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 
 
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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