DEPARTMENT OF HOMELAND SECURITY
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 2006-153
xxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxx
FINAL DECISION
AUTHOR: Ulmer, D.
This proceeding was conducted according to the provisions of section 1552 of title 10 and
section 425 of title 14 of the United States Code. The Chair docketed the case on August 4,
2006, upon receipt of the completed application and military records.
who were designated to serve as the Board in this case.
This final decision, dated March 30, 2007, is signed by the three duly appointed members
APPLICANT’S REQUEST
The applicant asked the Board to correct her record by upgrading her general discharge
under honorable conditions (general discharge) to an honorable discharge, with no stigmatizing
separation code or reentry code. She further requested that her record be corrected by removing
all references to her general discharge and the revocation of her commission.
BACKGROUND
The applicant was a Coast Guard Academy graduate who was commissioned an ensign in
the Coast Guard on May 21, 2003. She was promoted to LTJG on November 21, 2004.
was prepared and submitted for the following reasons:
A special officer evaluation report (OER) for the period April 1, 2004, to May 17, 2005,
This OER is submitted under Article 10.A.3.c.1.d. to document previously
unknown behavior of
interpersonal, romantic, and sexual
relationships with numerous crewmembers. NJP awarded at Admiral's Mast on
17 May 2005 for violations of UCMJ Article 92. [The applicant] received
punishment of 20 days restriction and forfeiture of a half month’s pay for two
inappropriate
months. This OER is a derogatory report [in accordance with] Article 10.A.4.h.
due to removal from primary duty on 04Mar05.
In block 10 of the OER, the reporting officer described the applicant's potential in the following
manner:
[The applicant's] discovered behavior grossly violated the [Coast Guard's] Core
Values of Honor and Respect. [The applicant] was awarded NJP at Admiral's
Mast on 17 May 2005 for violation of Coast Guard Regulations on prohibited
relationships. Recommend immediate separation from Service; not recommended
promotion; not suitable for commission in any U.S. Armed Service.
On August 19, 2005, Commander, Coast Guard Personnel Command (CGPC) informed
the applicant that a special board would be convened under Article 12.A.11. of the Personnel
Manual1 to recommend whether her commission should be revoked. The applicant was granted
21 days to submit comments on her behalf.
On September 12, 2005, the applicant submitted her response to the proposed board
action. She stated that she accepted full responsibility for the poor choices that she had made
and requested to remain in the Coast Guard. She pointed to her excellent performance and the
efforts she had made to improve herself, such as becoming active in the church, attending weekly
sessions with an approved counselor, volunteering with the Humane Society of Fairfax County,
and continuing to maintain a positive attitude.
1 Article 12.A.11. of the Personnel Manual is entitled “Revoking Regular Officers’ Commissions
in Their First Five Years of Service.” Subsection a.1. states that the Service considers the first five years of
an officer’s career a probationary period during which he or she demonstrates ability to adapt to the
requirements of Coast Guard life and shows capability for future development. Subsection a.2. states that
the authority to revoke an officer’s commission is not designed for use when court-martial or separation
for cause proceedings would be more appropriate.
Subsection 12.A.11.b. sets forth the procedure for revoking an officer’s commission. Subsection
b.1. states that a commanding officer or a superior in the chain of command may recommend revoking
the commission of an officer who has fewer than five years of continuous service as a Coast Guard
commissioned officer. Commander (CGPC-opm) also may initiate board action to revoke an officer’s
regular commission based on knowledge of adverse information about the officer. A commanding officer
or superior in the chain of comman shall recommend revocation in the form of a letter to Commander
(CGPC-opm). Subsection b.2. states that the officer concerned shall be granted an opportunity to review
the revocation recommendation and permitted to comment on it. “If commander (CGPC-c) initiates the
action, the candidate shall be advised in writing of the contemplated actions and the reasons therefore
and given the opportunity to communicate to the special board in writing via the chain of command.
Any comments made by the members in the chain of command shall be furnished to subject officer who
shall be given 10 calendar days to respond to those comments.
Subsection 12.A.11.b.3 states that a panel of senior officers with cognizance of the officer’s
specialty shall review the recommendation. After reviewing the officer’s headquarters PDR and
associated documents, the panel recommends to the Commandant either executing the revocation
proceedings under this Article or closing the case. Subsection b.4. states that Commander (CGPC-opm)
sends the panel’s recommendations to the Commandant for approval, modification, or disapproval (14
U.S.C. 281).
On October 6, 2005, CGPC, Office of Personnel Management (CGPC-opm-1) advised
the applicant that the revocation panel would convene on October 19, 2005, and that it would
review her personal data record, the convening order, a copy of her September 12, 2005
statement, and sworn statements from the Coast Guard Investigative Service (CGIS)
investigation into her alleged misconduct. CGPC-opm-1 also informed the applicant that
pursuant to the Coast Guard Investigations Manual, she was not permitted to have a copy of the
CGIS investigation, but that arrangements could be made for her to review the investigation at a
local CGIS office, if she desired to do so.
On October 19, 2005, the revocation panel convened and considered the following record
and documents: the precept, the August 19, 2005, letter of notification, the applicant's
September 12, 2005 letter, sworn statements from the CGIS investigation dated March 2, 2005,
and the applicant's personal data record. After reviewing all the evidence, the revocation panel
made the following recommendation:
[I]t is the unanimous opinion of the members of the Panel that this case be closed.
[The applicant] has readily accepted accountability for her significant breach of
good order and discipline involving prohibited relationships. [The applicant] is
performing well in her current assignment and has redirected her efforts toward
self-improvement, demonstrating the potential for continued service.
On December 20, 2005, CGPC forwarded the special board report to the Commandant
with an endorsement disagreeing with the board's recommendation that the applicant's
commission not be revoked. In this regard CGPC stated:
[The applicant's] behavior onboard [the cutter] directly contradicts the Coast
Guard’s Core values. [The applicant] admitted engaging in prohibited sexual
relationships with at least three enlisted crewmembers onboard [the cutter].
Although she did apologize and take responsibility for her poor judgment, it does
not change the fact that [the applicant] willingly entered into such relationships
despite the extensive training she received at the [Coast Guard] academy outlining
appropriate and
inappropriate relationships between officers and enlisted
personnel.
[The applicant's] actions negatively impacted the work environment onboard [the
cutter] and resulted in a loss of the crew's respect for her and other officers on
board. [The applicant's] inappropriate conduct makes it difficult for her to
effectively hold others accountable for indiscretions and lack of judgment in the
future, which limits her potential for leadership positions in the officer corps.
Through her actions, [the applicant] brought discredit not only to herself, but to
the Coast Guard and [the cutter]. [The applicant] should be held accountable for
her inability to adhere to the Coast Guard's policy as set forth in the Personnel
Manual.
On December 27, 2005, the COMDT (CG-1) wrote that he fully concurred that the
applicant's commission should be revoked.
On January 3, 2005, the Acting Commandant took action on the revocation panel report.
He noted the proceedings, findings, and recommendation of the panel and revoked the applicant's
commission pursuant to section 281 of title 14 of the United States Code.
On April 3, 2006, the applicant was discharged from the Coast Guard with a general
discharge due to unacceptable conduct, with the corresponding GNC (unacceptable conduct)
separation code, and an RE-4 (not eligible to reenlist) reenlistment code.
ALLEGATIONS
The applicant alleged that her discharge should be set aside because the underlying
proceedings were illegal or unjust. She contended that the Acting Commandant's action
revoking her commission was an ultra vires act and of no effect because the Secretary, on whom
Congress conferred the revocation power, had not delegated that power to the Commandant.
She referred the Board to Department of Homeland Security (DHS) Delegation No. 0170.1 in
support of her contention. (Under this delegation the Secretary specifically authorized the
Commandant to carry out 102 functions, including authority to "Remove an officer from active
duty under section 326, Title 14, U.S. Code, utilizing the procedures set out in 14 U.S.C. 321
through 325." The delegation did not mention the authority to revoke the commissions of
officers with less than five years of service under section 281 of Title 14 of the United States
Code2; nor did the Secretary expressly reserve this power unto himself.)
The applicant alleged that the Coast Guard committed a serious injustice by not giving
her copies of the statements that were obtained by CGIS and considered by the revocation panel.
She stated that she was only afforded 90 minutes or less to read the statements prior to the mast,
which occurred months before she was required to respond to the proposed revocation.
The applicant alleged that the Coast Guard committed a further injustice by not providing
her with a copy of the adverse endorsement to the revocation panel's favorable recommendation
prior to action by the Acting Commandant. She argued that it was fundamentally unfair that she
did not have an opportunity to comment on the matters set forth in the endorsements to the
revocation panel's recommendation.
Last the applicant alleged the following:
Substantively, revocation is contrary to the limited purposes set forth in Article
12.A.11.a.2 of the Personnel Manual. [The applicant's] misconduct was addressed
under the UCMJ and could have been addressed in a separation for cause
proceeding. The revocation process is plainly not intended as a surrogate for
2 Section 281 of title 14 of the United States Code provides that the Secretary, under such regulations as
he may prescribe, may revoke the commission of any regular officer on active duty who, at the date of
such revocation, has had less than five years of continuous service as a commissioned officer in the
Regular Coast Guard.
VIEWS OF THE COAST GUARD
On January 3, 2007, the Judge Advocate General (JAG) of the Coast Guard submitted an
advisory opinion recommending that the Board deny the applicant’s request. The Coast Guard
asserted that it acted within its authority to revoke the applicant's commission in accordance with
Article 12.A.11. of the Personnel Manual. The JAG stated that the applicant incorrectly cited
DHS Delegation No. 0170.1 as controlling in this case. The JAG noted that 14 U.S.C. § 281
grants the Secretary the power to revoke commissions of officers with less than five years of
service under regulations prescribe by him. The JAG further argued that the Commandant has
been delegated the power to revoke commissions by DHS Delegation No. 0160.1, which states in
pertinent part, as follows:
those processes, with their procedural protections. Worse yet, the grounds stated
in [COMDT (CG-1's)] memorandum do not fall within the purposes set forth in
Article 12.A.11.a. of the Personnel Manual.
By virtue of the authority vested in the Secretary of Homeland Security by law . .
. I hereby delegate to the highest ranking official within each Organizational
Element the following authorities: 1. To exercise the authority of the Secretary
with respect to any personnel within his/her organizational element, including the
functions associated with the selection of candidate employees, assignment,
reassignment, classification, deployment, disciplining, training, EEO complaints,
grievances, promotion and termination . . .
The JAG stated that Management Directive (MD) No. 3330 also delegates specific
authorities for personnel action to the Coast Guard. Although it does not mention 14 U.S.C. §
281, it does list certain actions that must be approved by the Secretary, but revoking a
commission under 10 USC 281 is not one of them. Therefore, the JAG argued that the
Commandant retains the authority to revoke the commission of an officer with less than five
years of service under the general delegation No. 0160.1.
The JAG stated that while some ambiguity exists with respect to delegations 0170.1 and
0160.1, it is the position of the Coast Guard that the authority to revoke commissions has been
delegated to the Commandant by Delegation No. 0160.1. The JAG argued that an agency's
interpretation of its own rules is entitled to deference and such deference is particularly
appropriate where agency interpretation has been consistently applied. See Gose v. U.S. Postal
Service, 451 F.3d 831, 836-39 (Fed. Cir. 2006). According to the JAG, since September 2004,
the Coast Guard has revoked the commissions of seven officers pursuant to 14 U.S.C. § 281 and
DHS delegation No. 0601.1. The JAG stated that the Acting Commandant revoked the
applicant's commission in accordance with the procedures set forth in the Coast Guard Personnel
Manual.
The JAG asserted that the Coast Guard properly permitted the applicant to provide
comments to the revocation panel in accordance with the requirements in Article 12.A.11. of the
Personnel Manual. The JAG stated that the Coast Guard’s actions were not fundamentally unfair
to the applicant and did not “shock the sense of justice.” See Sawyer v. Reale, 208 Ct. Cl. 1010,
1011, cert. denied, 429 U.S, 854; 50 L. Ed. 2d 129, 97 S. Ct. 148 (1976) (defining injustice,
when not also error, as treatment by military authorities that “shocks the sense of justice”). In
this regard, the JAG stated that the applicant was notified of the proceedings, informed that the
revocation panel would consider all documents related to her special OER, and advised that she
could submit comments on her behalf. The JAG further stated the following:
The applicant has further failed to show that she was prejudiced in any way by the
process in which the revocation panel considered whether or not to revoke her
commission. The panel recommended that her case be closed and that her
commission not be revoked. There was no process that could have caused the
panel to reach a more favorable determination on the applicant's case.
The JAG argued that there was no requirement that the Coast Guard notify the applicant
of the revocation panel's recommendation before final action by the Commandant. The JAG
stated that the Coast Guard followed the procedures for revocation outlined in the Personnel
Manual by allowing the applicant an opportunity to comment on the reason for which the panel
was convened. He stated that the Personnel Manual did not require the Coast Guard to further
notify the applicant of the panel's recommendation and afford her an additional opportunity to
comment before the Commandant's final action.
The JAG stated that the applicant's commission was properly revoked under Article
12.A.11. of the Personnel Manual despite her argument that her misconduct could have been
addressed in a separation for cause proceeding. He stated that given that the applicant had less
than five years of service and the reasons for the revocation panel, the revocation of her
commission was clearly authorized under Article 12.A.11. of the Personnel Manual.
APPLICANT'S REPLY TO THE VIEWS OF THE COAST GUARD
On January 26, 2007, the Board received the applicant's reply to the views of the Coast
Guard. The applicant offered the following:
With respect to the delegation of authority issue, it is first of no moment whatever,
that the Commandant arrogated to himself the Secretary's power to revoke in a
few other cases. That hardly makes it right. What is more important, as the Coast
Guard acknowledges in a footnote, in other cases, the revocation power was
indeed effectively exercised by the Secretary. More importantly, the Coast Guard
reliance on the generic delegation (No. 0160.1) is misplaced because it expressly
states that that "this delegation is not intended to supersede more specific
delegations or other authorities that have been or will be issued to individual
Organizational Elements." Delegation 0170.1 plainly reflects a policy of
reserving to the Secretary or a delegatee in the Secretary's Office powers with
respect to involuntary separation of commissioned officers. The advisory opinion
takes no account of this.
The Coast Guard's defense of the procedure employed is unavailing. An officer in
[the applicant's] position should obviously have been furnished copies of the
documents on which the proposed adverse action was predicated. A revocation
panel is not a "military commission" and she is not an "enemy combatant." Due
process applies, and an essential element of due process is having the evidence
cited against you. The advisory opinion neither explains nor justifies the Coast
Guard's failure to give [the applicant] copies of all of the evidence presented to
the panel so she could review it in depth and properly consult with counsel about
it, and with benefit of being able to show copies to counsel. The Coast Guard
never claims the statements were classified. This is simply not the kind of fair
play one expects of a federal agency-- especially one that performs regulatory
functions and ought to observe the highest standards for fairness. Would this pass
muster in a merchant mariner suspension-and-revocation proceeding? Are
commissioned officers entitled to less?
. . . Just as a member is entitled to comment on new matter raised in an SJA's
(Staff Judge Advocate's) review of post-trial clemency matters, so too, [the
applicant] should have been afforded a chance to comment on CGPC's first
endorsement, which went way beyond the panel's brief report. The endorsement's
claim that she brought discredit on herself, [the cutter], and the Coast Guard,
coupled with its demand that she be "held accountable" makes it completely clear
that this was viewed as a punitive matter, in blatant violation of PERSMAN
12.A.11.a.2.
FINDINGS AND CONCLUSIONS
1.
2.
The Board makes the following findings and conclusions on the basis of the applicant's
military record and submissions, the Coast Guard's submissions, and applicable law:
The Board has jurisdiction concerning this matter pursuant to section 1552 of title
10 of the United States Code. The application was timely.
The issue in this case is whether the Secretary delegated his authority to revoke
the commissions of officers with less than five years of continuous service under 14 U.S.C. §
281 to the Commandant. The applicant argued that her discharge should be set aside because the
Secretary has not delegated his authority to revoke commissions to the Commandant. She argues
that specific DHS Delegation No. 0170.1 lists one hundred and six specific delegations to the
Commandant but does not list the authority to revoke commission under 14 USC § 281. The
Board notes, however, that the Secretary did not reserve this power to himself in Delegation No.
0170.1.
3. The Coast Guard acknowledged that DHS Delegation No. 0170.1 did not specifically
delegate the Secretary's authority to revoke commissions to the Commandant. However, the
Coast Guard argued that the Commandant has the authority to revoke commissions pursuant to
14 U.S.C. 281 under DHS Delegation No. 0160.1, which was issued on March 3, 2004. In it, the
Secretary made several general delegations to the highest-ranking official within each
Organizational Element of DHS. There is no dispute that the Commandant is the highest-ranking
official within the Coast Guard. In Delegation No. 0160.1, the Secretary made the following
pertinent delegation to the Commandant:
To exercise the authority of the Secretary with respect to any personnel within
his/her Organizational Element, including the functions associated with the
selection of candidate employees, assignment, reassignment, classification,
deployment, disciplining, training, EEO complaints, grievances, promotion and
termination, time and attendance, leave, overtime, work schedules, and employee
award/recognition programs. This authority does not include the authority to
approve the retirement of O-9 and O-10 Coast Guard flag officers; such authority
is reserved to the Secretary . . .
4. The Board agrees with the Coast Guard that the Commandant has the authority to
revoke the commissions of officers with less than five years of service pursuant to 14 U.S.C. §
281 under DHS Delegation No. 0160.1, which to the Board's knowledge remains in effect.
Although there is a specific and a general delegation under discussion in this case, they are not in
conflict with each other and each stands on its own merit. In the instant case, the general
delegation does not conflict with the specific one in any manner because the specific delegation
neither grants nor reserves the Secretary’s power to revoke an officer’s commission under 14
U.S.C. § 281. Therefore, the power to revoke commissions could be granted in a general
delegation. Crowell v. IRS, 305 F.3d 474 (6th Cir. 2002) states that the rules of statutory
construction can be employed in construing delegations because delegations and statutes share
similar characteristics. Normally, a specific statute would control over a general statute. Id.
However, this rule would only be applicable if both the specific and general statute (or in this
case delegations) spoke to the same issue and were in conflict. See Halverson, et al v. Slater, 327
U.A. App. 971 12 F.3d 180 (1997) citing Edmond v. United States, 137 L. Ed. 2d 917, 117 S. Ct.
1573, 1578 (1997) ("Ordinarily, where a specific provision conflicts with a general one, the
specific governs"). As stated above, these two delegations are not in conflict.
5. Since there is no conflict between the two delegations, the Board looks to determine
whether the general delegation to the Commandant under No. 0160.1 included a delegation of
the Secretary's power to revoke an officer's commission under 14 U.S.C. § 281. In construing
this delegation, the Board looks to the language of the delegation itself. The language in the
Delegation is broad and far reaching. It grants to the highest-ranking official of each
Organizational Element (including the Coast Guard) the power to exercise the authority of the
Secretary with respect to any personnel within the organization, including the functions
associated with the selection of candidate employees, assignment, reassignment, classification,
deployment, disciplining, training, EEO complaints, grievances, time and attendance, leave,
overtime, work schedules, employee award/recognition programs, and promotion and
termination. The term “terminate” means to close, to bring to an end, or to discontinue the
employment of an individual. See Webster's Ninth New Collegiate Dictionary, p. 1217. The
term “revoke” means to annul by recalling or taking back or to rescind. Id at 1010. While
these two terms may not be exactly synonymous, a revocation of a commission effectively
terminates the employment of a commissioned officer with less than five years of service. See
Article 12.A.1.b. of the Personnel Manual (stating that the revocation of a commission causes a
complete separation from the Coast Guard). Looking at the language of this delegation, the
Board is satisfied that it was the intent of the Secretary to grant the Commandant the broadest
authority to terminate employees, and revoking an officer's commission is one method of
terminating employment. The Board is further persuaded in this regard by the specific grant of
authority to the Commandant under 0170.1 to involuntarily "[r]emove officers from active duty
under section 326, Title 14, U.S. Code, utilizing the procedures set out in 14 U.S.C. 321-325." It
makes no sense for the Secretary to grant the Commandant the authority to remove officers,
including career officers, from active duty for cause under section 14 U.S.C. § 326, while
prohibiting him from removing officers during their probationary period under 14 U.S.C. § 281.
See Article 12.A.11.A of the Personnel Manual (the first five years of an officers career is
considered a probationary period).
6. However, even if Delegation No. 0160.1 were ambiguous with respect to the
Commandant's power to revoke commissions, the Board would defer to the agency's
interpretation of that delegation. In this case, the Coast Guard has interpreted DelegationNo.
0160.1 as delegating to the Commandant the authority to revoke commissions. As the JAG
argued, an agency's interpretation of its own rules is entitled to deference. See Gose v. U.S.
Postal Service, 451 F.3d. 831, 836-39 (Fed. Cir. 2006); see also Halverson, et al. v. Slater, 327
U.A, App. 97l 12 F.3d 180, 184-85 (1997), citing Chevron USA, Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984) (courts are
precluded from picking and choosing among various canons of construction to reject reasonable
agency interpretation). The JAG stated that the Coast Guard has revoked the commission of
seven officers under Delegation No. 0160.1 since September 2004 based upon
the
recommendation of CGPC.3 The JAG argued that given the Coast Guard's consistent application
of the revocation procedures, its interpretation of Delegation No. 0160.1 is reasonable and is
entitled to deference. The Board agrees with the Coast Guard and finds that the agency's
interpretation of Delegation No. 0160.1 is reasonable, and therefore, it is entitled to deference.
7. The applicant has presented no law or other authority that would cause the Board to
reach a different conclusion on this issue. The applicant's reference to Nolan v. United States, 44
Cl. Ct. 49 (1999) is not applicable to this situation. The Nolan case decided whether the
Commandant was delegated the authority to approve that officer's discharge from the Coast
Guard in the wake of conflicting delegations and reservations of authority. As discussed above
there is no conflict between the specific delegation and the general delegation in this case
because the specific delegation does not mention 14 U.S.C. § 281 in any manner. Nor does
Delegation 0170.1 state that those specific functions mentioned therein are the complete and only
functions that may be delegated to the Commandant.
3 The JAG also stated that the commissions of three other officers have been revoked by the Secretary
under 5.A.5.d.2 of the Personnel Manual. This provision deals with ensigns whose records were
considered by selection boards on a fully qualified basis and who were determined to be performing
unsatisfactorily. Although the JAG stated that the revocations were affected by signature of the Secretary
approving the results of the promotion board, this provision states that the Commandant will revoke the
commissions or vacate the temporary appointments of ensigns in their first three years of commissioned
service regardless of Article 12.A.9 and 12.A.11. Therefore, the Board finds that the Secretary only
approved the action of the selection board which included a recommendation that certain commissions
be revoked. Under the regulation, the Commandant would have revoked the commissions.
8. The applicant noted that the preamble to Delegation No. 0160.1 states "this delegation
is not intended to supersede more specific delegations or other authorities that have been or will
be issued to individual Organizational Elements." In this regard, the applicant argues that since
Delegation No. 0170.1 plainly reflects a policy of the Secretary reserving for himself the power
to involuntarily separate commissioned officers, Delegation No. 0160.1 cannot not supersede it.
The applicant misreads Delegation No. 0170.1. The authority to involuntarily "[r]emove officers
from active duty under section 326, Title 14, U.S. Code, utilizing the procedures set out in 14
U.S.C. §§ 321-325" is delegated to the Commandant and not reserved to the Secretary. The only
powers the Secretary expressly reserved under Delegation No. 0170.1 were those with respect to
certain military justice matters under item 13. Moreover, the power to revoke commissions
emanates from 14 U.S.C. § 281, a separate and independent statute from 14 U.S.C. § 326, which
grants the power to involuntarily remove an officer from active duty, after meeting certain
statutory due process requirements. The applicant has presented no evidence that they are
interrelated or interdependent, such that they must be construed and read together. In light of the
above discussion, the Board finds that the Secretary delegated to the Commandant the authority
to promote and terminate employees of the Coast Guard under Delegation No. 0160.1 without
limitation as to manner or method, which would include the authority to revoke the applicant's
commission pursuant to 14 U.S.C. § 281.
9. Contrary to the applicant's contention, the Coast Guard did not commit an injustice by
not providing her with a copy of the CGIS statements that were considered by the revocation
panel. Section 281 of title 14 of the United States Code provides that "the Secretary under such
regulations as he may prescribe may revoke the commission of any regular officer on active duty
who, at the date of such revocation has less than five years of continuous service as a
commissioned officer in the Coast Guard." The Secretary delegated this authority to the
Commandant who published regulations in Article 12.A. of the Personnel Manual. Under these
regulations, the applicant was entitled to written notification and the reasons for the
contemplated action, and she was entitled to an opportunity to provide a written communication
to the revocation panel via the chain of command, all of which were provided to her. On
October 6, 2005, CGPC advised the applicant as to the date the revocation panel would meet and
as to the documents it would consider. This letter also advised the applicant that while she was
not permitted to have a copy of the CGIS investigation, arrangements could be made for her to
review the investigation at a local CGIS office. There is no evidence in the record that the
applicant availed herself of this opportunity. Accordingly, while the applicant may not have been
given a copy of the CGIS investigation, she was offered an opportunity to review it, which was
not required by the regulation. The Board is not persuaded that the applicant suffered an
injustice, which is defined as military treatment that shocks the sense of justice. See Sawyer v.
U.S., 18 Cl. Ct. 860, 868 (1989), citing Reale v. U.S. 208 Ct. Cl. 1010, 1011, cert. denied, 429
U.S, 854, 50 L.Ed. 2d 129, 97 S. Ct. 148 (1976). The applicant was treated in accordance with
the regulation and in the same as other members of the Coast Guard whose commissions have
been revoked.
10. Similarly, the applicant's contention that it was fundamentally unfair that she was not
provided a copy of CGPC's comments disagreeing with the favorable recommendation of the
revocation panel must fail. Neither the statute nor the regulation required that the applicant be
given an opportunity to comment on the revocation panel's recommendation. The statute and
regulation do, however, give the Commandant the authority to approve, disapprove, or modify
that recommendation, and there is no prohibition in the statute or regulation on what advice, if
any, the Commandant may obtain in reaching a decision on whether to revoke a commission.
Accordingly, the Board finds that the applicant has suffered neither error nor injustice simply
because she was not provided with a copy of or the opportunity to comment on CGPC's
endorsement of the revocation panel’s recommendation. She was provided with the due process
established by regulation at Article 12.A.11. of the Personnel Manual.
11. Last, the applicant argues that the revocation process was not appropriate for her
situation because Article 12.A.11.a.2. states that the authority to revoke an officer's commission
is not designed for use when a court-martial or separation for cause proceeding would be more
appropriate. She asserts that that a separation for cause proceeding would have been more
appropriate in her case because it may have offered her more procedural rights. The statute and
the regulation give the Coast Guard the authority to revoke the commission of an officer with
less than five years of service. The applicant met this criterion. As stated above, she admitted at
her non-judicial punishment that she had engaged in sexual activity with several enlisted
members of her unit in violation of the Commandant's order against such activity. The
Commandant determined that it was in the best interest of the Service that her commission be
revoked. Her disagreement with portions of the revocation proceeding and her suggestion that
some other forum was more appropriate for disposition of her case do not establish either error or
injustice on the part of the Coast Guard. The applicant has failed to prove that her discharge
should be set aside. The Board finds that Commandant had a sufficient basis for revoking the
applicant's commission and discharging her with a general discharge under honorable conditions.
Article 12.A.11.c. of the Personnel Manual states that an officer whose commission has been
revoked shall be discharged from the Coast Guard.
12. Accordingly, the applicant has failed to prove error or injustice in this case and the
Board finds no basis on which to upgrade her discharge, reason for separation, or reenlistment
code.
[ORDER AND SIGNATURES APPEAR ON NEXT PAGE]
The application of xxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCG, for correction of her
ORDER
military record is denied.
Philip B. Busch
Francis H. Esposito
Steven J. Pecinovsky
CG | BCMR | Other Cases | 2002-057
This final decision, dated December 31, 2002, is signed by the three duly APPLICANT’S REQUEST AND ALLEGATIONS The applicant asked the Board to order the Coast Guard to pay him severance pay for the time he served as a commissioned officer. of the Personnel Manual provides for separation by revoking the commissions of Coast Guard officers, who like the applicant have less than three years of commissioned service. There is no SPD code for officers, like the applicant, whose commissions are...
CG | BCMR | Other Cases | 2011-222
On October 1, 2007, the applicant was discharged from the Coast Guard Reserve. The JAG stated that on August 23, 2007, a panel of officers at PSC reviewed the applicant’s request to withdraw her letter of resignation in accordance with the Coast Guard Reserve Policy Manual. Therefore, when the applicant was RELAD on September 25, 2006, she was not serving under title 10 or any other contingency orders and had been off active duty for approximately one year when she was discharged from the...
CG | BCMR | Discharge and Reenlistment Codes | 2007-135
The applicant further argued that SN A’s CGIS statement was not credible because it contained inconsistencies with her subsequent statement to the PIO or with the statements of the other witnesses. She stated that she saw 3. SN B who was allegedly involved in homosexual acts with the applicant stated to CGIS that SN A was attracted to the applicant, but the applicant was not interested.
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 | OER and or Failure of Selection | 2010-031
The applicant alleged that he learned that the members of the substitute rating chain were close associates of the CO of the cutter and “may have been involved in the effort to suppress information concerning the [migrant interdiction] incident.” The applicant alleged that the Reporting Officer and Reviewer who prepared the first disputed OER were biased against him because his father had threatened the Reviewer with legal action and had reported both officers to Headquarters officials in...
CG | BCMR | OER and or Failure of Selection | 2006-030
In Godwin, the Coast Guard determined that ten of the twelve eligible RPA officers on active duty were not available to serve as members of the Py94 (promotion year 1994) RPA Selection Board for the following reasons: Three officers served on the previous year's board; one officer was being considered for continuation by the same selection board; one officer's record was inadequate; two officers were too junior and classmates of the candidate being considered by the board; two officers had...
CG | BCMR | OER and or Failure of Selection | 2007-160
This final decision, dated April 30, 2008, is approved and signed by the three duly APPLICANT’S REQUEST The applicant, who resigned his commission as a lieutenant junior grade (LTJG) in the Coast Guard on August 1, 2004, asked the Board to correct his record by (a) removing two officer evaluation reports (OERs) covering his service aboard a cutter as a deck watch officer from October 1, 2002, to January 31, 2003, and from February 1, 2003, to July 13, 2003; (b) removing all documentation of...
CG | BCMR | Advancement and Promotion | 2004-069
However, the reverse does not hold true: an attorney’s service in a legal program billet does not by itself constitute the basis for designation.” CGPC further stated that, even if the Board decides to correct the applicant’s record to show that she was commissioned as a lieutenant, she should not be awarded backpay because she “has not overcome the presumption of regularity with respect to the SRDC selection process that commissioned her an O-1E.” Moreover, “[d]esignation as a law...
CG | BCMR | Advancement and Promotion | 2006-156
He further stated that on May 25, 2004 he reapplied for a lateral change to the IV rating and that in September 2004, he received orders assigning him to CGIS, almost two years after he had been removed from the BMC advancement list. There is no record of either the servicing ISC or CGPC-rpm approving the Applicant’s lateral request. Although the applicant requested to have his name reinstated on the advancement list, the Coast Guard denied it stating that his request to lateral to the...
CG | BCMR | Alcohol and Drug Cases | 2004-169
The applicant also sent the Commandant copies of the statements indicat- ing that SN P had admitted to hiding marijuana on the cutter at some point, and he alleged that SN D had told the chief who represented him at mast that the marijuana belonged to SN P. He alleged that the chief and SN P were very “close.” In addition, he alleged that another seaman, who went to mast for drug use on the same day he did, stated at mast that he had seen SN H smoke marijuana. The JAG pointed out that the...