. The JAG alleged that the Government’s
exhibits were already tabbed when the Recorder gave them to the BOI, but the applicant’s were
not. He stated that the BOI did not independently tab the Government’s exhibits. The JAG
stated that the applicant’s allegation about a “weird little speech about suicide” was “baseless
and irrelevant.” Regarding the questions about the applicant’s relationship with YN1 M, the
JAG stated that there “is no support for the allegation that this line of questioning raises any
implication of an inappropriate relationship.”
Regarding the allegation (6) that the Recorder continued to argue about what had
occurred in other cases even though the Legal Advisor had ruled that such evidence was irrele-
vant, and that the Legal Advisor improperly excluded the applicant’s evidence rebutting that
contention, the JAG argued that the report of the BOI shows that the board members understood
that they were not bound by precedent to separate the applicant.
Regarding the allegation (11) that the BOI was improperly influenced by CGPC’s email,
the JAG noted that the email was sent after the BOI had already announced its decision. The
JAG also alleged that the applicant mischaracterized the email as it was merely thanking the BOI
members for their participation.
Regarding the allegation (7) that the BOI’s speculation about whether the applicant could
be promoted was improper and irrelevant, the JAG admitted that nothing in the Personnel Man-
ual suggests that the likelihood of selection for promotion should have bearing on the proceed-
ings of a BOI. However, he pointed out, there is no mention of the applicant’s lack of potential
for promotion in the BOI report or any other evidence that the BOI actually considered the appli-
cant’s potential for promotion in reaching its decision.
Regarding the allegation (8) that the applicant was not provided full access to all relevant
records as required by Article 12.A.15.g.4., the JAG stated that “[a]lthough the applicant did not
receive many documents until the day before the proceedings, the Applicant’s counsel mutually
agreed with the recorder on the date on which the applicant would be allowed to inspect the
Government’s exhibits.”
Regarding the allegation (9) that he was required to interview key witnesses by telephone
because the Government refused to invite them, the JAG stated that Article 12.A.15.h.5.j. of the
Personnel Manual requires the Recorder to invite the applicant’s witnesses only if “their testi-
mony can contribute materially to the case” and that under Rule 703 of the Rules for Courts-
Martial, testimony is only relevant and necessary if it is not cumulative. Moreover, the JAG
argued, “[t]here was no prejudice created by having LT M or any other witness testifying by
phone.”
Regarding the allegation (10) that the separation proceedings violated Article 12.A.15.d.
by using separation in lieu of disciplinary action under the UCMJ, the JAG pointed out that Arti-
cle 12.A.15.d., read in its entirety, expressly allows a commanding officer to initiate separation
proceedings without taking action under the UCMJ “if he or she believes the Service’s and offi-
cer’s interests will be served better by separation proceedings rather than disciplinary action.”
Regarding the allegation (12) that the BOR did not fulfill its duty by reviewing the entire
record, the JAG pointed out that the BOR first convened a week before it rendered its decision
and that the BOR members “had ample time to review and contemplate the record.”
APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD
The applicant was granted an extension of the time to respond to the Coast Guard’s advi-
sory opinion and submitted his response on December 29, 2006.
Citing Golding v. United States, 48 Fed. Cl. 697, 739 (Fed. Cl. 2001), the applicant
argued that “[o]nce an applicant demonstrates a nexus between his discharge and violation of the
regulation, the Government has the burden of demonstrating that the violation would not have
changed the outcome, and thus was harmless.” The applicant argued that he has substantially
proved eleven specific errors committed by the Coast Guard in effecting his discharge and that
the Coast Guard “did not even bother to argue that the errors were harmless.” He stated that the
JAG’s advisory opinion was so conclusory in nature that it was difficult to respond to.
Regarding the JAG’s arguments about allegation (1)—that the BOI misunderstood its
task and the burden of proof—the applicant stated that they were circular and “head-scratching”
because the JAG did not address his factual allegations about the BOI’s report. The applicant
alleged that opinion #6 in the BOI’s report shows that the BOI thought that his “professional
performance could never outweigh ‘zero tolerance’. Thus, it is patent that the BOI did not
evaluate the case for retention because it considered it merely a side issue—an issue tangential to
the misbegotten fact that all drug users must be separated.” The applicant stated that the BOI
report repeatedly misstated the standard and failed to explain why the applicant’s evidence was
inadequate, contradicted, or not credible. The applicant argued that the “Coast Guard’s position
[that the BOI had been told its purpose and the burden of proof and therefore understood them] is
ridiculous because if the BOI had actually understood what it was engaged to do, it would have
retained [the applicant], because there was no evidence before the BOI that he should be dis-
charged, and no rebuttal to his case for retention. … [T]he Government had no evidence before
it that [the applicant] should be discharged.”
Regarding the JAG’s arguments about allegation (2)—that the BOI had no authority to
overrule the determination by Commander, MLCPAC, that the applicant had just one drug inci-
dent—the applicant argued that because the purpose of the BOI was not to determine how many
drug incidents he had incurred, the fact that the BOI discussed this issue “demonstrate[s]
unequivocally that it had no idea what it was there to do.”
Regarding the JAG’s arguments about allegation (3)—that the BOI met in secret with the
Legal Advisor before the close of the proceedings contrary to regulation—the applicant argued
that there is no regulation allowing procedural matters to be discussed with the Legal Advisor off
the record and that the BOI clearly failed to keep a verbatim record of its proceedings. The
applicant argued that by breaking up the illegal meeting, his attorney clearly did object to it when
he caught the BOI members and the Legal Advisor “red-handed meeting in secret in violation of
the PERSMAN.” The applicant stated that the “issue is that no one, including the applicant,
really knows what advice or discussion was had at the secret meeting.”
Regarding the JAG’s arguments about allegation (4)—that the two endorsements by
which the report of the BOI was forwarded to the BOR were irrelevant, unauthorized, and highly
prejudicial—the applicant argued that Article 12.A.15.h.8. of the Personnel Manual lists the
documents that the BOR can consider, and the list does not include opinions and recommenda-
tions by the Chief of OPM and Commander, CGPC. He argued that the JAG’s comment that
there was no evidence that the endorsements had influenced the BOR in an “inappropriate way”
was ludicrous because there was no “appropriate way” for the endorsements to influence the
BOR either. The applicant alleged that the endorsements
were a blatant and shameful attempt to influence the BOR by offering outcome-directed opinions.
… One can certainly infer from [Article 12 that] there is or should be a prohibition on the use of
endorsements recommending action in the discharge process because it intrudes on the independ-
ent, fair and impartial jurisdiction of the BOR, and thus deprives the applicant of his due process
laid out in the PERSMAN. … Perhaps the failure by the BOR to understand its task was directly
affected by the illegal endorsements, perhaps not. But it is clear that the recommendations offered
in the endorsements were both incorrect in their substance and as a procedural matter because they
intruded on the jurisdiction of the BOR. There was no need for endorsements of this kind, and
[the BCMR] has to assume that their inclusion operated to the prejudice of the applicant.
Regarding the JAG’s arguments about allegation (5)—that the BOI’s report showed bias
against the applicant—the applicant argued that the Recorder could not have pre-tabbed his
exhibits because some of them were excluded as irrelevant. In addition, the applicant submitted
an email dated April 12, 2005, in which the Chief of the Officer Boards Section at OPM stated
that the binder of the proceedings sent to the applicant “was a copy of what was assembled by
the board members and sent to us.” Therefore, he argued that the BOI’s tabbing of the evidence
does show prejudice. In addition, he argued that the Recorder’s rebuttal to his rebuttal to the
BOI report had been thoroughly discredited as it was riddled with errors and so the Government
should not continue to rely on it. Furthermore, the applicant argued, he could not have chal-
lenged the BOI members for bias at the start of the hearing because he was not yet aware of their
bias.
Regarding the JAG’s arguments about allegation (6)—that the Recorder continued to
argue about what had occurred in other cases even though the Legal Advisor had ruled that such
evidence was irrelevant, and that the Legal Advisor improperly excluded the applicant’s evi-
dence rebutting that contention—the applicant stated that since the JAG did not respond to his
allegation that the Legal Advisor unfairly excluded his rebuttal evidence to the zero-tolerance
policy, the BCMR should presume that the Coast Guard has conceded that members have been
retained following drug incidents.
Regarding the JAG’s arguments about allegation (7)—that the BOI’s speculation about
whether the applicant could be promoted was improper and irrelevant—the applicant stated that
the JAG’s argument that the BOI did not consider his potential for promotion simply because
they did not mention it in the report is rebutted by the fact that the BOI questioned CAPT J about
this issue during the hearing. The applicant also alleged that in the advisory opinion, the JAG
“impliedly concede[d] that this speculation was improper.”
Regarding the JAG’s arguments about allegation (8)—that the applicant was not provided
full access to all relevant records as required by Article 12.A.15.g.4.—the applicant stated that
there is no evidence that his inspection of the documents the day before the hearing was “mutu-
ally agreed upon.” He further stated that the JAG ignored the fact that records that he had
requested under FOIA were withheld without justification.
Regarding the JAG’s arguments about allegation (9)—that he was required to interview
several key witnesses by telephone because the Government refused to invite them—the appli-
cant stated that the JAG ignored that fact that it was “dirty pool” for the Recorder not to invite
the witness who knew him the most socially, LT M, to appear in person and then say in his
closing argument that none of the witnesses really knew the applicant socially. Moreover, the
Recorder argued this in rebuttal at the end of the hearing so that the applicant’s attorney could
not “correct the misconception.” He argued that the Recorder’s conduct in this regard was
“questionably ethical and conscious shocking.”
Regarding the JAG’s arguments about allegation (10)—that the Coast Guard violated
Article 12.A.15.d. of the Personnel Manual by responding to drug incident with separation in lieu
of disciplinary action under the UCMJ—the applicant stated that his point is not that the Coast
Guard cannot both punish and separate members but that the timing of the actions against him
suggest that the Coast Guard only initiated his discharge because his mast and letter of censure
had to be removed from his record. The applicant argued that the BCMR should infer from the
timing that the discharge proceedings were “motivated by a failure to achieve Article 15 punish-
ment.”
Regarding the JAG’s arguments about the BOR (12)—that it failed in its duty to perform
a separate impartial review—the applicant stated that the BOR’s report reveals that the BOR also
used the wrong standard, which had nothing to do with the Coast Guard’s core values, good
order and discipline, or being an affront to the integrity and authority of the service. The appli-
cant complained that the BOR provided no analysis of the evidence and failed to explain how it
could overlook the testimony of thirteen witnesses and recommend the applicant’s separation
even though no witness argued that he should be separated. The applicant argued that the
BCMR should not assume that the BOR members reviewed all the records between the day they
first convened and the day they reconvened because the BOR report does not say that the mem-
bers did so. Rather, the BCMR should consider the shortness of the BOR report and the lack of
discussion of the evidence as proof that the BOR conducted “the most superficial and cursory
review.”
APPLICABLE LAW
Drug Abuse Regulations
Article 20.A.1.a. of the Personnel Manual states that “[s]ubstance and alcohol abuse
undermine morale, mission performance, safety, and health. They will not be tolerated within the
Coast Guard.” Article 20.A.1.c.2. states that it is a goal of the Coast Guard to “[d]etect and sepa-
rate from the Coast Guard those members who abuse, traffic in, or unlawfully possess drugs.”
Article 20.A.2.k.1. states that the intentional use of drugs constitutes a “drug incident as
determined by the commanding officer.” Article 20.A.2.k.2. states that a “member need not be
found guilty at court-martial, in a civilian court, or be awarded NJP for the conduct to be consid-
ered a drug incident.”
Article 20.C.3.a. provides that “[c]ommanding officers shall initiate an investigation into
a possible drug incident, as defined in Article 20.A.2, following receipt of a positive confirmed
urinalysis result or any other evidence of drug abuse. The absence of a positive confirmed uri-
nalysis result does not preclude taking action based on other evidence.” Article 20.C.3.c. states
that “[b]efore being questioned in relation to a drug incident, members are entitled to be advised
of their rights under Article 31, UCMJ. This applies whether or not disciplinary action under the
UCMJ is contemplated.”
Article 20.C.3.d. states that “[i]n determining whether a drug incident occurred, a com-
manding officer should consider all the available evidence, including positive confirmed urinaly-
sis test results, … Evidence relating to the member's performance of duty, conduct, and attitude
should be considered only in measuring the credibility of a member's statement(s).”
Article 20.C.3.e. states that “[t]he findings of a drug incident shall be determined by the
commanding officer … using the preponderance of evidence standard. … A preponderance of
the evidence refers to its quality and persuasiveness, not the number of witnesses or documenta-
tion. A member's admission of drug use or a positive confirmed test result, standing alone, may
be sufficient to establish intentional use and thus suffice to meet this burden of proof.”
Article 20.C.4. states that “[i]f after completing the investigation described in Article
20.C.3, the commanding officer determines that a drug incident did occur, he or she will take
these actions:”
1. Administrative Action. Commands will process the member for separation by reason of miscon-
duct under Articles 12.A.11., 12.A.15., 12.A.21., or 12.B.18., as appropriate. …
2. Disciplinary Action. Members who commit drug offenses are subject to disciplinary action
under the UCMJ in addition to any required administrative discharge action.
Officer Separation Statutes
Section 321 of title 14 U.S.C. states that the “Secretary may at any time convene a board
of officers to review the record of any officer of the Regular Coast Guard to determine whether
he shall be required to show cause for his retention on active duty-- … (2) because of moral
dereliction, professional dereliction, or because his retention is not clearly consistent with the
interests of national security.” Section 322 states the following regarding Boards of Inquiry:
(a) Boards of inquiry shall be convened at such places as the Secretary may prescribe to receive
evidence and make findings and recommendations whether an officer who is required to show
cause for retention under section 321 should be retained on active duty.
(b) A fair and impartial hearing before a board of inquiry shall be given to each officer so required
to show cause for retention.
(c) If a board of inquiry determines that the officer has failed to establish that he should be
retained, it shall send the record of its proceedings to a board of review.
(d) If a board of inquiry determines that the officer has established that he should be retained, his
case is closed. …
Section 323 of title 14 U.S.C. states that a Board of Review shall be convened “to review
the records of cases of officers recommended by boards of inquiry for removal,” and that “[i]f,
after reviewing the record of the case, a board of review determines that the officer has failed to
establish that he should be retained, it shall send its recommendation to the Secretary for his
action.” However, if the BOR “determines that the officer has established that he should be
retained on active duty, his case is closed.”
under § 322 shall be
Section 325 of title 14 U.S.C. states that each officer under consideration for removal
(1) notified in writing at least thirty days before the hearing of the case by a board of inquiry of the
reasons for which the officer is being required to show cause for retention;
(2) allowed reasonable time, as determined by the board of inquiry under regulations of the Sec-
retary, to prepare his defense;
(3) allowed to appear in person and by counsel at proceedings before a board of inquiry; and
(4) allowed full access to, and furnished copies of, records relevant to the case at all stages of the
proceeding, except that a board shall withhold any records that the Secretary determines should be
withheld in the interests of national security. In any case where any records are withheld under this
clause, the officer whose case is under consideration shall, to the extent that the national security
permits, be furnished a summary of the records so withheld.
Section 326 of title 14 U.S.C. states that the “Secretary may remove an officer from
active duty if his removal is recommended by a board of review under section 323 of this title.
The Secretary's action in such a case is final and conclusive.” The Secretary has delegated his
authority under this chapter to the Commandant. See DHS Delegation Nos. 0160.1 and 0170.1.
Determination Board Regulations
Article 12.A.15. of the Personnel Manual provides the regulations for separating regular
commissioned officers for cause under 14 U.S.C. §§ 321-327. Article 12.A.15.c.2.i. states that
“[t]he existence of one or more of these or similar conditions may require removing an officer
for moral or professional dereliction: … Involvement in a drug or alcohol incident as defined in
Chapter 20 of this Manual.”
Article 12.A.15.d. states that a “commanding officer shall not use separation in lieu of
disciplinary action under the UCMJ, but if he or she believes the Service’s and officer’s interests
will be served better by separation proceedings rather than disciplinary action, he or she may so
refer any charges. The fact a court-martial has occurred shall not prohibit subsequent proceed-
ings under this Article; however, separation proceedings may not be initiated until a prior UCMJ
proceeding is complete.”
Article 12.A.15.e. authorizes Commander, MLCPAC to ask Commander, CGPC to
review an officer’s record to determine whether the officer should be considered for separation.
“If Commander, (CGPC-opm) decides further processing is warranted, Commander, (CGPC-c)
will refer the case to a determination board.” Whenever an officer “has demonstrated moral or
professional dereliction,” Article 12.A.15.f. authorizes Commander CGPC to convene a Deter-
mination Board of three senior officers to “impartially review” the officer’s record and other
relevant documents “to determine whether it should require the officer to show cause for reten-
tion” before a Board of Inquiry.
Board of Inquiry Regulations
Article 12.A.15.f.6. of the Personnel Manual states that if a Determination Board decides
that an officer is required to show cause for retention on active duty, Commander, CGPC will
a. Give the officer a copy of the determination board’s findings and all documents pertinent to the
case except those the Commandant determines should be withheld in the interest of national secu-
rity;
b. Notify the officer in writing of the reasons for which he or she is being required to show cause
for retention … ;
c. Notify the officer that Commander, (CGPC-c) will convene a board of inquiry to hear the case
at least 30 days after the date of notification of the determination board's findings;
d. Inform the officer his or her appearance before a board of inquiry is the only opportunity to
appear in person on his or her own behalf before final action in the case;
e. Notify the officer if separated from the Service after action by a board of review or at his or her
own request after a determination board’s finding he or she is required to show cause for his or her
retention on active duty, the officer will receive an honorable discharge if the reason for separation
is one contained in Article 12.A.15.c.1. and 5., and a general discharge if the reason is contained in
Article 12.A.15.c.2. or 3;
f. Notify the officer of his or her entitlement to severance or separation pay, as applicable;
g. Notify the officer that if retired after action by a board of review or at his or her own request
after a determination board’s finding, the officer will be subject to evaluation under Article
12.C.15. provisions as to satisfactory service in a temporary grade;
h. Allow the officer reasonable time, at least 30 days, to prepare his or her defense;
i. Allow the officer to appear in person and to be represented by counsel at proceedings before a
board of inquiry; and
j. Allow the officer full access to and furnishes copies of records relevant to the case at all stages
of the proceedings, except a board shall withhold any records the Commandant determines should
be withheld in the interests of national security. If any records are withheld under this clause, the
officer whose case is under consideration shall, to the extent national security permits, be given
the actual records or copies of them with the classified portions deleted.
Article 12.A.15.f.8. states that an “officer who has been notified a determination board
has found he or she should be required to show cause for retention on active duty may apply for
voluntary retirement or request early discharge from the Service. If the officer takes neither
action, he or she shall be ordered to appear before a board of inquiry.”
Article 12.A.15.h.1. states that the purpose of a BOI to “afford[]officers a fair, impartial
hearing at which they have an opportunity to establish their retention in the Coast Guard is war-
ranted. The officers concerned may present evidence to refute matters of record offered against
them or otherwise establish they should be retained. The board of inquiry will consider all rele-
vant evidence presented at the hearing and make findings and a recommendation based on a pre-
ponderance of evidence.”
record as to the BOI’s purpose and about the following matters:
Article 12.A.15.h.3. states that the Legal Advisor will initially instruct the BOI on the
a. By its action, the board establishes the minimum level of performance of duty or integrity
acceptable of Coast Guard officers.
b. The board of inquiry is an administrative board not subject to the rules and procedures govern-
ing court or court-martial action. It does not judge the determination board’s action.
c. As a result of the determination board’s findings, the officer must show cause for retention on
active duty. At the board of inquiry, the officer concerned has the opportunity to present evidence
to refute matters of record offered against him or her or otherwise establish the Service should
retain him or her. …
f. The board evaluates all evidence and information it receives or develops on the matter it is con-
sidering in the hearing and arrives at a clear, logical finding consistent with the information and
evidence presented.
g. On the basis of its findings the board determines whether the Coast Guard should or should not
retain the respondent. …
j. An officer cannot offset allegations involving a defect in character or integrity by a rebuttal
which attempts to emphasize other qualities in his or her favor.
k. The board may consider these additional items to assist it in evaluating material submitted to it:
(1) A record of recently improved performance may result from an unusual effort on the
officer’s part after learning he or she was recommended for separation for cause. By itself it does
not overcome a pattern of ineffectiveness. The board may consider improved performance to-
gether with other evidence in the record to determine whether the officer has overcome the pattern.
(2) Promotion or selection for promotion, while proper evidence on the officer’s behalf,
does not necessarily justify his or her retention. …
(5) The officer concerned often solicits letters of commendation or appreciation or letters
stating the officer’s value to the Service. … The board must evaluate the circumstances under
which these letters are solicited in determining what weight it should give them. In so determining,
it is proper for the board to consider the letter of solicitation if one exists, the period during which
the writer knew or was closely acquainted with the officer, the writer’s familiarity with the offi-
cer’s habits and reputation, and the relationship between the writer and the officer, if any.
Article 12.A.15.h.4. states that the Legal Advisor shall explain to the officer that he has
the right to be represented by military or private civilian counsel; the right to challenge for cause
any member of the BOI; the right to present evidence and question witnesses; and the right to
“request any witness whose testimony is pertinent to the case to appear as a witness before a
board of inquiry hearing. The recorder of the board will invite those witnesses who meet Article
12.A.15.h.5.(j) requirements to appear.” Article 12.A.15.h.5.j. states that “[o]n the board’s
behalf the recorder invites both the officer’s and the Government’s witnesses to appear if both
are reasonably available and their testimony can contribute materially to the case. The proce-
dures and policies in Rule 703, Rules for Courts-Martial, MCM, 1984, will be used as a general
guide in determining what witnesses will be invited to appear. Article 49, UCMJ, will be used as
a general guide in determining witnesses’ availability.” Article 12.A.15.h.5.k.(3) states that the
Recorder “obtains factual information about requested and prospective witnesses’ availability
and then determines under Article 12.A.15.h.5.j. above which requested witnesses he or she will
invite to appear on both the officer’s and Government’s behalf.”
Rule 703(b)(1) of the Rules for Courts-Martial states that “[e]ach party is entitled to the
production of any witness whose testimony on a matter in issue on the merits or on an interlocu-
tory question would be relevant and necessary.” The discussion states that under Military Rule
of Evidence 401, “[r]elevant testimony is necessary when it is not cumulative and when it would
contribute to a party’s presentation of the case in some positive way on a matter in issue.”
Article 12.A.15.h.5.a. of the Personnel Manual states that a BOI “does not follow strict
rules of evidence in its proceedings. The board should allow the officer concerned to present his
or her case without undue interference; however, the officer should observe reasonable bounds of
relevance. Decisions on the validity of these regulations and the constitutionality of the statutes
authorizing this procedure are outside the board’s responsibilities, and the board should not per-
mit argument on these matters. The assigned legal adviser decides questions on the procedures
prescribed by these regulations.”
Articles 12.A.15.h.5.f. & g. state that the Legal Advisor “instructs the board and respon-
dent as appropriate, rules on all questions of evidence and procedure, and may excuse a member
on challenge for cause. … The president may seek the legal advisor’s guidance whenever neces-
sary, but the legal advisor will advise the board in open session in the presence of the officer
concerned and his or her counsel and these proceedings become a part of the record.” Subpara-
graph i states that the “board shall keep a verbatim record of its proceedings in open session.”
Article 12.A.15.h.6.a. states that a BOI “must carefully consider the facts of each case
and be specific with respect to the underlying facts which support its findings and recommenda-
tions.” Article 12.A.15.h.6.b. states that “[b]efore the board determines its findings and recom-
mendations, it should review the purpose for which it was constituted, its guidance, and the evi-
dence present before it in considering the following:”
(1) The determination board found the officer concerned should be required to show cause. …
(2) The purpose of the board of inquiry is to afford the officer concerned an opportunity to present
evidence to refute matters of record offered against him or her or to otherwise establish the Service
should retain him or her. [Emphasis added.]
(3) The officer concerned must refute the Government’s evidence and present evidence affirming
his or her contention he or she is qualified to retain his or her current status. [Emphasis added.]
(4) The board must consider an officer’s record as a whole and make its recommendation based on
a preponderance of evidence. Refuting any single reason for removal does not necessarily refute
other documented reasons the board considers.
Article 12.A.15.h.7. provides that the Board “determines its findings and recommenda-
tion by secret written ballot in closed session”; “prepares a brief statement of the reason(s)
(including factual data if necessary for clarification) for its findings”; and then “makes an appro-
priate recommendation, limited to either retention or separation without qualifications.” The
president of the BOI advises the officer of the board’s decision in open session.
Board of Review Regulations
Under Articles 12.A.15.h.8.b. & c. of the Personnel Manual, when a BOI decides that an
officer should be separated, the case is forwarded to a Board of Review, and the applicant is
allowed to file a rebuttal to the report of the BOI within 15 days after receiving a copy of the
proceedings of the BOI. If the applicant files a rebuttal, the Recorder has 10 days to file a
rebuttal to the applicant’s rebuttal. Under Article 12.A.15.h.8.d., a “verbatim record of the board
of inquiry proceedings shall be sent to Commander, CGPC.”
Under Article 12.A.15.i.1., upon “receiving the proceedings record of the board of
inquiry which recommends separating an officer for cause, Commander, (CGPC-c) convenes a
board of review.” The BOR “reviews the records and documented evidence the board of inquiry
considered and made a part of its proceedings and any additional information the officer con-
cerned or the recorder submitted under Article 12.A.15.h.8., to determine whether the officer
concerned has or has not established he or she should be retained in the Coast Guard.” Art.
12.A.15.i.3. “After reviewing the case, the board of review determines without qualification
whether to retain or separate the officer.” Art. 12.A.15.i.5. “If the board of review determines to
retain the officer, the case is closed.” Art. 12.A.15.i.7. Under Articles 12.A.15.i.8. & 9., if the
BOR decides to separate an officer, the BOR “proceedings and recommendation are sent to the
Commandant, who has final decision authority,” and “[i]f the Commandant concurs with the
board of review recommendation, the officer shall be separated.”
FINDINGS AND CONCLUSIONS
The Board makes the following findings and conclusions on the basis of the applicant's
submissions, the Coast Guard's submissions, and applicable law:
The Board has jurisdiction concerning this matter pursuant to 10 U.S.C. § 1552.
The application was timely.
1.
2.
3.
4.
5.
The applicant requested an oral hearing before the Board. The Chair, acting
pursuant to 33 C.F.R. § 52.51, denied the request and recommended disposition of the case with-
out a hearing. The Board concurs in that recommendation.
The Board finds that the applicant’s discharge should be upgraded to honorable
because the record contains evidence of several procedural errors that create a perception of
unfairness in the record of the proceedings.
The Board finds that the BOI’s Legal Advisor erred by answering questions of the
BOI off the record and in the absence of the applicant and his attorney. Although the Legal
Advisor attempted to cure this error by paraphrasing the conversation on the record, his off-the-
record advice to the BOI did not comply with Article 12.A.15.h.5.g. of the Personnel Manual,
which states that “[t]he president may seek the legal advisor’s guidance whenever necessary, but
the legal advisor will advise the board in open session in the presence of the officer concerned
and his or her counsel and these proceedings become a part of the record.” In addition, since the
BOI had not yet retired to deliberate its decision, the Legal Advisor’s off-the-record conversation
with the BOI appeared to violate Article 12.A.15.h.5.i., which required the BOI to “keep a ver-
batim record of its proceedings in open meeting.” The Board notes that the Legal Advisor was
aware of these rules as earlier in the proceedings another off-the-record conversation was para-
phrased while on the record, although on that occasion the applicant’s attorney was apparently
present in the room while the off-the-record legal advice was given.
The Board finds that the BOI’s report contributed to the perception of unfairness.
The BOI was tasked simply with weighing the evidence in the record and deciding whether the
applicant had proved that he should be retained by a preponderance of the evidence. In explain-
ing its decision to recommend his separation, however, the Board stated that in its “opinion, [the
applicant] committed four drug incidents.” This opinion was in addition to a finding that “[a]ll
four of these offenses constitute a drug incident as defined by Article 20.A.2.k.” Articles
20.A.3.k.1. and 20.C.3.e. of the Personnel Manual state that a drug incident is determined by the
member’s commanding officer, and the applicant’s CO had determined that there was just one
drug incident. Although the BOI’s opinion did not actually create additional “drug incidents” in
the applicant’s record and so did not violate the Personnel Manual, the language in the report
makes it appear that in balancing the evidence, the BOI weighed not the single drug incident that
was actually in the record, but four drug incidents.
The statement in the BOI report that the “the question is whether [the applicant]
knew that his actions were illegal and against Coast Guard policy” also contributes to the percep-
tion of unfairness. While the remainder of the report shows that the BOI considered other ques-
tions or issues in deciding whether to retain the applicant, “the question” articulated in opinion
#4 appears to misstate the primary issue before the BOI, which was whether the applicant should
be retained on active duty because he met the minimum level of performance of duty and integ-
rity acceptable of Coast Guard officers.
Likewise, the endorsements by the Chief of OPM and Commander, CGPC recom-
mending approval of the BOI’s recommendation to separate the applicant contributed to the per-
ception of unfairness. Article 12.A.15.i.3. of the Personnel Manual provides that the BOR shall
“review[] the records and documented evidence the board of inquiry considered and made a part
of its proceedings and any additional information the officer concerned or the recorder submitted
under Article 12.A.15.h.8. [rebuttals], to determine whether the officer concerned has or has not
established he or she should be retained in the Coast Guard.” No part of Article 12.A.15. allows
the Chief of OPM or Commander, CGPC to add their own recommendations about separation to
the documents reviewed by the BOR. Although as the JAG argued, endorsements are “standard
procedure” in the Coast Guard when forwarding documents such as the BOI proceedings, the
Board finds that the Chief of OPM and Commander, CGPC erred in sending their own personal
recommendations for separation with the proceedings delivered to the BOR. Although the
impropriety of the endorsement page was brought to the BOR’s attention in the applicant’s
rebuttal and the BOR report did not include the endorsement page in the list of documents it con-
sidered, the unwarranted addition of the substantive endorsements to the documents forwarded to
the BOR adds to the perception of unfairness in this case.
6.
7.
8.
The email of the Chief of the Officer Boards Section at CGPC to the members of
the BOI on January 17, 2005, also contributed to the perception of unfairness. Although the BOI
had already announced its decision not to retain the applicant in open session on January 14,
2005, and so the email could not have affected the outcome of the BOI, the apparent promise in
the email to keep the BOI members “in mind for future promotion boards held at CGPC” can be
interpreted as a suggestion of an inappropriate reward for their service on the BOI.
ported in the record:
The applicant made many allegations about denial of due process that are not sup-
9.
a.
The applicant alleged that the BOI members were biased against him, but
he offered no explanation as to why they would be biased. None of the things that the applicant
alleged were signs of bias—such as how the evidence was tabbed in the BOI report and the mis-
attribution of the excluded evidence—lead this Board to believe that there was any bias against
him. While the verb “paraded” is sometimes used derisively and in the context of the report
could be interpreted as criticism of the number of the applicant’s witnesses, it is not evidence of
bias against the applicant. There was nothing prurient or degrading about the BOI’s inquiry into
the relationship between the applicant and YN1 M. Article 12.A.15.h.3. advises BOIs that, when
officers submit letters of commendation or appreciation into evidence, they should “consider …
the writer’s familiarity with the officer’s habits and reputation, and the relationship between the
writer and the officer, if any.” Almost every witness who appeared in person or by telephone
was also asked to testify about how well he or she knew the applicant and about the nature of
their relationship—i.e., whether it was social as well as professional. Nor does the BOI presi-
dent’s off-the-record expression of concern about the applicant’s well-being after learning the
BOI’s decision convince this Board that the BOI members were biased against the applicant.
b.
The applicant alleged that the Recorder continued to argue about what had
occurred in other cases even though the Legal Advisor had ruled that such evidence was irrele-
vant and that the Legal Advisor improperly prevented him from presenting significant evidence
by instructing the BOI to ignore Exhibit 24. The transcript of the BOI proceedings, however,
clearly shows that the Legal Advisor ruled only that what happened in the prior cases docu-
mented in Exhibit 24 was irrelevant because none of those cases involved drug incidents and
“show cause” boards. The Legal Advisor never ruled that whether officers and enlisted members
with drug incidents had been retained or separated was irrelevant, so the Recorder was entitled to
continue eliciting testimony as to whether officers with drug incidents had been retained. The
applicant argued that Exhibit 24 was introduced to rebut the testimony elicited by the Recorder
that no other officer had been retained following a drug incident because of the zero-tolerance
policy. He argued that Exhibit 24 was relevant because it showed that an officer had been
retained by a special board following an alcohol incident, and Article 20 states that neither alco-
hol abuse nor drug abuse are tolerated. The policies for drug abuse and alcohol abuse under
Article 20 are significantly different, however. While any member with a single drug incident
must always be processed for separation under Article 20, which is why the Coast Guard claims
a zero-tolerance policy for drug abuse, Article 20 does not require an officer to be processed for
separation until after his second alcohol incident and an enlisted member may be retained even
after a second alcohol incident. In addition, while a “drug incident” always involves illegal con-
duct, the definition of an “alcohol incident” includes being too “hung over” to get to work on
time or behavior that is merely embarrassing.2 In light of these differences, the Board finds that
the Legal Advisor committed no error or injustice by finding that Exhibit 24 was not relevant to
whether the applicant should be retained or by instructing the BOI not to consider Exhibit 24.
The Legal Advisor did not prevent the applicant from introducing any evidence about how prior
illegal drug use had been handled to rebut the testimony elicited by the Recorder that, under the
zero-tolerance policy, no officer had been retained following a drug incident.
c.
The applicant alleged that the testimony elicited by the Recorder about the
unlikelihood that the applicant would be promoted if retained by the BOI violated his due proc-
2 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.”
ess rights because his potential for future promotion was irrelevant to the question of whether he
should be retained. The applicant’s attorney, however, made the applicant’s future value to the
Coast Guard as an electrical engineer the crux of his argument for retention and elicited testi-
mony from almost every witness about how valuable the applicant’s engineering skills would be.
By his own questions, the applicant’s counsel put the issue of the applicant’s future value to the
Service as an officer with engineering skills on the table. Therefore, the Recorder was entitled to
ask questions to rebut this claim, and as CAPT J testified, having a drug incident and a negative
special OER in one’s record will “kill” any officer’s chance to be selected for promotion. The
Recorder tried to rebut the applicant’s claim to future value as an officer with engineering skills
by eliciting testimony that the applicant’s career as an officer could not be long.3 Although the
applicant argued that it was improper for the BOI to consider the potential length of his career,
this Board finds that the potential length of an officer’s career clearly factors into the calculation
of his future value to the Service, which in turn factors into his present value to the Service. (A
battery that will last twenty years is, all else being equal, more valuable today than a battery that
will last only five years.) Therefore, the Board finds that the testimony about the applicant’s
promotion potential was relevant as rebuttal evidence to the applicant’s claim of future value as
an officer. The Recorder’s solicitation and the BOI’s consideration of such testimony did not
violate the applicant’s right to due process.
d.
The applicant alleged that he was not provided full and timely access to
relevant records as required under Article 12.A.15.g.4. of the Personnel Manual. With respect to
the FOIA request, the applicant has not shown that he was entitled to see any of the documents
withheld. The transcript of the hearing indicates that the applicant did receive a copy of the BOI
precept prior to the hearing with only the names of the board members blacked out. The appli-
cant was allowed to challenge the board members for cause at the beginning of the hearing, and
he has not shown how he was harmed by not knowing their names before the hearing. The
applicant’s military records and the proceedings of the Determination Board were made available
to the applicant at least a week before the BOI. In addition to these documents, the Govern-
ment’s exhibits included only (a) seven photocopied parts of the Personnel Manual from Articles
12 and 20; (b) two ALCOASTs (Exhibit 14); (c) a Coast Guard pamphlet for Command Drug
and Alcohol Representatives, which states that one of the goals of the substance and alcohol
abuse program is to “[d]etect and separate from the Coast Guard those members who abuse, traf-
fic in, or unlawfully possess drugs” (Exhibit 15); and (d) three other documents that were
removed from consideration. Therefore, the Board finds that the applicant’s position and
defense during the BOI cannot possibly have been harmed by the alleged violation of Article
12.A.15.g.4. It is absurd for the applicant to claim unfair surprise that the Recorder would ask
the BOI to consider the provisions of the Personnel Manual that apply to separating members for
drug use. The Personnel Manual is a public document available on-line. Regarding Exhibit 15,
the language about it being a goal of the Coast Guard to separate drug users is taken directly
from Article 20.A.1.c.2. of the Personnel Manual and so its introduction as an exhibit cannot be
considered an unfair or harmful surprise to the applicant. Regarding Exhibit 14, the only perti-
3 Under 14 U.S.C. § 283, a lieutenant who is passed over for promotion by two successive selection boards is
separated on the June 30th following the second failure of selection for promotion while in or above the zone for
promotion. Since the applicant was promoted to lieutenant on October 29, 2002, under Article 5.A.4.a.1. of the
Personnel Manual, he would have been eligible for selection—though not necessarily “in the zone”—for promotion
beginning in 2006.
nent part of the ALCOASTs is that they mention the zero-tolerance policy. The applicant has
not alleged that he was unaware that the Coast Guard has long claimed to have a zero-tolerance
policy for illegal drug use. Moreover, the record shows that the applicant’s attorney, although he
objected to the introduction of the ALCOASTs based on their relevance, was perfectly prepared
to argue and elicit testimony during the BOI hearing that some members have been retained
despite the zero-tolerance policy and that the applicant should be retained as an exception to the
policy. The Board finds that the applicant has not proved by a preponderance of the evidence
that he was unfairly surprised or harmed as a result of the timing of his attorney’s inspection of
any of the Government’s exhibits.
e.
The applicant alleged that the Recorder unfairly failed to invite LT M,
who knew him socially as well as professionally, to testify in person, but then in his closing
argument, alleged that the applicant’s witnesses knew him only professionally rather than social-
ly. The Board finds that the Recorder committed no error or injustice in refusing to produce LT
M in person so that he had to testify by telephone. Under Rule 703(b)(1) of the Rules for Courts-
Martial and Rule 401 of the Military Rules of Evidence, the Recorder was not required to invite
witnesses whose testimony would be cumulative. The Board agrees with the Recorder that LT
M’s testimony was essentially cumulative in nature. Many witnesses, some of whom indicated
that they knew the applicant socially as well as professionally, testified on the same issues that
LT M testified about. After the applicant’s attorney stated in her closing argument that the wit-
nesses who argued for retention really knew the applicant, whereas the board members did not,
the Recorder argued in rebuttal that the witnesses “basically know [the applicant] in a profes-
sional sense. They weren’t with him during the 2000/2001 period. … [T]hey really don’t know
him socially.” The applicant argued that this argument was clearly wrong and unjust because
some of his witnesses did know him socially. The Board finds that what renders a relationship
primarily “social” rather than “professional” is sufficiently nebulous that the Recorder’s argu-
ment cannot be considered clearly erroneous or unfair. The Board is not persuaded that the
applicant was denied any due process or that the BOI’s decision was rendered unfair because LT
M testified by telephone rather than in person or because the Recorder argued that the witnesses’
relationships with the applicant were basically professional rather than social.
f.
The applicant alleged that the BOR did not give him a separate and inde-
pendent decision, as required by 14 U.S.C. § 323. He alleged that this failure by the BOR is
proved by the fact that the BOR met for only 80 minutes, which is not enough time to review the
voluminous proceedings, and because the BOR reached the same conclusion as the BOI despite
the arguments made in his rebuttal to the BOI and all of the evidence he had presented. The
applicant’s argument ignores the fact that the BOR first convened on May 24, 2005, and received
their precept; the applicant’s rebuttal to the BOI; the Recorder’s rebuttal; the applicant’s further
rebuttal; and the report and proceedings of the BOI with the enclosed evidence, including the
proceedings of the Determination Board. Then seven days later, the BOR reconvened for 45
minutes of deliberation in session before issuing a unanimous decision not to retain the applicant.
Seven days was ample time for the BOR members to review all of the documents provided. The
applicant argued that there is no proof that the BOR members actually reviewed the records
during those seven days, but this Board will not assume that the members of the BOR completely
ignored their duty to review the records based on how much time they spent deliberating the
matter with each other and the brevity of their report. No regulation required the BOR to explain
when they reviewed the records or to write a longer report with a discussion of the facts and evi-
dence. In addition, the mere fact that the BOR’s decision was the same as the BOI’s decision is
not evidence that the BOR failed to fulfill its mandate under the precept and 14 U.S.C. § 323.
The applicant has not proved that he was denied due process by the BOR.
g.
The applicant alleged that the Coast Guard violated Article 12.A.15.d. of
the Personnel Manual by responding to his admission of drug use with separation in lieu of dis-
ciplinary action under the UCMJ. However, that article states that a “commanding officer shall
not use separation in lieu of disciplinary action under the UCMJ, but if he or she believes the
Service’s and officer’s interests will be served better by separation proceedings rather than disci-
plinary action, he or she may so refer any charges.” Since the applicant’s commanding officer
did not initiate court-martial proceedings, she presumably believed that the applicant’s and the
Service’s interests were better served by not trying him by court-martial. The applicant’s mis-
conduct was too old to fall within the purview of Article 15 of the UCMJ, but even if it were not,
Commander, MLCPAC would still have been required to process the applicant for separation
under Article 12.C.4. of the Personnel Manual. Article 20.a.2.k.2. clearly contemplates separa-
tion based on a drug incident without action under the UCMJ as it states that a “member need not
be found guilty at court-martial, in a civilian court, or be awarded NJP for the conduct to be con-
sidered a drug incident.” The applicant argued that if his CO could have effectively punished
him with NJP under Article 15, the applicant would not have been processed for separation under
Article 12.A.15 of the Personnel Manual. However, Article 12.C.4. requires a CO to process for
separation a member with a drug incident, and no part of Article 20 states that, if a member is
punished at mast for a drug incident, his CO need not process him for separation. The applicant
has not proved that the Coast Guard violated any provision of the Personnel Manual by separat-
ing him under Article 12.A.15. without first punishing him under the UCMJ.
10.
Although the applicant argued that he is entitled to reinstatement on active duty,
the Board finds that he has not proved by a preponderance of the evidence that the BOI, the
BOR, or the Commandant committed error or injustice4 in not retaining him on active duty. The
applicant was able to point out several errors made over the course of the proceedings, and those
errors cumulatively created a perception of injustice, but the Board is not persuaded that the
errors actually prejudiced the outcome of the proceedings. The applicant’s admission that he
used marijuana four times while serving on active duty was overwhelming evidence that he did
not meet the minimum level of performance of duty and integrity acceptable of Coast Guard
officers. Although the applicant argued that under Article 12.A.15.h.6.b.(2), the BOI should not
have focused on his admitted drug use because he opted not to “refute matters of record offered
against him” but to “otherwise establish the Service should retain him,” this argument ignores
the very next sentence in the Personnel Manual, Article 12.A.15.h.6.b.(3), which states that the
“officer concerned must refute the Government’s evidence and present evidence affirming his or
her contention he or she is qualified to retain his or her current status.” By the applicant’s logic,
if an officer admits to every negative fact or allegation against him, no matter how bad, he must
be retained if he can show that there are also some very good things in his record. Nowhere in
Article 12.A.15. is there any indication that a BOI cannot consider the uncontested acts of mis-
4 For purposes of the BCMRs under 10 U.S.C. § 1552, “injustice” is “treatment by military authorities that shocks
the sense of justice but is not technically illegal.” 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)).
conduct that brought the officer to the BOI when deciding whether to retain the officer. There-
fore, the Board rejects the applicant’s argument that the BOI did not understand the burden of
proof he bore or failed to weigh the evidence of record reasonably. The BOI report’s focus on
the applicant’s drug use and related circumstances, including the Coast Guard’s zero-tolerance
policy, proves only that the BOI decided not to retain the applicant because of his drug use, the
related circumstances, and Coast Guard policy; it does not prove that the BOI did not also con-
sider and weigh all the positive evidence in the record and exercise its discretion accordingly.
11.
12.
The applicant argued that the Coast Guard has acted disingenuously and hypo-
critically by arguing against his retention and reinstatement as an officer while continuing to
employ him as a civilian engineer under contract. The applicant argued that the Coast Guard
should not be able to take advantage of his abilities while burdening him with a general dis-
charge. The Board finds nothing offensive or hypocritical in the Coast Guard’s unwillingness to
retain the applicant as a uniformed officer deployable on any number of missions but willingness
to pay a private company for his skills as an electrical engineer, which the Coast Guard already
paid for through his graduate school tuition.
The Board finds that the applicant’s discharge for unacceptable conduct was not
erroneous or unjust. However, because several errors in the proceedings created a perception of
injustice, the Board will order the Coast Guard to upgrade the applicant’s discharge to honorable,
which is the best possible discharge he could have received. Given the evidence of the appli-
cant’s unacceptable conduct, the Board finds no reason to disturb the narrative reason for sepa-
ration, separation code, or reentry code on his DD214.
but all other relief should be denied.
Accordingly, the applicant’s request for an honorable discharge should be granted
13.
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
ORDER
No other relief is granted.
The application of former LT xxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of
his military record is granted in part. His character of discharge shall be upgraded to honorable.
This correction shall be made on a new DD214 issued to him, rather than on a DD215.
Harold C. Davis, M.D.
Eric J. Young
Darren S. Wall
CG | BCMR | OER and or Failure of Selection | 2011-198
This final decision, dated March 28, 2012, is approved and signed by the three duly SUMMARY OF THE APPLICANT’S REQUEST AND ALLEGATIONS The applicant, a lieutenant (LT) on active duty, asked the Board to remove from his record a special officer evaluation report (SOER) with low marks1 covering his service from June 1 to October 13, 2009, when he was serving as Xxxxx xxxxx to a XXXXX; a memorandum documenting substance abuse screening, dated November 6, 2009; and a letter from the XXXXX (the...
CG | BCMR | Advancement and Promotion | 2008-158
You are advised of your right to appeal to the Commandant, U.S. Coast Guard, via official channels, in accordance with the provisions of paragraph 135 MCM, as amended, and Section 0101f, CG Supp. More- over, the applicant argued that it was the duty of the Coast Guard to retain the report of the BOI, and the Coast Guard’s “inability to preserve records as required by law and regulation cannot be used as a basis for denying applicant’s requested relief.” With regard to his failures of...
CG | BCMR | Discharge and Reenlistment Codes | 2012-003
The Recorder provided the applicant with the exhibits he intended to submit and a list of 22 witnesses who were to testify regarding “drug abuse, discreditable involvement with civil authorities, sexual perversion, and abuse of family member.” The exhibits included extracts of the Personnel Manual, photographs of bruises on the applicant’s wife and daughter and of the applicant performing at a bachelorette party, the applicant’s PDR, a CGIS report of an investiga- tion into the applicant’s...
CG | BCMR | Discharge and Reenlistment Codes | 2002-110
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...
CG | BCMR | Alcohol and Drug Cases | 2004-183
of the current Personnel Manual permits the administrative inspection of any unit, regular or Reserve, by mandatory urinalysis “to determine and maintain the unit’s security, military fitness, and good order and discipline.” Under Article 20.C.3.e., a positive urinalysis test result is sufficient to prove a drug incident. The applicant received his general discharge in 1985. Moreover, as the JAG stated, the applicant’s reliance on Article 31 of the UCMJ and the decision in Giles...
CG | BCMR | Discharge and Reenlistment Codes | 2007-155
Regarding the other DVA disability [rating] for tendonitis of his right shoulder, the applicant’s record does not support that he suffered any inability to perform his duties, other than temporarily during period of rehabilitation as noted in his medical record.” CGPC noted that although the applicant twice complained of a right shoulder strain while on active duty, at the time of his separation physical examination, he did not complain of current shoulder pain and he met the physical...
CG | BCMR | Other Cases | 2005-144
However, his record contains no page 7 documenting the results of alcohol abuse screening or treatment. Regarding the page 7 completed by the applicant’s commanding officer on July 22, 2005, the JAG stated that the Coast Guard’s Office of Military Personnel—rather than CGPC’s Advancement and Separations Branch—establishes all military personnel management policies. Pursuant to Article 20.B.2.f., the applicant’s command was required to document the alcohol incident on a page 7 in his record.
CG | BCMR | Discharge and Reenlistment Codes | 2007-122
Also on April 14, 2005, the Coast Guard Personnel Command (CGPC) approved the applicant’s request for separation, and the applicant received an OTH discharge on May 12, 2005. The applicant stated that the Coast Guard may argue that even if SK1 O’s statement had been sent to his counsel, the Coast Guard would still have taken action against him, but the out- come of such proceedings cannot now be known because LT S, the trial counsel, failed to dis- close the exculpatory evidence to the...
CG | BCMR | Alcohol and Drug Cases | 2008-065
CGPC did not remove the Page 7 dated February 17, 2004, from the applicant’s record, but neither was the applicant discharged as a result of his third documented alcohol incident. On June 1, 2007, the applicant’s new command noted that the applicant’s record con- tained documentation of a third alcohol incident (which, under the Personnel Manual, would result in his separation) and asked CGPC to remove it from his record. (authorizing commanding officers to determine whether an alcohol...
CG | BCMR | Alcohol and Drug Cases | 2004-158
On August 1, 2003, the applicant was discharged from the Coast Guard pursuant to Article 12.B.12 of the Coast Guard Personnel Manual. of the Coast Guard Personnel Manual states that the first time a member is involved in an alcohol incident, except those described in Article 20.B.2.f., the commanding officer shall ensure counseling is conducted and recorded on a page 7 entry in the member’s personal data record (PDR), acknowledged by the member, and a copy sent to CGPC. The record...